This week, on the last day of Maryland’s legislative session, lawmakers passed a bill that would provide access to counsel for low-income tenants facing eviction. The bill now heads to Republican Governor Larry Hogan. If Hogan signs it, Maryland will be the first state in the country to establish an access-to-counsel program for renters facing eviction.
Nationwide, most tenants are not guaranteed a right to counsel in housing court, as they would be in a criminal case, but housing justice advocates are working to change that so more people remain in their homes. During the COVID-19 pandemic, landlords have filed for more than 310,000 evictions in the five states and 27 cities tracked by the Eviction Lab at Princeton University.
“The pandemic has shown us the vulnerabilities and the uneven playing field that tenants have compared to landlords,” said Senator Shelly Hettleman, a Democrat and a sponsor of the Senate version of the Maryland bill. “Our eviction process is an extension of the business practice of landlords and that is something that I think needs to change.”
Since the start of the year, lawmakers in eight states, including Maryland, have introduced bills to provide counsel for certain renters facing evictions. Limited moratoriums at the federal and state levels have not prevented evictions in Maryland. Between July and November of last year, more than 2,500 households were evicted in the state, according to the Maryland District Court.
“A lot of people have defenses to stay in their homes,” said Delegate Wanika Fisher, a Democrat and a sponsor of the House of Delegates’ bill. “But you won’t know those defenses if you don’t have a lawyer.”
If enacted, the Maryland bill will create, over a four-year period, a statewide program for households with an annual income that is at or below 50 percent of the state’s median household income, which was estimated to be just over $95,500 in 2019.
“This is a matter of basic economic and race equity,” said John Pollock, coordinator for the National Coalition for a Civil Right to Counsel. “This can’t wait.”
If Hogan vetoes the bill, the legislature likely has enough votes for an override, according to Fisher. But because this year’s session ended on Monday, the legislative leadership can either override the governor’s veto by calling a special session or waiting until the legislature returns in January 2022.
If enacted, the program does not have a dedicated funding source, which must be determined later, Matt Hill, an attorney with the Public Justice Center, told The Appeal. A separate bill, House Bill 31, would have funded a Right to Counsel in Evictions Special Fund through increased civil court filing fees. But after passing both chambers, legislators did not reconcile the differing versions before the legislative session ended. Fisher said the bill would likely be reintroduced next session.
Aid from the federal government will help pay for the program, said Fisher.
The final version of the bill establishes a tenant’s access to counsel, but the original bill deemed counsel in eviction proceedings a right. The original bill, introduced in January, was titled, “Landlord and Tenant – Eviction Action – Right to Counsel” and the text stated in part that “tenants facing an eviction from their home shall have a right to legal representation in eviction proceedings.” In the final version that was sent to the governor, the bill is titled, “Residential Tenants – Access to Counsel.” Its purpose is to establish that “certain individuals shall have access to legal representation in eviction proceedings.”
Housing justice advocates were disappointed about the terminology change, but in substance, both versions mandate that tenants who meet income requirements are provided counsel.
“It’s extremely important that this is a right,” said Pollock. “But Maryland’s bill does say that tenants will get counsel and that’s the critically important thing and why this bill is still a huge step forward.”
The final language is similar to ordinances adopted in New York City and Cleveland, which state that qualifying low-income tenants facing eviction shall have access to counsel in eviction proceedings. Studies of both programs show that more than 85 percent of represented tenants were able to stay in their homes.
“We would have preferred to have some of the rights language in the bill,” said Hill. But, he said, “the goal is to make sure everyone has access to counsel.”
Last year, the Baltimore City Council approved a program, to be implemented over a four-year period, that will grant counsel to all residents facing eviction. The city’s eviction rate is more than twice the national average, according to the Evictions Study, a project of University of California, Berkeley and University of Washington researchers. An estimated 96 percent of Baltimore City landlords were represented in eviction proceedings either by an attorney or an agent, compared with 1 percent of tenants, according to a study of a sample of evictions from 2019.
The statewide bill, if enacted, “is going to affect … people of color in poor communities,” said Fisher. “They’ve been the person getting your groceries or your cashier or the person serving you.”
Several cities have proposed initiatives that would guarantee counsel to tenants facing eviction, including Denver and Tulsa, Oklahoma.
“The vast majority, almost all of landlords are represented in eviction proceedings and nearly no tenants are,” said Delegate VaughnStewart, a Democrat and sponsor of the Maryland bill. “When you’re dealing with something as violent as an eviction it only makes sense that defendants, at least have some sort of shot. The statistics are extremely clear here that tenants do a lot better when they’re represented.”
This year, lawmakers in states as varied as South Carolina, Nebraska, and Washington proposed right-to-counsel bills. A majority of American voters, including Democrats and Republicans, support a right to counsel in eviction proceedings, according to a poll from Data for Progress and The Lab, a policy vertical of The Appeal. Momentum is building to ensure every tenant has a right to counsel, said Pollock.
“Eight states have bills for a statewide right to counsel,” he said. “That’s never happened before.”
Washington State, Pollock said, “is right on the heels” of Maryland. Both chambers have passed legislation that requires that counsel be provided to, among others, tenants who receive certain benefits, like food stamps, or have an income at or below 200 percent of the federal poverty line. The chambers are now reconciling their differing versions.
“There’s no justice right now in the courts,” said Pollock. “If you don’t have a lawyer, it’s a foregone conclusion you’re going to lose no matter what the facts are or the law.”
In 2002, Al-Tariq Witcher was sentenced to 20 years in prison, with a 10-year mandatory minimum, for drug and weapons offenses.
Witcher told The Appeal that at the time of his arrest a year earlier in Newark, New Jersey, he was struggling with substance use disorder and on the waiting list for a treatment program. His daughter was about three months old.
Once he went to prison, his mother brought his daughter to visit at least once a month. At the end of some visits, when she was barely a toddler, she grabbed onto him when she heard the announcement that visits were ending, he said.
“My mom used to have to pry my daughter off of me and my daughter’s screaming, hollering, ‘Daddy, Daddy, Daddy, I don’t want to leave,’” he said. When Witcher left to stand with other prisoners on the other side of a curtain he could still hear her crying for him.
“We need to go be strip searched to return to my unit,” he said. “She’s wailing and I’m on the other side. Tears are rolling down my cheeks.”
Witcher said he was released in 2011 after he was resentenced. He’s now part of a growing movement to eliminate mandatory minimums. Repeal of state and federal mandatory minimums will help address the country’s mass incarceration crisis and its catastrophic effect on Black people, according to criminal justice reform advocates. Earlier this year, Witcher testified in favor of Senate Bill 3456, which, if enacted, will eliminate mandatory minimums in New Jersey for certain nonviolent offenses. Lawmakers in several state legislatures, including Oregon, Virginia, and California, have introduced similar proposals.
There has been movement at the federal level as well. Last month, U.S. Senators Dick Durbin and Mike Lee reintroduced the Smarter Sentencing Act, which would reduce, but not eliminate, federal mandatory minimum sentences for some drug offenses. In January, President Biden’s Department of Justice urged federal prosecutors to use discretion in charging decisions and rescinded a Trump-era memo that required them to pursue the most serious charges available.
“Mandatory minimums, it tears families apart. My daughter was three months old when I got arrested. She was 9 going on 10, when I came home,” said Witcher, now an organizer with New Jersey Together, a community group championing S-3456. “Mandatory minimums are hurting Black and brown families.”
S-3456 passed the state legislature, but Governor Phil Murphy, who has had the bill since March 1, has not signed it nor has he publicly indicated if he intends to sign it in its current form. Murphy’s office did not respond to requests for comment. In public statements, Murphy has said he supports the recommendations made by the state’s sentencing commissionto remove mandatory minimum sentences for nonviolent drug and property crimes.
In New Jersey, a Black person is more than 12 times more likely to be imprisoned than a white person, according to a 2016 report by the Sentencing Project—the highest racial disparity rate in the nation. Eliminating mandatory minimums for certain nonviolent offenses will help reduce this disparity, according to the state’s sentencing commission’s 2019 annual report. The commission did not include data on the number of people serving a mandatory minimum sentence broken down by race, but it cited a National Academy of Sciences 2014 report that concluded racial disparities are “partly caused and substantially exacerbated” by mandatory minimums.
The New Jersey bill only applies prospectively, but if Murphy signs it, a second bill that would apply retroactively is expected to pass the legislature, explained Alexander Shalom, a senior supervising attorney at the ACLU of New Jersey. To help reduce the state’s prison population, the removal of mandatory minimums must be applied retroactively, said Shalom. But Shalom noted that of the more than 12,000 people imprisoned in New Jersey, most are being held for offenses that wouldn’t be eligible under a retroactive bill. S-3456, he said, should be “a first step in eliminating mandatory minimums, not a last step.”
“Mandatory minimums are bad public policy,” said Shalom. “We can’t stop with the crimes that have been called nonviolent.”
Discretion should not be limited to certain crimes, said Kevin Ring, president of FAMM (Families Against Mandatory Minimums). Ring said opposition to some but not all mandatory minimums comes down to people thinking, “I still want mandatories for this class of people that I think we need to be scared of or that I don’t have sympathy for.”
Oregon lawmakers proposed four separate bills that would reform Measure 11, a ballot initiative approved in the 1990s that requires mandatory minimum sentences for a number of offenses classified as violent, including robbery, rape, assault, and arson. Only one bill, Senate Bill 401, is still being considered. SB 401 eliminates mandatory minimum sentences for most Measure 11 offenses. For it to advance to the governor, at least two-thirds of each chamber must pass the bill.
However, because of Oregon law, sentencing reforms cannot be applied retroactively, explained Bobbin Singh, founding executive director of the Oregon Justice Resource Center, which is supporting SB 401. As of March 1, almost half of Oregon’s more than 12,000 prisoners were serving a Measure 11 sentence.
In addition to the bill’s potential impact, reducing the prison population, depends in part on prosecutors and judges, said Singh. Prosecutors will need to show restraint when making charging decisions and judges will need to depart from presumptive sentencing guidelines, he said.
“Optimistically, yes, it should reduce the prison population,” said Singh. “But it’s also completely dependent on the practitioners themselves.”
Before this year, repeal was considered nearly impossible, according to Singh. But the protests last year after George Floyd’s killing in Minneapolis changed that, he said. As of March 1, Black people make up about 10 percent of Oregon’s prison population that is serving a Measure 11 offense, but Black residents accounted for just over 2 percent of the state’s estimated population in 2019.
“Up until recently even bringing up the idea of Measure 11 repeal, it was the third rail. It was too big, too bold,” he said. “What’s happened around the racial justice conversation in the past year, that’s really created, and I think opened up, space for [a] Measure 11 repeal conversation.”
The Oregon District Attorneys Association opposes repeal, claiming that Measure 11 has not had a disproportionate effect on Black residents. In a report by the association, it cites a 2019 study by the Vera Institute of Justice that found that since the measure took effect, the white incarceration rate has increased while the Black incarceration rate has decreased.
“Measure 11 addresses conduct not color,” reads the association’s report on Measure 11. “While racial and ethnic disparities exist in the justice system and require attention, multiple independent studies demonstrate that Measure 11 has not contributed to racial and ethnic disparities in the prison population.”
But a report released last month by the state’s Criminal Justice Commission shows that between 2013 and 2018, a Black male in Oregon was more than four times likelier than a white male to be indicted for a Measure 11 offense. Black women were more than three times more likely than white women to be indicted for a Measure 11 offense.
Severe racial disparities around mandatory minimums persist in Virginia as well, where lawmakers this year considered, but ultimately did not pass, an effort to eliminate all mandatory minimum sentences.
As of June 30, 2019, 41 percent of Black prisoners were serving one or more mandatory minimum sentences, compared with 26 percent of white prisoners, according to a Virginia State Crime Commission report released in January. The commission recommended that the legislature eliminate all mandatory minimums. Virginia has more than 200 offenses that are subject to mandatory minimums.
“Thinking as a trial attorney how many people … I’m going to have this year charged with mandatory minimums who are either going to have to serve those sentences or going to be coerced into taking some kind of plea deal,” said Brad Haywood, the executive director of Justice Forward Virginia and the chief public defender for Arlington County and the City of Falls Church. “That’s going to be thousands of people in Virginia. … Mandatory minimums are going to affect their lives and they’re going to result in them serving unjust sentences.”
But with momentum building to repeal mandatory minimums, the bill’s supporters say they plan to try again next session.
“We need to get rid of mandatory minimums,” said Jennifer McClellan, a state senator and gubernatorial candidate who supported the Senate bill. “It takes away the discretion for judges and juries to look at the circumstances of a particular case to figure out what is just and what punishment is proportionate.”
Art Acevedo, Miami’s new chief of police, works hard to project a public image that threads the needle between appearing tough on crime and assuring more liberal members of the public that he takes their concerns about policing seriously.
He’s good at it. Last summer, while still Houston’s chief of police, Acevedo marched with Black Lives Matter protesters and called for police reforms—while city government increased funding for his department.
And it’s paid off. Acevedo will make $315,000 a year in Miami, according to reporting from NBC 6, which is around $85,000 more than his predecessor and an increase from his $295,000 Houston salary.
But while Acevedo’s public image may line up with the “good cop” cliché he’s made central to his personal brand, a review of his recent public statements show that Miami’s new police chief regularly plays fast and loose with the facts when it comes to addressing public safety.
From the role of the judiciary and juvenile justice to bail reform, here are five recent quotes from Acevedo about public safety and why experts say he’s mistaken.
“Here’s the problem. We’ve got a judiciary that simply does not care, by and large. You’ve got judges, criminal court judges, that are letting hard core criminals with a history of crime go in one door and out the other.”
The chief’s claim to ABC13 Houston that judges are letting “hard core criminals” out isn’t backed up by the numbers, said Jay Jenkins, Texas Criminal Justice Coalition’s Harris County project attorney, who pointed out that approximately 90 percent of the 8,500-odd people in county jail are being held pretrial—according to the county’s own data.
“If anything, the criminal court judges of Harris County are over-reliant on pretrial incarceration, in no small part due to the willingness of people like Chief Acevedo and others in law enforcement to intentionally lie to the public in order to inspire fear and score political points,” Jenkins said.
Harris County Criminal Court Judge Franklin Bynum told The Appeal that Acevedo was lying and trying to divert attention from Houston’s police department’s clearance rates under the outgoing chief’s management.
“This is a completely broken system that fails at the things it purports to do and fails in practice every day,” Bynum said. “Art’s answer was to lie, ceaselessly, every day, and attempt to use the power of his [position] to advance that lie: that he was the one true hero and everyone else was trying to get everyone else maimed and killed. That is obviously not true.
“What’s happened is they’ve taken that bail reform mentality that, quite frankly, for us it’s about justice and for others it’s about mayhem, and they’re applying it to people and suspects and people charged with murder, with robbery … It is a mockery of the criminal justice system, and I think that we are really going to have to take a hard look at what’s going on across the country.”
In a Washington Post Live event in March, Acevedo’s opposition to bail reform came to the fore. The police chief repeatedly blamed criminal incidents in Houston on bond leniency. But, while public data on who is released in Houston on cash bonds are limited, a closer look at the available information on murder rates tells a different story about the Texas city’s violent crime.
Since Acevedo was hired in 2016, the Houston Police Department’s clearance of murder cases continued what was already a significant decline. Before the chief took office, clearance rates had dropped from 89 percent in 2011 to 63 percent in 2015, according to an internal audit obtained by the Houston Chronicle. The fall continued under Acevedo, with arrests in only 48 percent of murder cases in 2020. Texas Criminal Justice Coalition’s Jenkins described it as “a precipitous drop indicative of a failure of leadership.”
Even when the department resolved a murder case and it headed to court—136 times since January 1, 2019, according to historical court records from the Harris County District Clerk obtained by Texas Criminal Justice Coalition—a majority ended in acquittal or dismissal.
Just because Acevedo and the department weren’t able to get the right person the majority of the time, said Jenkins, that’s no reason to blame the judiciary.
“It is these failures of Chief Acevedo and HPD, and not the pretrial release of individuals deemed innocent until proven guilty by the laws of our country, that continue to make a mockery of the criminal justice system,” Jenkins said.
Bynum added that Acevedo, in his efforts to blame the judiciary, was acting like a kind of Texan Don Quixote: “He tilted at a fantasy where we judges were the bad guys and he was the one good guy.
3. Juvenile Crime
“What’s happening in a lot of the big cities, and Houston is not unique to that, is that the gang organizations and the drug trafficking organizations, they are actually using juveniles as trigger pullers. We are seeing more and more juveniles involved in criminal enterprises, involved in armed robberies, aggravated robberies, aggravated assaults, and murders. I mean, we have 11 juvies that are charged with murder, of last count that I had in our county, 2 with capital murder, and then hundreds are charged with violent felonies. The OGs are figuring out, you know what? These kids can go in and out, and so they’re starting to use them, and it’s become a huge problem.”
Attorney Tamar Birckhead, a former professor of law at University of North Carolina at Chapel Hill, told The Appeal that this comment from Acevedo, which also came during the Washington Post Live event, followed a pattern.
“These are old, tired canards that law enforcement uses to justify the harshest penalties for juveniles,” said Birckhead. “Not only is there no evidence that there is an increase in the number of juvenile offenders, but there is no evidence that older people are intentionally using younger ones to commit murders.”
The claim that gangs are using juveniles as hitmen struck Alex Vitale, professor of sociology at Brooklyn College and author of The End of Policing, as an indication that Acevedo just doesn’t take the realities of public safety very seriously. “These problems are rooted in deep social insecurities and the young people involved in violence have almost always previously been the victims of violence themselves and that victimization has never been addressed in ways that could help break the cycle of harm,” Vitale told The Appeal.
Plus, said Vitale, Acevedo is missing key components in how things got to this point in the first place—a perspective that conveniently elides addressing the systemic problems that have led to the violence.
“It’s time that we … talk to people working in high violence communities about how to intervene in the lives of young people to break the cycle of violence through credible messengers, trauma counseling, and access to adequate housing, incomes, and health services,” Vitale said.
4. Criminal Justice Reform
“We have criminal justice reformists. Now they’re saying, you know, 17 or 18, the brain hasn’t fully developed. And so now what they’re talking about is trying to push to not charge these individuals until they’re 25. So, imagine what’s going to happen if reformists get their way. Look, I’m a refugee. English is my second language, I grew up in a rough little town, and guess what? My brain didn’t develop, and some would argue it still hasn’t developed, but I didn’t go around shooting people, robbing people, stabbing people, beating people.”
Attorney Birckhead told The Appeal that this comment—also made during the Washington Post Live event—raises questions about the chief’s basic competence. The tropes are “no less offensive than the destructive trend in the 1990s to casually label adolescents who commit crimes as ‘superpredators,'” she added.
Beyond being offensive, Acevedo’s claim is inaccurate. The chief is hypothesizing about policies that would use adolescent neuroscience to create a permissiveness toward juvenile violence. That misrepresents how neuroscience is already used in the criminal justice system to evaluate adolescents’ decisions and actions, without being permissive.
“No less than the U.S. Supreme Court has relied on both neuroscience and social science to hold that kids’ brain development and psycho-social development are different than adults and, thus, they should be treated differently in the justice system,” said Birckhead, “beginning with the ways in which law enforcement initially investigates crimes to the harshness of the sentencing penalties imposed by judges.”
5. Reform-minded Prosecutors
“I’m not sure what the end game is, because chaos is not what the American people want.”
This comment about reform-minded prosecutors from Acevedo came during a “fireside chat” with the Manhattan Institute in February.
Attempts by prosecutors like Philadelphia District Attorney Larry Krasner to revamp their city’s approach to crime and incarceration strike Acevedo as a threat to public safety.
But as The Appeal reported in 2019, a University of Pennsylvania and University of Virginia study on Krasner’s efforts to limit the use of cash bonds for misdemeanors and nonviolent felonies in Philadelphia did not affect recidivism.
The study’s findings indicate that hyping up the “chaos” threat from bond leniency is inaccurate. A Loyola University study emphasizes the point. After a new Cook County policy allowed more felony defendants to be released on bond, there was no statistically significant increase in new crimes by those awaiting trial.
One of the University of Pennsylvania study’s authors, Aurelie Ouss, told The Appeal that while the policy in their study applied primarily to low-level crimes, she didn’t know of any municipality using bond leniency for violent crimes.
“We can’t really speak to what would happen if conditions of pretrial release were more lenient for violent offenses,” said Ouss. “But to my knowledge, this is not really the policy that different jurisdictions are considering.”
While Ouss said she finds the general debate over pretrial requirements interesting, it’s far from clear that bond leniency is being seriously considered anywhere with respect to the kinds of criminals who might cause the “chaos” Acevedo warned of.
“I don’t know of any place that is moving towards relief without conditions for these violent, serious crimes,” Ouss said.
Unless the Biden administration intervenes, thousands of federal prisoners released on home confinement due to the COVID-19 pandemic may be sent back to prison.
On January 15, President Trump’s Department of Justice—which notoriously rushed to execute 13 people in the last months of the Trump presidency—issued a legal memo that requires that people in federal custody on home confinement, because of the pandemic and who would not otherwise qualify, return to prison once the health emergency is over.
The federal CARES Act, passed last year, permits the attorney general to increase the amount of time a person can serve on home confinement in order to reduce the spread of COVID-19 in prisons, a provision that has led to the release of more than 23,000 federal prisoners. This remains the case for 30 days after the state of emergency has ended, but it does not require those released to return to prison. More than 7,500 people are currently on home confinement.
The memo’s author is Jennifer Mascott, former deputy assistant attorney general at the Office of Legal Counsel. Mascott is a former law clerk for Supreme Court Justice Brett Kavanaugh from when he was on the U.S. Court of Appeals for the D.C. Circuit. (She testified on his behalf during the 2018 Senate Judiciary confirmation hearings, telling legislators that “he would be an outstanding Supreme Court Justice.”)
Mascott’s memo is “unwarranted and unsupported by the law,” according to a letter sent on Thursday to Biden and Attorney General Merrick Garland by more than two dozen community groups. The Biden administration can and must rescind it, they wrote. The groups note that, according to the director of the Bureau of Prisons, out of the tens of thousands of people released, only one has committed a new crime.
“You have rightly acknowledged the toll of over-incarceration and the need to reduce the size of the federal prison population,” reads the letter to Garland and Biden. “Re-incarcerating thousands of individuals who are safely completing their sentences under home confinement while they reunite with their children, establish employment, and build ties to their community would undermine public safety and justice.”
FAMM, one of the letter’s signatories, has launched the Keep Them Home campaign and is collecting signatures on a petition that calls on the Biden administration to rescind Mascott’s memo. Kevin Ring, the group’s president, told The Appeal that those who were released did not expect to have to return to prison.
“These folks came home and were told, ‘You’re not going to have to come back,’” said Ring. “They reunited with their families. Some of them have kids who they said, ‘I’m home.’ They said, ‘Do you have to go back, Dad?’ ‘No.’ So this changes everything.”
On the morning of Jan. 29, 1998, Jill Barganier saw two men outside the home of her neighbor, Elizabeth Black, in Farmers Branch, Texas, according to a statement she later gave police. A short time later, Black’s husband arrived home, and found his wife and dog, both fatally shot.
Barganier told police the men she saw were white, with shoulder-length hair. She identified the driver from photo arrays as Richard Childs. Less than a week after the crime, police administered a hypnosis session for Barganier at her request, according to her trial testimony. The session was conducted by Officer Roen Serna, who had never hypnotized anyone before, according to Flores’s court filings. The goal, Barganier would later testify, was to help her relax so she could create a “good composite” of the passenger.
Afterwards, she was shown an array of six photos, including one of a man named Charles Flores, an associate of Childs’s. At the time, Flores had short, shaved hair, as depicted in his mug shot. She didn’t choose anyone, according to court filings.
More than a year after the crime, Barganier testified at Flores’s capital murder trial. She wasn’t expected to identify Flores, but after she saw him at the defense table, she told prosecutors that he was the passenger, according to appellate documents. On the stand, Barganier told the jury she was “over 100 percent” certain that Flores was one of two men she saw outside her neighbor’s home.
Eyewitness identification is a leading cause of known wrongful convictions, according to the National Registry of Exonerations. Memory, contrary to what was once popular belief, does not work like a recording; rather, it can be corrupted by a number of factors, including repeated viewing of a suspect.
Flores was convicted and sentenced to death.
Flores claims he is innocent and is seeking a new trial. Fighting Flores’s efforts is a surprising adversary: Dallas County District Attorney John Creuzot. A former judge, Creuzot was elected in 2018, after campaigning on the promise of criminal justice reform. Once in office, he was hailed in national media as a progressive prosecutor in a notoriously conservative state.
In January, Creuzot’s office filed a motion arguing Flores’s death sentence should stand. That same month, Creuzot was a signatory on an open letter to President Biden, urging him to support legislation to end the federal death penalty and to commute the sentences of those on death row. The letter was signed by 50 current chief prosecutors.
Creuzot’s seemingly opposing positions are not unique among other reform-minded prosecutors, including several of the letter’s signatories, who still seek death sentences, oppose death row prisoners’ appeals, and take no action to remove those on death row. In some cases, they have petitioned the court for execution dates.
The letter to Biden urged him to“disassemble the machinery of death.”
“Every federal prosecutor who still seeks death sets in motion the wheels of a failed system and the government-sanctioned taking of the life of a fellow American,” they wrote.
In a phone interview with The Appeal, District Attorney Creuzot said he does not oppose the death penalty. Capital punishment, he said, “should have a very, very limited applicability.”
Creuzot, like some of the letter’s other signatories, is defending old death sentences on appeal and seeking new death sentences. While Creuzot’s office has filed a motion seeking death in an upcoming case and Creuzot reiterated in an interview with The Appeal that the office is seeking death in the case currently, he also said that the office might not end up trying it as a death case if and when it goes to trial. The Appeal asked the name of the person. Creuzot replied, “He has a very odd last name.” After he spelled it, he said, “Don’t ask me what that is, but that’s his name. I think he’s from an African country, but I don’t know that’s a name from the country he’s from.” The man is Billy Chemirmir, an immigrant from Kenya. He is accused of killing more than 20 people.
Fellow signatory Bexar County, Texas, DA Joe Gonzales is pursuing a death sentence in the case of Otis McKane, who is accused of shooting a police officer. McKane’s trial was scheduled to begin last year, but after being intermittently postponed because of the pandemic, jury selection restarted in March. In another case, Gonzales is urging an appeals court to uphold the death sentence for Mark Gonzalez. Gonzalez was convicted in 2015 of killing a Bexar County Sheriff’s Office sergeant, more than three years before Gonzales took office.
“We will continue to closely scrutinize all cases with a pending death sentence and will support reversal of the death penalty in appropriate cases,” DA spokesperson Nicole Perez wrote in an email to The Appeal.
So far during Gonzales’s tenure, one death sentence has been reversed, with the DA’s support and assistance, according to Perez. There are currently seven people on death row from Bexar County.
“Under DA Joe Gonzales, the District Attorney’s Office will only seek the death penalty in extreme cases,” wrote Perez.
As support for capital punishment has declined, prosecutors even in traditionally conservative districts have said the death penalty should be used sparingly.
Texan Harris County DA Kim Ogg, who did not sign the letter, has criticized the death penalty as retributive. From 2017 to 2020, eight people from Harris County were removed from death row, according to the Texas Coalition to Abolish the Death Penalty; Ogg’s office supported at least several of these efforts.
“I consider myself smart on crime,” she told the Texas Observer in 2019, when asked if she was ‘smart on crime’ or ‘tough on crime.’ “I am part of the national reform movement.”
The death penalty should only be used, she has said, for the “worst of the worst.” In February, she supported Raymond Riles’s request for a new sentencing hearing. Riles, 70, is the longest serving death row prisoner in the United States. “Death penalty law has evolved and now requires jurors to be able to meaningfully consider and weigh mitigation evidence,” Ogg said in a statement. “In 1976, Riles’ capital murder jury was not given this opportunity.”
But Ogg has also sought new death sentences and defended existing ones, even in cases where there is evidence of an intellectual disability. Since taking office in 2017, three people from Harris County have been executed and two people prosecuted by her office have been sentenced to death; 76 people remain on death row.
Florida State Attorney Melissa Nelson, who, like Ogg, has positioned herself as a reformer, has taken similarly divergent positions. Nelson defeated incumbent Angela Corey, who had made national headlines for her prolific pursuit of death sentences.
“We’re trying to bring broader thinking about what public health and public safety look like,” Nelson told the ABA Journal in 2019. In 2018, Nelson launched the state’s first conviction integrity unit to review potential wrongful convictions.
Nelson does not oppose the death penalty—she also didn’t sign the letter to Biden—but has previously told local media that there will be a deliberative process to determine when her office seeks death. However, she’s currently pursuing a death sentence in the case of Dennis Glover, even though he is intellectually disabled, according to his lawyers with the American Civil Liberties Union. In letters to community members, Nelson seemed to suggest that she would consider dropping the death penalty if not for Glover’s innocence claim and his plans to appeal his conviction.
District attorneys are responsible for their jurisdiction’s death sentences, whether or not the sentencing occurred on their watch, said Natasha Minsker, a member of Los Angeles District Attorney George Gascón’s transition team on the death penalty. Gascón, along with an increasing number of candidates for prosecutor, had promised to never seek the death penalty. At least seven such chief prosecutors were elected nationwide last year.
“There are over 2,000 people on death row in this country,” said Minsker. “We cannot continue to ignore that.”
In December, Gascón, a signatory on the letter, announced that his office will seek to resentence the more than 200 people on death row from Los Angeles County. However, his office will not request a new sentencing hearing for Michael Gargiulo, according to the Los Angeles Times. In 2019, before Gascón took office, a jury sentenced Gargiulo to death, but he still has to be sentenced by a judge.
During his first year in office, San Francisco DA Chesa Boudin agreed to resentence the one person on death row from his county, and has said he will not seek the death penalty.
In 2019, California Governor Gavin Newsom imposed a moratorium on the death penalty, which halts executions for the duration of a governor’s tenure, but does not prevent executions under a future governor. That reality was most recently made clear at the federal level when former President Trump resumed executions after a de facto 17-year moratorium. Before President Obama left office, advocates urged him to commute the sentences of those on federal death row, said Minsker. But during his last few months in office he removed only two people from death row.
Local prosecutors can, and must, help remove people from death row, said Minsker. “Any district attorney who has qualms about the death penalty or is clearly opposed to the death penalty, they also have a moral responsibility to act to correct the wrong of these ongoing death sentences,” said Minsker. “It is their responsibility to step up and fix this injustice.”
But some prosecutors who claim the progressive mantle leave their death rows mostly intact, and say they have little authority to change them.
Fellow California prosecutor and signatory Contra Costa DA Diana Becton has, like Boudin, not authorized a death penalty case since taking office in 2017. But she has no policy to review the cases of the 14 death row prisoners from Contra Costa County, according to Becton’s statement to The Appeal, noting that the attorney general’s office handles death penalty appeals. “The capital punishment system is inherently flawed and is disproportionately applied to people of color and those with serious mental health issues,” she said.
St. Louis County Prosecuting Attorney Wesley Bell, another signatory, promised to never seek the death penalty and has urged other prosecutors to do the same. In a statement to The Appeal, Bell said that his office “lose[s] jurisdiction over our cases after they reach the appellate/post-conviction stage to the Missouri attorney general.” In 2019, his office started a new Conviction and Incident Review Unit to review past convictions for “integrity and constitutionality.” “It has not yet led us to question a past death penalty conviction made by this office before our administration,” he wrote.
There are currently 19 people on death row from Dallas County, where Creuzot is DA. The district attorney is “reviewing several death penalty cases that remain on appeal,” according to DA spokesperson Tasha Tsiaperas. During Creuzot’s tenure, three people have been removed from death row, with the DA’s support, she said.
“There isn’t a pathway in Texas for a district attorney to simply remove someone from death row,” Tsiaperas wrote in an email to The Appeal. “The office supports an individual’s right to fully litigate his or her case and to show under the law that there’s a reason to overturn the sentence. And the DA will review any case brought before the office.”
Since Creuzot’s inauguration, two people from Dallas County convicted by Creuzot’s predecessors have been executed: Robert Sparks, in September 2019, and Abel Ochoa, in February 2020. Flores may be the third.
Last October, Creuzot’s office petitioned the court to set Flores’s execution date for 2021. The Dallas County district court ruled that due to the COVID-19 pandemic, the State’s motion would be on hold until April 1. On April 2, Creuzot’s office petitioned the court to set an execution date of July 22, 2021.
In January, Flores’s appellate attorney, Gretchen Sween, filed a petition, which runs approximately 800 pages, seeking a new trial, based, in part, on Flores’s actual innocence. According to Flores’s latest appellate filings, his case was replete with errors. Trial prosecutors withheld potentially exculpatory evidence, including a statement from a State’s witness that cast doubt on Flores’s guilt.
After Flores was sentenced to death, Childs, Flores’s co-defendant, signed a confession that he shot Black, and pled guilty. Childs received a 35-year sentence, and was released on parole after serving 15 years.
When The Appeal spoke with Creuzot in March, he said he had not read the 800-page petition. “It’s too much of my time,” he said of Sween’s filing. “Somebody is going to have to condense it for me.”
Creuzot told The Appeal it was appropriate to go forward with Flores’s execution.
“Based on everything I know at this point in time,” said Creuzot. “That’s not to say I can’t change my mind.”
Update: This piece has been updated to clarify that Creuzot’s office could change its plan to pursue death in an upcoming case.
St Louis’s approach to public safety, housing, and other critical issues could undergo a significant overhaul if a new campaign to shift the balance of power in the city’s Board of Alders is successful at the polls on Tuesday.
The “Flip the Board” campaign is challenging entrenched establishment candidates, including three incumbents, in favor of four first-time candidates: Shedrick Kelley, 40, facing two-term incumbent Jack Coatar in Ward 7; Bill Stephens, 27, seeking to unseat Ward 12’s Vicky Grass, who is running for her first full four-year term; Anne Schweitzer, 33, whose Ward 13 opponent Beth Murphy is seeking a third term; and Tina “Sweet-T” Pihl, 50, who hopes to win in Ward 17 against fellow first-time candidate Michelle Sherod.
Alderperson Megan Green, a two-term progressive on the 29-member board, came up with the campaign after years of frustration with the policy priorities of those in power in city government. Green told The Appeal she wants to see more solutions that address the city’s problems in a way that makes meaningful change for all residents.
“Right now we have 11 solid progressive votes and oftentimes can get a couple of other people over to our side,” said Green. “So if we get these four people elected, I think that puts us squarely at 15, which is what we need to have a majority.“
The four Flip the Board candidates are running on similar platforms of change, campaigning on public safety reform, sustainable economic development, and housing reform but bring with them different life experiences. Kelley, an emcee who goes by the stage name Nato Caliph, is a business analyst for Wells Fargo and a community activist. Pihl is an economic development and housing expert who has worked for local and national nonprofits. Schweitzer is a community organizer and publicist. Stephens is a St. Louis Public Library employee who celebrates being an openly gay man on his campaign site.
“The thing about the four people is the diversity we have in terms of race, age, and gender,” Pihl told The Appeal. “I mean, it’s just amazing. If you look at our backgrounds, it’s quite rich in terms of that. I think it’s phenomenal.”
St. Louis is still in the throes of a political upheaval that is rooted in the last decade of social and political change. Nearby Ferguson, where Michael Brown was killed by a police officer in 2014, was the catalyst for some of the most intense Black Lives Matter demonstrations in the Obama years. U.S. Representative Cori Bush, whose district includes St. Louis, was one of those protesters and organizers and is today a new member of the “Squad” of young Democrats pushing for change in Congress.
Although all members of St. Louis’s current Board of Alders are Democrats, the municipal government can be hostile to policies that put working people first, such as allocating federal funding for the city and ensuring public safety is taken care of in an equitable manner, Green said. She cited the fight this year over police use of spy planes that roiled the board—it voted 15-14 to give preliminary approval to the deal—as an example of how close the margins are. (The plan didn’t move forward in part because of a failure to secure funding.) Green also said the resistance to the board’s more left-leaning members’ agenda that centers city residents comes even as voters increasingly support federal candidates that back similar policies. That means the future is bright for ideas about city government that put people first, she told The Appeal.
“Whether it is this election cycle or the next election cycle, I think that time is on our side as progressives,” Green said.
The openness to debating spy planes, which would have allowed city police to keep an eye on residents for up to 18 hours a day, is just one example of what the slate hopes to change about the board’s approach to governing St. Louis. Green, along with some fellow alderpeople, has fought multiple attempts to privatize the city’s airport and advocated for closing the notorious Workhouse, the medium security detention facility in the city that mostly holds individuals awaiting trial. With more progressively minded members, she said, they could take more decisive action. To the Flip the Board slate, the city’s prior approaches to issues like policing, public safety, and economic development are not workable.
“We’ve neglected to see real change or any type of progress in a lot of areas such as crime, child poverty, or housing insecurity,” Stephens said. “We cannot expect our city to grow if we don’t address these fundamental issues first.”
The four candidates are instead focusing on expansive reform.
“We need to do some things differently,” Schweitzer told The Appeal. “We must end cash bail, which is justice only for people with home equity, and end the incarceration for offenders who aren’t threats to themselves or to others. We must address the root causes of crime and reinvest money into neighborhoods we have allowed to deteriorate. We must prioritize affordable housing, affordable healthcare, safe neighborhoods, good schools, jobs that pay well and a good way to get to them, and adopt a citywide tenants’ bill of rights.”
Respecting the basic humanity of residents is essential for handling public safety, said Kelley, who describes the city as being “at a serious crossroads” in how local government works.
“The city can no longer afford the indecisive and reactionary leadership that it has endured for far too long,” Kelley said.
Key to reforming public safety, said Kelley, is closing the Workhouse. The jail’s conditions and upkeep have long been the subject of citywide criticism and anger. But despite the board last year unanimously passing legislation to close it before the end of 2020, the debate on how to do so drags on.
The city also needs to invest resources in its Civilian Oversight Board, said Kelley, and investigate police behavior. According to an analysis by FiveThirtyEight and the Marshall Project, St. Louis paid out more than $3.1 million between 2015 and 2019 in police misconduct settlements.
“Studies (and real-life examples) from around the nation, and the world, have shown that policies that are ‘smart on crime’ show much better results than ones that focus on being ‘tough on crime,'” said Kelley in an email to The Appeal. ” We cannot out-police our issues with crime, we instead need to reevaluate and reallocate funds away from a system that clearly isn’t working, and try a new bold path forward.”
Stephens told The Appeal that he sees addressing the underlying, systemic issues that lead to poverty and crime as essential to dealing with the city’s issues.
“We must give every person in this city the opportunity to succeed,” said Stephens. “We aren’t doing that right now and, without it, we won’t be able to course-correct our current path.”
When it comes to housing, Pihl said her time with the Anti-Displacement Working Group would allow her to teach the board about the best approach to the city’s housing concerns.
“We are looking at policies that can keep people in place in their homes, in the community, and that targets the same thing with evictions, with COVID-19 and everything else,” Pihl said.
Those ideas, Pihl said, include helping fund home repairs and keeping property taxes low in neighborhoods with high displacement. With the loss of jobs and income during the pandemic, she said, those solutions are more important than ever.
St. Louis residents appear to want change, and the city government is in a moment of upheaval. Two major figures—Mayor Lyda Krewson and Alderperson Joe Roddy, who represents Ward 17 and is the board’s longest-serving member—decided not to run for re-election. Board of Alders President Lewis Reed failed to carry a single ward in the mayoral primary, shutting him out of the citywide contest in April. No matter how the votes come in next month, the city’s new leader will be a break from the status quo.
On March 2, St. Louis used for the first time “approval voting,” which allows voters to select more than one candidate; the two candidates in each contest with the highest number of votes are proceeding to Tuesday’s general election. All of the Flip the Board slate advanced, and Schweitzer topped the Ward 13 incumbent Beth Murphy, 68.7 percent to 38.8 percent.
Schweitzer told The Appeal that relentless campaigning door to door paid electoral dividends.
“When I’ve been knocking on doors, people often tell me that I’m the first person who has ever come by to talk about a campaign, and certainly the first candidate to have done so,” Schweitzer said.
The rest of the slate still faces a fight. Kelley, in Ward 7, received 45.2 percent to incumbent Jack Coatar’s 58.9 percent; in Ward 12, Stephens had 36.1 percent to incumbent Vicky Grass’s 48.6 percent; and in Ward 17, Pihl took 46.2 percent to Michelle Sherod’s 69.0 percent.
Though three Flip the Board candidates fell short of their opponents in the primary, Green believes there’s a good shot to get voters on board for the general through superior organizing and spurring enthusiasm leading up to Tuesday. And once the public sees what the new group does in office, she believes, it’s more likely than not they’ll stick with the progressive slate in future elections—Green outpolled her opponent Jennifer Florida, a former alderperson, 74.3 percent to 30.7 percent in March.
“There’s a lot of volunteer energy that’s going into these three candidates’ campaigns at the moment, and that’s what’s going to carry them over,” said Green. “I know that they have people that are donating to them, not just in their wards, but from across the city, because they understand what having a progressive board will do for the entire city of St. Louis.”
Woodfin’s upset victory over the incumbent made national headlines in 2017 as a win for the progressive movement. But this year the local chapter of the organization Our Revolution publicly rescinded its endorsement.
“We championed for him,” said Eric Hall, co-founder of the Birmingham chapter of Black Lives Matter and co-chairperson of Our Revolution – Birmingham. “It was Our Revolution’s push that got him elected as mayor.”
During Woodfin’s first mayoral run, Sanders, founder of Our Revolution, recorded a robo-call for Woodfin. And Turner, then president of Our Revolution, visited Birmingham to campaign for him. The group sent thousands of text messages and made hundreds of calls in support of Woodfin, according to the local chapter.
“Mostly all of the progressive organizations and agencies in Birmingham have rescinded its endorsement or connection to the mayor,” said Hall, who is running for a seat on the Birmingham City Council.
Chief among the groups’ grievances is Woodfin’s inaction on substantive criminal justice reform and, in particular, a lack of openness to non-law enforcement public safety alternatives. The Birmingham mayor, a former prosecutor, has doubled down on defending and increasing law enforcement resources, according to local activists.
The mayor declined The Appeal’s request for an interview and his office did not respond to a list of nearly a dozen questions provided by The Appeal.
Last year, after demonstrations erupted to protest the police killing of George Floyd in Minneapolis, the mayor issued a 7 p.m. curfew. He also banned demonstrations, marches, and vigils, aside from those in one designated park, where organizers were allowed to hold daytime protests that required permits. “This is our creative solution to ensure freedom of speech while reducing public safety risks,” Woodfin said in a statement. The state chapter of the ACLU condemned the directive as unconstitutional.
Woodfin insists he is still committed to criminal justice reform. In December, the mayor’s office released his public safety policy agenda, which includes establishing a civilian complaint review board, increased support for police officers’ mental healthcare, and listening sessions with community members. Residents of Birmingham—which had an estimated population of just over 200,000 in 2019—want more police, he has said.
“There is a conversation nationally about defunding police and yes I’ve heard locally from some people about it, but that is not at the same volume as our citizens saying ‘we want more police presence, we want more police,’’’ Woodfin told AL.com. “As much as there is a national conversation going on about defunding the police, on the ground the majority of voices I hear when I’m in the neighborhoods, when I’m speaking to everyday citizens, is the actual opposite.”
Local activists have pushed back on the mayor’s comments. Residents want to feel safe, they say, but safety is not synonymous with law enforcement. A safe community means divesting from the police force and investing in community-based alternatives to law enforcement, as well as libraries, healthcare, and other community needs, the activists told The Appeal.
Last year, the People’s Budget Birmingham coalition conducted a survey of mostly residents about the city’s investment and divestment priorities for fiscal year 2021. The coalition advocates for greater community input in the city’s budget and comprises eight community groups, including the Birmingham chapter of Black Lives Matter and the Adelante Alabama Worker Center.
Based on responses from more than 800 people, including 690 Birmingham residents, the top priorities for investment were child and youth development (such as youth centers and after-school programs), food security, alternative criminal justice models, and routine mental healthcare and wellness.
When asked what programs should receive less funding in 2021, the top responses were: parking and traffic enforcement; the city attorney’s office; municipal court; the police department and law enforcement; and parks and recreation.
A majority of respondents supported having specialists other than law enforcement respond to a number of issues, including parking enforcement, animal control, domestic violence incidents, mental health crises, and people experiencing homelessness.
These responses reflect findings from a national poll conducted by The Lab, a policy vertical of The Appeal, which found that a majority of likely voters support investment in community-based crisis response programs.
Local activists told The Appeal they want Birmingham’s mayor to invest in a similar model of public safety that prioritizes alternatives to law enforcement—the types of programs that are being piloted around the country, which have received widespread support. Supporters of these programs say they help change the way public safety is carried out in communities.
Several communities are working to limit the role of police in mental health or substance use crises. Nationally, one in four people killed by police have an untreated serious mental health illness, according to a 2015 report from the Treatment Advocacy Center.
In Olympia, Washington, the Crisis Response Unit assists people experiencing substance use or mental health crises, and provides other direct services, like non-emergency medical care. Between October and Dec. 31 of last year, the crisis response unit responded to 915 calls, according to Anne Larsen, the outreach services coordinator for the Olympia Police Department, which oversees the program. Police were not on the scene in about 60 percent of those calls.
When the crisis response unit began in 2019, staff members were contracted employees from a local behavioral health agency, said Larsen. This month, they became civilian police department employees.
“They are not law enforcement officers,” Larsen wrote in an email to The Appeal. “We do not carry any kind of weapon. We do carry a lot of cigarettes and snacks.”
Last year, a pilot program was launched in central Denver to send medical and mental health professionals to people who call 911 for non-criminal emergencies, such as people experiencing suicidal ideation, mental illness, intoxication, or drug overdoses. In the first six months, these teams responded to nearly 750 calls, none of which required police or arrests. The city has calculated that the program could reduce police calls by nearly 3 percent.
“For the first time in our city’s history, health responders will be the default responders for a person in crisis, making sure those struggling with mental illness receive the help they need,” Mayor Bill de Blasio said in November, when the program was announced.
Denver’s and New York City’s initiatives are modeled on Crisis Assistance Helping Out On The Streets (CAHOOTS), according to the groups’ press releases. The CAHOOTS program, which began in 1989, dispatches a medic and crisis worker to help people who are experiencing a mental health emergency in the Eugene-Springfield area of Oregon. In 2017, the program answered 17 percent of the city’s police calls and each year saved the city about $8.5 million in public safety spending.
In San Francisco, a program began last fall to dispatch members of the health department and fire department to respond to those experiencing mental health or substance use crises.
If these programs were rolled out in Birmingham, said Celida Soto,a community organizer with the coalition Alabama Arise, they “would actually address the core issues that we’re experiencing in this city, especially during a pandemic.”
After his victory, Soto worked on his transition team. “Our mayor speaks like a true progressive, says all the right words,” she told The Appeal. “None of this comes to fruition on the ground.”
Woodfin has proposed a much more narrow program, which is still anchored in the police department. In December, he announced that the city would begin a pilot program in which social workers and police respond together to misdemeanor domestic violence calls.
The so-called co-responder model, in which a civilian is paired with a police officer, reinforces a flawed system, according to Cat Brooks, executive director of Justice Teams Network, an anti police-violence advocacy group in California.
“A social worker is not going to be able to intervene if a law enforcement officer decides he wants to escalate things,” Brooks, who is also a co-founder of the Anti Police-Terror Project, told The Appeal. “There are large swaths of Black and brown people who do not want the police involved ever.”
Last year, the Anti Police-Terror Project launched Mental Health First programs in Oakland and Sacramento, in which medical and mental health professionals respond to mental health crises. The program is not affiliated with any city government or police department.
Brooks is a survivor of domestic violence, she told The Appeal. After one incident where she was attacked by her then-husband, who is white, two white officers showed up and Brooks, who is Black, was arrested and taken to jail before a judge dismissed the case.
“Sadly, he was not my last nor was he my first abusive relationship, but I never called the police,” she said. “Because what I was really clear about was that ‘you’re not my ally.’”
When Our Revolution – Birmingham rescinded its endorsement of the mayor, it condemned his latest budget. “Woodfin turned his back on the priorities of the residents of Birmingham as his 2021 budget prioritized corporations and policing, while decreasing funding to libraries, park and recreation centers, education, and social services,” reads the group’s resolution.
“At a time when most of the nation was crying out to defund the police, our mayor was actually increasing the policing budget,” said Hall.
In September, approximately 400 city employees were furloughed, among them more than 150 librarians, according to local news reports. That month, librarians held a demonstration outside city hall to protest the mayor’s budget. At least one library was permanently closed. Two months later, the City Council passed a measure to bring back up to 132 full-time furloughed employees.
“We have defunded social services,” said community organizer Jamie Foster, who added that he knocked on doors for Woodfin’s first mayoral bid. “Libraries don’t just provide books, they’re a safe haven.”
Birmingham’s center will integrate existing surveillance and predictive policing technologies, such as PredPol, which the police department began using in 2019 with the mayor’s support. PredPol is supposed to identify times and locations where crimes are more likely to occur, but many police departments have abandoned the technology, saying it didn’t help reduce crime rates, according to the Los Angeles Times.
But there’s been no such rollback under Woodfin, who has supported increased investments in policing technology. In October, in the midst of budget cuts and furloughs, the City Council approved a more than $1.3 million contract, paid out over five years, for the crime center. In January, the council approved about $940,000 for the center’s construction, which is scheduled to begin in May, according to local NPR affiliate WBHM.
Woodfin’s continued push for PredPol, even during the COVID-19 pandemic, shows the mayor’s misplaced priorities, said Marian Mwenja, an organizer who works with the People’s Budget coalition. In Birmingham, a majority-Black city in one of the country’s poorest states, residents often struggle to afford their most basic needs, said Mwenja.
“You just have to get thrown to the wolves about paying your water bill,” they said, “[but] we’re going to have this new fancy software to lock you up better.”
Contrary to what the mayor says, the People’s Budget survey shows strong support for shrinking law enforcement’s role, according to Mwenja.
“People don’t want police responding to really much of anything,” they said. “People don’t really want police, they just want safety.”
In October, Damon, then 15, laid his head on his arm while a Baltimore City police officer placed a Miranda form on the table. The Appeal is using a pseudonym to protect Damon’s identity.
“Read this right here,” the officer told him, according to a video of the interrogation viewed by The Appeal. “If you want to talk to me, sign it. And then we’ll start talking.”
Neither an attorney nor guardian were in the room. He had been in the foster care system for about eight years, but police did not notify—nor were they required to—the Department of Social Services, according to the public defender’s office. At school, he had an individualized education plan, a list of services a school is mandated to provide to accommodate a student’s disability.
The officer began reading the Miranda rights out loud, asking, after each right, “You understand that?” Damon mumbled “yeah,” or grunted. He didn’t lift his head from his arm.
“You a juvenile,” the officer told him. “You’re not going to need a lawyer or anything like that.” Damon initialed the Miranda warning and provided a statement.
He was arrested and spent close to 50 days in juvenile detention, according to Jenny Egan, chief attorney for the Juvenile Division of the Maryland Office of the Public Defender, Baltimore City. Damon was then released to a children’s shelter, and was on house arrest for more than three months. All charges against Damon have since been dropped.
Last month, an excerpt of his questioning was played at a state legislative hearing on juvenile interrogations.
“That video is not an exception,” Egan said. “This is what it looks like most of the time.”
Few, if any, legal protections exist for minors during interrogations. In many states, law enforcement don’t have to ensure a child of any age consults with an attorney before an interrogation begins. But after high-profile exonerations of young people who falsely confessed, some states are taking action.
In September, California Governor Gavin Newsom signed a bill that requires people who are under 18 to speak with an attorney before an interrogation can commence (previously this requirement only applied to children age 15 and younger). This year, legislators in Maryland, New York, and Washington State are considering similar legislation.
Maryland’s House Bill 315 would prohibit the interrogation of anyone under 18 until the child has consulted with an attorney, unless there is an imminent risk of harm, and law enforcement attempts to notify the child’s parent or guardian. On Saturday, the bill passed the House; it’s now being considered in the Senate. Delegate Sandy Bartlett, one of the bill’s sponsors, told The Appeal she is confident it will pass both chambers and be signed into law.
“I’ve been working closely with the public defender’s office,” she said. “They have set up and are continuing to set up protocols so that when House Bill 315 passes, they are ready to go.”
Caregivers’ presence in the interrogation room does not inoculate children from a coercive interrogation, said Hayley Cleary, a developmental psychologist and professor at Virginia Commonwealth University. Parents may be unaware of their child’s right to request an attorney and, like their children, are vulnerable to manipulative police tactics, she said.
“Mandatory assistance of counsel is really the only way to ensure that youth’s rights are being protected,” said Cleary.
Baltimore County State’s Attorney Scott Shellenberger told The Appeal that the bill is “completely unnecessary.”
“Miranda can apply to juveniles and it’s very easily understood,” he said. “I don’t know what’s hard about the statement, ‘You have the right to remain silent.’”
But Miranda rights are often illusory for juveniles. Studies have shown that most young people waive their Miranda rights, and they don’t understand the rights read to them, such as the right to remain silent. (Studies of adults have come to similar conclusions.)
Not all prosecutors agree with Shellenberger’s assessment. Last month, Baltimore City State’s Attorney Marilyn Mosby testified in favor of the bill. In a statement to The Appeal, Prince George’s County State’s Attorney Aisha Braveboy said the bill “protects the rights of juveniles while also protecting the public’s safety.” A majority of Maryland voters also favor protections for children in the interrogation room, according to polling published by The Lab, a policy vertical of The Appeal.
Washington State and New York lawmakers are considering similar legislation that would require youth to consult with an attorney before police can question them. (Like the Maryland bill, the Washington proposal has narrow exceptions, including an immediate threat to a person’s life.) In Washington, the bill passed the House and is now with the Senate. In New York, the bill passed the Senate Children and Families Committee and is now with the Finance Committee. Later this year, a New York state law will take effect that requires law enforcement to record all interrogations of minors, but more protections are needed, according to Dawne Mitchell, the attorney in charge of The Legal Aid Society’s juvenile rights practice.
“There’s virtually no real legal difference or procedural difference between interrogation of children and interrogation of adults,” Mitchell said.
Mandatory counsel for youth will help prevent false confessions, exoneree Huwe Burton told The Appeal. This month, he testified in favor of a bill in Oregon that will ban deception in interrogations of minors. When Burton was 16, New York City detectives coerced him to confess to a crime he did not commit, the murder of his mother, Keziah Burton. He was incarcerated for almost 20 years.
In 2019, he was exonerated with the assistance of the Bronx district attorney’s office, the Innocence Project, Rutgers Law School’s Youth and Criminal Justice Clinic, and the Center on Wrongful Convictions at Northwestern University.
Young people are more likely to confess to crimes they did not commit, according to the National Registry of Exonerations. Thirty-six percent of exonerees falsely confessed to crimes when they were children, compared with 10 percent of exonerees who falsely confessed when they were adults.
“We are 32 years removed since that happened to me,” Burton said. “It’s still happening.”
On Jan. 5, 1989, two days after Burton discovered his mother’s body in their Bronx home, detectives interrogated him and accused him of killing her.
“I’m crying and at that point, I’m saying, ‘No no, I didn’t, I didn’t kill my mom,’” he said. “I’m asking for my father and they’re telling me that I’ll see my father when I tell them the truth.”
The detectives threatened to charge Burton with statutory rape of his younger girlfriend and his mother’s murder, and send him to Rikers Island. But if he told the truth, he’d go to family court and his father could take him home, they said.
“I couldn’t physically get up and leave, although no one told me, ‘You can’t leave,’” he said. “These are adults and if they say, ‘Sit here,’ you sit here and you can’t move. This was authority.”
About nine hours after he arrived at the police precinct, he confessed to killing his mother. It was then that he was read his Miranda rights, according to Burton.
“You just brought an exhausted child in there who just witnessed the most traumatic thing that he could possibly witness,” Burton said. “He would have said anything. You could have got him to say anything.”
Disclosure: Elizabeth Weill-Greenberg was a case analyst at the Innocence Project from 2007 to 2015 and worked on Burton’s case.
On July 22, 2020, Santa Clara County District Attorney Jeff Rosen announced he would no longer seek the death penalty, citing the police killing of George Floyd in Minneapolis and his visits to the Legacy Museum in Montgomery, Alabama, the year prior.
There’s more to Rosen’s story, however, that needs to be told.
While it was certainly welcome news that Rosen finally joined the majority of Santa Clara County voters who had twice voted to abolish the death penalty in recent years, those of us who have experienced his office in the courtroom saw his reasons as nothing more than political rhetoric, designed to cover up his indefensible use of the death penalty against people of color. As someone who witnessed Rosen’s attempt to execute an innocent man firsthand, his policy change is nothing more than a brazen attempt to selfishly further his political ambitions.
As Governor Gavin Newsom decides his next pick for California’s top prosecutor, the people of Santa Clara County and the state at large deserve a district attorney and an attorney general who will be honest with them, who admits his or her mistakes, and who does not exploit horrific events in the pursuit of their political aspirations. Jeff Rosen is not that person.
Rosen’s change on capital punishment, while welcome, means little until he confronts his behavior in a case from this past summer. This is not a case from the distant past, nor about lingering questions in a long-forgotten episode. This is about the day he sat in the courtroom last June—right in the midst of nationwide protests over the police killing of George Floyd—hoping he and his prosecutors would send an innocent, Latinx man to death row.
Rosen’s office was zealously seeking the execution of an innocent man named Manuel, whose last name is being withheld to protect his privacy. Manuel, a young Latinx man, was accused of sexually abusing and killing his fiancée’s toddler son, Apollo, but flaws with the case were obvious from the beginning.
The prosecution’s case rested on the idea that the child must have been sexually abused by an adult man because of certain injuries to his genitalia. But the prosecution’s medical examiner admitted in court that he was not saying there was any sexual contact at all; he was only saying there had been injury. The prosecution’s child abuse expert testified that injuries like those suffered by 2-year-old Apollo are most often inflicted as abuse during toilet training.
Apollo’s mother admitted that she was the person exclusively responsible for his toilet training and that Apollo had two toilet training accidents that fatal night. She also made clear that she ran the household and admitted to bragging on Facebook almost two years earlier that she “ruled” her children with an “iron fist.” Apollo was three months old at that time. Manuel was her fiancé, who her own brother described as “docile.”
Perhaps most shockingly, Apollo’s mother admitted to her own violence, once stabbing Manuel as he was laying down on their couch after he walked away from an argument with her. Her volatility came to bear during a preliminary hearing when she ran off from the witness stand, throwing open the courtroom doors, knocking a hole in the wall between the inner and outer courtroom doors. The district attorney’s own supervising victim-witness advocate, who was in court with the mother to support her during her testimony, filed a complaint with Child Protective Services out of concern that the other children were being abused by the mother.
In spite of all this, Rosen personally attended Manuel’s trial, watching his deputy’s closing argument on June 8, 2020, and returning to hear the reading of the verdicts a week and a half later. Rosen’s presence conspicuously demonstrated his pursuit of the conviction and execution of an innocent man.
As Rosen sat in the courtroom, ignoring clear indications that someone other than Manuel was guilty of this horrifying crime, it was only weeks after the killing of George Floyd that supposedly impacted him so much. People in the community had taken to the streets around him in protest. And yet, in that courtroom, Rosen continued to support this unjust prosecution.
Gratefully, however, the jury saw through it all. The jury unanimously found that defendant innocent—yes innocent, not just “not guilty”—on June 19, 2020. In their post-verdict interviews, jurors emphasized they found Manuel innocent, not merely “not guilty.”
Yet Rosen would have taken Manuel’s life. He would have sent a young man of color to death row. He would have done so even after the defense attorneys provided documents to him personally that demonstrated the Santa Clara County district attorney had sought the death penalty only against men of color in the 21st century.
Not only has Rosen repeatedly failed to admit these truths, but to this day he has never apologized for his attempt to execute that innocent Latinx man. To the contrary, his response to the jury’s verdict was to insist that the jury was wrong: “We are deeply disappointed that we could not find justice for Baby Apollo. It was not for lack of evidence or months and months of our best effort,” Rosen said in a statement.
In announcing his change of policy on seeking the death penalty weeks later, Rosen said that, “shamefully our society’s most drastic and devastating law enforcement punishment has been used disproportionately against defendants of color.”
We know, DA Rosen. Do you?
Michael Ogul is a past president of the California Public Defenders Association and retired from Santa Clara County as a deputy public defender at the end of 2020. He and his co-counsel, Kelley Paul Kulick, represented the innocent defendant at the death penalty trial described in this commentary.
For weeks last summer, James, then 60, had been up all night. He believed his upstairs neighbor was purposely stomping around, trying to keep him awake, according to his attorney with the San Francisco public defender’s office. The Appeal is using a pseudonym to protect James’s privacy.
But his neighbor couldn’t have been stomping, his attorney told The Appeal; she was in a wheelchair. James had lived with paranoid schizophrenia for years, but had struggled to find stable mental healthcare since his psychiatrist’s retirement at the end of 2019, according to his attorney.The COVID-19 pandemic then worsened an already precarious situation, she said.
“The shelter in place and the pandemic hit in March, and all social services went into an upheaval,” his attorney, Sierra Villaran, wrote in an email to The Appeal. Her client “could not get an appointment with anyone.”
In August,James was arrested and incarcerated at the San Francisco County Jail on several felony charges for crimes allegedly committed against his elderly neighbor. The day after his arrest, James went before a judge. At his hearing, the prosecutor did not seek pretrial detention and also agreed to James’s release with an electronic monitor, according to Villaran. Once out of jail, he began working with a social worker who made sure he had food and shelter, and helped connect him with mental healthcare.
“My life is looking brighter,” he told The Appeal. “It’s looking really, really bright.”
In November, James was accepted into the Mental Health Diversion program, a move the prosecutor’s office supported. He’s now working with a community-based mental health organization that has provided him with a social worker, nurse practitioner, caseworkers, and housing advocates. The group sends progress reports about every three weeks to the judge, prosecutor, and Villaran. If he completes the program, which can take up to two years, his charges will be dismissed.
James’s case illustrates San Francisco District Attorney Chesa Boudin’s focus on offering—and expanding—diversion programs. According to Boudin, since he was inaugurated in January 2020, his office has obtained funding to grow existing diversion programs, increased the number of people referred to several restorative justice programs, and launched a diversion program tailored to caregivers.
“I have been a big proponent for diversion programs that help address root causes of behavior to prevent recidivism and promote public safety. Our office’s focus is always on long term safety and decisions to refer are made individually in collaboration with clinicians and defense attorneys,” Boudin told The Appeal in an email.
Boudin’s pretrial practices and willingness to resolve cases without incarceration have transformed the lives of people like James, who is now thriving, Villaran said.
“Policies that emphasize pretrial release and treatment change lives—both for the people directly involved and the community,” Villaran said in an email to The Appeal. “It is how long-term, sustainable security is achieved.”
During Boudin’s campaign he promised to reduce the city’s reliance on incarceration and end cash bail. His own father is incarcerated in a New York prison, as he has been since Boudin was a toddler. His mother was released in 2003 after serving 22 years. When Boudin was 14 months old, his parents participated in an armed robbery in which three police officers were killed. Neither of his parents fired any shots during the crime.
“I campaigned in 2019 on a platform focused on ending mass incarceration,” he told The Appeal in a phone interview. “That campaign was based on a recognition ingrained in me since childhood that our reliance on jails and prisons actually undermines public safety.”
One of his first directives as district attorney was to order prosecutors not to request money bail, although a judge could still choose to set it. That policy contributed to a decline in the jail’s pretrial population. In 2019, the number of people held pretrial, each month, in San Francisco was between 1,100 and about 1,300, according to data provided to The Appeal by the DA’s office.
Between February 2020 and February 2021, there was an approximately 25 percent reduction in the jail population, according to data compiled by the Vera Institute of Justice. This is a significantly greater decrease than jails in other major cities. The Los Angeles County jail system reduced its population by 10 percent over the same period, according to Vera. New York City’s population actually increased by 2 percent.
Two days after Boudin’s inauguration, on Jan. 10, 2020, the jail population in San Francisco was 1,174 people, and by March 19, 2021, it was 756 people, according to data provided to The Appeal by the DA’s office. The population of women in jail has notably decreased during that time, according to the office—on Jan. 10 2020, 105 women were incarcerated in San Francisco jails; on March 19, 29 were.
When the pandemic hit, Boudin’s commitment to decarceration took on new urgency. Public health advocates warned of an impending crisis inside the country’s jails and prisons if people were not released.
“Both the spread of the disease and its fatality rates are more aggressive and faster in jails and prisons because they create the perfect environment,” said Boudin. “You can’t social distance. You have limited access to hygiene. You have limited access to healthcare.”
Since the start of the pandemic, 135 people incarcerated at San Francisco’s county jails have tested positive for COVID-19, and no prisoners have died from the disease, according to the sheriff’s website. Other jails in California have much higher infection and death rates. In the Los Angeles County jails, for instance, there have been more than 4,200 confirmed cases and 13 deaths among residents, according to the UCLA Law COVID-19 Behind Bars Data Project. This was nearly 32 times as many COVID-19 cases as San Francisco jails, despite Los Angeles County jails holding a population about 20 times larger.
Boudin says he worked with the public defender’s office, jail medical staff, and re-entry services to release people who “didn’t need to be in jail in the first place.” In one case, he said, a woman with a high-risk pregnancy who previously had never been convicted of a crime was serving a sentence for a misdemeanor. She was released, he said, and has since given birth.
“It was those kinds of decisions, looking long and hard at every individual in the jail and figuring out what a more humane and, frankly, more effective alternative might look like,” he said. “We did that case by case, day after day.”
Proposition 8, prior-strike, and STEP Act (gang affiliation) sentencing enhancements will not be charged, except, Boudin’s directive reads, “in the event extraordinary circumstances present unusual risks of harm to public safety or crime victims.”
Proposition 8 mandates a five-year enhancement for each previous serious felony conviction if the current conviction is for a serious felony. California’s so-called three strikes law mandates a life sentence for anyone previously convicted of two serious or violent crimes. The STEP Act allows prosecutors to seek harsher sentences if a crime was committed with a “criminal street gang.” Boudin or a designee must approve any exceptions to the policy. The Appeal asked Boudin’s office how many sentencing enhancements were filed last year, but DA spokesperson Rachel Marshall said they do not track this data.
Boudin told The Appeal that sentencing enhancements have been used in a “select few cases.”
“If we’re going to use those sorts of enhancements then I have to personally approve it,” he said. “The instances have been really limited to cases where, for a variety of reasons, the maximum punishment without the enhancements feels really inadequate from a public safety standpoint.”
While Gascón was DA of San Francisco, the average daily jail population decreased by about 27 percent, according to theLos Angeles Times. After Proposition 64 passed, which legalized and regulated recreational marijuana, he partnered with Code for America to proactively find convictions that could be dismissed, a move that was not required by the law. By February 2019, Gascón’s office had dismissed more than 8,100 convictions.
During Boudin’s first year in office, he did charge officers in three separate incidents. In 2019, Officer Christopher Flores shot Jamaica Hampton, who was on the ground and had already been shot. Hampton survived, but had to have his leg amputated, according to news reports. Boudin’s office charged Flores in December with negligent discharge of a firearm, assault by a public officer, and assault with a semi-automatic firearm. And in November, Boudin charged Officer Christopher Samayoa with manslaughter. In 2017, Samayoa shot and killed Keita O’Neil, who did not have a weapon and was running away from police at the time. The department fired him after the shooting. In December, Boudin charged Officer Terrance Stangel with, battery with serious bodily injury and assault with a deadly weapon, among other charges. In 2019, Stangel beat Dacari Spiers, who did not have a weapon and was never arrested, with a baton, necessitating surgery.
“He started prosecuting police, which is something you haven’t seen happen,” Melina Abdullah, co-founder of Black Lives Matter-Los Angeles, said of Boudin, who she previously endorsed. “That is a rarity not just in San Francisco, not just in California. Officers are almost never charged when they kill people.”
Boudin has not yet made a decision in the case of Sean Moore, according to the DA’s office. In 2017, police officers beat and shot Moore, who lived with mental illness, outside his own home. His injuries eventually led to his death in January 2020 when he was incarcerated at San Quentin State Prison for a separate incident. The coroner ruled his death a homicide, caused by a “remote gunshot wound to abdomen,” according to the San Francisco Examiner.
Last month, Boudin announced he would not be filing charges against officers involved in two fatal incidents in 2019. Boudin’s office determined that 10 officers who shot at Jesus Delgado-Duarte, after he began firing at police, acted in self defense. The officers who wrestled and handcuffed Christopher Kliment, who refused to leave an emergency department, will also not be prosecuted. Kliment fell unconscious, was hospitalized, and died a few days later.
Criminal justice reform advocates have applauded many of Boudin’s initiatives, but not all of them have been embraced. On March 2, the public defender’s office condemned Boudin and a San Francisco supervisor’s proposal for a fentanyl task force that would cost the city about $2.3 million. Six prosecutors would comprise the task force, according to the San Francisco Chronicle.
“Public health and safety cannot come from arresting, incarcerating, and caging our community members,” Public Defender Mano Raju said in a statement. “We do not need another task force linked with a proposal for expanding prosecutions to address our most urgent public health and safety needs. We need housing, food, treatment, and healthcare for all people, to build a sustainable and better future for our communities.”
Boudin defended the proposal.
“As I have said since day one, I refuse to double down on the War on Drugs,” Boudin said in a statement to The Appeal. “I also refuse to sit by and watch as fatal overdoses skyrocket. This Taskforce aims to use innovative, data-driven approaches to complement a public-health approach to this crisis.”
Boudin is also facing criticism from those who say that crime has increased during his tenure—although these allegations conflict with data published by the San Francisco Police Department. In 2020, overall crime was down about 23 percent compared to 2019. Within specific categories of crime, numbers did fluctuate. Rape, robbery, assault, human trafficking, and larceny theft all decreased last year. There was a rise in arson, motor vehicle theft, and burglary. Homicides increased from 41 in 2019 to 48 in 2020. “The increase in homicides is consistent with neighboring cities and national trends that are likely tied to the pandemic,” DA spokesperson Rachel Marshall wrote in an email to The Appeal.
From Jan. 1 to March 14 of this year, there was a 29 percent decrease in overall crime, compared with the same time period last year. There were three homicides in January 2021, the most recent month with data, the same number as in January 2020.
“The data speak for themselves,” wrote Marshall. “Overall crime went down significantly.”
Venture capitalist Jason McCabe Calacanis is soliciting donations through GoFundMe to hire an investigative journalist to hold Boudin “accountable,” as first reported by The Intercept. So far, more than $58,000 has been raised.
Another Silicon Valley investor,David Sacks, tweeted that he “challenged [Boudin] to a debate.” “Do you have the guts to face me?” Sacks, the co-founder and general partner at Craft Ventures, wrote. He has publicly criticized Boudin’s opposition to cash bail and other decarceration policies, writing on Medium that “Boudin’s ardent advocacy for decarceration borders on the fanatical.”
Former Republican mayoral candidate Richie Greenberg is leading the effort to recall the DA. The San Francisco Department of Elections approved his group’s petition, which allows the group to start collecting signatures to hold a special election. The Committee Supporting the Recall of District Attorney Chesa Boudin will need signatures from 10 percent of San Francisco’s registered voters, more than 50,000 people, by Aug. 11. “Mr. Boudin has actually planned to allow mayhem on San Francisco’s streets and in our homes,” reads the group’s website. The group says the city “has seen an astronomical increase in crime, even under Covid-19 restrictions.”
When Boudin ran for DA, law enforcement groups spent more than $650,000 opposing his election, warning of rampant crime sprees if he won. “Chesa Boudin: The #1 Choice of Criminals and Gang Members!” read one mailer sent by the San Francisco Police Officers Association. The recall effort appears to have adopted similar rhetoric, claiming Boudin has made “malicious” changes and “schemes to vastly favor criminals over law-abiding citizens.”
Boudin told The Appeal that his office is seeking to break the country’s “monomaniacal reliance on incarceration as a response to such a diverse array of social problems.”
“It’s hard because our office is not set up to provide the kinds of interventions that actually change lives,” he said. “It’s set up to process human beings through cages and warehouse them.”
Update 3/19: This story has been updated with additional context about decreases in San Francisco’s jail population.
At the outset of the COVID-19 pandemic, elected officials across the country issued eviction moratoriums to keep families and individuals safely housed. They frequently cited the relationship between job and wage loss and the increasing risk of eviction. As early as March 2020, decision makers recognized the importance of keeping people safely housed to prevent the spread of COVID-19.
No matter the outcome of a case, the record of an eviction filing haunts families and individuals. Eviction permanently scars rental history and makes it harder to rent, borrow money, and buy a home. Since the majority of states don’t seal evictions, landlords and public housing authorities regularly screen for, and reject tenants with, a history of eviction.In many cases, families who were eligible for protections were unaware of their rights or how to exercise them. In others, “self-help evictions” that skirt the judicial process by forcing tenants out through illegal means, such as changing locks, shutting off utilities, or removing doors, are still occurring during the pandemic.
Yet, the vast majority of tenants lack legal counsel in housing court to address these barriers. In contrast, landlords are almost always represented by attorneys. Without access to counsel, tenants may not have the ability to identify and raise potential defenses or navigate the myriad laws that could result in a dismissal, a reduction in the amount of rent owed, or a judgment in the tenant’s favor. This is part of whythevast majority of tenants lose their cases and why default judgments—when tenants don’t appear in court—remain high across the country. And losing for any reason means eviction, along with all the potential consequences that go with it: homelessness, poorer physical and mental health conditions, job loss, and an eviction record that will make obtaining future housing extremely difficult. For children, eviction is particularly devastating and is associated with emotional trauma, food insecurity, academic decline, lead poisoning, and decreased life expectancy.Pregnant women who are evicted are more likely to have adverse outcomes, such as preterm births and low birth weight babies. During the pandemic, evictions could result in COVID-19 infection or death.
When tenants are represented by legal counsel during eviction proceedings, the outcomes change significantly. After New York City established a right to counsel at eviction proceedings, 86 percent of tenants with representation were able to remain in their home. In San Francisco, 67 percent of the tenants receiving representation (and 80 percent of African American tenants) remained stably housed. And in Cleveland, during the first six months of having a right to counsel, 93 percent of represented tenants avoided eviction or an involuntary move.
Given the clear and significant benefits of counsel, including increased housing stability and access to justice, there is growing momentum to make the right to counsel a reality for more people. More and more jurisdictions—at the state and city level—are establishing a right to counsel to ensure a tenant’s home cannot be taken away without a meaningful review of their rights and protections. As local jurisdictions work to establish this right, state and federal governments can provide funding to make it happen. Policy makers in multiple states and members of Congress have introduced bills in the past that would support the right to counsel in civil cases, including housing.
Once these programs are established, the return on investment will be quickly realized. Studies by the advisory firm Stout Risius Ross have shown that right-to-counsel laws actually save jurisdictions money. For example, Baltimore’s effort is expected to cost $5.7 million annually, but is projected to save $35.6 million in costs associated with evictions. By keeping people in their homes, the city and state will avoid costs related to homeless shelters and transitional housing. Evictions avoided with legal assistance reduce Medicaid costs associated with emergency room visits or in-patient care for those experiencing homelessness, as well as the increased costs of foster care for children who are forcibly removed from their families after losing housing. These cost-benefit analyses not only show that right to counsel is financially feasible for cities and states, but represent the preventable cascade of consequences that befall those who are stripped of their homes through eviction proceedings.
The benefits of legal representation in eviction proceedings can be enhanced with other critical tenant interventions, like eviction record sealing, rent regulation, robust code enforcement and “just cause” and “clean hands” laws that prevent veiled discrimination and require landlords to comply with habitability and other laws prior to initiating an eviction. And during COVID-19, legal assistance can help tenants secure and effectively exercise rights under moratoriums that require proving an affirmative defense, like COVID-19 hardship or other eligibility. Legal representation can also help them gain access to the billions of dollars in financial assistance appropriated by Congress.
In light of the overwhelming and extreme risk of eviction, which will continue to grow without substantial interventions, the need for an expanded civil right to counsel to close the eviction “justice gap” is extraordinary. Federal and state governments can end the eviction crisis and the inherent injustice in eviction that is causing irreparable harm to adults and children. Among the primary interventions, the civil right to counsel is critical to the attainment of housing and racial justice in the U.S. and, especially in the pandemic, a life-saving intervention.
Emily Benfer is a visiting professor of law at Wake Forest Law, founding director, Wake Forest Law Health Justice Clinic, and chair of the American Bar Association COVID-19 Task Force Committee on Evictions.
In October 2019, the district attorney’s office in Tennessee’s 27th Judicial District announced it would not prosecute law enforcement officers in the death of 37-year-old Sterling Higgins in the Obion County Jail. A grand jury failed to indict the officers. DA Tommy Thomas noted that Higgins’s cause of death absolved the officers of wrongdoing. The medical examiner had ruled that Higgins fell into a state of “excited delirium”—which is described as a condition associated with overheating, super-human strength, and sudden death—after using methamphetamine. Higgins’s death was officially deemed an accident.
But two recent independent investigations by forensic experts obtained by The Appeal point to a different cause of death: Both concluded that Higgins was suffocated by city police officers. Allecia Wilson, director of autopsy and forensic services at the University of Michigan and chief medical examiner of Washtenaw and Livingston counties in Michigan, found no evidence that Higgins exhibited signs of excited delirium, and pointed suffocation as a more likely culprit. The two reports were paid for by the law firm representing Higgins’s estate in a civil rights lawsuit. Obion County and the officers involved have denied any wrongdoing.
“He became unresponsive during a physical altercation with officers that compromised his ability to breathe,” wrote Wilson in her report in February.
A separate, independent review by J.C. Upshaw Downs, the medical director of the physician assistant program at Charleston Southern University, in South Carolina, reached essentially the same conclusion in January.
Higgins was sure someone wanted to kill him.
On the night of March 24, 2019, he called 911 from a convenience store in Union City, Tennessee. The dispatcher sent three officers. After observing Higgins, one of the officers suggested he be brought to the hospital for medical treatment, but the officers decided against doing so and left the store.
Higgins, still scared for his life, was hiding in a cooler when the store clerk called 911 and the three officers returned. This time the officers arrested Higgins and brought him to the Obion County Jail, which did not have any medical professionals on site.
Higgins is handcuffed, his hands behind his back. As a female officer walks by, he momentarily grabs ahold of her hair, but instantly loses his grip. Officers throw Higgins on the floor, grab him by the face and hair, while other officers restrain his legs and appear to step on him, with one of them using the wall as leverage. Another officer holds down Higgins’s head and neck. He goes limp, foaming at the mouth. Officers then put Higgins in a restraint chair and wheel him into a cell. They come in to check his pulse, and appear unable to find it. When EMTs arrived almost 10 minutes later, Higgins was dead. The entire episode took 30 minutes.
That October, a grand jury, declined to indict. The jurors were not shown the footage of Higgins.
“My standard that I was looking at is to determine whether or not any of the officers were involved in conduct that rose to the extent of criminal behavior—did they do anything criminally to cause his death?” Thomas said.
“The DA definitely based his decision on the ME’s autopsy findings,” said Erik Heipt, who is representing Higgins’s family in a civil lawsuit. The Appeal contacted the Obion County DA’s office for comment, and had not received a response at the time of publication.
The medical examiner’s finding was that excited delirium caused Higgins’s death. Excited delirium was coined in the 1980s by Charles Wetli, a medical examiner who later applied the theory to a series of cases where young women appeared to drop dead. Soon after, detectives concluded that they’d died after being suffocated by a serial killer.
Even though some medical and legal experts believe that oxygen deprivation is a likelier explanation than dropping dead of excited delirium, the concept persists. The National Association of Medical Examiners considers it a valid cause of death, and so too did the independent medical experts who reviewed Higgins’s case. But its use, critics say, can absolve officers of potential wrongdoing, and implicitly blames the victim.
“The victim had to be restrained and held on the floor with an officer laying across him until he stopped resisting,” wrote William Stone, Obion County’s medical examiner. Parts of the report found Higgins suffered “multiple blunt force injuries,” but excited delirium was the cause of death.
Wilson, the medical examiner in Michigan, based her report on the video footage and medical notes.
Her report said Higgins didn’t exhibit signs associated with excited delirium. No evidence gathered by emergency medical services and medical records suggest overheating, noting that he stopped responding after an altercation in which police inhibited his breathing.
“In this case, the type of force utilized, resulted in positional and mechanical asphyxia,” according to her report. She said Higgins’s injuries suggest he died from two different restraints, including a chokehold (mechanical) as well as a pressure on his back constricting his lungs (positional). “The matter of death is homicide,” she concluded.
The second independent review by Downs, of Charleston Southern University, found a similar cause of death.
“The subject exhibited paranoid behavior and was alive,” wrote Downs. “Minutes later, following the start of and during the uninterrupted continuation of restraint involving two officers–one of whom grabbed the subject’s neck and one of whom stood on the subject’s lower body–the subject died.”
Downs found Higgins “received no immediate medical attention, which assured the subsequent outcome. Any opportunity to revive the subject was lost, since ideally trained medical help would have already been summoned prior to the fatal events.”
“The manner of death was homicide,” he concluded.
Higgins’s estate’s lawsuit is ongoing.
“The bottom line is that Sterling Higgins was choked to death,” Heipt, the family lawyer, said. “After he became unresponsive, jail guards spent seven minutes strapping his limp and lifeless body into a restraint chair. They then wheeled him into a jail cell, where he remained for an additional 13 minutes without medical attention. By the time medics finally arrived, he was beyond saving.”
“CPR could’ve saved his life. But there were no medical providers at the jail, and contrary to Tennessee law, none of the jail guards had CPR training. The death of Sterling Higgins was inhumane and unnecessary.”
CORRECTION: An earlier version of this article misquoted the findings in Allecia Wilson’s report. Wilson found that the “manner” of Sterling Higgins’s death was homicide, not the “matter.”
Teri Castillo, a historian, housing advocate, and candidate for San Antonio’s City Council representing the Fifth District, is determined to protect her neighborhood and its residents from developers.
“Real estate and big business are salivating at what they want to do with District 5,” Castillo told The Appeal, noting that redevelopment projects typically require the mass displacement of residents.
“The more I kept getting out [as an organizer], I was like, oh, crap, the next person will have the ability to vote against a lot of this,” Castillo said. The “this” Castillo is referring to is what she describes as a hostile city bureaucracy seemingly intent on gentrification at the expense of residents, many of whom are her friends and neighbors.
Castillo is running to represent District 5, a historically poor neighborhood on San Antonio’s West Side. Her platform centers housing, public safety, and environmental protection as ways to reverse the “political erosion” of community power in city government.
“Community folks, especially in District 5, we’ve always been active, we’ve always shown up and given our opinion, we’ve participated in meetings,” said Castillo, 29. “But when it comes to leadership, there’s always been that lack of political will to implement what the people want.”
The lifelong San Antonio resident, whose parents and grandparents all called the city home, is part of a continuing movement from the left to assert itself electorally around the nation. Victories at the federal level—particularly from “The Squad,” four prominent women of color in Congress who have championed policies addressing climate change, increasing the minimum wage, and cancelling student loan debt—have helped spark the candidacies of a new generation of Democrats who are focused on everyday people.
Texas has had no shelter from those winds of change. Despite its long reputation for leaning Republican, the Lone Star State is increasingly seen as a potential battleground for Democrats. Castillo’s run could be a hyperlocal litmus test for the broad appeal of policies popular with working class voters.
Last month, the Black and Latinx advocacy group Texas Organizing Project (TOP) endorsed Castillo, who has volunteered with the group. Bryan Ramirez, a board member from Bexar County, which includes San Antonio, called Castillo “an active voice in our community for years” who would be a “progressive champion” for the district because of her work as a housing advocate in District 5, where more than 90 percent of residents are Hispanic.
“She knows what communities of color are having to endure in this moment, and TOP members are eager to see her serve,” Ramirez said.
The story of District 5 is the same as many council areas across America. It is a food desert where many residents lack internet access. Developers have their eyes on the neighborhood for redevelopment and thus gentrification, community members told The Appeal. District 5 is also poor. With an average yearly income of approximately $14,000—the lowest of any San Antonio district—residents are watching a growing city with a booming economy leave them behind.
The district has always been seen as the “bad side of town,” said Graciela Sanchez, a community organizer who runs San Antonio’s Esperanza Peace and Justice Center. That’s partly because of systemic, institutional issues that have gone unaddressed, contributing to poverty and low wages. So all it takes is one moment, one thing that costs too much, one bill that can’t be paid, and people in District 5 are on the street, said Sanchez. It’s hard to recover from that.
“Then you’re out of a job, you’re out of healthcare, you’re out, you know, you’re out in the streets,” Sanchez said.
District 5 is literally, Castillo agreed, an example of the wrong side of the tracks: “Completely different infrastructure and quality of housing, even a heavier police presence, depending on which side of the train tracks you were on.” As a result, she said, the neighborhood—which has “great real estate, great use of downtown transportation, good food”—is a target for developers, and policy that helps residents is thus hard to come by.
Castillo’s housing policies would change that. If elected, she’s hoping to push for millions in existing federal Department of Housing and Urban Development funds to be allocated to owner-occupied rehabilitation projects, the expansion of affordable housing stock, and robust public oversight of housing around the city so that those with fewer resources are not overwhelmed by legal and institutional challenges.
Decisions about the District 5 neighborhood are largely made by powerful people out of touch with the needs of residents and who have a view of the district that’s not based in living there, according to Sanchez, who described city government as “apartheid San Antonio.”
“It’s majority people of color, majority Mexican, Mexican-American,” Sanchez said, referring to District 5, “and yet it’s still run by white men that control the city.”
The City Council is made up of 10 members representing 10 numbered districts and acts as the city’s legislative body, writing local laws, appointing city officials, and providing oversight of the mayor’s office. San Antonio’s population is about two-thirds Hispanic and less than a quarter white, and the council reflects that diversity; there are six women and two Latinx men serving. District 5’s current council member, Shirley Gonzales, who has reached her term limit, is Latinx. (Castillo and 10 other candidates are competing to take her place in the May election, while more than 60 people are facing off for the remaining council seats.)
But the power behind the council is rooted in the city’s business interests, Sanchez said, making the decisions that affect the district under the control of people who don’t have the neighborhood’s best interests in mind.
For District 5 housing activist Kayla Miranda, Castillo represents something different. “She cares about the neighborhood so much, she loves this community,” said Miranda.
Miranda and Castillo have worked side by side since late 2019, providing training sessions for residents on how to navigate housing challenges and educating them via teach-ins on their rights in an effort to protect them from powerful interests who want to profit off the neighborhood.
Castillo graduated from the University of Texas at San Antonio in 2017 with a bachelor’s degree in history and followed up with a master’s in 2019. To her, the journey from historian of urban policy, urbanization, and metropolitan history to housing advocate was a natural one.
“Understanding past laws and policies that have shaped space, perpetuating systems of inequality, and how they continue to get refashioned under the guise of progress, has motivated me to advocate strongly for communities,” she told The Appeal.
In order to reverse decades of policy that has concentrated poverty in the city’s urban core, Castillo said, San Antonio needs to work on decentralizing public housing and create a city where poor residents have a stake in the conversation rather than being shuffled from one place to another via voucher systems—which community activists say many landlords around the city simply do not take.
“It’s important that communities be part of the policymaking process not only to hold our elected officials accountable, but to ensure that that policy gets pushed forward,” Castillo said.
Castillo is part of a growing cohort of political hopefuls around the country, like mayoral candidates Michelle Wu in Boston and Scott Stringer in New York, who support Green New Deal-style policies for their cities. Castillo’s platform explicitly calls for addressing the climate crisis, urging investment in rain and stormwater catchment programs to utilize and protect natural resources and create green jobs. She came out in support of a Green New Deal for Housing in a June 2020 opinion piece.
“Retrofitting and decarbonizing public housing, homes, and buildings into safe, sustainable, and truly affordable housing will create much-needed demand for employment opportunities, uplifting our communities and workers,” Castillo wrote in the San Antonio Report.
The winter storm that walloped Texas with snow and below-freezing temperatures from Feb. 13-17 highlighted the issues of inequality and poor management across the state. But the crisis facing San Antonians was exacerbated by poor city services: Buses weren’t running, and a warming station only opened days after the storm and days into the bitter cold.
Community activists with Historic Westside Residents Association—including Castillo, who has been a member of the group since 2019—concentrated on mutual aid and in-district solutions to the storm. Volunteers delivered food to hungry residents and blankets to make sure people were warm.
People in the city were still dealing with the after-effects of the storm when Castillo spoke to The Appeal on Feb. 23. The temperatures that shut down the power grid in Texas burst pipes around the state, and the damage shifted home foundations. Help for residents was coming, but slowly.
Castillo’s frustration over the city government’s lack of response remains, however.
“It’s just the lack of planning, the lack of just not giving a shit about constituents—waiting till the water’s off and seniors in a building need to be evacuated in the midst of the crisis when the weather is below 30, it’s just it’s infuriating that the city leadership fails to act,” Castillo said.
“This was a once in a lifetime disaster,” Castillo said. “But climate change is very real and temperatures are only going to get hotter and colder.”
Miranda said the current political environment in Texas could lend itself to something of a political revolution for the state. “People are starting to notice, hey, stuff is not happening the way it’s supposed to happen here,” said Miranda.
Sanchez agreed, calling Castillo’s run part of a “national trend” moving local, state, and federal politics to the left irrespective of party, even in places like Texas. “I think we’ve had a lot of leaders that were seen as crazy, as just people to be ignored and we just keep on becoming stronger and stronger,” said Sanchez.
Texas Organizing Project, announced its backing of Castillo for City Council, saying in a statement that the group views the candidate as having “what it takes to enact bold, progressive policy solutions that will lift up our communities.”
But to Miranda, it’s Castillo’s interest in using power for residents, not for self gain, that makes her so suited to wield it for the district.
“She isn’t doing it because she deserves to be in the public eye,” Miranda said. “She’s doing it because someone has to protect this neighborhood. And who better to protect it than the people that are already doing so every single day?”
As someone who never planned to run for an elected office, Castillo has framed her campaign as part of a community push for good government. The District 5 seat needs to be in the hands of an ally of, and be one of, the people who are directly affected by City Council decision-making, she said.
“We’re tired of platitudes and we’re tired of feel-good, fluffy language,” said Castillo. “We’re ready to hear answers and meaningful change, and we’re ready to see action.”
Boston City Councilor Michelle Wu decided to run for mayor after seeing how the crises of inequality and injustice that some of the city’s residents experienced well before COVID-19 hit have only worsened.
“Now every challenge has been deepened and exacerbated by this pandemic,” Wu told The Appeal.
Wu, who has served in city government for more than seven years, has earned the endorsement of U.S. Senator Elizabeth Warren of Massachusetts, one of Wu’s first professors at Harvard Law School.
“Michelle’s ambitious plans will deliver the structural changes we need to make Boston a city of opportunity for all of our families,” Warren told The Appeal in an email. “I’m proud to endorse Michelle because I know with her in the Mayor’s office, Bostonians will have a champion with the courage and conviction to put working families first.”
The councilor’s plans for the city—including an ambitious proposal to make public transportation free and a Boston Green New Deal—along with her City Council work have not only won her the backing of Warren, but also the city’s Sunrise Movement group and the personal endorsement of national labor leader Sara Nelson, who called Wu’s leadership “infectious and full of momentum, while also patient and attentive through real love for people in every part of our community.”
“Boston is a city of tradition and historical significance, at the heart of which is revolutionary ideas and dreamers for a better world,” Nelson told The Appeal. “Michelle carries on that spirit in the way that she tackles challenges with the excitement of making change for the better by bringing the power of every voice to the table.”
Wu’s policy platform largely reimagines what kind of city Boston can be. By creating fare-free public transit and employment opportunities through a 1930s New Deal-style Urban Climate Corps, as well as addressing gentrification through rezoning the city and restricting Airbnb and predatory real estate companies, Wu’s agenda, if realized, would radically change life for Boston’s working-class residents.
“City government, especially in Boston, has the potential to transform what’s possible in policy, in democratic participation, in civic empowerment and in people’s day to day lives,” Wu said.
As one of 13 city councilors, Wu made a name for herself pushing for sweeping changes to how the city functions. If she became mayor, her plans would center the city’s working class, activists and advocates told The Appeal.
“Michelle has been the lead for policies like paid parental leave for city workers, for more tightly regulating short-term rentals, prioritizing local food procurement for city purchasing, and bulk-purchasing renewable energy,” Jonathan Cohn, a prominent Boston-based activist said. “She has used her platform to advocate for bold policies like fare-free public transit and a municipal Green New Deal.”
It’s these latter two policies—transportation and the environment—where Wu’s mayoralty would have the biggest effect. Boston’s mayor is an administrator, not a legislator, but has significant influence over guiding city government priorities particularly through veto power.
The councilor’s vision of a Boston where a cleaner environment drives the economy and transportation is provided to residents free of charge is ambitious, but shows the potential of having a progressive who’s done the work in charge at City Hall, said community organizer Lee Nave Jr. A resident of Allston-Brighton, Nave is a Wu supporter who finds her focus on food security particularly important, and her on-the-ground organizing even more so.
“Wu is not just a big thinker with big plans, she’s a down in the streets organizer who values community voice at all levels of decision making,” Nave said. “I’ve seen her for years conduct various roundtable discussions on neighborhood issues, take the feedback gathered, and implement a plan.”
The councilor’s vision for transportation and climate dovetail together nicely, said Chris Dempsey, director of the Transportation for Massachusetts advocacy coalition. Wu’s plans to expand transit access by adding accessibility infrastructure, use city authority over allocation of road space to speed up buses for the city’s residents, and make public transportation free of charge could transform the city, reducing pollution while improving quality of life and increasing ridership.
Dempsey said the plan would both lead to a cleaner city and expand opportunity for the city’s poorer communities.
“She understands that our failing transportation system has been a barrier to opportunity and access for marginalized communities, in addition to being the largest source of air pollution and greenhouse-gas emissions of any sector of the economy,” Dempsey said.
Wu’s Boston Green New Deal would also tackle air pollution and emissions as the city looks to a post-COVID future. The policy platform, and one of the first city-level Green New Deals, runs 46 pages and urges Bostonians to envision a future where the city mitigates the effects of a changing climate in a way that would boost the local economy.
With an ambitious goal of a net-zero municipal footprint by 2024, the plan calls for a Green Workforce Development initiative to help reorient the city’s workers to a changing economy and for the city’s retirement board to divest from gun manufacturers and private prisons and move that cash to clean energy investments. The recovery plan also calls for the creation of an Urban Climate Corps that would simultaneously contribute to climate-related mitigation and close “employment inequities across neighborhoods and racial lines.” The plan includes a renter’s right to counsel, helping families keep their homes and saving the city money.
Andy Wells-Bean, campaign coordinator at Boston Climate Action Network, told The Appeal that Wu’s work on the council—”she was instrumental in helping get community choice electricity off the ground”—and her vision for the city’s green future makes her a strong candidate.
“It shows a level of commitment to climate justice that is really unparalleled,” Wells-Bean said.
Wu didn’t grow up talking about politics with her family, who emigrated from Taiwan in the early 1980s. Instead, her upbringing in Chicago, where she was born, focused on creating a stable life for oneself. It’s an idea that came into conflict with reality quickly, however, and that’s an experience the mayoral hopeful imagines many Americans can relate to lately.
“You see how connected all of us are to these systems that, in fact, make it impossible for anyone to be fully safe, healthy, and connected to opportunity,” Wu said.
For Wu, it all came crashing down in 2007, when she was 22. She had just graduated from Harvard when her mother suffered a mental health crisis, upending the family’s life. Wu returned to Chicago and became the caregiver for her mother and her two younger sisters. It felt like the best option to the first-generation American, whose role in the family while growing up involved navigating her parents “around invisible barriers that we all clearly knew existed.”
“And then when my mom began to struggle with mental illness, those barriers became very high,” Wu said.
She opened a tea shop to help make ends meet, but the bureaucracy of Chicago’s government was a continual hassle and frustration. Seeing others experience similar struggles across the city spurred Wu’s to return to Harvard for law school, taking her family with her. After sitting in Warren’s classroom and landing an internship in the mayor’s office, Wu’s path began to materialize.
From there it was a short jump from knocking doors for Warren’s first Senate campaign to running—and winning—a City Council seat in 2013.
The Boston mayoral race has been already marked by political upheaval. Because the office lacks term limits, incumbent Marty Walsh was expected to run for a third term but his appointment to labor secretary in the Biden administration, subject to Senate confirmation, has opened the field. Wu and Councilor Andrea Campbell had already entered the race in September, planning to face off against Walsh. Walsh’s imminent departure spurred Councilor Annissa Essaibi George and former hotel manager Dana Depelteau to join the race in late January.
But Boston has also been upended by the COVID-19 pandemic and social unrest. Tensions that erupted in late May after the killing of George Floyd by Minneapolis police officers spurred protests in Boston that were part of a nationwide uprising. The protests did little to solve the longtime tensions between the city’s marginalized populations and its notorious police department, which the mayor oversees.
Reporting from The Appeal in December revealed that, according to over 66 hours of body camera footage from the night of May 29, the police abused and terrorized demonstrators far beyond what had been previously documented. Despite the ensuing uproar, Walsh vetoed legislation from the council that would have restricted police use of force, a decision that Wu at the time called “an insult to the activism and organizing that defined 2020, and falls far short of the transformational leadership that Boston deserves.” The force’s top job has also seen tumult. Commissioner William Gross retired at the end of January; his replacement, Dennis White, lasted less than three days before he was placed on leave over allegations of domestic abuse. Superintendent-in-Chief Gregory Long is now acting commissioner.
In addition to wanting to divert 911 calls about unhoused people and mental health issues to public health professionals, Wu aims to address the racial divide in how Bostonians are treated by police; she is calling on city government to “take concrete steps to dismantle racism in law enforcement by demilitarizing the police, banning weapons like tear gas and rubber bullets and practices like no-knock warrants that endanger our residents of color.” It’s part of what the councilor told The Appeal is her intersectional approach to racial justice and the problems facing residents.
If Wu wins the Sept. 21 primary, and then the mayoral race on Nov. 2, she’ll become the city’s first elected woman and person of color to hold the top spot. (Kim Janey, City Council president, is poised to become the first woman in the office once she takes over for Walsh pending his confirmation.) Wu’s position as a prominent woman of color on the council gives her leadership and advocacy added weight, said environmental advocate Rickie Harvey, a steering team member for the Boston Clean Energy Coalition. Wu’s election as the first Asian American woman to serve on the council was “groundbreaking,” Harvey said, and an example of the changes that have occurred in the city’s politics over the last eight years.
“Today we almost take for granted her undeniable successes: She’s authored more than half of all the ordinances passed in her years on the council, was the top at-large vote-getter twice, and was the first woman of color to serve as council president,” Harvey told The Appeal. “Today it is easy to forget the mostly male, and mostly white, world of Boston politics that existed when Michelle entered it.”
Cohn, the Boston-based activist, told The Appeal that he hoped Wu would be the kind of leader who would take what he described as Boston’s long mayoral history of political stagnation and radically change it for the better as she did on the council. That requires walking away from the kind of politics practiced by Walsh—though Wu has made little secret of the fact that she plans on being a different leader than the departing incumbent.
“One of my biggest critiques of Marty Walsh’s tenure has been an inability to imagine how the city’s future could look anything other than incrementally different from its path,” said Cohn. “I think Michelle has been willing to seriously engage in the visioning and execution to provide an alternative.”
No matter who wins the election, Boston’s next mayor, like others around the country, will have to figure out what recovery from the COVID-19 crisis looks like.
“Boston is a city that has everything we need to solve these challenges,” Wu told The Appeal. “We have the resources. We have the activism, we have the ideas. We just need the urgent leadership that lifts up our communities.”
Jennifer Carroll Foy is running for Virginia governor this year with the crisis of inequality in mind.
“Poverty has to be treated as the emergency that it is,” she told The Appeal.
Carroll Foy, a former public defender who served in the Virginia House of Delegates from 2018 to 2020, is running on a platform that includes extending an eviction moratorium, changing zoning to balance density with affordable housing, addressing disparities in the quality of public education, and ensuring Virginia has a 100 percent net zero emissions standard as part of a broader climate change policy.
In June’s open Democratic primary, Carroll Foy will face former governor Terry McAuliffe, an establishment stalwart and early favorite for money and party support. Lieutenant Governor Justin Fairfax, Delegate Lee Carter, and state Senator Jennifer McClellan are also vying for the office.
The race is worth watching, even outside of Virginia. Because the commonwealth is a battleground, the race will “set the tone and be a trend for what’s happening in the nation politically,” said Chelsea Higgs Wise, a clinical social worker and the founder and executive director of Marijuana Justice.
For too long, the commonwealth has been led by people who have prioritized the interests of the rich and powerful, Carroll Foy said, even as Virginia’s racial wealth gap grew and its economy lacked the kinds of jobs that could pull more people out of poverty.
Carroll Foy’s record illustrates her commitment to the issues of racial and economic equity. In the state legislature, she sponsored and passed a bill that was aimed at reducing Black women’s maternal mortality rates, as well as another bill that helped ensure immigrants had access to healthcare.
But advocates say that these issues go beyond just healthcare. An equity plan for public education that addresses class and race is essential for the commonwealth’s future, said Alexsis Rodgers, Virginia state director for domestic worker advocacy group Care In Action.
For Carroll Foy, this means restructuring the Virginia Board of Education’s Standards of Quality by allocating more funding to at-risk students and schools. Changing the funding formula at the state level, Carroll Foy hopes, would lead to better results for students who attend schools in lower-income areas. It’s a contrast with McAuliffe, whose plan would fund and implement the standards that already exist but not change them further.
And fixing the education system goes hand in hand with improving housing policy, said Quinton Robbins, director of operations at Richmond For All, a progressive organizing coalition in Richmond.
“We need a governor who’s going to fight for tenants, especially in the pandemic, we need to make sure their due process rights are respected, and we need to make sure that public housing residents are protected,” said Robbins. “Jennifer Carroll Foy has friends and family that live in public housing. And I think that gives us a lot of confidence that she’s going to fight for them.”
If sworn in next year, Carroll Foy plans to codify an eviction moratorium through to the end of 2022 and establish inclusionary zoning requirements. The latter would aim to balance the needs of the commonwealth’s growing population by requiring private developers to set aside and subsidize affordable housing.
“The way that we get rid of our segregated schools is by desegregating our housing,” Carroll Foy said. “That’s how we address the inequities in our education system.” To help the commonwealth’s poorer communities, she also plans to tackle opiate addiction, unemployment, and child care costs. To do so, she said she’ll invest in mobile clinics, invest in and overhaul the Virginia Employment Commission, and prioritize paid family and medical leave.
“When you have outcomes being determined by a person’s wealth or financial circumstances or your race and sometimes even your gender, that is problematic,” said Carroll Foy.
Inequity in the commonwealth is inextricably linked to race, and Virginia’s long history has not always bent toward justice. Racial justice and environmental justice are intimately tied together, particularly in Virginia, said Carroll Foy. She told The Appeal that as governor she would ensure that Virginia has a 100 percent net zero carbon emissions standard and that she would prioritize ensuring a forward-looking approach to environmental cleanup.
“One of the main reasons that Black and brown people are contracting and dying of coronavirus at a higher rate is because our negative health outcomes that directly correlated to the fact that if you’re Black or brown, you’re more likely to live near a landfill or a coal ash pond or a nuclear power plant or a pipeline,” Carroll Foy said.
Carroll Foy’s commitment to improving the lives of working families is rooted in her personal experiences.
Born in Petersburg, Virginia, a city with one of the highest child poverty rates in the commonwealth, Carroll Foy was raised primarily by her grandparents, especially her grandmother Mary Lee Carroll.
When Carroll Foy was 18, Mary Lee suffered a health crisis.
“My activism started when my grandmother had a stroke and became a quadriplegic and my having to sit at my dining table with my aunt, trying to decide if we’re going to pay for our mortgage that month or for the medications keeping her alive,” Carroll Foy said. “And that is when I realized I was a part of a community that had been ignored, neglected, and left behind.”
After attending Thomas Jefferson School of Law in San Diego, Carroll Foy became a Virginia magistrate judge, but after observing the racial disparities in the criminal legal system she became a public defender in 2016.
Brad Haywood, a chief public defender and the founder and executive director of criminal justice reform group Justice Forward Virginia, supervised Carroll Foy at the Arlington public defender’s office through 2018, during the beginning of Carroll Foy’s legislative career.
“We worked with her really closely on legislative advocacy during her time in the General Assembly,” said Haywood. “She was by far the strongest advocate for criminal justice reform in either chamber.”
As the first public defender ever elected to the Virginia General Assembly, Carroll Foy carried a bill that would have prohibited police use of chokeholds. Though the bill failed, it led to a compromise bill that limited its use. She was also a key player in helping to pass legislation ending the suspension of drivers’ licenses for nonpayment of fines if the person is poor.
“But we still have work to do,” she said, pointing to marijuana legalization, better access to mental health resources, and community support for youth. “Those are the things that have to happen if we’re really going to address the social harms that have been caused by our backward laws here in Virginia.”
To that end, Carroll Foy said she also intends to push for a reform of Virginia’s cash bail system and expungement of minor offenses. As governor, she plans to support legislation that would end punitive, automatic penalties like mandatory minimum sentences and three strikes laws, and to allow dismissal of charges if people meet certain prerequisites like community service or similar good behavior.
“I hope that all of our candidates for governor are putting forward that kind of vision because it’s past time,” said Rodgers of Care In Action. “We marched, we voted. We have demanded better policies when it comes to criminal justice.”
Virginia is poised to legalize marijuana this year, and with that move will come a new set of challenges. Lawmakers must prioritize undoing the harm that the drug war wrought on Black communities, said Higgs Wise of Marijuana Justice, which means investing in communities destroyed by the enforcement of punitive drug laws and supporting people who were convicted of nonviolent drug offenses as they re-enter society.
While Carroll Foy is an ally in that fight, said Higgs Wise, McAuliffe is not.
“I really haven’t heard a lot from Terry McAuliffe about marijuana and equity for Black folks,” Higgs Wise said. “But Terry McAuliffe was terrible on the death penalty. He was awful on racial justice and environmental justice.”
McAuliffe has made much of his personal opposition to the death penalty, and today says he supports its abolition, but critics note that he presided over three executions as governor, refusing clemency. “Terry McAuliffe was always for the death penalty,” said Higgs Wise, “[he] was actually one of the biggest resisters to advocates in criminal justice during his term.”
The former governor also tried to pass legislation to order lethal injection drugs through confidential pharmacies if needed, a move that, in the words of anti-death penalty activist Reverend Marc Boswell, ran “a very real risk of horrific and botched executions.”
The primary contest is already exposing fault lines in the Democratic Party in Virginia and around the country, according to Higgs Wise. Speaker of the U.S. House Nancy Pelosi is nonetheless endorsing McAuliffe, throwing her institutional weight behind his candidacy.
“He can really pull out any piece of power and use it against these other candidates that are really trying to make change,” said Higgs Wise, who has not endorsed anyone in the race.
McAuliffe’s gubernatorial record and the criticism he experienced for receiving funding from corporate interests could dog him. And the centrist aspect of the Democratic Party he represents may not be a winner this time around, Carroll Foy hopes.
“The wealthy and well-connected have had a lot of representation in Richmond,” she said. “It’s time for a working person to represent working families in Virginia.”
Although a Democrat who opposed marijuana legalization and supported the death penalty might have worked as recently as four years ago, McAuliffe is facing off against elements in Virginia politics that have pushed the party in a far more progressive direction. And though he has moved to the left on those issues, to his critics he still represents the kind of power politics that the Democratic Party establishment has endorsed for decades but may be on the way out in 2021.
“Terry McAuliffe is the machine that we’re very opposed to,” said Richmond For All’s Robbins.
Richmond For All hadn’t picked a candidate at the time of Robbins’ interview, but he said the coalition believes Carroll Foy could unite a “progressive majority.” The coalition has since endorsed her. Goad Gatsby, a Richmond activist and longtime observer of Virginia state politics, doesn’t generally make endorsements but believes Carroll Foy “really stands out.” Haywood of Justice Forward Virginia is backing Carroll Foy.
“I frankly think she’s going to win,” said Haywood. “This is going to surprise a lot of people.”
CORRECTION: An earlier version of this article misstated Richmond For All’s status on making an endorsement. The coalition has endorsed Carroll Foy. An earlier version of this article also misstated Brad Haywood’s position. He is the chief public defender for Arlington County and the City of Falls Church.
Virginia Bans Mental Health Evidence in Trials. Lawmakers Could Soon Change This
Proposed legislation would allow people accused of crimes to tell juries if they had a mental illness, autism spectrum disorder, or an intellectual or developmental disability at the time of a crime. The bill could have helped individuals like Matthew Rushin.
Virginia Bans Mental Health Evidence in Trials. Lawmakers Could Soon Change This
Proposed legislation would allow people accused of crimes to tell juries if they had a mental illness, autism spectrum disorder, or an intellectual or developmental disability at the time of a crime. The bill could have helped individuals like Matthew Rushin.
On Jan. 4, 2019, Matthew Rushin, then a 19-year-old college student, drove to a Panera Bread in Virginia Beach, Virginia. In the parking lot, his car and another clipped each other, according to the Washington Post. Panicked and overwhelmed, he initially drove away, he told the police, but after doing breathing exercises he headed back to the accident.
On his way, Rushin lost consciousness, likely from a seizure, according to his mother, Lavern Rushin. He drove into oncoming traffic and crashed into two cars. When Rushin regained consciousness and exited his car, two men restrained him. Another man said he yelled at Rushin something like, “What the ‘f’ are you doing? You could have killed somebody.”
Rushin’s statements at the scene have been a point of controversy. Rushin, the man later testified, replied something to the effect of, “I wish I were dead. I should be dead.” At the time, Rushin, he said, was “a little in hysterics.” The man’s wife reported hearing someone crying, saying, “I want to die. I want to die.” Prosecutors claimed five officers heard Rushin say he was trying to kill himself.
Prosecutors argued that Rushin, who was never taken to the hospital, intentionally caused the crash in a failed suicide attempt—an accusation Rushin denies—and charged him with second-degree attempted murder. Four people were injured, one of whom suffered a severe brain injury. Facing decades in prison, he pleaded guilty to malicious wounding and hit-and-run. He was sentenced to 50 years in prison with 40 years suspended.
Lavern Rushin has launched a national campaign to fight what she believes is her son’s wrongful conviction. When he said he wanted to die, Lavern said, he was exhibiting echolalia—the repetition of a phrase said to him—which is common among autistic people. Rushin was diagnosed with autism spectrum disorder, along with attention deficit hyperactivity disorder, when he was a child. In a video of his interrogation, Rushin can be seen alone pacing, barefoot, and talking to himself. “You’re telling me that I want to kill myself?” he said. “Someone said ‘kill’ twice.”
On Friday, Lavern testified before a House of Delegates subcommittee in support of Senate Bill 1315. The bill, introduced by Senator Jennifer McClellan, permits people accused of crimes to submit evidence at trial of a mental illness, autism spectrum disorder, or intellectual or developmental disability to show their mental state at the time of a crime.
“This bill would have actually helped Matthew because his developmental disability and mental health disability would have been part of his defense,” Lavern told The Appeal. “I believe this bill would have been a significant turnaround for Matthew.”
People accused of crimes in Virginia are prohibited from submitting this type of evidence during trial because of a 1985 Virginia Supreme Court decision that ruled a person’s mental state was irrelevant unless a plea of not guilty by reason of insanity is entered.
“If you’ve got somebody that has an underlying condition that means they could not have possibly had the intent they would need to commit a crime, a jury and a judge should know that,” McClellan, who is also running for governor this year, told The Appeal.
But after passing the Senate this month, the bill has faced resistance in the House of Delegates, primarily from Republicans. The opposition prompted the removal of mental illness. Members of both chambers will now reconcile the differing versions, and then bring it back for a floor vote, possibly this week, according to the bill’s supporters.
About 37 percent of prisoners nationally have been diagnosed with a mental illness, according to the 2011-12 National Inmate Survey published by the Bureau of Justice Statistics.
Brian Kelmar, a co-founder of Legal Reform for the Intellectually & Developmentally Disabled, also testified in support of McClellan’s legislation. In 2010, his autistic son, then 19, was accused of a sexual offense. Kelmar asked The Appeal not to publish his son’s name to protect his privacy.
Like many parents in his situation, he said he assumed the authorities would understand that his son “didn’t have a clue what was going on or understand the situation.” But he learned that if they went to trial, evidence of his son’s diagnosis would not be considered.
“Some people don’t perceive the world the same way that others do,” said Brad Haywood, the executive director of Justice Forward Virginia, an advocacy organization that supports SB 1315. “To not allow them to explain how their brain works when you’re talking about something that is fundamentally all about mental state is just really unfair.”
Like Rushin, Kelmar’s son was facing prison time. In 2011, instead of going to trial where he wouldn’t be able to present information about his diagnosis, his son pleaded no contest and received five years’ probation and a 10-year suspended sentence. As part of his plea deal, he has to register as a sex offender. His photo and home address are publicly accessible on the Virginia Sex Offender and Crimes Against Minors Registry. He hasn’t been able to find employment or a home to rent, said Kelmar.
“Had we not had the means,” he said, “he would be in the street.”
About three years ago, Kelmar submitted a clemency petition to the governor’s office but a decision has not yet been made, said Kelmar, and the office did not respond to The Appeal’s request for comment.
In Rushin’s case, Governor Ralph Northam granted him a conditional pardon in November, but he is not scheduled to be released until March. Last month, he was diagnosed with COVID-19, which he is recovering from, his mother said.
Lavern last saw her son in person on Dec. 6, 2019, in the Virginia Beach Circuit Court. That day, officers told her and other family members that if anyone spoke to Rushin, they would be held in contempt.
“I was literally an arm’s length away from him,” said Lavern. “I couldn’t even whisper, ‘I love you.’”
Update: A quote from Lavern Rushin about Matthew Rushin’s conditions has been updated.
During housing court on Tuesday in Dane County, Wisconsin, a tenant, who is non-verbal and facing eviction, didn’t appear at his virtual hearing.
“He doesn’t know American Sign Language,” Commissioner J. Alberto Quiroga reported to the landlord’s attorney, who was displayed in a square underneath the commissioner’s in the Zoom meeting. “The only way he responds is either, ‘No’ or ‘I know.’ So the court’s concerned with his competency.”
The man lacked any assistance, including an attorney.
“I’m not going to find him in default when he’s disabled,” said Quiroga, who set the case for trial next month. Typically if a tenant does not appear in court, a default judgment is entered in favor of the landlord.
“That’ll give him some time to find a counsel, get an advocate,” he said. “I can’t find him in default under these circumstances. I just think that would be egregious.”
The commissioner’s decision was rare. In another two eviction cases heard that day, the tenants didn’t sign on to the virtual hearing and the commissioner entered a default judgment. Studies of several large cities’ eviction data have shown that landlords win default judgments in a majority of eviction cases.
Like most tenants facing eviction across the country, Dane County renters are not guaranteed a right to counsel in housing court. Tenants are left on their own to navigate an evolving maze of federal and local directives that dictate when and how an eviction can occur, a legal landscape that has become infinitely more confusing during the COVID-19 pandemic. Local studies in recent decades have repeatedly shown that a large majority of landlords have counsel in housing court, while a small minority of tenants have representation.
Prior to the pandemic, Debra Puzzo, a co-director of the housing program at the Tenant Resource Center, said she went to the Dane County courthouse to make sure tenants and landlords knew their rights. When necessary, she directed tenants without representation to pro bono attorneys. But with virtual hearings, those referrals have been nearly impossible to make, she said. Proceedings move so quickly, she said, that if she speaks to tenants at all, it’s usually after they’ve already agreed to a payment arrangement or have an eviction trial coming up.
“It’s a very scary situation for tenants because they’re really cut off from even the meager resources that were available,” said Puzzo.
One of President Biden’s first executive actions was to extend the federal moratorium on evictions to March 31. The moratorium, first imposed last spring, hasn’t completely halted evictions. Since the start of the pandemic, landlords have filed for more than 245,000 evictions in the five states and 27 cities tracked by the Eviction Lab at Princeton University.
But momentum is building in cities, states, and in Congress to ensure every person facing eviction has an attorney. A majority of American voters, including Democrats and Republicans, support a right to counsel in eviction proceedings, similar to the right that exists for criminal cases, according to a new poll from Data for Progress and The Lab, a policy vertical of The Appeal.
In criminal court, an attorney is provided to those who can’t afford one, but no such universal right exists in housing court. The U.S. Supreme Court issued two separate rulings, in 1981 and 2011, that deny a right to counsel to petitioners in civil cases. In the first case, a parent was at risk of losing his parental rights; in the second, a parent had been repeatedly jailed for not paying child support.
“The Supreme Court has been incredibly hostile to the concept of right to counsel in civil cases,” said John Pollock, the coordinator of the National Coalition for a Civil Right to Counsel. “If you don’t get a right to counsel when your parental rights are being severed and you don’t get a right to counsel when you’re going to jail, it’s hard to imagine what you do get a right to counsel for in their view.”
Instead of seeking a right to counsel through the courts, housing rights advocates have pursued a legislative strategy, said Pollock. Without an attorney, a person may lose their home, even if there are legal protections in place, said Pollock.
“The cases are not simple,” said Pollock. “The tenant may have paid the rent and the landlord may be saying they didn’t. … If the tenant didn’t pay the rent, they may have defenses as to why they didn’t pay.”
An attorney can make the difference between stability and catastrophe for families, he said.
“These people can lose everything in an eviction,” said Pollock. “They can lose their kids potentially. They can become homeless. They can get jailed. They can lose their jobs.”
But despite the high stakes, no right-to-counsel programs existed at the city, state, or federal level until 2017. That year, New York City Mayor Bill de Blasio signed into law the first program in the country. Six more cities have since followed suit: Philadelphia; Newark, New Jersey; Boulder, Colorado; San Francisco; Cleveland; and, most recently, Baltimore.
A study of New York City’s program, which is being phased in over five years, showed that from July 1, 2019 to June 30, 2020, 86 percent of households with counsel were allowed to stay in their homes. New York’s program provides representation based on a tenant’s income and ZIP code.
In 2018, San Francisco voters approved Proposition F, which guarantees legal assistance to all people facing eviction. However, before the pandemic even began, not all tenants were provided counsel because of a shortage of attorneys, according to the Mayor’s Office of Housing and Community Development. A study of the city’s program showed a decrease in eviction filings by 10 percent between 2018 and 2019, and 67 percent of represented tenants stayed in their homes.
“When people have counsel it completely changes what happens in housing court,” said Pollock.
Cleveland’s program, which launched last summer, provides counsel to tenants who are at or below the federal poverty line and have at least one child under 18 in the home. Ninety-three percent of represented tenants seeking to avoid an eviction or other involuntary moves were successful, according to a report on the program released last month.
Supporters of Baltimore’s program expect to see similar results. In November, the City Council approved a program, to be implemented over a four-year period, to grant counsel to all residents facing eviction. The city’s eviction rate is more than twice the national average, according to the Evictions Study, a project of University of California, Berkeley and University of Washington researchers. An estimated 96 percent of landlords were represented in eviction proceedings either by an attorney or an agent, compared with 1 percent of tenants, according to a study of a sample of evictions from 2019. This power imbalance affects the entire eviction process, said Pollock.
“It’s not just that tenants don’t have counsel, it’s that the landlords always have counsel in these cases,” said Pollock. “The courts essentially are really just there for the landlords. They’re like rent collection devices for the landlords.”
Tenants may not be able to attend the hearings because they cannot arrange childcare or take time off work, and don’t have an attorney to go in their place, said Pollock. For hearings that have moved online, tenants may not have a phone, computer, or reliable internet connection, he explained. And for some who don’t appear in court, he said, they feel an eviction is inevitable.
“If you know the outcome is a foregone conclusion whether you participate or not, why would you bother?” said Pollock.
Black tenants are disproportionately affected by evictions, which makes a right to counsel a matter of racial justice, according to housing rights activists. Mirroring a national trend, evictions in Baltimore, for instance, have historically fallen hardest on Black residents. Between July 2018 and June 2019, Black Baltimore tenants were evicted at a rate estimated to be three times higher than white tenants, according to the Evictions Study.
In response to advocates’ demands, lawmakers in several states are sponsoring right-to-counsel legislation, from city councils to state legislatures. Federal legislation to guarantee a right to counsel has not yet been introduced, but the stimulus bill that passed in December included $20 million to fund existing tenant representation programs.
City councils in Fresno, California; Seattle; and Tulsa, Oklahoma, are considering similar ordinances. Last month, a hearing was held on a right-to-counsel bill proposed by Seattle City Councilmember Kshama Sawant, but no further action has been taken.
Tenant right-to-counsel bills have been introduced in seven states, including Washington state, Nebraska, and Maryland. The proposed legislation differs, primarily, in who would receive representation. Nebraska’s legislation, unlike the other six statewide bills, would grant a right to counsel for anyone in an eviction proceeding. A committee hearing was held earlier this month.
In Washington, counsel would be provided to, among others, those who receive certain benefits, like food stamps, or have an income at or below 200 percent of the federal poverty line. (It would also prohibit evictions for unpaid rent that accrued between March 1, 2020, and the end of the governor’s moratorium on evictions.) The bill has already cleared one hurdle—it passed out of the Senate Housing Committee earlier this month, and on Tuesday a hearing was held before the Ways and Means Committee.
“When the moratorium here ends on March 31, in the absence of legal representation, in the absence of legislative intervention, there will be a tsunami of evictions,” said Jim Bamberger, director of the Office of Civil Legal Aid based in Olympia, Washington.
Last month, a hearing on Maryland’s right-to-counsel bill was held before the Senate Judiciary Committee, but its members have not yet voted. The bill would create, over a four-year period, a statewide right-to-counsel program for households with an annual income that is at or below 50 percent of the state’s median income. On Wednesday, a hearing on the companion bill occurred before the House Judiciary Committee.
Between July and November of last year, more than 2,500 households have been evicted in Maryland, according to the Maryland District Court.
“The laws and the protections that we put in place are only as good as the enforcement,” said Matthew Hill, an attorney with the Baltimore-based Public Justice Center. “Providing folks access to counsel to help balance the scales of justice a little bit is one way that we can actually enforce the legal protections that are out there.”
Last month, while Shawn Dunn was incarcerated on Rikers Island, his sister died. Dunn, 57, had been detained since October on technical parole violations: failure to report a change of address, missing meetings with his parole officer, and missing his 8 p.m. curfew.
His sister’s funeral was scheduled for Jan. 29, less than two weeks before his release. But officials with the New York City Department of Correction told him he had to provide his and his sister’s birth certificates if he wanted to attend, according to Dunn and his attorney with the Legal Aid Society.
Dunn’s sister’s birth certificate was submitted, but his couldn’t be found, he told The Appeal in a telephone interview from Rikers Island.
“I wasn’t able to go to the funeral,” said Dunn. “I was so upset.”
As of Feb. 9, there were 244 people in New York City jails on suspected technical parole violations, according to city data. Despite repeated calls to reduce New York’s prison and jail populations during the COVID-19 pandemic, this is the highest number of technical violation detentions since April, according to an analysis by the Vera Institute of Justice.
After a steep decrease in technical violation detentions in the spring, from about 650 people at the end of March to less than 200 at the start of June, the numbers began to creep up in December.
Local civil rights attorneys, activists, and people on parole say the system traps hundreds of people, predominantly Black and Latinx, in a cycle of incarceration and trauma. Advocates hope Senate Bill S1144, known as the Less Is More Act, which passed the Senate Committee on Crime Victims, Crime and Correction on Monday, will help change that. The legislation, among other reforms, would eliminate incarceration for many technical violations. In 2018, New York incarcerated the second-highest number of people for parole violations in the country, according to a report from the Bureau of Justice Statistics released last year.
“I came home hoping to reintegrate back into society and parole would be able to help me and get back on the right path, but parole has not done anything,” said Dunn, who was released on his underlying charge in 2017. “It has not done anything other than threaten me with going back to prison.”
In New York, where more than 35,000 people live under parole supervision, those accused of technical violations are detained while they wait for a probable cause hearing, which must occur within 15 days of their arrest. If probable cause is found, they’re imprisoned until their revocation hearing, where a judge determines if they violated their parole, and if they should be released or remain incarcerated.
In 2019, people charged in New York City with technical violations were incarcerated for a median of 49 days before their final hearing, according to a report by the mayor’s office. The vast majority of those charged were people of color—60 percent Black and just under 30 percent Latinx. Most were released to the community and about 30 percent were sent to state prison.
Weeks or months of incarceration can have catastrophic consequences, said Philip Desgranges, a supervising attorney at Legal Aid in its special litigation unit. While people on parole wait in jail, they can lose wages, employment, public benefits, and custody of their children, said Desgranges.
“What the state is doing is routinely destabilizing people’s lives unnecessarily,” he said.
Under the Less Is More Act, a person accused of a technical parole violation would receive a hearing within 24 hours of arrest to determine if they should be held until their next hearing. The bill is supported by the district attorneys of Manhattan, Brooklyn, and the Bronx, as well as more than 200 community organizations. Last week, the New York City comptroller called for the state to end the practice of arresting and incarcerating people for technical parole and probation violations.
“We need to think of technical violations as failures and we need to help people more than just trailing ’em, nailing ’em, and jailing ’em,” said Vincent Schiraldi, co-director of the Columbia Justice Lab and the former commissioner of the New York City Department of Probation.
When asked for their positions on the Less Is More Act, the state Department of Corrections and Community Supervision (DOCCS) and Governor Andrew Cuomo’s office told The Appeal they do not comment on pending legislation.
Last spring, in response to the pandemic, Cuomo directed DOCCS to conduct individual assessments of people who could be safely released. As a result of his directive, 791 people held in local and county jails across the state had their warrants for alleged low-level parole violations canceled as of Thursday, the governor’s office told The Appeal in an email.
In April, the Legal Aid Society sued Cuomo and the chairperson of the New York State Board of Parole challenging the automatic detention of those accused of parole violations. The suit is still pending before the courts.
Dunn had been incarcerated since October. For his parole violations, he was sentenced to four months and was released yesterday, according to Legal Aid. He has more than two years left on parole.
“My spirits are up. I’m grateful. I’m getting out in a couple of days,” Dunn told The Appeal last week when he was still at Rikers Island. “I’m already in the lowest position in my life. The only place to go is to the top.”
Demonstrations exploded across the United States last year after the killing of George Floyd on May 25 in Minneapolis.
During protests in Massachusetts, police officers in some cities responded to demonstrators with unprovoked and excessive physical force, indiscriminate pepper spraying, and mass arrests.
New footage shared with The Appeal from Boston from the evening of May 29 and Worcester from the night of June 1, along with the accounts of people present, point to a pattern of police attacking and arresting demonstrators without apparent cause and using excessive force to restrain people.
Carl Williams, a Boston attorney who was at the May 29 action as a legal observer, told The Appeal that what he saw from police was clearly aimed at treating protesters with cruelty, not what was legally appropriate.
“It’s vindictive and brutalistic,” said Williams. “It’s vengeful.”
In December, Williams provided The Appeal with 66 hours of raw video footage that showed multiple instances of police misconduct and violence on May 31. Williams obtained the footage in discovery; he is representing demonstrators arrested at that protest. The Appeal’s reporting sparked a citywide outcry and generated an ongoing investigation by the Boston Police Department and Suffolk County District Attorney Rachael Rollins.
Massachusetts Attorney General Maura Healey told The Appeal in an email that the May 31 body camera footage “underscores the importance of implementing reforms regarding use of force standards, transparency, and accountability.”
“It’s time for all of us, at all levels of government, to ensure we have a system the public can trust and that includes meaningful mechanisms to address misconduct by law enforcement officials,” said Healey.
The new footage shows a similar pattern of unnecessary force.
On May 29, demonstrators with Mass Action Against Police Brutality (MAAPB) marched past the District D-4 Boston Police station at 650 Harrison Ave., in the South End neighborhood, during a nonviolent action in support of Black lives and against police brutality.
Williams, the legal observer, described how about a third of the total group marching that day in protest stopped at the police station, the rest continuing on. As they assembled in front of the station, police in ever more militarized gear poured out of the building.
“People were saying straightforward, truthful, sometimes profane things about the police,” said Williams.
Brock Satter, a member of the MAAPB steering committee, told The Appeal that “tensions were very high” with police during the march. Though Satter wasn’t part of the crowd at the police station—he continued on to Nubian Square—he noticed that the police behavior was more confrontational at the march than it would be in later weeks and months.
“They went full riot gear and that wasn’t the case later on in the subsequent weeks,” said Satter.
Artist and activist Sara Zielinski, who attended the protest, described a sense of unease and confusion from police until just before 7:45 p.m. as officers faced off against demonstrators, forming a human barricade against them.
She described what happened next.
“Suddenly the cops pushed through that barricade and over on the side where I was,” said Zielinski. “A couple of us sort of tried to form a barricade using our bodies to keep the cops [away] who were on this side [from] getting out to and where the majority of people were. And I remember one woman who had a bike just getting pushed to the ground.”
Williams recounted a similar scene.
“It looked like a rugby scrum of people, like pushing and pushing back,” said Williams. “Then I just saw a phalanx of cops push into the crowd—which was not a huge crowd as you can see, there’s not like thousands of people there in the crowd.”
Body cam footage from one of the bike cops on the scene and Zielinski’s videos document what followed.
After rushing the crowd, police began arresting demonstrators and hitting, pepper spraying, and detaining people.
“I don’t know how or why they were targeting certain people” for arrest, said Zielinski.
Williams said he couldn’t tell exactly what police were trying to accomplish by rushing the crowd—whether they were trying to get certain people or just making a show of force—but that it didn’t matter. The attack on the demonstrators was quick and violent.
Video shows officers repeatedly charging toward a green space on the other side of the road from the police station and taking down demonstrators, arresting them for reasons unclear from the footage. Officers also push bystanders who are filming and yelling at them.
The officer wearing the camera became involved, running to the green space across the street as officers restrain one demonstrator, a woman with red hair. The actions that followed, which were also caught on camera for Getty by freelance photographer Joseph Prezioso, show the officer wearing the camera pepper spraying the crowd, which did not appear to be interfering with the officers’ actions.
While it’s difficult to see what exactly is being done to the woman being restrained, observers ask the police to “stop fucking hitting her” and ask “why are you tasing her.” Prezioso’s photo also shows an officer’s fist raised above the woman.
After the officer behind the body camera helps two other officers drag a woman into the station, all three rush back out to the green space in time to see an officer shoving two people, one to the ground, as police continue making arrests.
The Appeal emailed the Boston Police Department with questions about the arrests and police actions in question and asked for comment. The department did not comment specifically about these incidents and said it was trying to compare The Appeal’s descriptions of the videos with its arrest reports. In a contemporaneous press release about the May 29 arrests, the department said protesters engaged in “varying levels of disorderly behavior and conduct” and that four officers were injured during the unrest.
To Williams, the body cam footage, combined with what he saw on the ground and what Zielinski recorded, are indicative of what he says is the out of control nature of the Boston Police Department—whose officers act with impunity even when they know they may be recorded.
“You have police that fully think it’s their job to go out and seek personal revenge right now and use the powers, the policing powers that they’re given, to seek revenge,” said Williams. “It’s terrifying to think that’s the case. And one would also wonder—what aren’t we seeing?”
As bad as things were in Boston, in Worcester they appeared even worse. That didn’t surprise Williams, who noted that Boston police are less likely to take the kind of aggressive actions that Worcester cops do. Part of that is the history of organizing in the bigger city, he said, that has made Boston’s police less comfortable with overt displays of hostility and aggression toward the public.
“It’s somewhat a testament to organization and resistance and community pulling together,” said Williams. “I think that’s historically been a little bit harder in Worcester.”
To Marie Brouillette, a member of Defund WPD, the videos show what’s been well known to Worcester residents for years about police behavior. Yet public opinion has largely been against demonstrators, said Brouillette, which illustrates the challenges of advocating for change in the police department’s treatment of the public.
“It was not a great learning moment for the city,” Brouillette said. “Nothing came from it in terms of police reform, police abolition.”
Defund WPD was formed after demonstrations on the night of June 1 as a response to police misconduct, violence, and the seeming lack of accountability that the department has enjoyed for decades. According to Brouillette, the Worcester police have a pattern of misconduct that’s led to millions in lawsuits paid out by the city—but officers appear to be rarely disciplined.
That’s part of a pattern that was on display during the night of June 1. In a press release about arrests from that night, the police department described the crowd on the night of June 1 as “violent and chaotic.” When asked about the arrests and the charges of bad behavior, the Worcester Police Department referred The Appeal to the district attorney’s office; the office declined to comment on open investigations against demonstrators.
A report by Clark University on police treatment of four students arrested that night—Jay Verchin, Sarah Drapeau, Glynn Crum, and Lyndsay deManbey—found that police mistreated the students, who did not behave violently. The report sparked an internal investigation in the Worcester Police Department; no findings have been released.
Richard Cummings, a freelance photojournalist who was on the scene at Main Street and arrested at 11:24 p.m., told The Appeal that police started off hostile to the crowd, citing things he overheard while behind their lines.
“They were talking about how they wanted to kill this person, how they were watching out for that person, and they had eyes on that person,” Cummings said.
Joseph Hennessey, an attorney for several Worcester arrestees, gave The Appeal footage of their arrests. He said his clients “were all aggressively thrown to the ground far exceeding the necessary use of force to arrest.”
“They were punched, kicked, choked, knees in their backs and rib cages and all endured significant pain for no reason,” said Hennessey.
The videos show a pattern of what appears to be unnecessary force.
Verchin, who filmed himself on a Facebook live stream for 45 minutes starting around 11:45 p.m., told The Appeal that he left his home and began filming after seeing his friends’ footage of the protests and realizing it was close by and that his friends were among the crowd.
“I wanted to make sure they were OK,” said Verchin. “Strength in numbers is important.”
After about 40 minutes, riot police began advancing on Verchin and the other few protesters still on the street. As police began deploying what appeared to be tear gas—police reports only disclose the use of peppery gas and rubber impact bullets—Verchin, fearing an asthma attack, said he began making his way home, hiding behind a tree to avoid being a target. When a police car pulled up next to him, he said he turned and started to head home as quickly as possible.
“That didn’t happen,” said Verchin. “I was tackled violently. I got cuts on my legs, my hands. My phone—my phone flew out of my hand and got cracked and then kicked to the side by another officer and just left on the street.”
He was nearly in his driveway when they took him down around 12:30 a.m.
Drapeau, a friend of Verchin’s, ran toward him before being tackled by another riot cop. She was arrested for running across Main Street “screaming and waving her arms” and interfering in Verchin’s arrest. Video that Drapeau took that night instead shows she is filming Verchin’s arrest as it takes place.
Crum and deManbey, her partner, also went out to watch the protests and keep an eye on police behavior. The two filmed from 10 p.m. to midnight, recording police using pepper pellets and smoke bombs. Around midnight the two went inside but went back out after hearing police were using a dog on someone.
That someone was Javier Amarat. “I’m not resisting, I had so many cops on me,” said Amarat, recalling that moment.
Amarat, who had been walking outside with his cousin and a friend, was inside his cousin’s car near Main Street, when he made a remark about nearby officers. They immediately pulled him out of the car and arrested him.
Back on Main Street, Crum and deManbey live streamed what was quickly becoming a dangerous situation.
“The streets were near empty of people, but the police in armor seemed to have doubled,” said Crum.
That was when Crum and deManbey saw Drapeau being tackled outside Verchin’s home. Crum turned her camera toward the arrest as riot police charged her and deManbey.
“I moved to lay down and my phone was knocked out of my hand—still apparently live streaming to Facebook,” Crum told The Appeal. “The phone landed with the camera pointed directly up a few inches in front of my face as I was pinned down on my stomach.”
Veronica Pasquantonio, was attacked around 1:15 a.m. outside Maria’s Kitchen restaurant also on Main Street—some five blocks from where Verchin, Drapeau, and Crum were arrested. Pasquantonio said she and her boyfriend, Chris Euga, were targeted by a group of police after she objected to officers shoving other demonstrators. Pasquantonio described the treatment she received as in line with what she saw during the five years she lived in Worcester before moving to Westport, in the southeastern corner of Massachusetts. Her experience living in Worcester was why she returned to the city for the demonstration, she said.
After an officer pushed one young Black man, Pasquantonio said she told him to “keep his hands to himself” because the group was complying.
“He ran at me, called me a stupid bitch, punched me in the face and pushed me in the doorway of Maria’s Kitchen while two other cops were punching me in the ribs,” Pasquantonio said. “One was hitting me in the knee with batons until they could get me out of that corner. I was screaming because I was being assaulted and my boyfriend turned around and immediately was punched in the face.”
Police fell upon the pair, and the end of the confrontation is shown on video.
“They got me down on the ground,” said Pasquantonio. “I saw three sets of feet in front of me and I had one on my back. I could feel his knee on my spine and they were choking me with my sweatshirt.”
Finally, police let Pasquantonio get up and dragged her to a police van.
“I couldn’t stand on my right knee,” she said. “It was completely swollen.”
When she asked, officers refused to give her their names or badge numbers.
Pasquantonio believes her treatment was at least partially racially motivated.
“When I was being punched in the face, one of them asked, ‘Is the reason why you’re here because you’re an N-word lover?'” Pasquantonio said. “My boyfriend’s half Cape Verdean. And I couldn’t believe those words came out of [the officer’s] mouth. I felt like I was only being assaulted for standing up for equal rights for Black citizens.”
Nine people arrested in Worcester on June 1 have the exact same arrest reports up until the supporting documentation of their arrest, so police credibility on the reasons for the arrests—disorderly conduct, failure to disperse during a riot, and the like—is at best suspect, said Hennessey. Combine that with the video documentation and the case against the demonstrators is weak, he says.
“None of which occurred that evening was the result of protesters overreacting,” said Hennessey. “Police arrived in full riot gear and officers began pushing people with their batons. Similar to a cross check in hockey or lacrosse. People were thrown to the ground for no reason, causing tempers to escalate. It was like the police wanted this reaction.”
That pattern isn’t unique to Worcester.
Boston police behavior two nights earlier shows the extent to which problems in that city’s department can’t be swept under the rug, said Williams. The body camera videos show a pattern of misbehavior and abuse that leaves the prospect of reform lacking, said Williams, because it raises the question that if this is the behavior caught on tape, then what happens when the cameras are off? Promises from city leaders like former Police Commissioner William Gross—who retired Jan. 29—that the department is listening aren’t enough, he says.
“The Boston police’s general position is things in Ferguson don’t happen here,” Williams said, referring to the 2014 killing of Michael Brown by police in the Missouri city and the response to the unrest that followed. “At the same time, they’re attacking people with their newly acquired clubs and their newly issued pepper spray.”
Williams’s brother Christian filed a public records request for use-of-force reports—which are required to be filled out whenever force is used—from May 29. The department told him it has no responsive records; press officer Sgt. John Boyle further clarified to The Appeal that no reports have been completed. “There are reports from that night, they’re just not in their final stage,” Boyle said.
The actions taken by police across Massachusetts against demonstrators last year came as no surprise to Fatema Ahmad, executive director of the Muslim Justice League. Ahmad, who had not seen the footage from Worcester and Boston but was told about the contents, said the misconduct tracks with what she’s heard from others around the commonwealth.
“What we saw and heard from folks this summer was really consistent with how the police and law enforcement probably respond to people who are standing up for racial justice or for their civil rights,” said Ahmad.
Satter of Mass Action Against Police Brutality believes that police involved in violent misconduct and attacks on demonstrators should lose their jobs and face criminal prosecution—concrete actions that would show the commonwealth is serious about reform.
“People are focused on real results and that’s not what we’re seeing,” said Satter. “We’re seeing continued downplaying and more or less just window dressing in terms of changes.”
“This is a systemic problem,” he added. “And unless we dig into that deeply, we’ll never get to the root of it.”
Within two months in solitary confinement at Virginia’s Red Onion State Prison, Tyquine Lee began to speak in numbers. He signed his name with a series of random letters.
During his more than 600 days in isolation—from 2016 to 2018—he lost more than 30 pounds. His food was sometimes covered in maggots, dirt, and insects. He was confined to his cell for 22 to 24 hours a day. When he voiced grievances about his treatment, correctional officers maced him—about 25 times in total, according to a suit filed in 2019 by his mother against the Department of Corrections.
“When I actually got to go visit him I saw someone that wasn’t my son. He was just so small,” Lee’s mother, Takeisha Brown, told The Appeal. “He was rambling in numbers. He had a language of his own.”
In prison parlance, solitary confinement can be called administrative segregation, protective custody, the SHU (Special Housing Unit), or restrictive housing. But its features are largely the same: confinement in a cell, typically the size of about a parking space, for at least 20 hours a day. Its damage is fairly universal as well, with numerous studies finding it causes physical and emotional deterioration.
For those with a history of mental health conditions, like Lee, solitary confinement is particularly devastating. Between the ages of 8 and 10-years old, he was hospitalized four times for behavior related to mental health challenges, according to his mother’s lawsuit, filed by the MacArthur Justice Center and pro bono attorneys from the law firm Williams & Connolly.
Lee’s deterioration while in solitary confinement was detailed in mental health progress notes.
Less than two months after he was placed in solitary confinement, on July 21, 2016, a mental health progress report stated that when Lee was asked if he was suicidal or homicidal, he “began naming various numbers over and over.” But the next day the psychologist noted that Lee was not exhibiting symptoms of mental illness because he “verbally engage[d] the clinician.”
More than a year later,in September of 2017,a psychiatrist reported in his notes that Lee was communicating in “gibberish and numbers.” Lee’s behavior, he wrote, “cannot yet be separated from malingering.”
But despite documentation of his deteriorating condition, no actions were taken to move him until January of 2018, when the Institutional Classification Authority, which monitors prisoners’ progress in solitary confinement, recommended a transfer to another prison, where he received inpatient psychiatric care, according to the MacArthur Justice Center.
Last month, Lee, now 28-years-old, was transferred again, this time to a prison in New Jersey, near his mother’s home, as part of a settlement agreement reached in October between Brown and Virginia’s Department of Corrections.
“We’re in this fight until we win this fight,” said David Smith, chair of the Virginia Coalition on Solitary Confinement. “This is the first time we’ve actually had a bill get to the Senate floor that would effectively end the use of extended solitary confinement in Virginia.” The bill, said Smith, will now be referred to a committee in the House of Delegates.
Smith said when he was incarcerated at Norfolk City Jail, he was kept in solitary confinement for approximately sixteen months. “I lost my senses to the point where I would have conversations with the TV,” he said. “I lost my will to fight to live, to really fight for myself.”
Department of Corrections spokesperson Lisa Kinney told The Appeal they cannot comment on the settlement agreement with Lee and they have not taken a position on the bill. The only facility in Virginia with “long-term restrictive housing” is Red Onion State Prison, according to Kinney. There were 48 people in long-term restrictive housing at the facility as of Monday, she said.
“All inmates in restrictive housing are provided the opportunity to participate in a minimum of four hours of out-of-cell activity, seven days a week,” Kinney wrote in an email to The Appeal. According to Kinney, the status of people in restrictive housing is routinely reviewed by a multidisciplinary team of “facility leaders, including security, medical, mental health, and treatment.”
However, the department’s restrictive housing policy does not mandate four out-of-cell hours per day. The policy states, “Each institution should strive to confine offenders to their cells for less than 22 hours per day in restrictive housing units.” Kinney told The Appeal that the practice of offering prisoners in restrictive housing four hours outside their cells “has not made its way into the operating procedure yet” and that the written procedure will be “updated soon.”
“VADOC facilities were instructed in 2019 that effective no later than January 6, 2020, each inmate in any restrictive housing unit would be provided the opportunity to participate in a minimum of four hours out of cell activity, seven days a week,” Kinney said.
In the last six months, the Virginia Department of Corrections has settled two lawsuits over its use of solitary confinement, both requiring payouts of more than $100,000—to Lee and to Nicolas Reyes. On January 15, the Department of Corrections settled with Reyes, who was held in isolation at Red Onion for more than 12 years. Reyes, who does not speak or read English, could not complete the Department of Corrections’ step-down program, which is, generally, required for release from solitary confinement. The program materials were only offered in English.
The program was challenged in a lawsuit filed in 2019 on behalf of prisoners held in solitary confinement at Red Onion and Wallens Ridge state prisons by the ACLU of Virginia and law firm White & Case. The plaintiffs alleged that the program has trapped people in solitary confinement for years.
As part of the step-down program prisoners are required to complete workbooks and are evaluated on their hygiene, the neatness of their cells, and their rapport with staff and prisoners, according to the ACLU suit. If a unit manager determines a person is non-compliant, they can be made to restart the program, according to the ACLU suit. The Department of Corrections has filed a motion to dismiss, which the court has not yet ruled on.
The ACLU has also argued that the longer a person is in solitary, the harder it is to comply with the program’s requirements. In Lee’s case, his declining mental health prevented him from completing the program, according to his mother’s suit. “[Lee] attempted to complete the first two journals before his mental illness became so severe that he could not continue,” reads his mother’s complaint.
“I was asking, ‘Why are they keeping him in solitary confinement so long?’ and they said he had to remain there until he was able to complete their step-down program,” Brown told The Appeal. “I said, ‘He’s talking in numbers so how do you believe he’s going to complete something like this?”
UPDATE: This article has been updated with clarification about discrepancies in the written restrictive housing procedure from the Virginia Department of Corrections.
Before William Morva was executed in 2017, Rachel Sutphin wrote to Virginia’s then-governor Terry McAuliffe asking him to spare Morva’s life. When Sutphin was nine-years-old, Morva shot and killed her father, sheriff’s deputy Eric Sutphin.
Sutphin is now a 23-year-old seminary student working to end the death penalty in Virginia. This week, about 20 family members of murder victims, including Sutphin, released an open letter to members of the Virginia General Assembly, calling on lawmakers to abolish capital punishment and replace it with life in prison without the possibility of parole. Among the signatories are three state legislators who all lost loved ones to murder.
“I remember feeling that it brought me no solace,” Sutphin told The Appeal of Morva’s execution, which she did not attend. “Now my family’s grieving and his family is grieving, but it brings no justice, no fulfillment. It just causes more trauma and more pain.”
Virginia—once one of the country’s most frequent executioners—is potentially weeks, if not days, away from ending capital punishment, with legislators expected to vote on a bill that would ban the practice. Two amendments were introduced this week, including an amendment that would retain the death penalty for people convicted of the capital murder of a law-enforcement officer and people convicted of capital murder for the killing of more than one person as part of the same act. Legislators are expected to debate the amendments next week.
Prior to the introduction of the amendments, Governor Ralph Northam said he supports the legislation. If Virginia bans the death penalty, it will be the 23rd state to abolish capital punishment in the United States and the first to do so this year.
Morva was the last person executed in Virginia, on July 6, 2017.
In addition to Sutphin, others tried to stop Morva’s execution—state legislators, the European Union, the U.N. special rapporteur for arbitrary executions, and the U.N. special rapporteur for mental health. At the time of the crime, Morva, who was severely mentally ill, was suffering from delusions, according to his lawyers. When he was not incarcerated, he ate raw meat and pine cones, believing he suffered from an intestinal disorder.
But McAuliffe was not persuaded. “I personally oppose the death penalty,” he said in a statement, announcing his decision to decline Morva’s clemency petition. “However, I took an oath to uphold the laws of this Commonwealth regardless of my personal views.”
McAuliffe never responded to Sutphin personally, she told The Appeal. He recently announced he’s running to be governor a second time, and that he supports a ban on capital punishment.
“I was raised—my father being a police officer—that you can trust the government, that the government’s there to protect you, but they didn’t answer me,” she said. “I do appreciate that Governor McAuliffe has now said that if he is governor again he will support the abolishment of the death penalty, it feels almost too late for me.”
Morva’s execution did not bring closure, said Sutphin. “Now there’s two dates that I remember every year,” she said. “I remember Morva’s execution and my father’s death … For me, true closure would be abolishing the death penalty.”
A diverse coalition has emerged in support of ending capital punishment in Virginia. Earlier this month, a dozen chief prosecutors in Virginia sent a letter to legislative leaders calling for, among other reforms, abolishing the death penalty. “The death penalty is unjust, racially biased, and ineffective at deterring crime,” the prosecutors wrote. “It is past time for Virginia to end this antiquated practice.”
In recent years, the death penalty has been all but non-existent in Virginia. A death sentence has not been handed down in Virginia since 2011, and there are only two people on its death row. If the amendment that retains the death penalty is passed, both people on death row would still be eligible for execution. Despite its infrequent use, its abolition is still necessary, say advocates. A de facto moratorium does not indefinitely protect the lives of those on death row. Until last summer a federal execution had not occurred in 17 years. And then between July and January of this year, the federal government executed 13 people.
“Virginia has executed more people than any jurisdiction in the United States since the founding of Jamestown and the first execution in 1608,” said Michael Stone, executive director of Virginians for Alternatives to the Death Penalty. “If we can turn the page on capital punishment I think that sends a strong message that the time of the death penalty is coming to an end.”
Rosa Jimenez was sentenced to 99 years in prison for a crime that likely never occurred. Yesterday, a judge ordered her release on bond, but this morning Immigration and Customs Enforcement (ICE) detained her, according to the Travis County District Attorney’s office. She is scheduled to be released from ICE custody today, according to a statement released by the DA’s office.
José Garza, a former public defender, was elected district attorney in November, after running on a campaign to reform the criminal legal system.
“Last night, the District Attorney’s Office joined counsel for Ms. Rosa Jimenez requesting Ms. Jimenez’s release,” the DA’s statement reads. “Our office joined defense in arguing that, in light of the testimony and affidavit from our expert witness, Ms. Jimenez is entitled to relief because she is likely innocent.”
Jimenez is currently suffering from advanced kidney disease.
In 2005, Jimenez was convicted of murder and injury to a child. While in prison, an ICE detainer was issued for Jimenez, according to her attorney, Sara Ann Brown, from the law firm Foley & Lardner.
“When the release order came in, by law the prison had to notify ICE that she would no longer be in their custody,” a spokesperson for Travis County District Attorney’s office told The Appeal.
Jimenez is expected to be released this evening.
“We are looking forward to seeing her reunited with her family,” Brown said in a statement to The Appeal. Jimenez is also represented by the Innocence Project and Kirkland & Ellis.
When then 20-year-old Jimenez was arrested in 2003, she was pregnant and a mother to a one-year-old daughter.
On Jan. 30, 2003, Jimenez was babysitting her daughter and a 21-month-old boy, when she noticed the boy was turning purple and having trouble breathing. After trying to clear his airways, she took him to a neighbor’s apartment for help. Another neighbor heard Jimenez screaming, came over, and called 911.
Paramedics eventually dislodged what they later learned was a wad of paper towels from the child’s airways. But because of the lack of oxygen, he suffered serious brain damage and died three months later.
Travis County, Texas, prosecutors charged Jimenez with murder, claiming it was impossible for a child of that age to accidentally swallow a wad of five paper towels. The case rested entirely on that argument.
With limited funds to hire credible experts to refute the state’s theory, Jimenez’s attorney called only one medical expert—a forensic pathologist—who testified that the boy’s death was an accident. His credibility was undermined, according to a petition filed on Jimenez’s behalf, because he used profanity during his testimony and had an “emotional outburst” while on the stand.
The child’s death, however, was “likely accidental,” according to the DA’s statement.
“At the hearing yesterday, three expert witnesses testified that the death of [the boy] was likely accidental,” reads the DA’s statement. “They are all nationally recognized experts in pediatric airway function. Our office also filed an affidavit from one of the original experts who testified. This expert, after having the opportunity to review statements from the pediatric airway experts, said that her original opinion has changed.”
As President Biden and his administration begin selecting political appointees, civil rights advocates and formerly incarcerated people hope a new Federal Bureau of Prisons (BOP) director will be chosen who prioritizes the human rights of those incarcerated.
“This is the one correctional system that is completely within the control of the Biden-Harris administration,” said Piper Kerman, who was incarcerated in the federal system and is the author of the book “Orange Is the New Black: My Year in a Women’s Prison.” “There’s no question that the president and the Department of Justice that he appoints control the BOP. The BOP should look the way the new administration wants it to.”
The new director should be a reformer who can change the agency’s culture, said Kevin Ring, president of FAMM (Families Against Mandatory Minimums).
Ring said his organization met with Biden’s transition team to share what type of person they believe should lead the BOP. When the pandemic hit, the BOP’s reticence to release people put thousands of lives at risk, said Ring, who was incarcerated in the federal prison system.
“They weren’t ready to do something like this, which is shift gears and figure out how to save lives,” he said.
The BOP has more than 123,000 people incarcerated in federal prisons and about 13,800 in community-based facilities. Over the last year, medical professionals have championed calls to release prisoners, and to provide proper medical care and vaccines for those who are incarcerated.
Between March and May, federal wardens rejected or ignored more than 98 percent of compassionate release applications, according to an investigation by The Marshall Project. In addition to compassionate release, prisoners can also be placed on home confinement. Since March, about 20,000 people have been released on home confinement, according to the BOP website. And as of Jan. 16, only about 6,500 people incarcerated in federal prisons have received one or two doses of the vaccine. The Bureau of Prisons currently recommends offering vaccinations to all employees before incarcerated people.
“We’ve been fighting to get as many sick and elderly people, those who are at risk of COVID out of prison and we’ve really had to do that by fighting the Bureau of Prisons,” said Ring. “We’ve been having to work with the prisoners and their families to file compassionate release motions and to go to court. But the Bureau of Prisons could have been a partner in this effort.”
Throughout the pandemic, numerous federal prisoners have reported inadequate or nonexistent medical care, isolation, and denied applications for release, and activists say addressing these issues should be the priority for a new BOP head.
Last February, Attorney General William Barr appointed the current BOP director, Michael Carvajal, who began his career with the bureau in 1992 as a correctional officer. Members of Congress and civil rights advocates have condemned his response to the pandemic, which they say has endangered prisoners, staff, and the surrounding communities. Since the pandemic began, tens of thousands of prisoners have contracted COVID-19. As of Monday, more than 200 federal prisoners have died from the disease, according to the Bureau of Prisons. Three BOP staff members have died.
The new director should also be someone from outside the Bureau of Prisons, advocates say.
“The first thing I would ask the president is, ‘Are you happy with the way it’s being run now?’” said Rick Raemisch, a retired executive director of the Colorado Department of Corrections. “Does that fulfill your vision and if it does not, then I would suggest you not promote from within because when you promote from within, typically you get what you got.”
As head of his state’s DOC, Raemisch ended long-term solitary confinement, and capped the maximum stay in isolation at 15 days at a time. He suggested two reform-minded department of corrections leaders to lead the BOP: Colorado’s Dean Williams and Oregon’s Colette Peters.
“The person in charge of the bureau has to ensure that they’re doing everything they can to ensure that [incarcerated people are] ready to return to the community,” he said.
Several formerly incarcerated advocates told The Appeal that the pandemic made clear the need for a public health expert to lead the bureau.
“Someone from the medical field should be the head of BOP because prisons are public health disasters,” said Adnan Khan, executive director of Restore Justice. Khan co-founded his organization when he was incarcerated in California. “Anyone with a law enforcement background is not qualified for that job.”
Five Mualimm-ak, a human rights activist, agreed that the new head of the BOP should have a medical background and suggested psychologist Craig Haney. Haney, a professor at the University of California, Santa Cruz, has studied and spoken out on the detrimental health effects of incarceration and solitary confinement. A medical professional “has a duty beyond the system of punishment,” said Mualimm-ak, who is president of the Incarcerated Nation Network, a collective of formerly incarcerated leaders.
“Having a person who would put human rights first would change the system,” he said.
Haney or public health expert Brie Williams should be among those considered to run the Bureau of Prisons, said Kerman. Williams is a professor at the School of Medicine at the University of California, San Francisco. She also heads Amend at UCSF, which tries to change the correctional culture in prisons and jails. During the pandemic, the group has advocated for reducing California’s prison population through early releases.
“We’ve had a lot of insiders run the Bureau of Prisons, and we’ve seen very little improvement,” said Kerman. “It’s definitely time to bring someone from outside of that existing bureaucracy to change it.”
Jack, who is incarcerated in a federal prison in New England, has filed for compassionate release multiple times since April. Although he is classified as a minimum-security prisoner and has blood disorders, each petition has been denied. (The Appeal is not publishing Jack’s real name to protect him from retaliation for speaking with the media.)
Last year, Jack was in quarantine for about 100 days according to a court filing—before and after a prison transfer and after potential exposures, he told The Appeal. Last fall, Jack tested positive for COVID-19. He was sent back to isolation, he said.
“One of the things that was tough for me was being in that isolation cell, not being able to reach out to my family,” he told The Appeal. “Not sure what was going to happen, not sure if I’d ever talk to them again.”
When asked who he’d like to see head the Bureau of Prisons, Jack suggested someone who has been incarcerated or had a loved one incarcerated.
“I don’t think guards and the staff that work in the prisons, I don’t think they fully comprehend all the damage that happens to inmates when they’re in here,” Jack said. “I think only somebody who knows somebody or they themselves have been in this situation would really understand the full consequences and be able to be empathetic.”
Mualimm-ak said his first suggestion for a BOP head is “someone who’s been through it.”
On the morning of May 30, 2012, in Jacksonville, Florida, Dennis Glover heard a scream come from the trailer of his neighbor, Sandra Allen, according to a statement he later gave police. He went to check on her and when he looked in, he saw blood, left, and told his girlfriend to call 911. The police arrived and found Allen had been stabbed multiple times.
The next day, the police brought Glover to the police station and accused him of killing Allen. Glover denied committing the crime and asked for an attorney, but the police continued to question him, according to a transcript of the interrogation. He told police he had been diagnosed with bipolar disorder and schizophrenia, and hadn’t yet taken his medication.
“Okay are you seeing … are you seeing green … men flying around here or anything?” asked one of the detectives. Glover replied he did not.
About six weeks later, Glover was arrested. He was convicted in Duval County Circuit Court and in 2013, the jury recommended a death sentence in a 10-2 vote. But in 2017, the Florida Supreme Court overturned his sentence, finding that a jury must unanimously recommend a death sentence, and sent it back to the lower court for resentencing.
But State Attorney Melissa Nelson has opted to seek death again. Nelson ran as a reform-minded prosecutor in 2016, and defeated the notoriously punitive incumbent. But in Glover’s case, Nelson seems to be taking a position that’s more in line with her predecessor than her public pronouncements to seek the death penalty judiciously.
Nelson’s decision runs counter to a growing trend away from the death penalty, a movement supported by numerous chief prosecutors. For Nelson to pursue death in a case like Glover’s is particularly egregious, his attorneys say, because of several mitigating factors, including severe mental illness and intellectual disability.
In letters to community members, Nelson seems to suggest that she would consider dropping the death penalty if not for Glover’s innocence claim and his plans to appeal his conviction.
Deacon Lowell “Corky” Hecht, a prison ministry director who visited Glover on death row, wrote to Nelson in July asking that she not pursue a death sentence for Glover. In response, Nelson wrote that her office is “open to consider any offer by Mr. Glover to resolve this matter in a manner that will provide Ms. Allen’s family the closure and finality they deserve.” However, she continued, Glover “seeks to ensure his ability to continue to litigate the merits of his underlying conviction.”
In another letter to a community member she wrote: “Mr. Glover currently maintains his innocence and remains unwilling to accept responsibility for his murder of Sandra Allen. Mr. Glover has expressed through counsel, his intention to challenge his first-degree murder conviction through continued postconviction litigation. … Under these circumstances, Mr. Glover’s current position is completely at odds with, and in fact, forecloses our ability to engage in any meaningful dialogue regarding his death sentence.”
Nelson’s office did not respond to The Appeal’s request for comment on the letters.
In several wrongful conviction cases, innocent people have pleaded guilty to avoid the death penalty.
In 2007, Amy Wilkerson was facing capital murder charges for shaking to death a baby in her care. Her attorney told her if she didn’t plead guilty, she would be executed. The next day, Wilkerson pleaded guilty and was sentenced to life. She maintains her innocence and is currently represented by the Mississippi Innocence Project, the Wisconsin Innocence Project, and a private attorney.
Nelson’s decision to seek a death sentence is particularly unjust, his attorneys say, because he is intellectually disabled, making him ineligible for the death penalty. As a child, Glover was placed in special education classes and left school before graduating. His scores on reliable IQ tests—administered when he was 11, and again at 49 by two defense experts—ranged from 67 to 72.
In 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that it was unconstitutional to execute people with intellectual disabilities. In 2014, the Court struck down Florida’s method of determining intellectual disability in favor of a more holistic analysis. Previously in the state, only those who had an IQ of 70 or below could be considered intellectually disabled.
“This rigid rule, the Court now holds, creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional,” reads the majority opinion, which still gave lower courts plenty of discretion to define intellectual disability.
David Chapman, Nelson’s spokesperson, told The Appeal that the state’s expert disagrees that Glover has an intellectual disability. In Glover’s case, they “carefully considered both the aggravation and mitigation prior to reaching the decision to continue to seek a death sentence,” Chapman wrote in an email to The Appeal.
“The death penalty is the law of Florida and intended for the worst of the worst defendants who are found guilty of first-degree murder,” he wrote. “In 2017, this office created a panel of our most experienced attorneys to ensure a thorough review of the facts and the law of each case before a final decision is made by the state attorney.”
In a five-page report from 2015, the state’s expert concluded that Glover did not meet the criteria for a diagnosis of intellectual disability. The expert wrote that he did not interview Glover, who was incarcerated at the time and refused to speak with him.His conclusion was primarily based on Glover’s IQ score of 80 taken when he was 16 years old—32 years before Allen’s death. But the test he was administered, the Wechsler Intelligence Scale for Children, was outdated, even at the time, and not designed for children his age, according to Glover’s court filings.
Glover grew up in poverty in Georgia, and both parents struggled with mental illness, according to his court filings. As an adult, Glover was diagnosed with bipolar disorder, major depressive disorder with psychotic features, and schizophrenia.
In 2007, at age 43, he was hospitalized after he woke up on the side of a highway, according to his medical records. He said he was hearing voices and had tried to die by suicide, but he didn’t remember how. The day before, he had reported to an outpatient program that he had stopped his medication because, he said, “I have no money to get it.”
There are many unanswered questions about Allen’s murder, according to Glover’s attorneys with the American Civil Liberties Union—questions that a prosecutor’s office, sworn to seek justice, should attempt to answer, they said. A murder weapon was never identified and a search of Glover’s home didn’t turn up any bloody clothing.
The state’s case primarily rested on DNA evidence. Allen’s blood was found on the tops of Glover’s sandals. The police had photographed and returned Glover’s shoes to him on the day the victim’s body was discovered, but did not collect them until the end of his interrogation the next day. He could not be excluded from swabs of touch DNA taken from the victim’s head and neck, and left hand, according to the state’s DNA expert.
But much remains unknown. The state’s expert testified at Glover’s trial that DNA from at least three people found on the victim’s right hand “was too low level and too complex” to be able to include or exclude anyone. And a trace amount of semen found on Allen’s genitals was too small a sample to develop a DNA profile from, according to the state’s expert.
Glover’s attorneys have filed a motion to test, among other items, Allen’s clothing and hairs found on her body. These samples could be particularly probative because when Allen was found, her shorts and underwear were pulled down. More advanced testing, they argue, could also potentially identify who deposited the semen. A hearing on the motion, which the state is opposing, is scheduled for today.
Nelson’s decision to seek death is out of step with current sentencing practices in Florida and across the country. Twenty-two states have abolished capital punishment and an additional 12 have not carried out an execution in at least a decade, according to the Death Penalty Information Center (DPIC).
Across all of Florida, a state that has historically embraced the death penalty, seven people were sentenced to death each year between 2018 and 2020, far less than the often double digits of people sentenced each year in the decades prior, according to DPIC. Since Nelson took office, two people from her jurisdiction, the Fourth Judicial Circuit, have been sentenced to death.
The growing movement to abolish capital punishment issupported by numerous chief prosecutors. This month, a dozen chief prosecutors in Virginia sent a letter to legislative leaders calling on them to ban the death penalty. Newly elected Los Angeles County District Attorney George Gascón issued a directive stating his office will never seek a death sentence.
“The electorate and the prosecutors that they’re electing [are] moving away from our nation’s past pervasive use of the death penalty,” said Miriam Krinsky, executive director of Fair and Just Prosecution.(Fair and Just Prosecution is a fiscally sponsored project of The Tides Center. The Tides Center is also a fiscal sponsor of The Appeal.)
Cases like Glover’s were common under Nelson’s predecessor, Angela Corey, who was state attorney from 2009 to 2017. As of August 2016, Corey’s office had sought and secured death sentences for 24 people, according to the New York Times magazine. Corey sought a death sentence for Thomas Brown, who had an IQ of 67 and had been diagnosed with bipolar disorder with psychotic features, according to a report by the Fair Punishment Project.
Voters elected Nelson in hopes she could begin to correct these types of injustices.
“We’re trying to bring broader thinking about what public health and public safety look like,” Nelson told the ABA Journal in 2019. Nelson was featured in the journal’s cover story “Change Agents: A new wave of reform prosecutors upends the status quo.”
In 2018, Nelson launched the state’s first conviction integrity unit to review potential wrongful convictions. “We did this because one of the things I ran on was restoring trust in the work that we do,” Nelson told the ABA Journal. “If nothing else, we’re willing to take a look at our mistakes to ensure they don’t happen again.”
Jeffrey Pendleton was held at the Cook County Jail for close to two years. On March 26, in the midst of the first wave of the COVID-19 pandemic, the court denied his public defender’s request to lower his $50,000 bond, according to news reports. Unable to pay the $5,000 he needed to be released, he remained in jail.
By March 30, Pendleton had tested positive for COVID-19 and was taken to Stroger Hospital. At the hospital he was shackled, by hand and foot, to the bed, according to a lawsuit filed by his family. He died on April 5, at the age of 59. He is the first known prisoner from Cook County Jail to die from COVID-19.
“We asked for an expedited bond review on this client and to be released from jail before trial. We lost that fight,” Cook County Public Defender Amy Campanellitweeted after Pendleton’s death. “He should have been sent home.”
On Wednesday, state lawmakers took action to help prevent tragedies like this from occurring. They approved House Bill 3653, an omnibus criminal justice reform bill championed by the Illinois Legislative Black Caucus which, among many other provisions, eliminates cash bail.
“For questions around safety, money has no relevance and all that it does is increase inequities and racism in the system,” said Sharlyn Grace, executive director of the Chicago Community Bond Fund, a member of the Coalition to End Money Bond.
The latest version of the bill was introduced shortly before the vote, prompting its opponents to accuse the bill’s supporters ofrushing it through in the last hours of the lame duck session before new legislators were sworn in.
In addition to eliminating cash bail, the bill bans chokeholds “unless deadly force is justified,” ends prison gerrymandering, and mandates, over a multi-year phase-in, body cameras for all police departments. The bill prohibits officers from firing firearms or impact projectiles indiscriminately into a crowd and from targeting a person’s head, pelvis, or back with non-lethal projectiles. The legislation also changes Illinois’ felony murder law.
Law enforcement condemned both versions of the bill, claiming the provisions would jeopardize the lives and safety of residents. Contrary to their claims, studies have shown that limiting cash bail does not affect crime rates.
The legislation abolishes cash bail—a system that made avoiding pretrial detention contingent on an ability to pay—in all circumstances except when required by laws and agreements Illinois entered into with other states.
Cash bail has been widely condemned as criminalizing poverty. Recent polling conducted by The Lab, a policy vertical of The Appeal, found that more than half of likely voters surveyed in Illinois support a presumption in favor of release for those accused of crimes.
People accused of almost all misdemeanors and most low-level felonies cannot be jailed pretrial at an initial hearing, Grace explained. For those charged with what are considered more serious offenses, courts will be required to hold hearings to determine if a person poses a danger to a specific person or is a “willful flight risk,” meaning they intend to evade prosecution. “Past non-appearance in court alone is not evidence of future intent to evade prosecution,” the bill reads.
Risk assessment tools, which have been found to be racially biased, can not provide the sole justification to deny someone pretrial release. In cases where a court orders electronic or GPS monitoring, or home confinement, the court must review its order every 60 days to determine if less restrictive conditions can be imposed.
Under the current system, said Grace, “the decision of whether or not to jail or release someone is being made in mere minutes.” This bill passed, she said, “ensures that there are going to be robust, meaningful, adversarial hearings before somebody’s liberty is taken away.”
The governor applauded the bill’s passage, but did not explicitly state he would sign it.
“I was proud to make ending cash bail and modernizing sentencing laws a legislative priority of my administration,” Pritzker said in a statement released Wednesday. “I have long pledged my support to the Illinois Legislative Black Caucus in their efforts to pass not just criminal justice reform and police accountability measures, but also to truly root out the systemic racism that pulses through all our nation’s institutions.”
Those who are incarcerated because they can’t afford bail can face catastrophic consequences. Pretrial incarceration can lead to a person losing their job, housing, and custody of their children. It can also have serious ramifications for their case. Those who are incarcerated are more likely to plead guilty and more likely to receive harsher sentences than those who are free pending resolution of their case.
And in the midst of the COVID-19 pandemic, a jail stay, as in the case of Pendleton, can be fatal. On Dec. 7, 370 people incarcerated at the Cook County jail tested positive for COVID-19—more than the previous high of 307, on April 10, according to data obtained by the Chicago Sun-Times.
As of Jan. 13, 91 incarcerated people at the jail have tested positive for COVID-19, which includes four people who are hospitalized, according to the Cook County Sheriff’s website. Nine detainees who tested positive for COVID-19 have died. Four correctional officers and one deputy have died due to complications from COVID-19.
“[Jail has] always been violent, it’s always been dangerous, but COVID has made it even worse,” said Sharone Mitchell Jr., director of theIllinois Justice Project, a member of the Coalition to End Money Bond. “For us it’s really about significantly reducing the jail population as a whole and we think the offshoot of that will be, you will see less deaths in custody.”
In the wake of an historic election and even more historic insurrection, Democrats find themselves in an unusual national moment. For the next two years, they will control both Congress and the presidency, offering the possibly short-lived opportunity to make good on the promises they made to voters during the election.
A key lesson from the Democrats’ Senate runoff victories in Georgia is that voters, whatever their traditional partisan loyalties and ideological leanings, respond to ambitious, results-oriented leadership. In a last-minute bid to win re-election, even the Republican incumbents opted to follow the lead of Senator Bernie Sanders by voicing their support for $2,000 stimulus checks that Senate Majority Leader Mitch McConnell had repeatedly blocked. In the midst of a prolonged economic and public health crisis, having a “D” or an “R” by your name is no longer enough to secure votes: Voters are demanding that their representatives deliver results.
In an evenly-split Senate, Democrats will need perfect unity to pass their agenda without Republican support, since Vice President Kamala Harris will have the power to break ties. But unless they’re staring down the barrel of an attempted coup, Democrats are not a monolith, ranging in ideology from people like West Virginia Senator Joe Manchin to New York Representative Alexandria Ocasio-Cortez. And with Republican politicians torn between fully claiming a mantle of sedition or moderating their platform in a bid to catch up to their own voters, voters who might have previously backed GOP candidates are more persuadable than ever. Facing a ticking clock and the enormous challenge of finding agreement across such a ideologically diverse coalition, identifying the key issues that are popular enough to prioritize on day one is essential for both the Biden administration and Democrats who wish to remain in power after 2022.
So what should be in that top-priority group? Democrats must find policies that garner such overwhelming support among voters that their broad array of members can stand behind them. These must be things that matter concretely to ordinary Americans—things that people think about during sleepless nights, that they worry about as they cook dinner. These must be things Democrats can run on in key districts and still win. With those two criteria—broadly popular, concretely meaningful ideas—any opposition from Republicans, or even within their own party, would have to be an example of extremist, partisan antics rather than meaningful disagreement.
Happily, there are a number of initiatives that fit this mold, all of which could bring people together and create what American voters have almost forgotten how to recognize: consensus and progress.
But stimulus payments alone aren’t enough to survive a crisis, let alone build an economy in which ordinary families can thrive. Democrats need to tackle raising the minimum wage, and people are ready for them to do so: 68 percent of likely voters, including 59 percent of Republicans, support raising the minimum wage to $15 per hour and adjusting it each year to account for national cost of living increases.
When it comes to creating jobs, 64 percent of likely voters, including 78 percent of Democrats and 53 percent of Republicans, support a federal job guarantee program as part of the government’s response to the current economic crisis. Certainly there is ample paid work to be done in driving vaccines and food supplies across the country, helping kids recover from the disruption in their schooling, creating urgently-needed safe housing, and otherwise repairing the damage to American communities sustained during the last four years.
One such opportunity might be the clean energy sector. Across the political spectrum, Americans want a world in which their children can flourish, particularly if that world spurs economic growth today. With 66 percent of likely voters, including 54 percent of Republicans, supporting the federal government investing in clean energy infrastructure, it is easy to envision how this expenditure could be paired with a federal work initiative.
Jobs aren’t enough if people aren’t free to take them, though, which is why nearly three-quarters of likely voters, including 67 percent of Republicans, support providing families with refundable tax credits to help cover the cost of childcare, and two-thirds support providing all 3- and 4-year-old children with access to free, high-quality pre-kindergarten. Investing in the economy means investing in families, letting parents work, and letting kids thrive in a post-COVID world.
For those who have struggled on low incomes, providing simple protections against predatory lending is also a popular policy. A recent poll showed that likely voters also favor ending this financial abuse with interest-rate caps on credit cards and loans, with 65 percent of those surveyed supporting such a measure.
Beyond the freedom to thrive economically, voters want a new vision of safety for themselves and their loved ones. Most voters, including Republicans, are ready to legalize the sale and use of marijuana, ending the failed war on drugs and reinvesting the tax revenue from marijuana sales in communities most harmed by punitive drug policies. On this front, 62 percent of likely voters, including 60 percent of Republicans, support the MORE Act, which would decriminalize marijuana at the federal level—and which the House of Representatives passed in December in a bipartisan vote. With the Senate now in Democratic hands and such strong support from voters, this is the ideal time to finally pass legislation to undo decades of harm and spur economic growth.
Even the question of policing, so often thought of as a divisive, hot-button topic by people whose lives are not regularly touched by police, has aspects which are ripe for unified action. One idea is that police are carrying too much; police were never meant to be crisis counselors, providers of mental health first aid, substance use experts, or social workers. The idea that local leaders must create a new type of first responder is broadly attractive: 66 percent of likely voters, including 74 percent of Democrats and 62 percent of Republicans, support a federal grant program to support community-based, non-law enforcement emergency and non-emergency response. In places like Colorado and Oregon, non-police emergency responders are already dispatched through 911 to crises that require a different skill sets. As it turns out, mental health workers need assistance from police less than 1 percent of the time.
These are not fringe policies. These are concrete, sensible ideas that the majority of American voters can and do stand behind.
Calls for unity seem hollow—if not offensive—when they are mere rhetorical reflexes that ask Americans to embrace those who would violently overthrow our democracy. But Americans, and particularly those in the halls of Congress, can and should seek unity with those who use different political labels but are ready to support ideas that would create a real, tangible difference in people’s lives, far removed from the churn of an obsessive news cycle or the tangles of Beltway conversation. If brought to bear now, in this unique window of Democratic power, these ideas will serve as the kind of kept promises that push voters back to the polls two years from now.
After all, a lesson from Georgia is that you can get people to the ballot box more than every four years. But not without big, exciting ideas, and a willingness to fight for them.
Emily Galvin-Almanza is co-founder and executive director of Partners for Justice, a program focused on breaking the cycle of poverty and incarceration. She is also a senior legal analyst at The Appeal and an anchor of “The Appeal Live.” You can follow her on Twitter at @GalvinAlmanza.
Sean McElwee is a co-founder and the executive director of Data for Progress. You can follow him on Twitter at @Sean McElwee.
I’m a prosecutor. I have spent my career pursuing justice on behalf of the state and promoting public safety in my community. And as a prosecutor, I support the incoming Biden administration’s call for more federal judicial candidates with backgrounds as public defenders and civil rights attorneys.
For some law students, their criminal law class is the first time they see the profound injustices that take place at every level of the criminal legal system. They read cases rife with systemic racism, implicit bias, and classism. When those who went to law school to make the world better ask how they can do good in a system that is so bad, they are almost always toldto become prosecutors. Alternatively, they set out to become public defenders then realize that prosecutors are the most powerful players in the criminal legal system. Prosecutors decide whether to bring charges, what charges to bring, and recommend what the punishment should be.
I was one of those students who went to law school to change the world. Originally determined to pursue a career as a public defender, I quickly identified the enormous power prosecutors hold to change the system. After serving as deputy state’s attorney for six years, I sought the position of Chittenden County State’s Attorney in Vermont on a platform to overhaul this system. In that role, I have spent the last four years working to address implicit bias in prosecution; promote alternatives to arrest, prosecution, and incarceration; address mental health and addiction as public health issues; and eliminate cash bail. Being a prosecutor gives me an opportunity to pursue justice and the safety of my community in ways that I could never do as a public defender.
But there is another reason law students and lawyers are told to become prosecutors: Judges are much more likely to have been prosecutors than public defenders and civil rights attorneys. For every public defender on the federal bench, there are a little more than four former prosecutors. The ratio is seven to one if you compare lawyers who represented the government versus lawyers who represented individuals fighting the government. At the Supreme Court level, Ruth Bader Ginsburg was the only recent justice who practiced solely as a civil rights attorney. Thurgood Marshall, who retired from the high bench nearly three decades ago, was the last justice with criminal defense experience.
As a progressive prosecutor, I know that not all prosecutors come with a tough-on-crime mentality. Justice Sonia Sotomayor, who has long been the most progressive member of the Supreme Court,spent the first five years of her law career as an assistant district attorney in Manhattan. But no number of prosecutors turned good judges will fix the fact that former prosecutors and the perspective they bring take up more of the bench.
The lack of professional diversity on the bench has ensured that our courts can disproportionately reflect the viewpoints of the most powerful institutions and individuals in our country. Prosecutors’ jobs often depend on maintaining good relationships with police which means that prosecutors who become judges bring that experience with them. The extent to which a prosecutor turned judge’sprior professional experience impacts their view of the law has grave implications for regulating law enforcement and holding police accountable for misconduct, including the near impossibility of suing police and prosecutors for civil rights violations under the judge-made doctrine of “qualified immunity.”
Public defenders and civil rights attorneys, by the nature of their professions, are required to consider the impact of the law on everyday people. Their jobs require them to understand the circumstances of marginalized groups and ensure that large institutions do not strip them of their most basic rights. They spend their careers representing these everyday people, hearing what led them to possibly engage in criminal behavior and hearing stories of being falsely accused. They also understand mitigating factors that have led to harm to the individual, their families, and their communities, often because of the government’s failure to meet their basic needs. They spend their careers attempting to convince the government that these individuals are also a part of their community and deserve to be treated with the same respect and dignity.
Given the clear imbalance on our federal judiciary, such a resume can serve as an indicator for desired qualities in judges that many public defenders possess. As Justice Sandra Day O’Connor wrote, reflecting on Justice Marshall’s impact on the court, “His was the ear of a counselor who understood the vulnerabilities of the accused and established safeguards for their protection. … At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences.”
A Biden administration should appoint more justices like Marshall and Ginsburg on the bench by committing to nominate more civil rights attorneys, public defenders, and lawyers with an innate understanding of how the deck has been stacked against marginalized people in our country.
Sarah Fair George is the state’s attorney in Chittenden County, Vermont.
As Support For The Death Penalty Plummets, The Trump Administration Embraces Executions
While bans on capital punishment progress at the state level, the federal government is racing to carry out three more executions before President Trump's term end. Ten people have been put to death since July, the first such executions since 2003.
As Support For The Death Penalty Plummets, The Trump Administration Embraces Executions
While bans on capital punishment progress at the state level, the federal government is racing to carry out three more executions before President Trump's term end. Ten people have been put to death since July, the first such executions since 2003.
Support for the death penalty has reached its lowest levelin nearly 50 years. Twenty-two states have abolished capital punishment. Another 12 states have not carried out an execution in at least 10 years, according to the Death Penalty Information Center’s year-end report for 2020. Yet, at the federal level, the Trump administration has executed 10 people since July with three more scheduled before President-elect Joe Biden takes office.
Last year, Colorado became the latest state to ban the death penalty. And voters not only elected a president who opposes capital punishment, but in at least nine major counties they elected chief prosecutors who said they would never or rarely seek a death sentence, according to DPIC’s report.
In Los Angeles County, death penalty opponent George Gascón defeated incumbent District Attorney Jackie Lacey. During Lacey’s tenure, of the 22 people sentenced to death from Los Angeles County, nearly all are people of color.
Last month, Gascón issued a directive stating his office will never seek a death sentence or execution date, and will not defend existing death sentences. For the more than 200 people already on death row who were sentenced in Los Angeles County, his office, according to the policy, will review each case “with the goal of removing the sentence of death.” The overwhelming majority of people on death row who were sentenced in Los Angeles County are people of color.
On Monday, 12 chief prosecutors in Virginia sent a letter to legislative leaders calling on them to pass a number of criminal justice reforms, including a ban on the death penalty. A death sentence has not been handed down in Virginia since 2011, according to DPIC.
“The death penalty is unjust, racially biased, and ineffective at deterring crime,” the prosecutors wrote. “It is past time for Virginia to end this antiquated practice.”
Opposition to the death penalty was once considered a political liability. In fact, the path to death row for many of those facing execution was paved by Republican and Democratic lawmakers.
During the 1988 presidential campaign, CNN’s Bernard Shaw asked democratic nominee Michael Dukakis if he would support the death penalty for a person who raped and murdered his wife. Dukakis, a lifelong death penalty opponent, said he would not. Pundits have lambasted his answer, declaring that it effectively ended his presidential run.
Such scruples would not be an issue for the Democratic party’s next nominee, Bill Clinton, then governor of Arkansas.
During the 1992 presidential campaign, Clinton returned to Arkansas to oversee the execution of Ricky Ray Rector. More than a decade earlier, Rector, who was Black, shot and killed a white police officer, and then shot himself in the head, effectively lobotomizing himself. At his last meal, Rector told a guard he was saving his pecan pie for later, according to news reports.
President Barack Obama’s Department of Justice sought and secureddeath sentences for more than a dozen people. During his lame duck period, Obama commuted the sentences of just two people from death row.
“Their failure to act certainly empowered the Trump administration to carry out these executions,” said Robert Dunham, executive director of the Death Penalty Information Center.
Federal prosecutors with Obama’s Department of Justice also fought appeals from death row prisoner Lisa Montgomery, who is scheduled to be executed Tuesday.
Thousands of people have signed petitions calling for Montgomery’s sentence to be commuted, and some are advocating for her release from prison. In 2004, Montgomery went to the home of Bobbie Jo Stinnett in Skidmore, Missouri, killed her, and used a knife to remove the fetus from her body. Montgomery, who has been diagnosed with severe mental illnesses, was sexually and physically tortured as a child and adult.
Dustin Higgs is scheduled to be executed three days later. Higgs was prosecuted under the Federal Death Penalty Act of 1994 for the murders of three women in Prince George’s County, Maryland. In the last weeks of Clinton’s presidency, on Jan. 3, 2001, Higgs received nine death sentences.
The government’s case against Higgs was largely based on the testimony of Victor Gloria, who testified pursuant to a plea agreement. In the early morning hours of Jan. 27, 1996, Tanji Jackson and Higgs got into an argument. As Jackson and her two friends left Higgs’s apartment, she threatened to have them “f—ed up or robbed,” Gloria testified. Higgs put his gun in his coat, and he, Gloria, and Willis Haynes pursued the women, according to Gloria’s testimony. They found them walking on the side of the road. They got into Higgs’s minivan, and Higgs drove them to the Patuxent National Wildlife Refuge. There, the women exited the minivan. Gloria testified that Higgs passed the gun to Haynes, who followed them and fired the fatal shots.
Haynes was tried and convicted. The prosecution sought a death sentence, but the district court sentenced him to life without the possibility of parole. Higgs then went to trial, was convicted, and sent to death row. Gloria pleaded guilty to accessory after the fact, and was sentenced to 84 months’ imprisonment and three years’ supervised release.
In 2012, Haynes wrote in a sworn declaration that Higgs did not tell him to shoot the victims. He had previously told authorities that Higgs ordered him to kill the women, according to the Washington Post.
“Dustin didn’t make me do anything that night or ever,” he wrote in 2012. “So many times since that night I’ve wished that I hadn’t got out of [the vehicle]. The girls got out and I went after them. I wasn’t thinking at all that night. … I shot the girls because I thought they were a serious threat to Dustin’s life. … Maybe I was taking out all the abuse and problems I had been through in my life. I was angry from what I had been through. But that’s no excuse.”
Haynes’s mother physically and emotionally abused him when he was a child, according to the Washington Post. He began drinking when he was 7 and at 11, he tried to kill himself. During his teenage years, he lived in foster homes.
After Haynes shot the women, he and Higgs dropped off Gloria and got into an argument, Haynes wrote in his declaration. “He was upset that I shot the women,” he wrote. “Dustin screamed at me about it.”
More than a million people have signed a petition to free Higgs, who they say was wrongfully convicted. His son has pleaded for his father’s life to be spared.
“From a child to adulthood, my father was always there for me to confide in, to laugh with, to cry with, and even get upset with,” he wrote in a letter included in his father’s clemency petition. “He was always there and has been my number one supporter, showed me what love is, and taught me to be a better man. I cannot imagine or think of where I could’ve ended up without the love and encouragement of my father.”
Like many of those on death row, Higgs’s childhood was marred by violence, abuse, and trauma, according to his clemency petition. At school, he struggled with a learning disability. Other students mocked him, calling him ableist epithets. His father was largely absent other than to beat his mother. He hit Higgs when he tried to protect her.
In 1981, Higgs’s mother was diagnosed with breast cancer, according to his clemency petition. He stayed by her bed for hours, and brought her food and water. Less than a year after her diagnosis, when he was 10, she died in their home. His father was incarcerated at the time. Soon after, he began wetting the bed, and continued to do so for about the next three years.
Last month, Higgs, who has asthma, tested positive for COVID-19. The disease has caused severe damage to Higgs’s lungs, according to his attorney Shawn Nolan, chief of the capital habeas unit at the Federal Community Defender Office for the Eastern District of Pennsylvania. The government plans to execute Higgs using pentobarbital which, because of his lung damage, may result in his lungs filling with fluid, causing him to experience a drowning sensation, which Nolan compares to waterboarding.
“He does not want to be executed,” said Nolan. “He’s very hopeful that the courts are going to see this for what it is and put a stop to this execution.”
Cory Johnson, who is scheduled to be executed the day before Higgs, has also tested positive for the disease. (Johnson’s first name is spelled Cory and Corey in court records.) In 1993, he was convicted of seven counts of capital murder and was sentenced to seven death sentences for killings that the prosecution claimed were linked to Johnson’s drug selling activities. According to his attorneys, Johnson is intellectually disabled and, therefore, exempt from execution. Thousands have signed a petition to stop his execution.
“Corey Johnson had three childhood IQ scores placing him in the range of a person with intellectual disability,” his attorneys wrote to the U.S. Court of Appeals for the Fourth Circuit in a motion filed today, requesting a stay of his execution. “He has significant, well-documented, deficits in virtually every aspect of daily living, including nearly all skills necessary for independent living.”
Momentum is building to end the federal death penalty, buoyed by an improbable ally—Biden, who boasted in 1992 that a crime bill he sponsored does “everything but hang people for jaywalking.” But on last year’s presidential campaign trail, Biden said he would work to pass legislation to abolish the federal death penalty.
“All indications are that he has learned from history,” Dunham said of Biden. However, he cautioned, “Words are just words until they’re acted on so we have to wait to see what he believes versus what was just rhetoric.”
In hindsight, it’s perhaps not surprising that Albuquerque was one of the first major cities last year to announce that it would create an unarmed, civilian team to respond to nonviolent emergencies and mental health crises. The city’s police force has been in disarray for quite some time. In 2014, the U.S. Department of Justice’s Civil Rights Division and the local U.S. attorney’s office found that the city’s cops routinely beat, use stun guns against, and shoot “people who pose a minimal threat,” and that encounters “between Albuquerque Police officers and persons with mental illness and in crisis too frequently result in a use of force or a higher level of force than necessary.” Since then, the city and the federal government have struggled to rein in problem cops and force the department to comply with much-needed reforms.
But, in June, after the police-reform uprising in 2020 that began after Minneapolis Police Officer Derek Chauvin killed George Floyd in May, Albuquerque Mayor Tim Keller announced that his city would create its own, unarmed Community Safety division, which will be responsible for calls related to “inebriation, homelessness, addiction, and mental health.”
“While many cities are only now waking up to these issues, Albuquerque is well into its police reform process and we decided to tackle these tough questions head on when we took office,” Keller, who’s been mayor since 2017, said in a June press release. “For years, we’ve heard the public calling for a better solution for de-escalation and more officers for community policing, and we have been listening.”
Keller’s announcement was one of the first of many major changes that local city governments made after the Floyd uprising, according to a review by The Appeal. While there has been little movement at the federal level to reconceive American policing in any meaningful way, numerous cities have launched significant “civilian responder” pilot programs that will send behavioral health experts and unarmed assistance—rather than cops—to emergencies.
There are few, if any, metrics to show that training armed cops to deal with mentally ill people reduces use-of-force incidents. To the contrary, according to data compiled by The Washington Post, at least 23 percent of fatal shootings by police since 2015 have involved someone with a mental illness. Other sources estimate the proportion is much higher. And, according to a December 2020 study in the peer-reviewed Journal of the American Academy of Psychiatry and the Law, police “crisis intervention team training”—that is, the methods by which armed cops are taught to interact with those with mental illness—aren’t working either. The review found some evidence that crisis intervention team-style training results in more people sent to mental health diversionary courts where they’re available.
“There is little evidence in the peer-reviewed literature,” the study states, “that shows CIT’s benefits on objective measures of arrests, officer injury, citizen injury, or use of force.”
Christy Lopez, Georgetown Law professor and co-lead of the school’s Program on Innovative Policing, told The Appeal, “We’ve come to completely over-rely on police as a response to community needs, public safety and community well-being.”
“We just reflexively send them and they are often not at all the best response to the challenge or problem,” she added.
Before 2020, a few cities had already moved away from using gun-toting cops to handle mental health calls. Most notably, since 1989 the city of Eugene, Oregon, has operated its Crisis Assistance Helping Out On The Streets (CAHOOTS) program, in which thousands of routine emergency calls are diverted away from cops and toward other behavioral health employees or social workers. Of 24,000 calls to the CAHOOTS program in 2019, only 150 required police backup. Following the success in Eugene, other cities, including Portland and Philadelphia, formed similar crisis response teams.
For decades, Eugene’s program was fairly distinct among U.S. cities, but following the anti-police-brutality uprising of 2020 it serves as a model that can be implemented nationwide. In the last half of 2020, city governments in Los Angeles, San Francisco, Denver, Albuquerque, St. Petersburg, Florida, and Minneapolis each moved to create a fully unarmed team of healthcare workers for nonviolent emergencies.
On June 11, San Francisco mayor London Breed announced that the city was developing a “systematic response plan to improve direct connection to community-based or City service providers, such as the CAHOOTS model of crisis response.” In August, her office announced that it would create Street Crisis Response teams, which would respond to nonviolent emergencies and help those in the midst of mental health crises. (According to its own data, San Francisco Police Department officers responded to over 50,000 calls related to mental health and well-being checks in 2019.) On Dec. 1, the city’s police union signed off on the plan.
In June, Denver launched its Support Team Assistance Response (STAR) program, which had been in development before the Floyd protests began. From June through September, the Denver Post reported, the STAR van responded to mental health calls throughout the city without calling police for backup.
In October, the Los Angeles City Council voted 14-0 to begin looking for outside vendors who could work as unarmed first responders for those in crisis across America’s second-largest city.
“By creating a robust non-armed crisis response model, we are investing in the future of our public safety,” council member Bob Blumenfield said during the vote, according to CNN.
And for five days in early December, New York City took a small step toward ensuring public safety without cops. Police officers withdrew from a two-block section of the 73rd Precinct in Brownsville, Brooklyn, allowing community groups to act as violence interrupters and crisis-management groups to patrol the area instead. City agencies also operated booths along the blocks, distributing information on opportunities for housing, jobs, and education.
In 2020, Brownsville recorded 25 murders and 580 felony assaults. But during the Brownsville Safety Alliance experiment, only one call was made to 911—from a bus driver who accidentally activated a distress signal.
“People are just so fearful of crime and the minute you say ‘take the police away,’ their minds just go to those places,” Lopez, of Georgetown Law, said. “We have to be willing to invest in these programs.”
We’re shifting the conversation from police responding to crises to someone else responding in crisis. How about we try to make it that we have far fewer crises?Christy Lopez, Professor, Georgetown University Law Center
Several other cities across the country announced cuts to their police budgets in 2020, with the intention to reallocate portions of those funds to the community and decrease the demand for police.
While activists have demanded that armed cops be excluded from as many encounters as possible, governments in Chicago and Rockford, Illinois, Omaha, Dauphin County, Pennsylvania, and other smaller localities announced plans this year to pair cops with social workers in pilot programs.
Changing who responds to problems is part of the solution to police violence, advocates and organizers say, but many agree that society needs to go further. “We’re shifting the conversation from police responding to crises to someone else responding in crisis,” Lopez said. “How about we try to make it that we have far fewer crises?”