In 2007, former police officer Keith Winfield went on trial in Middlesex County, Massachusetts, for allegedly inserting a hot curling iron or a similar object into the anus of his 23-month-old niece. He laid that same hot object on her vagina, according to the prosecution.
“This is a case about an act too horrible for most to contemplate done to a little girl left alone with the wrong person,” the prosecutor told the jury.
Winfield was convicted and sentenced to two life terms.
Winfield has maintained his innocence since he was accused. He and his legal team aren’t pointing to another perpetrator, though. The child, they say, was not burned by Winfield or anyone else—she had a diaper rash.
In 2018, at an evidentiary hearing before the Middlesex County Superior Court, Winfield’s legal team argued that his trial counsel, Douglas Louison, had been ineffective because he failed to retain a medical expert. At trial, Louison called no witnesses. On Jan. 9, 2019, the judge agreed with the legal team and ordered a new trial. Five days later, Winfield was released on bail.
“A new trial did not worry me,” he said in a handwritten letter to The Appeal. “I had the truth and would prove my innocence.”
And then, last July, the Massachusetts Appeals Court reversed the Superior Court’s ruling, finding instead that the trial counsel’s strategy was reasonable. Winfield appealed to the Supreme Judicial Court, the state’s highest appellate court. While he waited, he was placed on home confinement.
“Now began the torture of sitting home 24 hours a day in mental anguish wondering if indeed the unthinkable would happen,” he wrote. “I had nightmares that my doors were getting kicked in and I was being ripped from my home.”
On Oct. 22, the court declined to hear his appeal without explanation. The next day, Winfield was ordered back to prison, where he remains today.
Winfield’s case began on Oct. 13, 2005, when he was looking after his niece and his 8-month-old daughter for about an hour. Winfield’s wife then returned home with their oldest daughter, he told The Appeal.
The grandmother of Winfield’s niece testified that she picked up the child in the afternoon. When they arrived home, she changed the child’s diaper and saw that her vagina appeared puffy. She called the child’s mother and told her she had “a bad diaper rash.”
At trial, the child’s mother testified that her daughter’s genital area was “very red” that night. When she wiped her daughter with a damp cloth, the child’s vaginal and anal areas began to bleed, she said.
The next day, the woman took her daughter to their pediatrician’s office, Harvard Vanguard. The “diaper area” was pink and part of her labia was swollen, according to the physician’s notes, which were read into the court record. She also observed bruising on her face and thigh. The pediatrician said she suspected sexual abuse and sent them to Boston Children’s Hospital.
At Children’s Hospital, the mother and child met Alice Newton, who was then the head of the Child Protection Team, an interdisciplinary group of legal and medical professionals who investigate child abuse. She examined the child and concluded that her anus had been penetrated, she would later tell a jury, with a “cylindrical instrument perhaps such as [a] curling iron.”That hot object had also been laid across her vaginal area, according to Newton.
A CAT scan revealed a skull fracture, which Newton opined had occurred within the previous few days, and healing rib and wrist fractures, which could have been weeks old. The child was transferred from Children’s Hospital to a hospital that specializes in burns.
At trial, the state’s case primarily hinged on Newton’s testimony. A curling iron or similar object was never found in Winfield’s home, according to the trial transcript.
“My view was that the Commonwealth evidence was so lacking and weak pointing to the defendant Winfield that the best strategy in front of a jury was to just proceed that way rather than attempting to attack the Commonwealth’s medical evidence,” Louison, Winfield’s trial attorney, told The Appeal.
When the jury went out to deliberate, he said, he was confident Winfield would be acquitted.
“I felt then and I feel now that Mr. Winfield was innocent and has been falsely convicted,” he said.
More than a decade later, Louison testified at the 2018 evidentiary hearing.
Of Winfield’s conviction he told The Appeal, “This was probably the most difficult result that I’ve had in 37 years of trial work.”
Newton’s theory of the crime—the basis of the prosecution’s case—was impossible, according to Winfield’s appellate legal team.
During the 2018 evidentiary hearing, Winfield’s attorneys presented testimony by physician and burn expert Stephen Milner. He had previously been director of the Johns Hopkins Burn Center, surgical director at the Johns Hopkins Wound Center, and director of the Michael D. Hendrix Burn Research Center. He testified that he had performed over 5,000 burn-related procedures. In the Superior Court’s ruling, the judge wrote that the “court infers that Milner has seen many more burns and genital burns in children and infants than [Newton].”
Newton is the medical director of the Child Protection Program at Massachusetts General Hospital, a position she also held when she was at Children’s Hospital. She told The Appeal that she is not able to comment because this is an active legal case. The district attorney’s office referred The Appeal back to court filings.
At Winfield’s evidentiary hearing, Milner told the court that, after reviewing the child’s medical records, he concluded that she had not been burned. In all likelihood, she had a severe diaper rash, he testified. At the time she was admitted to the hospital, she also had candidiasis, a fungal infection that can complicate a diaper rash, according to Milner, who is also a dermatologist. “I think this is an erosive dermatitis,” Milner told the court. “It’s basically a very aggressive diaper rash.”
In an email to The Appeal Milner confirmed that he stands by his testimony.
A few months before the alleged crime, in August 2005, the child was diagnosed with diaper dermatitis, also known as diaper rash. Her thighs and vulva were red, and on her buttocks there was “erosion in some areas,” according to the doctor’s notes. The diagnosis, Milner testified at the hearing, “bears a remarkable resemblance to Dr. Newton’s testimony.”
Shortly after the child arrived home from the hospital, she was diagnosed with another diaper rash, according to a recent appellate filing from Winfield’s legal team.
If the child had been burned with a curling iron, her injuries would have been catastrophic, Milner testified. A curling iron heats to 200 degrees or higher, according to Milner. At temperatures above 162 degrees, “there would be instantaneous destruction of the entire skin.”
Less than one second of contact with a curling iron would have destroyed the blood vessels in her skin, Milner testified. However, her medical records reflect that days after the alleged crime occurred, her skin blanched—turned white when pressure was applied—which indicates that the blood vessels were still intact, according to Milner.
The child’s recovery from the insertion of a curling iron into her anus, if possible, would have taken months and necessitated reconstructive surgery, he testified.
But while hospitalized, the child’s wounds were only treated with cream, according to Milner’s testimony. Milner told the court that, according to her medical records, a physician who examined her said she “healed beautifully.” About a month after arriving at the hospital, the child was released.
What can initially appear as a burn may be due to other factors, Milner explained. For instance, Milner said the repeated application of diaper cream—which had been applied at least four times before the child arrived at the hospital—could have caused a whitish discoloration of the skin that can look like a burn.
Milner told the court that defense counsel had paid for his travel and lodging, but he was not taking a fee for his testimony.
“Because I believe in this case,” he told the court. “I believe there are faults in the evidence here.”
Newton’s findings have been challenged in other cases. In 2010, she diagnosed a 6-month-old baby boy with abusive head trauma, also known as shaken baby syndrome. Shaken baby syndrome is a fundamentally flawed and unreliable diagnosis, according to a growing number of critics.
The Middlesex County District Attorney’s office charged the baby’s father with murder. Further investigation, conducted by the defense team, showed that the baby may have had a rare genetic defect that could have contributed to his death, according to news reports. In 2014, the prosecutor’s office dropped the charge.
In another Middlesex County case, Newton diagnosed a 1-year-old with abusive head trauma; the baby’s nanny was charged with murder. Two years later, in 2015, the medical examiner changed the cause of death from homicide to “undetermined,” according to news reports. All charges were dropped.
When asked whether the district attorney’s office still pursues charges based on Newton’s diagnoses, a spokesperson said the office would “never pursue charges based solely on a diagnosis” and that is “just part of what we look at.”
Winfield’s attorney, David Siegel, a professor at New England Law Boston, told The Appeal that he and his co-counselors, who are all working pro bono, will continue to fight what they believe is a wrongful conviction.
“We will seek Mr. Winfield’s freedom, in all forums, for as long as it takes,” Siegel told The Appeal in an email.
Winfield’s legal team won’t be fighting alone. The Boston College Innocence Program, the Center for Integrity in Forensic Sciences, the Massachusetts Association of Criminal Defense Lawyers, and others submitted a joint letter in support of his motion for a new trial.
“The jury was presented with an unrebutted medical diagnosis of a crime so gruesome it is difficult to imagine,” they wrote to the court. “Yet imagined it was.”
Of the more than 2,800 known wrongful convictions since 1989, about 1,000 people were convicted of a crime that did not occur, according to the National Registry of Exonerations.
“Once that label of abuse is applied to a case, everything kicks in to get that conviction,” said Jessica Henry, author of “Smoke But No Fire: Convicting the Innocent of Crimes That Never Happened.”Henry was a signatory on the joint letter supporting Winfield’s innocence claim.
Caregivers have previously been wrongfully accused of physically abusing or killing children in their care based on misdiagnosed injuries or overlooked causes, such as an illness.
“People are looking for proof of a crime and not keeping an open mind about all the explanations that could explain an injury or even a death,” she said.
When Winfield first went to prison, his wife told his daughters, then 2 and 6 years old, that he was working in the mountains. He and his wife believed, he told The Appeal, that his incarceration was temporary. “We actually thought the judge would fix this and throw this case out,” he wrote. They later divorced amicably, according to Winfield.
In 2019, when he was released, his daughters were 13 and 17. While home, he swam in the ocean and took long, aimless walks “just because I could.” He spent time with his family, found work, and started a relationship with an old girlfriend.
“By the end of 2019 I was really starting to feel like a part of society again,” he wrote.
And then last fall, as COVID-19 spread through prisons, he was ordered back over Zoom.
“I spent the rest of the afternoon in a cage with leg irons on,” he wrote.
During his first fourdays back in prison, Winfield was placed on suicide watch. “I wasn’t suicidal and I made that abundantly clear,” he wrote. While in the cell, he didn’t have a pillow, blanket, toothbrush, soap, or utensils. The light was on 24 hours a day. “After one night in that cell, I wanted to die,” he wrote.
Within his first three months back in prison, he contracted COVID-19, he told The Appeal through his attorney.
“I pray constantly that this will end,” Winfield wrote to The Appeal. “Im [sic] back in prison for a crime that I did not commit and in fact didn’t even happen.”
When Lorenzo Culbero appeared before the New York parole board in December, nearly 15 years after he was incarcerated and four months before his potential release date, the board deferred its decision for 18 months. Culbero said the board cited his failure to complete a substance use program as one of the reasons for its decision.
The New York Department of Corrections and Community Supervision (DOCCS) shut down programming at Attica Correctional Facility, where Culbero is currently held, between March and June last year to limit the spread of COVID-19. DOCCS didn’t enroll Culbero in his seven and a half month Alcohol and Substance Abuse Treatment program until July, preventing him from finishing the course before his December hearing. Though he finished the required course this year in February—before his initial scheduled release date—the parole board won’t consider his case again until June 2022.
“I found it completely unfair that [the parole board] would consider my failure to complete a program that they themselves had closed because of the pandemic,” Culbero told The Appeal in an email. The New York State Board of Parole is part of DOCCS.
Prison systems often assign rehabilitative programming as a condition to be given parole and release. Though such programming exists across the country, required courses vary by jurisdiction. In some states, programming must be completed before parole is granted, while in others, parole can be granted but prisoners are not released until they complete assigned courses.
As prisons implemented lockdowns last year to fight the pandemic, incarcerated people were unable to enroll in programming they needed for release. Activists told The Appeal that governors should have more frequently used their clemency powers to commute sentences during that time.
“What state governments did was kind of just take a back seat and hoped for the best. And people died because of that,” Melvin Medina, a national campaign strategist for the ACLU, told The Appeal. “Across the board, [department of corrections’] responses and governors’ responses in particular showed an incredible amount of cowardice.”
The New York-based Legal Aid Society told The Appeal that 40 incarcerated people had contacted the organization since the start of the pandemic to express concerns about their inability to complete programs because of COVID-19. Half of those who reached out had lost their conditional release dates, a type of statutory release.
The New York Department of Corrections and Community Supervision told The Appeal that “if an incarcerated individual fails to complete a program to no fault of their own, it isn’t held against them.” When asked about the information from the Legal Aid Society, a spokesperson said in an email: “There is no way to comment on the 20 individuals you reference without reviewing each case. Conditional Release is not a given, as it is based on a number of variables including completion of programs, as well earned good time which by law is based on good institutional behavior.”
In Michigan, parole was deferred for 232 people in custody as of June 16 because they have not completed programming, according to the state’s prison agency.
Chris Gautz, the state’s Department of Corrections spokesperson, said programming at all facilities except the system’s intake center has now resumed. “We also worked incredibly hard to keep [programming] going for as long as we could and at as many facilities as we could because we want people to be able to parole on time.”
In May 2020, a Tennessee attorney said that more than 1,000 people had been granted parole in his state but couldn’t complete the required programming needed for release because of pandemic-related shutdowns.
Between March 2020 and March 2021, 42 Texas prisoners died after being granted parole but before they were released from prison. Eighteen of those people died from COVID-related complications. Many were waiting to complete programming.
In addition to facility lockdowns, some prisons stopped transferring incarcerated people to prevent the spread of COVID-19. As a result, prisoners were prevented from moving to facilities that offered courses they needed.
In September, Tim Reed was arrested for a parole violation in New York after his ankle monitor died, he says, while he was receiving medical attention in a hospital. (DOCCS alleged Reed tried to flee when parole officers visited his home the next morning, a claim Reed’s wife said was fabricated.) He accepted a 90-day drug treatment program, instead of a longer sentence, hoping to quickly “do my 90 days so I can get back to my family,” he said.
But after initially being held in a county jail, it wasn’t until December that Reed was transferred to Franklin Correctional Facility, where he was only then able to begin his 90-day program. He spent a total of seven months in three facilities, and said he caught COVID-19 while incarcerated. He was released in March.
When asked for comment, DOCCS said Reed’s transfers between facilities occurred according to protocol.
“I feel they never should have never even sent me upstate for a parole violation during a pandemic in the first place,” Reed told The Appeal. “You could have just let me do my 90 days in a county jail or not even violate me for something so small.”
As COVID-19 ravaged U.S. prisons, health educators, public healthexperts, and activists called for decarceration, warning that cramped prison conditions would allow the coronavirus to spread quickly. Some governors took action.
By August, Kentucky Governor Andy Beshear had commuted the sentences of nearly 1,900 prisoners. Oregon Governor Kate Brown granted COVID-related commutations to more than 800 incarcerated adults. New Jersey Governor Phil Murphy signed a bill that allowed some prisoners to be released early; more than 2,000 were freed in November. New York Governor Andrew Cuomo directed DOCCS to grant early release during the pandemic, a spokesperson told The Appeal. The directive led to the releases of 3,900 people as of June 2021, largely those convicted of nonviolent offenses who were within 90 days of an approved release date.
But the releases weren’t the wide-scale action that public health experts and activistssaid were necessary to make facilities safer. Activists and lawyers told The Appeal that governors also should have made greater use of their emergency and executive powers, including clemency and medical release, to free prisoners.
“Every state can and should be accused of deprioritizing the lives and humanity of incarcerated people and for applying absurd bureaucratic obstacles at a time when governors were suspending rules, regulations, and procedures in every other aspect of private and public life for residents not in prisons or jails,” said Medina, the national campaign strategist at the ACLU.
In New York, where clemency petitions surged by 80 percent last year, Cuomo granted 21 pardons and 10 commutations between March 2020 and May 2021, the governor’s office told The Appeal. Though the California Department of Corrections and Rehabilitation moved up the releases of 7,000 people according to a spokesperson, Governor Gavin Newsom, who oversees the second-largest prison population in the U.S., granted 55 commutations last year. Texas Governor Greg Abbott, whose state has the country’s largest prison population, did not offer anyone clemency during the pandemic, a spokesperson told The Appeal.
“The governor could commute everyone’s sentence tomorrow if he wanted to,” Ben Raybin, a criminal defense lawyer in Tennessee, told The Appeal.
Activists’ fears were realized. Infection rates in corrections facilities far surpassed those in the general population. More than 2,700 people incarcerated in state and federal prisons died.
Wanda Bertram, a communications strategist for the Prison Policy Initiative, said the pandemic revealed the extent of the labyrinthian processes that prevent people from gaining release.
New York’s DOCCS told The Appeal that the number of people on a waiting list for substance use treatment was 15,685 on April 1, 2020, and had since dropped to 12,475 on April 1, 2021, because of a reduction in the prison system’s overall population. The current waiting list for aggression replacement training was 14,975 people in April 2021.
Shutting down programming also underscored concerns about offering these programs too late in people’s sentences.
“It’s depressing for people,” said Jennifer Jones, who was released from Michigan’s Women’s Huron Valley Correctional Facility in January after nearly 19 years in prison. Despite the length of her sentence, Jones wasn’t offered a spot in a course she needed to complete until 2019. Though officials would send emails to others in her facility last year saying “we understand things are difficult right now, we’re looking to start in the next week,” Jones said these communications only provided “false hope.”
Maggie Luna, a peer policy fellow at the Texas Criminal Justice Coalition who was incarcerated in Texas before the pandemic, said one of the state’s Department of Criminal Justice programs she took before being released involved “a bunch of stickers and coloring sheets.”
“These people, when they first enter, are more susceptible to being open to change,” Luna said. “The more time you sit in prison, you become a product of your environment. And so we are churning out people who are going in and coming out worse instead of trying to help facilitate change by offering them these classes in the beginning.”
Rachel Alderete, the director of support operations at the Texas Board of Pardons and Paroles, told The Appeal in an email that the board believes these programs have been “instrumental” in helping people re-enter society.
In Michigan, courses are offered to prisoners later in sentences so it stays “fresh in their mind,” according to Gautz, the Department of Corrections spokesperson. A version of the state’s House budget that is under negotiation would require that the corrections department provide programming “at or near the beginning of prisoners’ terms of incarceration.”
However, Andrea Woods, a staff attorney at the ACLU Criminal Law Reform Project, remains disappointed with the actions of politicians and governors as the pandemic ripped through prisons.
“This was a massive call to fundamentally revisit how we incarcerate and it should have been systems bending over backwards to hold parole hearings, release people, make sure that people weren’t being violated for parole infractions,” Woods told The Appeal. “The long and short of it is: There was temporary political will to downsize prison and jail populations during the early days of COVID-19, that political will was far too short-lasting and never went far enough.”
Last summer, the U.S. erupted in protests against police brutality in response to the murder of George Floyd in Minneapolis. The ferment was especially acute in Buffalo, New York, one of the most racially segregated cities in the country. Local police made international news for attacking protesters, including then 75-year-old Martin Gugino, who spent a month in the hospital with a brain injury and a fractured skull. Another protester, Myles Carter, had his hands in the air and was being interviewed by a local news crew when police tackled him from behind.
Though the demonstrations eventually dwindled, Buffalo organizers continued to advocate for racial justice, and police accountability issues have taken on a new urgency—and become a critical factor in local races that will be decided next week.
“The uprisings across the country created the space for critical conversations around what public safety grounded in racial justice could actually look like,” Sochie Nnaemeka, director of the New York Working Families Party, said in a statement emailed to The Appeal: Political Report. This year, the group made an unusual endorsement in Buffalo’s mayoral race that reflects how activism is reshaping the city’s political landscape. Instead of backing four-term incumbent Byron Brown, 62, who has won the party’s support in every mayoral race since he first ran in 2005, the WFP endorsed India Walton, a 38-year-old registered nurse, community organizer, and former executive director of a community land trust who wants to overhaul the city’s approach to policing. According to Nnaemeka, Walton is “fighting for the changes we urgently need.”
Brown and Walton will face off in a June 22 Democratic primary that’s likely to determine who becomes mayor, since there’s no Republican contender in the November general election. Another candidate, Le’Candice Durham, will also be on the ballot in June, but her campaign hasn’t attracted the level of support Brown and Walton have received.
The official response to these episodes has further eroded trust between the police and the communities they serve. In 2017, Buffalo’s then police commissioner said an officer had been shot in the head; investigators later found he had been struck by an airbag that deployed during a scuffle with a motorist who his partner then shot and killed. Officials routinely seek to minimize or justify police brutality against protesters. The Buffalo Police Department initially said Gugino “tripped & fell.” Video footage showed that officers pushed him. (Guginobelieves Brown has given the police “free rein” to brutalize civilians. He supports Walton for mayor.) After the police tackled Carter, he wascharged with obstruction of governmental administration and disorderly conduct. Those charges were laterdismissedbecause they were “unsupported by the information provided by law enforcement.” Carter is nowrunning for Erie County sheriff.
Brown is also quick to castigate protesters. He called Carter an “agitator” and denounced a 20-year-old Black man whothrew a flaming object into City Hall during a protest, calling him an “idiot” and vowing to prosecute him “to the full extent of the law.” In contrast, when a tenantcalled the police on Brown’s 30-year-old son for allegedly breaking windows in a residential building, he called that a “mental health episode.” No one pressed charges.
Brown, who has taken campaign contributions from top police officials, has said he believes the majority of Buffalo police officers are “doing the right thing.” He has also criticized the police union and vowed to push for reforms. But local activists say he has failed to meet their most crucial demands.
Brown met with a coalition of activist groups and announced reforms last summer that included more police training, more widespread use of de-escalation techniques, and restricted use of no-knock warrants. But other reforms he announced—such as ordering police to issue appearance tickets for most nonviolent crimes, ending arrests for possession of small amounts of marijuana, and banning chokeholds—merely reiterated state law as well as orders he had already issued, according to Investigative Post, a local news outlet.Harper Bishop, deputy director of movement building at the community organization PUSH Buffalo, saidthose reforms did not “move the needle nearly enough” and should already have been done.
Tanvier Peart, the just recovery coordinator at Partnership for the Public Good, a community-based think tank, called many of the city’s reforms “very disappointing.” Peart, whose father is a retired police officer, believes Buffalo has been slow to make the kind of progress other cities have made. “We always hear, ‘Well, you know, this is just a starting point, and we’ll get there eventually,’” she said, adding that people are suffering now, and “We can no longer wait for tomorrow to do what we need to do today.”
A similar pattern played out when Governor Andrew Cuomo ordered localities to adopt police reform agendas by April 1 or risk losing state funding. Brown released his plan several days before the deadline—a move the state attorney general’s officesaid “likely hindered the opportunity for meaningful public comment.” Local organizers were angry. Their most substantive demands—an independent civilian review board, reallocation of funds from the police to social services, and meaningful consequences for officers who brutalize civilians—have not been met. The mayor did not agree to be interviewed for this story, nor did he respond to a series of questions sent to his campaign.
These issues are partly what drove Walton to enter the mayor’s race. She told The Appeal that she is running because Brown is “doing nothing to advance the quality of life for poor and brown people and hold police accountable.”
Adam Bojak, a tenants’ rights lawyer and Walton campaign volunteer, said Walton would take a different approach to the police department’s budget, which nowaccounts for over one-quarter of city spending and hasgrown at three times the rate of other city services during Brown’s tenure, largely because of rising health insurance and pension costs for current and retired officers.
“One of the things that India has been about since day one is putting money into other programs and social services that could help people avoid having interactions with the police,” Bojak said.
Walton’s platform includes having mental health professionals rather than police respond to people experiencing mental health crises, a reform she believes rank-and-file officers would also support. “The problem is that we have operated under such austerity, we’ve cut mental health and community services, so now every societal ill is falling into the laps of police officers, and that’s not what they’re paid to do,” she said.
Walton has a track record of fighting for police accountability. Buffalo has three separate police oversight bodies, one of which, the Police Advisory Board, she helped establish. The board has made substantive recommendations but lacks power. There is also a Buffalo Common Council Police Oversight Committee that rarely meets and does not investigate misconduct orexercise its subpoena power. Then there’s a city charter-mandated Commission on Citizens’ Rights and Community Relations, a group whose members are appointed by Brown that seems to lack focus and organization. (Three weeks after requesting the date and time of the commission’s next meeting, The Political Report was invited to participate in one that was already underway.)
Community members want a truly independent civilian review board with teeth. “We know that any time the police ‘police’ themselves, you don’t get justice or transparency,” said Peart. In April, state Attorney General Letitia James’s office sent Brown aletter authorizing Buffalo to establish such a board, preferably one with a substantial budget, qualified professional staff, and subpoena and disciplinary power over officers.
Asked if the mayor would act to create a board in light of James’s letter, the Brown campaign did not respond. Walton, who has consistently fought for such a board, said James’s letter was encouraging and a board would be “a large step forward for Buffalo to begin healing our community.” She has also vowed if elected to thoroughly review the city’s ability to discipline and fire bad police officers. Brown has said he does not have the legal authority to fire bad officers, even those charged with felonies.
As in many other cities, Buffalo’s homicide rate has risen over the last year, and Walton questions the effectiveness of the city’s violence interruption program. She favors programs like Advance Peace, which she says offers superior “resources and mentorship.” It’s not enough, she said, to talk about ending violence without investing in youth. “There’s no year-round youth employment, there’s no after-school program, there’s no community centers open,” she said. “In order for us to stop the problem of gang violence and violent crime in Buffalo, we have to give people something to live for.”
Brown’s campaign did not respond to requests for comment on specific programs and policies.
Neither did Durham, the other candidate in the race. Her website says she would balance the police budget, in part by cutting overtime pay, and bring back DARE, an anti-drug campaign popular in the ’80s, ’90s, and early 2000s that focused on K-12 students and has been proven ineffective.
Brown has called the Buffalo police union a “barrier to reform” but did not respond to a question about his office’s negotiations with the union. Asked how she would negotiate with a union that opposes reform, Walton cited her past experience as a nurse and union member, and criticized Brown for not being a more hands-on negotiator. “It doesn’t have to be an adversarial relationship,” she said. “It just has to be a more up-front and transparent process, and the mayor has to be involved.”
The race will effectively be decided on June 22. If Brown wins the primary, Walton won’t be able to challenge him as a Working Families Party candidate in November because the Erie County Board of Electionsdenied her the party line in the general election after she missed a deadline for accepting the WFP’s nomination. Erie County Democratic Committee chairperson Jeremy Zellner is also a commissioner on the county Board of Elections, which many see as aconflict of interest. His committee picks sides in primaries—Brown’s, in this case—and his role on the board allows him to keep candidates he opposes off the ballot based on technicalities. Walton told The Appeal that Zellner accepted her paperwork, confirmed that she had filed all the necessary forms, then informed her several days later that she had missed a deadline he had never mentioned. “He knew that whole time that that one sheet of paper with three sentences on it was not turned in,” she said incredulously. (Zellner saidWalton was notified of her acceptance obligations by mail.)
But Walton believes she can win in June, and said there’s too much at stake to uphold the status quo. “It’s not a matter of ‘more police.’ It’s a matter of more resources, more hope, more care in our community as a way to reduce crime and thus to reduce the need for more police,” she said. “That’s why we have to reimagine what safety looks like in our community and have honest conversations and stop making excuses. Because people are dying.”
Editor’s note: The author’s parents hosted a fundraising event for India Walton in May.
More and more cities, states, and counties are adopting or considering a right to free legal representation for tenants facing eviction.
On April 22,Louisville, Kentucky, became the ninth city, and the first in the South, to pass legislation to establish a right-to-counsel program; it will provide free legal representation to low-income families facing eviction who have at least one child. That same day, Washington became the first state to enact its own landmark program for low-income tenants. Maryland became the second state to do so on Friday.
Connecticut’s legislature passed a bill last week that now awaits the governor’s signature, and eight other states have right-to-counsel bills pending. In Denver, a City Council bill and a ballot initiative to fund tenant legal representation are both under discussion. Several cities, counties, and states are drafting legislation, and there are dozens more interested in similar measures that are in conversation with the National Coalition for a Civil Right to Counsel, according to John Pollock, coordinator of the organization. Pollock says that in recent years, interest in this issue has seen “a sort of parabolic increase.”
In 2017, New York became the first city to legislate a right to legal representation for low-income tenants facing eviction. Over the next three years, San Francisco; Newark, New Jersey; Cleveland; and Philadelphia passed similar legislation. During the COVID-19 pandemic, Boulder, Colorado; Baltimore; Seattle; and Louisville have followed suit. While the vast majority of the country does not have right-to-counsel laws, cities like Houston; Santa Monica, California; and Rochester, New York, have launched pilot programs, and New Jersey has launched a pilot in three counties.
Many factors have driven the movement’s growth, advocates told The Appeal, but chief among them has been the power of community organizing, the emergence of data from cities that haveadopted right-to-counsel measures, and the pandemic itself.
“We lived with a pretty terrible paradigm for home renters for a long time—where nobody had any interest in working on the issue, where there was a finite amount of rental assistance,” said George Eklund, director of education and advocacy at the Coalition for the Homeless in Louisville.
“Because of the pandemic and because we saw how essential housing is to staying at home [and distancing] … more people care about this issue,” he said. “It’s an opportunity for us to really think about how we’re treating home renters.”
After the Great Recession fundamentally reshaped the United States’s housing market, an increasing share of Americans became renters, with the number of cities dominated by tenantsmore than doubling. In the years since, families have increasingly struggled withrising rent burdens, and data analyzed by theEviction Lab found nearly a million evictions every year from 2003 to 2016. Black households aredisproportionately affected.
“Renters’ rights groups, tenant organizing groups have arisen all over the country because of the need, because of the conditions,” said Susanna Blankley, coalition coordinator for the Right to Counsel NYC Coalition. “We have always said that evictions are violent and evictions are unjust—that evictions should not be the solution that we normalize to address the imbalance of what landlords want to charge and what tenants can pay.”
The pandemic is helping more people understand evictions are not an individual problem, but a societal and political problem, she says.Millions of renters are at risk of eviction, and landlords have used loopholes in the federal and state moratoriums to continue filing cases. In addition, handling an eviction case was never easy, and the legal complexity of overlapping state, local, and federal moratoriums and the constant shifts in these laws have “made it virtually impossible for lawyers to keep up with what exactly is required, let alone tenants,” says Pollock.
Since the start of the pandemic, four cities and two states have legalized a right to counsel.
Adding fuel to these efforts, three cities that had legalized the right to counsel and funded a substantial program before the pandemic have released encouraging data. In New York City, 86 percent of tenants who received legal representation were able to stay in their homes in the 2020 financial year. The number of eviction cases filed by landlords over a six-year period had the largest decrease between 2018 and 2019—nearly 17 percent—after right to counsel was written into law. (New York City’s program was being phased in by July 2022 but, in response to the pandemic, the mayor signed legislation in May that moved that date to June 1 this year.)
Eviction case filings also declined in San Francisco, falling 10 percent from 2018 to 2019. For those tenants who received legal representation, 67 percent were not evicted. A report on the first six months of Cleveland’s Right to Counsel program found that 93 percent of tenants who were represented by an attorney and tried to avoid an eviction or involuntary move were able to avoid displacement.
Seattle City Councilmember Kshama Sawant cited this data from New York City and San Francisco as she urged her colleagues to pass a right-to-counsel bill, which they did in March. And in Tulsa, Oklahoma, the City Council pointed to the cost-effectiveness of other municipalities’ programs in considering a similar ordinance.
“The success from the programs that have come out. … It’s overwhelmingly positive, showing how it does exactly what we always said it would do,” said Pollock. He says this data and cost benefit analyses that show the potential government savings from right to counsel “have helped shift the discussion.”
Instituting a legal right to counsel is crucial, Blankley says, because it’s the existence of that right that upends the power imbalance between landlords, the majority of whom are represented by attorneys, and tenants. Right to counsel makes landlords think twice before filing an eviction case as a means of threatening and removing a tenant even when the law isn’t on the landlord’s side, she argues.
Blankley and other advocates also want to see the right expanded to tenants regardless of income, as is the case in San Francisco, Boulder, and Baltimore. (During the pandemic, New York City has also, in practice, been waiving income restrictions.) Removing income eligibility rules, she says, helps ensure that everyone who needs counsel can receive it and removes the shame some might feel about using the program. Without a fully universal right, Pollock believes landlords may prefer to rent to middle-income renters who don’t receive legal representation, adding a further barrier to housing equality. Advocates point out that in San Francisco, where the program was open to tenants regardless of income, 85 percent of those represented were extremely low- or low-income tenants—evidence that even if cities remove their income eligibility rules, they will still be serving the most vulnerable populations.
In addition, a growing number of places are using federal relief funds—anywhere from several thousand to millions of dollars—to hire more lawyers to represent tenants facing eviction. In Connecticut, where the state legislature has just passed a right-to-counsel bill that now awaits the governor’s signature, the governor has proposed using $20 million in relief funds for tenant attorneys. Pollock is hopeful other governments that aren’t as close to legislating a right to counsel will see the impact from making significant investments in tenant counsel during the pandemic and move to adopt the right to counsel.
Advocates also see enacting right-to-counsel legislation as just one part of protecting tenants from evictions. Noelle Porter, director of government affairs at the National Housing Law Project argues that the exact path to increasing tenant representation and power might need to look different in different jurisdictions.
“In some communities that will look like going after a right-to-counsel statute, and in some communities that might look like going after funding to increase attorneys in the community [as well as funding their training], and in some communities it might look like tackling bad landlord-tenant law before they tackle right to counsel or representation,” she said.
Update: This article was updated to reflect that a right to counsel bill in Maryland has become law and that the Connecticut legislature has passed a right to counsel bill.
Last October, Jane was around four months pregnant when Brazoria County, Texas, jailers put her in solitary confinement, according to a letter she sent to her mother, which was viewed by The Appeal. Jailers had accused her of possessing controlled substances while in custody, her mother told The Appeal. She’d been in jail since August on a failure to appear charge, according to court records.
In solitary, she was not allowed to make phone calls, buy food from the jail commissary, or even bring with her the food she had already purchased, Jane’s mother told The Appeal.
“They took my food,” Jane wrote to her mother in a letter dated Oct. 12, 2020. “I’m going to starve. So is the baby.”
Jailers permitted her to have extra cough drops, her mother, Hannah, told The Appeal. “She would order cough drops every day and suck on them in hopes of trying to numb her hunger,” said Hannah. Hannah requested that The Appeal use pseudonyms for herself and Jane, citing legal concerns.
“Mom Please call them,” Jane pleaded in an Oct. 13 letter. “This is not enough food and I’m losing weight already.” In an Oct. 21 letter: “They are still starving me here… I had a bump, it has diminished to a completely flat stomach.” And the next day she wrote, “I haven’t felt the baby move or flutter at all today.”
During Jane’s check-up in early November—while she was still in solitary confinement—the doctor could not find a heartbeat, according to Hannah. “That’s when they rushed her to the ER and it was too late,” said Hannah. “She had just lost the baby.”
Jane’s experience isn’t an anomaly in Texas, according to civil rights activists who say decarceration is an important tool that must be used to reduce or eliminate abuses inside the state’s jails. But lawmakers are considering legislation and a constitutional amendment that would actually expand the state’s use of pretrial incarceration.
As of May 1, of the more than 63,000 people held in Texas jails, more than half are awaiting trial, according to state data.
“While we were hoping to see an effort to reduce pretrial detention, reduce the number of people in Texas jails simply there because they are poor, these bills move us in the opposite direction,” said Nick Hudson, a policy and advocacy strategist for the American Civil Liberties Union of Texas. House Bill 20, also known as the Damon Allen Act, prohibits release on personal bond—when someone promises to return to court without needing to pay a cash bond—for a number of offenses, including aggravated sexual assault, compelling prostitution, and murder. The House passed the bill earlier this month.
Last Saturday, the Senate passed a version of HB 20 that differs from the House’s in significant ways. The Senate bill prohibits release on personal bond for a person previously convicted of an offense involving violence. The Senate version also includes language to limit the work of charitable bail organizations. If enacted, such organizations could not assist anyone charged with an offense involving violence or who had previously been convicted of a crime involving violence. For some people held pretrial, said Hudson, “the only options will be the for-profit predatory bail bond industry.” Private bail bond companies typically charge a nonrefundable fee of 10 to 15 percent of the full bail amount.
“These charitable bail organizations don’t charge a nonrefundable fee,” said Hudson. “By giving people without money another way to get out of jail they are undermining the profits of the for-profit industry.”
The two chambers must reconcile the differing versions by this Saturday and vote by the end of Sunday.Governor Greg Abbott has championed HB 20. “Public safety is at risk because of our broken bail system that recklessly allows dangerous criminals back onto our streets, which is why I made the Damon Allen Act an emergency item this session,” Abbott said in a statement last month.
However, pretrial incarceration makes communities less safe, said Scott Hechinger, founder and director of defender initiative Zealous. (In 2020, Zealous was part of The Justice Collaborative, The Appeal’s predecessor organization.)
“Pretrial caging in Texas, as is true throughout the rest of the country, has always been cruel, inhumane, unhealthy, racist, and violent,” said Hechinger.
The constitutional amendment also being considered would expand the types of offenses ineligible for cash bail. If approved by two-thirds of the Senate and House by the end of Sunday, it will go to voters in November.
Rather than subjecting more people to inhumane conditions, elected officials should be working to reduce the jails’ populations, said Hechinger.
The Texas Jail Project, with Zealous and Civil Rights Corps, recently launched Shedding Light, a digital archive that shares letters and spoken testimonies of people incarcerated during the COVID-19 pandemic who have survived abuse inside the state’s jails. Some have been held pretrial for years.
“The people in power don’t really understand what these settings are like,” said Krishnaveni Gundu, co-founder and executive director of the Texas Jail Project.
One testimonial shared by Shedding Light is from a mother of two with bipolar disorder. While incarcerated at the Harris County Jail, she said she waited four months before receiving her medication. “And that’s because I tried to hang myself inside my cell,” she said in a recording.
In another letter the Texas Jail Project received but has yet to add to the Shedding Light project, Sarah, a pregnant woman held at the Taylor County jail, wrote that on April 9 she told an officer she was cramping and bleeding. More than two hours later, the officer brought her a menstrual pad “to see the blood themselves,” Sarah wrote. The officer came back, observed the blood, and brought Sarah a Tylenol.The Appeal is using a pseudonym to protect Sarah’s identity.
Sarah has been losing weight since she arrived at the jail, according to her letter and a phone call to the Texas Jail Project shared with The Appeal. She filed a grievance with the jail, requesting more food. “We do not issue extra snacks for pregnancy, you receive milk at each meal,” reads the jail’s response, which was dated April 23 and signed by Sgt. K. Henry. The Taylor County sheriff’s office declined to answer The Appeal’s questions.
In a letter dated May 5, the Texas Commission on Jail Standards responded to a complaint about Sarah’s treatment, writing that “no violation of jail standards has occurred.”
On May 11, Sarah went to the doctor. She was more than seven months pregnant and weighed 179 pounds, two pounds less than when she arrived at the jail, according to her letter.
“They treat me like an animal,” she wrote. “We went at 10:30 am and came back at 12:45 pm, I was in handcuffs the whole time.”
In December, the Texas Commission on Jail Standards investigated Jane’s allegations against the Brazoria County jail and issued a one-page report. Investigators found that the jail did not provide prisoners the required recreation outside of their cells—no less than three hours per week—and did not appear to have a dietary menu for pregnant prisoners. “The Commission issued a notice of non-compliance after receiving a complaint and conducting a special inspection,” Brandon Wood, executive director of the commission, told The Appeal in an email.
Wood sent The Appeal Brazoria’s new menu, dated December 2020. In addition to regular meals, pregnant prisoners are to receive a nutritional supplement like Boost or Ensure.
But the report made no mention of Jane’s miscarriage or her placement in soltiary confinement. In fact, when it comes to placing pregnant people in isolation, Wood told The Appeal in an email, “We do not recommend a prohibition against administrative separation or disciplinary separation, or medical separation.”
Jane is still housed at the jail, but after pleading guilty, she will be transferred to state prison soon.
Isolation, abuse, and medical neglect are rampant inside the state’s jails, according to Shedding Light and the Texas Jail Project’s collections of letters and audio recordings. If the Texas legislature expands pretrial incarceration it will only inflict these traumas on more people, said Hechinger.
“Inevitably you find people who are locked up pretrial or caged pretrial are going to be among the most vulnerable members of our society,” he said. “Folks who we should be supporting and investing in in terms of mental health treatment, substance use services, education, affordable housing. … Instead we’re literally throwing them in cages.”
How These Cities Are Breaking Up the Work of Police Departments
As the country reassesses its relationship with law enforcement, Ithaca, New York; Berkeley and Oakland, California; and Austin, Texas, are defunding, replacing, or reducing the scope of their police departments.
How These Cities Are Breaking Up the Work of Police Departments
As the country reassesses its relationship with law enforcement, Ithaca, New York; Berkeley and Oakland, California; and Austin, Texas, are defunding, replacing, or reducing the scope of their police departments.
The killing of George Floyd by Minneapolis police officers a year ago this week sparked a nationwide movement against racism and police abuse. But alongside the explosion of protests came the mainstreaming of policies like defunding the police and redistributing those monies to other local initiatives that will take a more holistic approach to public safety—in effect, rethinking the function of American law enforcement.
“There is no other industry in this field to the degree that law enforcement and policing and incarceration—mass incarceration—has failed in this country that we will continue to … throw millions and millions of dollars at,” Oakland anti-police violence activist Cat Brooks told The Appeal, adding that “what we need to be doing is investing on the front end, getting to the gun before the bullet flies.”
Phillip Abita Goff, co-founder of the Center for Policing Equity, said the current opportunity to effect real change in American policing is unique. To have two major mass movements against police brutality and racism in less than a decade—the Floyd protests last year and the Black Lives Matter movement that arose in the latter years of President Barack Obama’s administration—is an aberration in American politics.
“It is rare in the country’s history that we do this work around policing more frequently than once every 30 years,” Goff said.
“The systems that we’ve got right now in some ways are fundamentally incapable of delivering safety in the ways that we need to think about,” Goff added. “And the most important element of this is the sort of fundamental thing I think we’re not going back on is, oftentimes, what we need is not better policing but less of it.”
To that end, communities around the country are actively working to disaggregate the functions of their police departments. By hiring unarmed public safety officers, removing police from traffic stops and mental health crises, and repurposing police department funds, cities like Ithaca, New York; Berkeley and Oakland, California; and Austin, Texas, are changing the way public safety works.
Ithaca’s mayor madeheadlines in February when he proposed replacing the city’s police force with armed and unarmed public safety officers. On March 31, the City Council unanimously passed a resolution endorsing the proposal; the county government approved a similar, but not identical, plan on the same day. Both bills were based on findings from “Reimagining Public Safety,” a white paper put together by local officials and members of the Center for Policing Equity.
The plan is to replace the city’s police department with a Public Safety Department that will prioritize deescalation and harness crisis management solutions when facing violent incidents. Taking the institution and training of police out of the equation is central to the effort, though the language of the bill says the employment of currently serving officers “shall continue uninterrupted by such a restructuring, retaining their positions and rank in the Ithaca Police Department.”
Goff, who was involved in putting the plan together, told The Appeal that the policy was made after “a process of literally listening to the community” and assessing what did and didn’t work for public safety.
“They ended up with a proposal that literally dissolved the police department,” Goff said.
Not everyone in the local movement is on board. Cornell historian Russell Rickford, an organizer in the Ithaca community and member of the Tompkins County Antiracist Coalition, downplayed the changes as insufficient and propagandistic. He told The Appeal that the plans to restructure the police—instead of actually defunding and replacing them—don’t really deliver on their promises of change and that “genuinely anti-racist forces locally are deeply skeptical of this effort.”
Rickford singled out the proposed repainting and redesign of Ithaca’s SWAT truck. The city police department and sheriff’s office said the new look would be “representative of what the mobile command truck is primarily used for.” Rickford said the move was a sign that the proposal is an attempt to “hijack the defunding demand through a process of rebranding that will not fundamentally reduce the size and scope of policing.”
Reducing the size and scope of policing is the goal of reform efforts in Berkeley, where the city has voted to decouple police from routine traffic stops. It’s a policy that has gained in popularity, especially after a Brooklyn Center, Minnesota, police officer shot and killed Daunte Wright after a traffic stop in April.
City Councilmember Rigel Robinson, who championed the reform, told The Appeal that the decision to move forward with the policy was spurred by the demands of protesters around the country last year. Making traffic stops a priority to remove from the police’s domain was an easy decision, he said.
“We know that traffic stops are the single most common interaction Americans have with law enforcement,” said Rigel. “The data shows us how the practice of pretextual stops has disparate impacts for Black people, and time and time again we have seen these situations escalate into violence and even death.”
Now, Berkeley police officers will no longer be able to pull drivers over solely for minor traffic violations.
Goff, who with the Center for Policing Equity worked on the traffic stop model for Berkeley, told The Appeal that his group created a report for the city in 2018 that broke down the racial disparities in police stops. Even after controlling for other factors, the group found that the disparities were high: Black motorists were 6.5 times more likely to be stopped than white motorists. The study’s results were ultimately published, over the objections of law enforcement.
“Let’s say you’re four times more likely to get force used on you by law enforcement if you’re Black than if you’re white,” said Goff. “So what portion of that 4-to-1 study is because of what police do and what portion of that is because of poverty or segregation or a lack of good mental health resources, terrible public public health?”
In Austin, the City Council voted to defund its police department last August. As The Appeal has reported, the Texas city is putting that money into housing and mental health services, as well as other initiatives. Austin has also decoupled the force from 911 services and forensic science and created two independent city units, the Emergency Communications Department and the Forensic Science Department. And more is coming, Austin City Councilmember Greg Casar told The Appeal.
“In the coming weeks, our City Council will invest in new family violence shelter beds for the first time in decades,” Casar said on May 4. “We’re getting that done with funds from the police budget.”
But the effort exemplifies one of the major conflicts between those writing policy and those advocating for radical change. Austin’s Reimagining Public Safety Task Force gave recommendations on April 20 that included urging city government to not move forward with a cadet class until racist elements of the department’s training curriculum were dealt with. The city proceeded with the cadets anyway, a move that local activist Alicia Torres, a member of the task force, sees as counter to the goal of reform.
“What was evident in the task force work was that the city of Austin was more interested in rushing through the process of ‘reimagining’ rather than doing the real work and having the commitment and discipline to allow the necessary time to truly reimagine public safety without it being centered in policing,” Torres said.
Not every community leader is dissatisfied with the extent of political change. Brooks, the activist who is also the executive director of California anti-state violence group Justice Teams Network, was one of Oakland’s earliest advocates for defunding the police and reinvesting the money into public services. She told The Appeal that activists in the city have been fighting to take money from the department for years.
Although activists are disappointed with the city’s proposed budget because it fails to cut police funding, they have had success with their own Reimagining Public Safety Task Force, which is made up of city officials and appointees. The task force issued its recommendations on March 1. One of the proposals that the city plans to implement will involve diverting some 911 calls to community responders rather than police. It’s a simple move that will be piloted in East Oakland later this year and could be expanded citywide if successful. This particular recommendation owes a debt to similar programs in Eugene, Oregon, and Newark, New Jersey, where municipalities have developed police-free solutions to community and mental health calls rather than continued reinvestment in police.
Oakland’s reform movement was born out of city residents’ “utter frustration and disgust with how violent the Oakland Police Department was,” said Brooks.
“Since the 1970s in the war on drugs, law enforcement has become the answer to every single social issue,” Brooks said. “They shouldn’t be responding to mental health. They shouldn’t be responding to substance abuse issues. They shouldn’t be responding to interpersonal violence. They shouldn’t be responding to neighborly disputes. They shouldn’t be doing traffic stops.”
As the COVID-19 pandemic began last year, advocates pushing for the release of incarcerated people to contain the disease’s spread in prisons led to U.S. governors—especially Democrats—facing new pressures to use their executive clemency power to commute sentences.
Although specific clemency powers vary from state to state, governors hold immense sway over the fate of the 1.3 million incarcerated individuals held in state prisons. Hundreds of thousands of these people have been incarcerated over the last several decades as a result of America’s tough-on-crime sentencing policies and many of them are ineligible for parole. Even among states that have eased sentencing rules in the last few years, many have not made their reforms retroactive.
Advocates in Oregon have been pushing their Democratic governor, Kate Brown, to use her clemency powers to commute sentences. Measure 11, a mandatory-minimum sentencing statute that lawmakers passed in 1994, has fueled the state’s incarceration crisis. Nearly half of the state’s 12,000 prisoners were sentenced under the statute—and those who remain in prison are left with little hope for release outside of the governor’s discretion. Even subsequent reforms to Measure 11, like a bill that Brown signed in 2019, havenot been retroactive.
During the first six months of the pandemic, Brown commuted the sentences of at least 123 people, including 10 who were medically vulnerable to COVID-19. So far, Brown has granted COVID-19-related commutations to 806 adults in custody, according to her office. But she denied many other requests.
Some advocates feel Brown has been too cautious in releasing prisoners en masse during the pandemic. “She was very, very completely rigid about it, I think she decided it wasn’t politically feasible,” said Tara Herivel, an attorney in Portland who has been assisting with hundreds of habeas corpus cases during the pandemic. “It takes a bold governor to release people … and she didn’t find it important to be.”
As The Appeal previously reported, Brown granted 20 pardons, approved six conditional commutations and denied 240 commutation applications between July 1, 2015, and Feb. 14, 2020. Three other applications were closed during that period because the applicants died.
Aliza Kaplan, who directs the Criminal Justice Reform Clinic at Lewis & Clark Law School in Portland, told The Appeal she believes Brown should be credited for using her clemency powers over the years and that the pandemic helped create some new urgency within Brown’s office. One challenge, Kaplan notes, is that clemency is now viewed less as a tool for forgiveness and rehabilitation. “Governors have become afraid of using their power because of politics, but that’s never what the clemency power was intended for,” she said.
In Illinois, governors have virtually unfettered power to commute sentences, and they can issue mass clemency orders. In 2003, as he was leaving office, Republican Governor George Ryan used his clemency powers tocommute the sentences of all 167 people on Illinois’s death row. In 2019, the current governor, J.B. Pritzker, a Democrat,pardoned over 11,000 people with low-level marijuana convictions one day before a state law legalizing marijuana, including retroactively, was set to take effect.
Although Pritzker issued thousands of pardons during that year, his first in office, he commuted just three sentences, according to A Bridge Forward, a Chicago-based law firm that represents those seeking to clear their criminal records. (A spokesperson for the governor did not respond to requests for comment on clemency statistics.) But Pritzker ramped it up in 2020, granting at least 38 commutation requests, anddismissed objections from Senate Republicans.
“I think COVID was not the overriding reason, but it did get the governor to take a serious look at people who were petitioning for commutation and he has been willing to make decisions that don’t necessarily make everyone happy,” said Ina Silvergleid, the founder of A Bridge Forward.
In Louisiana, advocates are also hoping Democratic Governor John Bel Edwards uses his clemency powers to try to correct for decades of overly harsh sentencing in a state with one of the nation’s highest rates of incarceration and people serving life without parole.
Edwards, who ran for office on a platform of criminal justice reform, also issued commutations during the pandemic. He commuted the sentences of 36 people in 2020, more than the 34 he extended in his entire first term. (Edwards’s Republican predecessor, Bobby Jindal, granted just three commutations over his eight years in office, and ignoredroughly 700 clemency recommendations from the state’s Pardons and Parole board.)
“Clemency is something the governor takes very seriously,” said Edwards spokesperson Shauna Sanford, adding that he granted 279 commutations and pardons between Oct. 10, 2016, and March 9, 2021.
“He’s signed more than his predecessor but at a rate that we’d like to see increase,” said Kerry Myers, the deputy director of Louisiana Parole Project, which provides legal representation and residential re-entry services to parole eligible persons sentenced to life. There is precedent in Louisiana for issuing commutations at a faster clip: Throughout his first two terms in office between 1972 and 1980, Democratic Governor Edwin Edwardssigned 945 commutations, and another 335 during his non-consecutive third term.
Just 5 percent of the roughly 4,600 people sentenced to life in Louisiana are eligible for parole, according to the Sentencing Project—meaning commutations or pardons are the only hope of release for the remaining 95 percent of incarcerated people.
But Myers agrees with Kaplan, from the Criminal Justice Reform Clinic, that politics is one hurdle slowing commutations. “We have a Democratic governor and a Republican attorney general with gubernatorial aspirations,” he said. “If Edwards starts signing large quantities of commutations at once, we know his opponents will make it a political issue, even if public safety is not a factor.”
In California too, advocatessuspect fear of political backlash has slowed the number of commutations granted by Democratic Governor Gavin Newsom. Danella Debel, a spokesperson for Newsom, told The Appeal that the governor has commuted one sentence so far this year, 55 in 2020, and 23 in 2019. “The Governor regards clemency as an important part of the criminal justice system that can incentivize accountability and rehabilitation, increase public safety by removing counterproductive barriers to successful reentry, correct unjust results in the legal system and address the health needs of incarcerated people with high medical risks,” she said in an email.
But only about 10 percent of those released from California prisons between July and November 2020 were age 55 and older, a group of people who are at higher risk of dying from COVID-19 andhave the lowest rate of recidivism after release. And with nearly 100,000 people still incarcerated, the number of people granted clemency in California has had little effect on the nation’s second-largest state prison population.
Earlier this year, the American Civil Liberties Unionlaunched a national campaign to encourage governors and the president to exercise their clemency powers more aggressively and release 50,000 individuals held in federal and state prisons. The Redemption Campaign is focused on governors issuing categorical clemency, like releasing older incarcerated individuals or those who would be serving a lesser sentence if convicted today.
Advocates are also working to help governors feel less politically nervous about embracing clemency. Polling commissioned by the ACLU andreleased last August found that 86 percent of Democrats, 81 percent of independents, and 73 percent of Republicans support reducing prison populations and offering incarcerated people a path toward redemption with clemency.
In Washington State, Democratic Governor Jay Inslee granted eight commutations in 2019, 437 in 2020, and 25 so far in 2021, according to Mike Faulk, Inslee’s spokesperson. The vast majority of the 2020 commutations were granted in April, in a blanket order extending to individuals who were not incarcerated on violent, serious, or sex offenses and who were within 75 days of their earned release date.
Faulk told The Appeal that Inslee, unlike advocates and organizations like the ACLU, does not see clemency as a tool necessary to reduce mass incarceration, and that such an effort must be tackled on the legislative level and with buy-in from other public institutions, such as law enforcement and prosecutors.
“Clemency existed before the era of mass incarceration; and, further, mass incarceration can most definitely be resolved without the use of the governor’s clemency authority,” Faulk said in an email.
Still many advocates nationwide are sounding a different drum, emphasizing that clemency is integral to any strategy to correct for past harms of harsh sentencing.
“If people want to end mass incarceration,” said Kaplan, “I can’t think of a better tool than governors granting commutations.”
Update 5/27/21: This story has been updated with additional data provided by Oregon Governor Kate Brown’s office about COVID-related commutations she has granted.
“One of the things about being imprisoned as a juvenile is that you don’t get to mature in a context where you get to be a kid,” Chris Jacobs said. In 1995, when Jacobs was 16, he was convicted of armed robbery and first-degree murder and received a life sentence that carried with it no opportunity for parole. “Your youth is lost to yourself and to society. Because you are treated like an adult, you have to act like an adult.” Now, at 42, Jacobs has spent more years of his life incarcerated than not.
But in the 26 years since he committed his crime, he says he has transformed from the kid he was into an engaged member of his community: He is in his senior year of a bachelor’s degree in pastoral ministry and crisis counseling with a 4.0 GPA. He tutors his peers and works as a writing consultant. He belongs to many clubs within the prison. Last year, he got engaged to his girlfriend.
“Nothing I’ve said is meant to diminish my personal culpability or the degree to how wrong my crime was,” Jacobs said. “But I wish we had a more restorative focus. And that people incarcerated were viewed as citizens whose participation in society has been interrupted, and we are going to take the necessary steps to rehabilitate them and welcome them back when they are prepared to do so.”
In North Carolina, Jacobs is one of 94 individuals who have been sentenced to life without parole for crimes they committed as children.* In April, Governor Roy Cooper signed an executive order, which created an advisory board to review the sentences of those charged as children in criminal court. The review board was formed under the recommendation of the governor’s Task Force for Racial Equity in Criminal Justice. Now, incarcerated individuals like Jacobs, who previously had little hope of ever leaving prison, are being given a chance to have their sentences reviewed and possibly receive clemency.
The executive order comes on the heels of pressure from a coalition of activists who stood vigil outside of the governor’s mansion last year to demand that he use clemency to decarcerate individuals imprisoned by the state. At the beginning of the 58-day vigil, despite having the authority to do so, Cooper had not yet granted any clemencies during his first term as governor––and was on track to be the first North Carolina governor in more than four decades to not grant clemencies.
Cooper has since granted pardons of innocence to six men who were wrongfully convicted.
However, even with the recent creation of the review board focused on juvenile sentencing, it has been difficult for advocates of reform to learn more about how and whether Cooper plans to use his clemency power, and what that process might look like.
“The clemency process in North Carolina is a black box,” said Jamie Lau, a professor of law at Duke University and supervising attorney at the school’s Wrongful Convictions Clinic. According to Lau, Cooper’s office does not make public the list of people who are seeking clemency—a change from prior administrations. Further, it has also been difficult to obtain any information about the considerations or processes of how the governor might decide who receives clemency.
Lau hopes that the new Juvenile Sentence Review Board could offer a more systematic and defined process for cases to be reviewed, especially in light of more contemporary understandings of adolescent brain development.
“The risk-taking that occurs by juveniles is not necessarily a result of some irreparable corruption, as the court did call it, but oftentimes, immaturity, because they don’t have a fully formed prefrontal cortex that regulates decision making and helps improve judgment,” Lau said.
In the last decade, Supreme Court decisions like Miller v. Alabama and Montgomery v. Louisiana have challenged juvenile life without parole by using similar developmental arguments. But Lau and others also say that sentencing review boards like this are necessary also to address the racism of the criminal legal system. “The governor has enormous power to immediately reduce some of the disparities in the criminal justice system,” Lau said. “The quickest way to address them is not through a task force, not through new legislation, but through taking action through your clemency power.”
According to Ben Finholt, director of the Just Sentencing Project at North Carolina Prisoner Legal Services, approximately 1,000 people were incarcerated in North Carolina as of last fall for crimes they committed as children. Over 80 percent of those incarcerated are people of color, and most are not eligible for parole—though the new juvenile sentencing review board could change that.
“This was an attempt to address the number of kids we’ve got in prison, and the number of kids of color we have in prison, in particular, and the fact that they serve pretty long sentences—much longer on average than white kids do,” Finholt said.
Finholt played a key role in the establishment of this new sentencing review board, and hopes that the board will begin to rectify what he sees as deeply dysfunctional juvenile and parole systems in North Carolina.
“The juvenile justice system in North Carolina is worse than everywhere in the country,” Finholt said.“You can go into court as a 6-year-old in North Carolina. The age of jurisdiction for criminal court in North Carolina for juvenile matters is 6. We have sentenced multiple 13-year-olds to long sentences, including a 13-year-old who got sentenced to life.”
Even if someone is eligible for parole, the process is difficult to navigate. In 2015, a federal court found the parole process for people convicted as children in North Carolina to be unconstitutional. Many commissioners are responsible for upwards of 90 parole decisions each day because the state requires post-release supervision of the vast majority of people convicted of felonies, which means each application may not get much time for review. Now, the parole commission is required to, at least, have a video meeting with all people convicted as children, but the process remains opaque to those seeking parole, according to Finholt.
Cooper’s executive order coincides with a legislative push to consider eliminating life without parole sentences for those who are convicted as children. In a recent meeting on the bill, a member of the North Carolina Conference of District Attorneys read aloud the grisly details of a murder committed by a child over 10 years ago in a testimony opposing the bill.
“I am always struck by the willingness to let the exceptions to the rule drive policy,” Finholt said. “We have to say we’re not going to make this a hopeless situation for people. We’re not going to let the worst folks drive policy. We’re going to practice what we preach when it comes to forgiveness and rehabilitation. Because otherwise it’s just a totally broken system.”
*Correction: An earlier version of this article misstated the number of people in North Carolina who have been sentenced to life without parole for crimes they committed as children.
When a person is sentenced to a period of time in prison, determining their date of release seems like it would be a simple calculation. Many states, however, use formulas and communication processes that lead to frequent errors and result in holding thousands of people in prison long after their sentences have ended.
In Florida, the Department of Corrections calculates release dates by using a computer program called the Offender Based Information System (OBIS) or by hand. According to attorneys for the state’s Department of Corrections, when employees calculate a person’s release date manually, no written guidelines are provided. Moreover, the formulas programmed into OBIS remains hidden from public scrutiny.
In 2019, the American Civil Liberties Union of Florida filed a lawsuit in Leon County to obtain detailed information about how the DOC calculates release dates for the roughly 80,000 people held in state prisons. But rather than make those formulas public, America’s third-largest state prison system has been fighting to ensure it remains secret.
“How the FDOC figures out release dates affects tens of thousands of people in prison and their families as well as its own internal planning,” Benjamin Stevenson, an attorney for the state ACLU working on the case, told The Appeal in a written statement. “It is important FDOC gets it right. Yet, FDOC evades public accountability and oversight when it refuses to share its ‘secret’ calculation. Without public access to the formula FDOC uses, we cannot applaud it for its good work or help it correct its calculations.”
In responses to questions from the ACLU of Florida, the state says it cannot release its computer algorithms without compromising the physical security of DOC buildings, a claim the state ACLU believes is ludicrous. Spokespeople for the FDOC said the agency does not comment on pending litigation.
Overdetention has quietly become a problem endemic to America’s network of state-level prison systems. In recent years, several states have revealed that, because of either sloppy training or computer glitches, thousands of people have been imprisoned beyond their judge-issued sentences.
The ACLU of Florida says it wants to ensure that the same issues are not occurring in Florida. The DOC responded by releasing some information in January 2020—but not the actual formulas. The agency said the ACLU hadn’t asked for the formulas specifically, but when the ACLU filed a follow-up records request, the DOC refused to provide the formulas. In May 2020, the ACLU sued a second time.
In March, Leon County Circuit Judge John C. Cooper ordered the DOC to release more records to the ACLU, but the civil rights group maintains that it still does not fully understand how release dates are calculated. The two parties are set to meet in another discovery hearing June 7. In the future, the ACLU hopes to use this information to propose bills that could decrease incarceration rates across Florida. In particular, the group wants to amend the state’s “truth-in-sentencing” law that mandates that people must serve at least 85 percent of their prison sentences.
“Most of these individuals will eventually be released and will return to our communities,” ACLU of Florida attorney Jackie Azis told The Appeal. “For those individuals and their loved ones, the accuracy of FDOC’s calculated release date is critically important. FDOC’s refusal to share how it calculates release dates is Kafkaesque. Decisions that impact people’s lives are being made and we have no idea how.”
In August 2019, Paul Browning was released from prison after spending 33 years on Nevada’s death row for a murder he didn’t commit. Browning was prosecuted and convicted in a Las Vegas court by Clark County’s district attorney in 1986, in a trial that a federal appeals court later said was tainted by “disturbing prosecutorial misconduct.” After a court ordered a new sentencing hearing in 2004, Browning was resentenced to death. The capital sentence was upheld on appeal.
But in 2017, a federal appeals court ordered a new trial for Browning on the grounds that the prosecution had withheld evidence during his original trial in 1986. In March 2019, a Clark County judge dismissed the case against Browning. The Clark County district attorney’s office—led by Steven Wolfson—appealed the dismissal, but a judge ordered Browning released that summer while the prosecution’s appeal was pending. The Nevada Supreme Court subsequently upheld the dismissal of the charges.
Although Browning’s conviction, death sentence, and decades-long incarceration may be a particularly egregious example of the results of overaggressive prosecution, Nevada has long been one of the top states imposing death sentences. And Clark County, which is responsible for the majority of death penalties imposed in the state, is also “one of the most active death-sentencing counties in the United States,” according to the American Bar Association. The ABA has also noted that Clark County possesses the dubious distinction of having a “particularly high rate of convictions and death sentences being overturned as a result of prosecutorial misconduct.”
This status quo is motivating activists and legislators who are seeking to abolish the death penalty in Nevada. But even as such prosecutions have declined nationwide, Wolfson plays a significant role in continuing to propagate the punishment. Wolfson seeks the sentence at a rate that makes him one of the country’s most aggressive death penalty-seeking district attorneys. He did not respond to The Appeal’s request for comment.
“We’ve seen movements across the country and district attorney’s offices reforming and moving in more progressive directions. Unfortunately, that’s not the case we’re seeing right now in Clark County,” Mark Bettencourt, project director of Nevada Coalition Against the Death Penalty, told The Appeal.
Clark County is one of only four counties to have had, on average, more than one death sentence each year since 2012, according to data from the NAACP Legal Defense & Educational Fund and analyzed by the Death Penalty Information Center.
Wolfson, who is a Democrat and opposes repeal of the death penalty, says his office’s practices are different from his predecessors’.
“I have filed far fewer death notices than other Clark County district attorneys,” he said in testimony in March to the legislature, which was considering Assembly Bill 395, a billthat would have abolished the state’s death penalty. The Assembly passed the bill last month, but it died in the Senate last week after Governor Steve Sisolak said he didn’t support abolition. “We don’t make these decisions lightly,” he added, saying that seeking a death sentence is reserved for the “worst of the worst.”
But Wolfson’s office has filed 91 notices of intent to seek a death sentence since he took over in 2012, according to data provided to The Appeal by Clark County deputy public defender Scott Coffee, who has represented clients facing the death penalty.
Even while the bill to abolish the death penalty was making its way through the legislative process, Wolfson’s office filed a motion to set an execution date for Zane Michael Floyd, who was convicted of four counts of first-degree murder in 2000. Floyd would be the first person executed in Nevada since 2006—six years before Wolfson became DA.
Multiple public defenders and advocates who spoke with The Appeal said Wolfson’s recent testimony to the state legislature—which included him saying “I strongly believe that the death penalty should be reserved for the very rare and extreme circumstances”—was contradicted by the number of times his office sought the death penalty during his tenure.
“What Steve Wolfson is saying to the legislature is very different from the way his office actually prosecutes death penalty cases,” said Sarah Hawkins, chief deputy public defender in Clark County and president of Nevada Attorneys for Criminal Justice. “He [implies it’s used] sparingly when in fact our county is fifth in the nation in terms of seeking the death penalty.”
“The state has very broad discretion in whether they seek the death penalty or not,” criminal defense attorney Lisa Rasmussen said, noting that the choice to file a notice of intent to seek a death sentence is a unilateral decision by the DA. “I don’t see that they’re using that discretion. I don’t see that they’ve backed off and decided not to seek it except in extraordinarily rare circumstances,” she added.
The threat of the death penalty in Clark County is also used disproportionately against Black defendants. Although only 13 percent of Clark County’s population is Black, over 50 percent of the individuals against whom Wolfson has signaled intent to seek the death penalty were Black, according to data provided by Coffee. “This is a system that has been built in a discriminatory nature in Nevada from time immemorial,” Bettencourt said when asked about racial disparities.
Multiple criminal defense attorneys said the Clark County DA uses the death penalty to get defendants to plead guilty to crimes that carry lengthy sentences.
Wolfson’s office is often willing to strike plea deals after filing notices of intent to seek the death penalty—a fact that belies his claim that seeking the death penalty is reserved for the “worst of the worst,” Rasmussen said.
Rasmussen has often been able to negotiate plea deals setting limited terms of imprisonment, even after Wolfson signaled intent to seek a death sentence, she said. “Some cases were clearly not death penalty [worthy]. They should never have been death penalty cases to begin with,” she added. “One of them I negotiated for a six- to 15-year sentence—why was that a death penalty case?”
The death penalty “is used to drive deals,” Coffee said. “If they’re filing death and if it is a moral imperative that there’s death … then why are they negotiating?”
Because of the death penalty’s use as a tool to drive sentencing, its abolition “would fundamentally change the way that I handle cases,” Coffee said.
Without the threat of death, Coffee said he could focus more on the actual matter of attempting to prove his clients’ innocence, rather than only avoiding the worst possible sentence. More people may also exercise their constitutional right to a trial, according to Coffee. “The death penalty terrifies defendants,” he said.
If Nevada were to abolish the death penalty, it would also change how Wolfson and his team operate.
“They might have to go to trial on those cases because they might not have the leverage” to coerce a plea, Coffee said. “They also wouldn’t have the leverage to occasionally have innocent people plead guilty.”
This article is part of a partnership between New York Focus and The Appeal to cover Manhattan’s 2021 DA race.
As general counsel at the Brooklyn DA’s office, Manhattan DA candidate Tali Farhadian Weinstein was involved in the creation and leadership of a bureau designed to provide “post-conviction justice,” including overturning wrongful convictions. Her leadership of the program has been a mainstay of her campaign. At forums, she often boasts of having “built the first post-conviction justice bureau in the country.” Her supporters, from Gloria Steinem to U.S. Representative Ritchie Torres, cite the program in their endorsementmessages. On her campaign platform, she says she led the unit that “published a first-of-its-kind report detailing its first 25 exonerations.” But during the two years and four months that Farhadian Weinstein oversaw the conviction review unit, it exonerated just four people—a far lower rate of exonerations than in previous years.
During the same length of time, the conviction integrity unit operating in Detroit exonerated 19 people—more than four times the number exonerated in Brooklyn, despite the fact that Brooklyn contains hundreds of thousands more people. The conviction integrity unit in Philadelphia, in a jurisdiction with a million fewer residents, exonerated 13 people.
And the 25 exonerations in the Brooklyn unit’s report? Only two occurred under Farhadian Weinstein’s leadership.
“She’s taking credit for exonerations that she had nothing to do with,” said Derrick Hamilton, co-founder and assistant director of Family and Friends of the Wrongfully Convicted, who was exonerated by the conviction review unit in 2015 after 21 years in prison on a wrongful conviction for murder.
Now, Farhadian Weinstein says she would “use her experience in Brooklyn to establish the nation’s most robust Post-Conviction Justice Bureau in Manhattan.”
But advocates and public defenders who have interacted with the Brooklyn bureau say that its record makes it unworthy of imitation—in part because the head of its conviction review unit was a prosecutor who had long worked side by side with the prosecutors whose convictions he now reviews.
“If the model that’s currently operating in Brooklyn is set up in Manhattan, that would be a disaster,” said Nick Encalada-Malinowsksi, civil rights campaign director with the criminal justice advocacy group VOCAL-NY.
Brooklyn’s conviction review unit was revamped by then-DA Ken Thompson shortly after he took office in 2014. “We have to admit—those of us who work in the criminal justice system—that we’re not infallible,” Thompson said in 2015. “It’s not good enough to admit our mistakes, we have to move to correct miscarriages of justice and do so with deliberate speed.”
By the time Thompson took leave from the office in October 2016, a week before his death from cancer, the unit had exonerated 21 individuals in less than three years.
“When he was DA,” Hamilton said of Thompson, “you had an effective machine running the CRU. They were being held accountable. Cases were being filed, decisions were being made. Whether you won or lost, it was being done in an expeditious manner.”
But after Thompson’s death and his replacement by Eric Gonzalez, action slowed to a trickle. In 2017, just three people were exonerated. Zero were exonerated in 2018, the year Farhadian Weinstein joined the Brooklyn DA’s office and began supervising the Conviction Review Unit.
In April 2019, Farhadian Weinstein created the Post-Conviction Justice Bureau, moving the conviction review unit into it as its flagship program. Two people were exonerated later that year, and one in 2020 before Farhadian Weinstein left the unit in July—all told, a more than fourfold decrease under Farhadian Weinstein from the rate of exonerations when Thompson was DA.
Family members of incarcerated people rallied for reforms to the unit in 2019, to little avail. “She ignored our cries and went along with business as usual,” Hamilton said.
“Tali Weinstein … was not interested in righting the wrongs that was done to so many Africans and Latinos by the Kings County DA’s office,” he added.
Farhadian Weinstein’s campaign pushed back against these criticisms.
“To say Brooklyn’s Post-Conviction Justice Bureau’s conviction review unit is ineffective devalues the experience of every person that has been liberated from wrongful imprisonment,” said Jennifer Blatus, a spokesperson for the campaign. “In fact, under Tali’s tenure, they became the only conviction review team in the country to bring full transparency to the process—inviting the public to look inside the cases and see its assessment of what went wrong.”
Gonzalez’s office declined to comment for this story.
Why did the rate of exonerations fall? Three defense attorneys told New York Focus and The Appeal that one key reason was that Farhadian Weinstein left the conviction review unit under the control of a career prosecutor: Mark Hale, who had for years worked as a homicide prosecutor for the Brooklyn DA’s office.
Hale was chief of the unit even when Thompson was DA, but Thompson also appointed Harvard Law School professor Ron Sullivan, a former public defender, to “lead the efforts” of the unit. Other conviction review units in the New York City area, such as Westchester and Queens, are run by lawyers with backgrounds in criminal defense. The defense attorneys, two of whom declined to be named because of current professional relationships with the Brooklyn DA’s office, told New York Focus and The Appeal that management by a career prosecutor damaged the unit’s independence and its ability to impartially review convictions and produce exonerations.
“The head of the unit used to be the head of homicide. To me that’s just an inherent dual loyalty,” said Elizabeth Felber, a supervising attorney at the Legal Aid Society’s wrongful conviction unit.
Farhadian Weinstein’s campaign referred New York Focus and The Appeal to Innocence Project senior litigation counsel Nina Morrison, who co-authored the report on the conviction review unit’s first 25 exonerations and worked closely with the unit on one case that led to an exoneration.
“In all of our dealings she was really enthusiastic and supportive about the work of the conviction review unit. She really listened; she wanted to understand how the work could be improved,” Morrison said of Farhadian Weinstein.
Morrison cautioned against drawing overly broad conclusions from a smaller number of exonerations during a particular time span. “It would be a mistake to say that two exonerations or three, versus five or six or seven in previous years, necessarily indicated that that was caused by her leadership, absent some objective indication that she had changed policies or been vetoing cases that were otherwise poised for exoneration,” Morrison said.
Morrison and the Innocence Project are not associated with Farhadian Weinstein’s campaign and have not made an endorsement in the Manhattan DA race.
Farhadian Weinstein’s campaign platform says the conviction review unit she plans to establish in Manhattan “must be completely independent of the prosecuting units to preserve its objectivity.” But it leaves open whether the unit would be led by a former prosecutor.
Morrison said that although Hale was an effective advocate for her own client, “it is much better practice to have someone in charge of a conviction review unit who did not come from that office, [as opposed to] a Mark Hale who practiced there for 25 years as a prosecutor who’s then in charge of reviewing his colleagues’ cases.”
Beyond Hale’s appointment, defense attorneys pointed to an increasing lack of cooperation as another reason for the decrease in exonerations. On multiple occasions, Felber said, the conviction review unit violated cooperation agreements that it signed with attorneys representing individuals seeking exonerations. The standard agreement between attorneys and the Brooklyn DA’s office, a copy of which was reviewed by New York Focus and The Appeal, requires both sides to share with the other legal information relevant to exoneration efforts, provided that doing so would not violate confidentiality requirements. But Felber said the DA’s office frequently refused to share information and documents and requested that defense counsel not speak with certain witnesses.
“They violate their own agreement, that agreement that’s touted as so great,” Felber said. “They’re much more secretive, they’re not sharing, they’re not doing joint investigations with defense counsel, they’re not doing open-file discovery.”
Morrison said that she has “repeatedly” advocated for the unit to move toward a “more open-file approach.”
“They do not as a matter of course give defense counsel the opportunity to come and independently review the files, even when you sign the cooperation agreement,” she added.
And under Farhadian Weinstein, defense attorneys said, the conviction review unit became significantly less responsive to individuals seeking exoneration. The unit would often “ghost” clients and their lawyers, leaving their communications unanswered for months on end, Felber said.
If investigations during the years under Farhadian Weinstein’s leadership reached the stage of interviewing witnesses, the interviews would often be hostile, Felber said. “The focus was on ‘why didn’t you come forward sooner?’ All these witnesses from the community, of all different ages, were cross examined suspiciously about ‘Why now?’”
“That just struck me as the wrong tack,” Felber added. “Why are you doing this work if you’re suspicious of people coming forward?”
Farhadian Weinstein’s spokesperson rejected claims that prosecutors engaged in hostile behavior.
“That claim is inconsistent with the CRU’s open and cooperative approach, and would not make sense for a unit that voluntarily solicits claims of wrongful conviction and proactively investigates them. Tali has zero tolerance for that kind of behavior,” Blatus said.
But the unit has never regained the efficacy that it had under Thompson, said Hamilton, who now works on wrongful convictions as a paralegal. He imputes much of the blame to Farhadian Weinstein.
“She’s bragging of being at the head at the time when the unit took a backwards step and never came back right,” he said. “Weinstein sanctioned it.”
Correction: An earlier version of this article discussed the time that Tali Farhadian-Weinstein oversaw the Brooklyn DA’s Post-Conviction Justice Bureau, but did not discuss the year that she supervised the Conviction Review Unit before the Bureau was created. The article has been updated to account for the one exoneration produced in that year.
When Derek Chauvin was found guilty for the murder of George Floyd in Minneapolis last month, debates erupted over whether the verdict represented justice being served, change, basic accountability, or perhaps none of the above. But there’s no disputing the rarity of the outcome. On-duty police officers fatally shootaround 1,000 civilians each year, but since 2005, only about140 officers have been arrested for doing so, let alone charged or convicted.
On June 2, 2020, just over a week after Floyd’s killing, 22-year-old Sean Monterrosa was shot to death in California by a Vallejo Police Department officer named Jarrett Tonn. The aftermath to Monterrosa’s killing has been far more typical of how America handles police violence. Tonn kept his job, despitethree prior incidents where he shot at a civilian—in one case firing 18 rounds. He will probably never be charged for a crime in conjunction with Monterrosa’s death. The Solano County district attorneyrecused herself from an investigation, and former California Attorney General Xavier Becerra declined her office’s request to investigate the killing,focusing instead on the police department’s unauthorized destruction of the windshield that Tonn fired through.
In the absence of official redress for Monterrosa’s killing, his sisters have sought it themselves. Ashley and Michelle Monterrosa have become organizers and policy experts in the months since their brother’s death. They are lobbying hard for Senate Bill 2, which would strip officers of their law enforcement certification in cases of “serious misconduct.” California has had 1,300 officer-involved shootings since 2013, but it is one of just four states in the nation that lack the ability to decertify police officers. The bill is facingsteep opposition from law enforcement groups.
The sisters are also supporting two pieces of legislation that attempt to address the financial and emotional ramifications of police use of force:Senate Bill 299, which would extend the state’s victims’ compensation fund to victims of law enforcement violence, andAssembly Bill 95, which would strengthen bereavement leave.
None of this will heal the harm done to the Monterrosa family. “Justice would have been him here,” Michelle told The Appeal. But the Monterrosa sisters hope their work might help prevent other families from having to experience what they have gone through over the last 11 months. Given Tonn’s history of shooting at civilians, Ashley and Michelle believe that their brother might be alive if decertification had been enacted earlier. And material support for victims of police violence could have helped the family during a year in which Sean’s parents have had to find time to grieve in between working seven days a week.
The Monterrosa family had also requested a meeting with newly appointed attorney general Rob Bonta, in hopes that he would use the power of his office to investigate Sean’s death. On May 13, just a few weeks before the one-year anniversary of Sean’s killing, Bonta met with the family before publicly announcing that he will investigate the case—arguably the first acknowledgement from a state official that a grave injustice took place that day. Ashley and Michelle are also hoping that Bonta will review the cases of other families killed by Vallejo Police Department officers. “We’re only 10 months in this fight—there’s families who are 10 years, 20 years in,” Ashley said.
Ashley and Michelle spoke to The Appeal in mid-April, as protests againroiled Minneapolis after the police killing of Daunte Wright. This interview has been edited and condensed for clarity.
How are you both doing?
Michelle: It’s been 10 months, but it still feels like it’s June 2 for us every day.
Ashley: Every day.
M: That feeling will never go, no matter how much time goes. Just seeing what’s happening in Minnesota right now … I don’t feel like California is enraged in the same way. For us, that’s why it’s so crucial to pass decertification right now. Just the other day, we went up to the state Capitol to testify in support ofSB 2, because if that law was implemented maybe 10-plus years ago, Sean would still be here.
A: And we wouldn’t have bad cops like theFatal 14 from Vallejo all still working.
M: It’s a lot.
I don’t know if you feel like there’s any form of justice for what happened to Sean, but what would go some way towards making you feel like people are hearing you?
M: Justice would have been him here, right?
A: Sean getting his due process. Just [looking at] the video itself—Sean didn’t even get a chance.
M: Obviously, we want some sort of justice. To hold this officer to a higher standard—because the accountability they talk about, these officers aren’t even held to that. So: looking into the whole case itself, prosecuting and firing Jarrett Tonn and all the officers involved. The president of the Vallejo police union has now been fired, Michael Nichelini, but hestill holds the president of the police union title. If Sean was here, he would want the same for himself, and now we’re just doing the footwork for him.
A: We could go protest and hit the streets and do all these direct actions, but it’s meaningless if we’re not working with policy and legislation on the backside, and that’s why we’ve been really supporting SB 2 to decertify bad cops. And then we’ve also been supporting SB 299, so families that are affected by police violence get victims’ compensation—because families affected by police violence and regular gun violence aren’t considered victims to get any type of compensation for housing and burial fees. Most families have to rely on GoFundMe for things like that. Really, what we’re trying to do is ensure that there is a better pathway to holding police accountable and getting resources to families affected by police violence that don’t have access to counseling. Or families that have to live in the house that their son was murdered in, and they have to relive their trauma every day.
Former California AG Xavier Becerra declined to conduct an investigation into your brother’s death. How do you evaluate his office’s response to Sean’s killing?
M: It hurt to see Becerra and Newsom say names [of people who were killed by police] outside of the state, and meanwhile, here is Sean,Erik, andAndrés being murdered in a three-week span, and they wouldn’t even say anything.Our attorney John Burris has been reaching out to Becerra’s office for, I think, the past five years for him to investigate the local police department. It wasn’t until Sean was murdered that he agreed. He said he would look at the whole investigation—
In December, right before it was announced Becerra was going to be secretary of Health [and Human Services], someone from his office reached out to us and said that he wanted to sit down with us. But then, like two days after, they announced that he got promoted. It was kind of a slap in the face, like, did you want to tie loose ends?
M: It hurt, just knowing that there’s been nothing going on in Sean’s case. We deal with this weight every day, but people who are in positions of power aren’t doing anything. My brother would say, “The system was built to continue to oppress us.”
A: Politicians are gonna be politicians. And I think Michelle and I have to continue playing chess. This is a game of chess, not checkers. This is all really very new to us, so we’re just trying to figure out what ways we can hold people that have these positions of power accountable.
What are you hoping to see now that we have a new attorney general?
A: We’d hoped for Bonta to get this position. Now that he does—he’s not our savior, obviously. The work continues; we still have to organize. Really, it’s just a better chance of holding him accountable, him being from the Bay Area and recognizing that Vallejo is not too far, and that Vallejo needs a lot more help. These families have been crying out for help way before Sean was murdered.
M: Bonta has an amazing track record. He’s on the side of justice. I hope that he really is committed to supporting all impacted families, not just ours, but really just taking on Sean’s case fully and understanding that his murder is just one incident that’s happened here in California. Them destroying the evidence, right after the footage being released—this is what they’re used to. … Now that he has this position to actually really do something, I hope that he champions what he’s been trying to work on for the last few years.
I’m sure you two have talked to a ton of journalists this past year. What has that media attention been like for you?
M: When it first happened, I didn’t want to get on camera right away. I asked for a week and then our attorney said, “I don’t think you guys know how crucial this is, you guys need to get on camera.” And ever since then, we haven’t stopped. We’ve encountered folks who are a little insensitive, you know. And, obviously, we’re vulnerable. We didn’t know anything about how to answer. … Now we’re 10 months in, we’re more aware.
A lot of the time you see my sister and I, but you don’t see your parents. The reason you don’t see our parents is because they’re going through it. They work seven days a week; they only took time off to bury their son—their only son.
Is there anything you think the media has gotten wrong about your case?
A: Most of the time when people [who] are Black and brown, or just people in general, are murdered at the hands of police, [the media] are so quick to do their digging and find alarming pictures or records—and Sean did have a record. I mean, a lot of people have records, but Sean was never convicted of anything. So when it first occurred, and they tried to push their own narrative—
M: It didn’t work.
A: It didn’t work because Sean was someone of the community. He was a counselor-in-training for nonprofits. So, I think the media really tried to push their own narrative when it first occurred. But the truth will always overcome.
Less than a month after a police officer shot and killed Daunte Wright in Brooklyn Center, Minnesota, Mayor Mike Elliott is proposing a measure to remove police officers from enforcing some traffic violations and responding to calls related to mental health. At today’sCity Council meeting, Elliott will introduce the Daunte Wright and Kobe Dimock-Heisler Community Safety and Violence Prevention Resolution.
“This resolution is going to transform our system so police are not the only available response to everything,” Elliott told The Appeal. “This is responding directly to our community and what they have said their needs are and I certainly hope that our council will be united behind this resolution which is a framework for how we move forward.”
In reaction to an epidemic of police violence perpetrated against Black adults and children, numerous communities are attempting to limit the role of law enforcement, particularly when it comes to traffic enforcement and mental or behavioral health crises.
On April 11, police pulled over 20-year-old Wright, a Black man, for a minor traffic violation: expired registration tags. The officers ran his name and discovered he had an outstanding misdemeanor warrant. When he stepped out of his car, one of the officers attempted to handcuff him. Wright then got back in his car, according to body camera footage. As he did, Brooklyn Center Police Officer Kim Potter can be heard yelling, “Taser, Taser, Taser.” She then fatally shot him.
The mayor’s resolution, if adopted, would create an unarmed civilian Traffic Enforcement Department, which would enforce “all non-moving traffic violations,” including parking violations or expired registration tags.
Nonmoving violations also include infractions such as a broken tail light or having tinted windows, all of which can be the basis for pretextual (and ultimately fatal) police stops of Black drivers. However, the resolution leaves all moving violations, no matter how minor—like failing to use a turn signal—under the auspices of the police department. Various moving and nonmoving violations are classified as petty misdemeanors, which are civil violations, not crimes, and carry a maximum fine of $300. Elliott told The Appeal that his understanding is that Minnesota law requires a licensed officer to handle all moving violations.
“I think it’s a right step forward,” Columbia Law School professor Sarah Seo said of the mayor’s resolution. “I think it could do more in terms of moving violations.”
Police should not enforce minor moving violations, said Seo, author of the book “Policing the Open Road: How Cars Transformed American Freedom.” Police should also not necessarily enforce even more serious violations, such as driving under the influence, she said.
“I’d choose somebody who was trained with how to handle substance abuse and mental illness rather than somebody who’s trained with a gun,” she said.
Under the resolution, until the measure is fully in place, the city manager would be directed to implement a “citation and summons” policy that requires officers to issue citations only, and prohibits police officers from arresting or conducting consent searches of people or vehicles for any nonmoving traffic infraction, nonfelony offenses, or nonfelony warrants. Elliott told The Appeal it has not yet been determined if the citations and summons policy would apply to nonfelony offenses and warrants outside the context of traffic stops.
“We’re still going to be working out the details particularly when that policy will apply and when it won’t apply, but we know that it will apply most specifically right now to traffic enforcement,” he said.
Taylor Pendergrass, the deputy director of campaigns for the ACLU Campaign for Smart Justice applauded the resolution.
“We’re hopeful that this can serve as a model for other municipalities across the country and show that solely funding armed police officers as the first, last and only resort, especially in communities of color isn’t the right approach to ending the scourge of police violence,” he wrote in an email to The Appeal.
The resolution also would create an unarmed Community Response Department to respond to “all incidents where a city resident is primarily experiencing a medical, mental health, disability-related, or other behavioral or social need.” The department would consist of trained medical and mental health professionals. The mayor told The Appeal that if the resolution is adopted, the city will create a unified dispatch system to determine whether the call is routed to the police department or the mental health response unit.
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. Several communities around the country have programs that replace law enforcement with mental health professionals—initiatives that are widely supported, according to polling conducted by The Lab, a policy vertical of The Appeal.
It’s unclear whether the resolution would have prevented the death of Dimock-Heisler, a 21-year-old autistic man with mental illness. On Aug. 31, 2019, four police officers responded to a call from Dimock-Heisler’s grandfather for help after his grandson threatened him. When the police arrived at Dimock-Heisler’s home, he was sitting calmly and unarmed. His grandfather told police that the situation was resolved.
Dimock-Heisler told one of the officers that he had been committed before and did not want to be involuntarily committed again. When the officer said he didn’t know what would happen, Dimock-Heisler began to cry with his head in his hands, according to the Hennepin County Attorney’s Office, before running toward his grandmother. Two officers used their Tasers on him, and another hung on to his legs. Dimock-Heisler then retrieved a knife and attempted to stab one, according to the county attorney’s office. The other two officers—Cody Turner and Brandon Akers—fatally shot Dimock-Heisler, striking him six times. He was then handcuffed and died at the scene. No charges were filed against any of the officers.
The Appeal asked Elliott whether it would be appropriate to file criminal charges against Turner and Akers; he said he could not answer the question.
“What we’re doing here is simply expanding the tools in our toolbox so that the police are not the only available response to everything,” said Elliott.
This story was produced in partnership with Oaklandside, a nonprofit newsroom reporting on Oakland, California.
More than two years after the passage of a California law that rolled back secrecy on decades of law enforcement misconduct and use-of-force records, agencies throughout the state are failing to comply. Among the agencies that have not disclosed records are the California Highway Patrol, the Oakland Police Department, and the Fresno County Sheriff’s Office, who are being sued over noncompliance with Senate Bill 1421, the 2018 law authored by state Senator Nancy Skinner. The legislation made public several categories of records—including investigations of police shootings, uses of force resulting in great bodily injury, and cases in which officers were disciplined for sexual misconduct and dishonesty—all previously deemed off-limits by the Peace Officers’ Bill of Rights.
Two and a half years ago, we filed over 30 public records requests for our forthcoming book on the Oakland Police Department related to dozens of police shootings, incidents of perjury, and evidence falsification. We sought records for the Riders scandal of the early 2000s, involving officers who beat suspects and planted drugs on them, and the sprawling 2016 scandal involving several officers sexually abusing a teenage girl that ousted three chiefs in nine days and led to a nearly $1 million settlement to the victim. The Oakland Police Department extended the response dates to our records requests 15 times until August 2020, when we filed a lawsuit under the provisions of the California Public Records Act (CPRA) to force Oakland to comply with state law. Separately, a coalition of journalists and privacy activists have filed a class action suit against Oakland over similar CPRA violations.
The records can reveal for the first time long-secret truths about old controversies as well as more recent police scandals. As we recently found in one case, the 2010 shooting of East Oakland resident Derrick Jones by two Oakland officers, the records can uncover inconsistencies in officers’ statements about an incident. And the documents show, for the first time, the final discipline for cops responsible for the killing of an unarmed man.
Law enforcement groups resisted the new transparency law
Police departments and sheriff’s offices aren’t the only ones that have tried to keep these misconduct files secret. Since SB 1421 went into effect on Jan. 1, 2019, California’s police unions filed at least 20 separate lawsuits in county courts to prevent public access to the files. “We believe retroactive application violates our members’ rights and we hope the California Supreme Court will consider the serious issues raised by our legal challenge,” Grant Ward, the head of the union representing San Bernardino sheriff’s deputies, said in a statement when his union challenged SB 1421 in December 2018.
While all but one lower court judge dismissed the unions’ challenges, it took a California Court of Appeals ruling this year to solidify the public’s right to obtain sustained misconduct files, including those created before SB 1421’s passage. “The unions were able to pour tremendous manpower and therefore money into fighting those legal battles and that takes a toll,” said David Snyder, director of the First Amendment Coalition, a transparency group that took a leading role in fighting the recent court battles. “It was like Whac-a-Mole—we’re a small organization, and newspapers don’t have litigation budgets anywhere close to what they used to.”
Despite the Court of Appeals ruling this year, Oakland is not the only department failing to promptly release records. The Northern California public radio station KQED is suing the California Highway Patrol and the American Civil Liberties Union of Northern California is suing the Fresno County Sheriff’s Office for failing to promptly turn over misconduct histories.
“Public disclosure is an essential part of democracy and it’s imperative that the public be able to understand what their police departments are doing,” said Tenaya Rodewald, a Palo Alto-based attorney who represented the San Jose Mercury News in a recently settled lawsuit against the San Jose Police Department over a CPRA request for 82 misconduct files. Rodewald said she is settling a similar suit that the East Bay Timesfiled against the Richmond Police Department.
“It’s clear that the public needs and wants this access—they’ve made this clear through their elected representatives, they made it clear on the streets in protests all summer long,” Rodewald said. “That police departments are still resisting is incredibly disappointing, incredibly dismaying. It shows they’re not willing to accommodate that basic democratic accountability.”
Reporters with the Mercury News asked the San Jose police to produce all relevant records for use of force, sexual misconduct, and untruthfulness that occurred from 2014 through 2018. They identified 82 such cases, but by the end of 2019, the newspaper received records from only two of those incidents—and the police department said it would need another four years to fully disclose all the relevant documents. “The time frame was met with disbelief by elected officials in San Jose. The mayor called the estimate ‘ridiculous,’” Bert Robinson, senior editor of the Mercury News, wrote in a March 10 declaration.
The Mercury News is part of the California Reporting Project, a statewide coalition of 40 newsrooms committed to working together to obtain and report on police records newly available to the public under SB 1421. The newspaper made requests throughout the state for hundreds of similar files. According to Robinson’s declaration, the San Jose Police Department’s projected timeline for the release of SB 1421 records was far behind that of similarly staffed agencies like the San Diego Police Department, or smaller, less resourced agencies like Bakersfield and Antioch police, which both turned over records to the California Reporting Project and the Mercury News faster. After the Mercury News sued in August 2020, the San Jose police’s response time increased rapidly, and they produced nearly 50 Internal Affairs investigative reports in less than a month last fall.
“Cities needed only to muster the will to release records promptly in order to do so. In the end, under the pressure of litigation, the City released records at a pace that it had repeatedly insisted was impossible, producing virtually all of its records within a span of just four and a half months,” wrote Robinson in his declaration.
Oakland’s response has been far slower—as of March, the city had 5,376 pending public records requests, with a backlog of 4,171 overdue cases. Most of these requests are for crime reports and don’t involve materials subject to disclosure under SB 1421. However, the city’s pace of responding to our records requests was so slow that before we filed our lawsuit it would have taken over a decade to fulfill.
“I haven’t seen anything like what I’ve seen with Oakland,” said Snyder of the First Amendment Coalition. Hisorganization filed amicus briefs throughout California since SB 1421’s inception in order to push back against law enforcement unions’ efforts to undermine the law in the courts. “What it looks like from the outside is that there is a systematic, bureaucratic failure to process requests and at some point along the line, they stopped recognizing and following their obligation under the law” to respond to CPRA requests. “It’s really shocking,” Snyder said.
The California Reporting Project’s open records campaign casts Oakland’s intransigence in hard relief: “95 percent of agencies that received our January 1, 2019 PRA request for S.B. 1421 records replied with records in a more timely manner than the city of Oakland Police,” wrote Thomas Peele, a Pulitzer Prize-winning investigative reporter in a declaration filed as part of our CPRA lawsuit against the city of Oakland. Under the auspices of the California Reporting Project, Peele filed a request with the Oakland Police Department for all personnel records containing SB 1421-related material dating back to 2014. The city turned very few records and hasn’t replied to Peele’s repeated questions about the status of his requests. In contrast, more than 150 other California law enforcement agencies released documents in response to similar requests from the California Reporting Project.
Although Oakland said during our litigation this winter that it didn’t know how long it would take to comply with all our requests and release the responsive records, we have obtained a handful of records through our litigation. The documents shed new light on some of the most controversial incidents in the recent history of the Oakland Police Department, which has been under a court-ordered reform program since 2003.
The fatal shooting of Derrick Jones by officers Omar Daza-Quiroz and Eriberto Perez-Angeles in 2010 led to weeks of protest and cost taxpayers $225,000 in legal settlements. However, previously unseen records reveal inconsistencies in the statements that both officers gave to the district attorney’s investigators, whose job it was to determine if the officers should face criminal charges, and Oakland police Internal Affairs investigators, whose job it was to determine if the officers violated police department policies.
Furthermore, the records reveal that an arbitrator overturned then-Police Chief Anthony Batts’s decision to discipline both officers for using “poor tactics” when they chased down and shot Jones. Daza-Quiroz is now a lieutenant, and Perez-Angeles is a sergeant.
Changing statements and a written reprimand for killing an unarmed man
On Nov. 8, 2010, Daza-Quiroz and Perez-Angeles responded to a dispute between Jones, 37, and his girlfriend outside Jones’s Bancroft Avenue barber shop. According to the police, Jones ran from the officers, tried to conceal himself in a “dark, poorly lit, narrow” alleyway, and then then attempted to scale a fence. Daza-Quiroz and Perez-Angeles said they thought Jones was armed and reaching for his waistband when they shot him six times. A digital pocket scale and glass vial with marijuana were found at the scene, but Jones was unarmed.
The shooting occurred just days after mass protests over the sentencing of ex-Bay Area Rapid Transit police officer Johannes Mehserle for the 2009 killing of Oscar Grant. Although the Jones case didn’t garner the national attention of Grant, whose story was made into a 2013 movie, it nonetheless sparked days of marches by Jones’s relatives through East Oakland and an angry takeover of a December 2010 Oakland City Council meeting. In an attempt to mollify public outrage over the incident, Chief Batts asked the FBI to conduct an independent review of Jones’s killing. Whether the FBI actually investigated remains unknown.
In 2011, the Alameda County district attorney’s office declined to charge Perez-Angeles and Daza-Quiroz for killing Jones, concluding that the officers “actually and reasonably believed they were in imminent danger of great bodily injury or death.” The DA’s findings were based on statements both officers gave to the prosecutor’s office that they “could not see or hear Mr. Jones” when they followed him into the narrow street, and they were “concerned that they might be ambushed.” According to the report’s summary of the officers’ statements, Daza-Quiroz told investigators he “believed [Jones] was hiding nearby with a gun and that he was in a position to take them by surprise.”
Almost a decade later, the newly disclosed disciplinary records we obtained under SB 1421 reveal inconsistencies in the statements that both officers gave to the district attorney’s investigators and Oakland police’s Internal Affairs unit.
The story Perez-Angeles and Daza-Quiroz initially told the police department’s Internal Affairs team was similar to what they told the district attorney: They believed they were walking into an ambush when they pursued Jones into the alley. However, this was a violation of department training and policy: Officers are trained to maintain a safe distance from suspects during foot pursuits, and to seek cover rather than advance into unsafe situations. Internal Affairs investigators recommended that both officers be disciplined for poor tactics. The investigators also noted that the officers had displayed the same poor tactics in another fatal shooting in 2008.
Six months after the shooting, a panel of Oakland police commanders reviewed the Internal Affairs report in preparation to deliver to Chief Batts their recommendation about whether to discipline Perez-Angeles and Daza-Quiroz. Initially, the members of this Executive Force Review Board focused on the apparent policy violations of the officers who “continued to chase Jones on foot after losing sight of him, as opposed to stopping and setting up a perimeter.” The board’s members were concerned that the officers had willingly walked into an ambush situation, thereby ensuring a shooting would happen. But a senior training supervisor told Internal Affairs to re-interview both officers. In their second statements, both officers walked back the statements they gave to the DA’s office.
“Did you believe you were going into an actual ambush and if so, why?” an Internal Affairs investigator asked.
“No, I did not,” answered Daza-Quiroz.
“No,” said Perez-Angeles.
Based on these new statements, the Executive Force Review Board’s members decided the officers acted appropriately and should not be punished for the tactics they used to chase down and shoot an unarmed man.
However, when this report was submitted to Batts, who was responsible for making the final disciplinary decisions, he held a meeting with the members of the Executive Force Review Board. They again discussed the case and Batts decided both officers needed to be disciplined. “Not only did they foolishly risk their own lives, but their poor tactics created an exigency that resulted in the loss of life of an unarmed man,” deputy chiefs Jeffrey Israel and Eric Breshears wrote in a memo that Batts signed.
But Batts’s effort to have the officers suspended for one day was unsuccessful. Perez-Angeles and Daza-Quiroz both contested the department’s findings through a Skelly hearing, a meeting at which they and their police union lawyers were allowed to argue against the department’s decisions. According to Oakland police, upon conclusion of the Skelly hearings, both officers’ suspensions were reversed and they were given written reprimands instead.
Despite their extensive misconduct histories and involvement in another fatal shooting of an unarmed man in 2008, Perez-Angeles and Daza-Quiroz kept their jobs and were promoted in the following years. Neither Perez-Angeles or Daza-Quiroz responded to a request to be interviewed for this story.
The report was not disclosed during a 2013 civil trial in a lawsuit filed by Derrick Jones’s widow, said her attorney, Ayanna Jenkins-Toney. “I definitely did ask for it—I did receive quite a bit of discovery, but never saw that report.” During the trial, U.S. District Court Judge Yvonne Gonzalez-Rogers excluded all evidence pertaining to Perez-Angeles and Daza-Quiroz’s misconduct histories, including 74 use-of-force allegations against Daza-Quiroz alone.
Similar to the Jones case, records disclosed through our lawsuit about the 2012 fatal shooting of Alan Blueford by ex-Oakland officer Miguel Masso indicate that Masso and his partner, Joseph Fesmire, were disciplined for tactical mistakes during the pursuit that led to the killing of Blueford, who was a high school senior.
According to information we obtained under SB 1421, Chief Batts did contact the FBI’s San Francisco office to investigate the Jones shooting. However, no report was ever made public, and the bureau declined to answer questions recently about the case.
Jabari Shaw, a longtime East Oakland activist who helped organize the 2010 protests over Jones’s killing, said the contradictions between the previously undisclosed Internal Affairs records and the DA’s report are grounds to revisit the case. “I definitely think it should be reopened,” Shaw said. “He was fleeing. How could you think a scale is a gun?”
Civil rights attorney John Burris, who represented Jones’s parents in a separate civil suit and won a $225,000 settlement from the city of Oakland, also said he never saw the department’s internal discipline records. Burris’s firm received joint discoveryalong with Jenkins-Toney, although Jones’s parents settled earlier. “There was no respect for Derrick—we were trying to get some acknowledgement for the value of his life,” Burris said, adding that unlike the Grant shooting, Jones’s case did not have any video evidence and received only passing interest from local media. “It was a different time.”
A new public right to know about police use of force and misconduct
Though police departments, city attorneys, and police unions in California have proved reluctant—if not outright hostile—to the new, post SB 1421 landscape around law enforcement personnel records in the state, judges have uniformly upheld the public’s right to access.
On April 2, Alameda County Superior Court Judge Frank Roesch ordered the city of Oakland to “promptly” release thousands of documents biweekly in response to our 31 CPRA requests for Oakland police misconduct investigations. “It’s clear the production has not been prompt enough to satisfy the law. Not by a long shot,” Judge Roesch said at the hearing.
“Your honor, we don’t believe that it would be possible to produce every single responsive page and every single video and audio responsive to every single request that’s at issue in this writ within six months,” said Deputy City Attorney Erin Bernstein.
“You have had two years. How could you not say that you can do it in six months?” replied Roesch. Our case has broader legal significance as precedent for the city of Oakland’s duty to respond to the thousands of unanswered CPRA requests, ranging from crime victims asking for copies of their incident report to a coalition of journalists and watchdogs who have filed a class action lawsuit over the police department’s systemic failure to hand over public records.
The California legislature is also now weighing SB 16, an effort to shore up the new transparency provisions. Senator Skinner, the SB 1421 author, also authored this bill, which would establish civil penalties for agencies that delay or fail to release police records promptly, and expands the category of disclosable records to include cases where an officer was found to engage in biased conduct or speech, and unlawful arrests or searches. It would also close a loophole that allows officers under investigation to keep their wrongdoing secret by quitting during an internal affairs investigation.
On April 13, the California Senate Judiciary Committee approved SB 16 and advanced the bill to the Senate Committee on Appropriations.
“This is critical information for the public to know if police departments are taking complaints serious and if police officers have a pattern of misconduct,” said Natasha Minsker, a former death penalty director at the American Civil Liberties Union of Northern California who is now a lobbyist for Smart Justice California. Minsker said problems like exorbitant records reproduction fees and long negotiations with police unions have hampered the public’s right to view law enforcement records, an experience that warranted legislative redress. “SB 16 will remove those roadblocks and make meaningful the public’s right to know about serious misconduct by the police, as was intended by the legislature.”
Hamilton County’s Clerk of Courts Aftab Pureval and City Council member David Mann were the top two candidates after votes were tallied today in Cincinnati’s nonpartisan mayoral primary election. Beating out four other candidates, they’ll now face off against each other in the general election on November 2.
Unofficial returns showed Pureval in the lead with more than 39 percent of votes while Mann received more than 29 percent. The remaining candidates were state Senator Cecil Thomas, business owner Gavi Begtrup, retired firefighter Raffel Prophett, and educator Herman Najoli. Cincinnati’s current mayor, John Cranley, is term-limited and cannot run for re-election.
Public safety was among the most urgent issues for city residents ahead of the primary, local activists told The Appeal. True public safety, they said, means divesting from the police and investing in community needs.
Neither Pureval, who spent a year as a special assistant United States attorney with the U.S. Department of Justice, nor Mann, a civil rights attorney and former U.S. representative, support defunding police.
At a budget hearing in June, Mann adjourned the meeting early after community members began protesting over police funding.
The mayor plays a critical role in policing. He appoints, with the City Council’s approval, all seven members of the Citizens Complaint Authority, an independent body that investigates allegations of police misconduct and abuse. The agency reports directly to the city manager, who oversees the police department and is also appointed by the mayor.
“The city manager is basically the CPD’s boss and so that’s a direct connection to make change in policing,” Jennifer Kroell, an ACLU of Ohio volunteer, told The Appeal prior to today’s election. The next mayor, she said, can “make or break policing in our city.”
“Our team really sees policing as the most important issue in this mayoral race,” said Greer Aeschbury, the Cincinnati organizing strategist for the ACLU of Ohio.
At a recent forum, Pureval said he supported reforming 911 and the city’s emergency response.
“We have to take action on this by making sure police officers are only responding to issues they’re trained for and where they’re not, sending unarmed, specifically trained professionals,” he said. “This is not just important for our Black and brown communities. Justice is important to all of us.”
Mann has also said that the city police chief’s request for funding for mental health teams should be met. “We must look for ways, in the case of a 911 call, to match citizen needs with resources and capabilities of personnel sent to respond to the call,” he told the Cincinnati Enquirer.
But Mann also told the paper that he would like to maintain, or potentially increase, the number of city police officers.
Rather than investing in the police department, activists have demanded that the city expand the availability of affordable housing—another issue that was on today’s ballot. In 2018, the city started a trust fund to create and preserve affordable housing, but it has been severely underfunded. Housing rights advocates hoped to change that with the passage of Ballot Issue 3, but nearly three-quarters of voters rejected it today at the polls. Issue 3 would have amended the city charter to require an annual investment of no less than $50 million to the fund from several potential sources, including the city’s general fund.
Both Pureval and Mann had said they didn’t support the ordinance. Mann had criticized it for requiring funds that he said would have “major impacts on basic city services” including policing. Pureval had said he would like to see federal, corporate, and philanthropic financing used to fund the trust. Pureval has also said he is committed to ensuring low-income residents have access to attorneys in housing court.
“We have to balance the playing field in eviction court by working to ensure greater access to lawyers and legal services for tenants who can’t afford representation,” reads his campaign website. “For too long our city has not been committed to affordable housing. As Mayor, I will change that.”
“Our affordable housing in Cincinnati is very scarce,” Chazidy Bowman, president and founder of Opportunities People’s Justice Leaders, told The Appeal last month. “Affordable housing is the main thing on the agenda right now.”
California’s New Attorney General Has A Reputation As A Criminal Justice Reformer. But His Biggest Test Is Yet To Come
Rob Bonta’s career has hinged on the idea that the law can be used to engender social justice. His elevation to California’s “top cop” position, where he will become responsible for the vast bureaucracy of the state’s criminal legal system, will be a crucible for that belief.
California’s New Attorney General Has A Reputation As A Criminal Justice Reformer. But His Biggest Test Is Yet To Come
Rob Bonta’s career has hinged on the idea that the law can be used to engender social justice. His elevation to California’s “top cop” position, where he will become responsible for the vast bureaucracy of the state’s criminal legal system, will be a crucible for that belief.
In late March, when California Governor Gavin Newsom announced that he had selected Rob Bonta as state attorney general, he did so at San Francisco’s International Hotel.
It was a symbolic backdrop—an acknowledgment of the strong history of grassroots political resistance in California, and an implicit promise that the future of the attorney general’s office will be shaped by that past. In 1977, the hotel was the site ofa fierce organizing campaign to stop the eviction of the building’s elderly and low-income Chinese and Filipino residents. Bonta’s mother, Cynthia Bonta, was among those who had gathered to defend the tenants.
“Rob represents what makes California great—our desire to take on righteous fights and reverse systematic injustices,” Newsomsaid of Bonta, who was previously a state legislator representing a district in the East Bay.
The state Senate easily confirmed Bonta last month, making him the first Filipino American to assume the role. But meaningfully advancing the legacy and promise of activism from the vantage point of the attorney general’s office will be a far greater challenge. Neither of Bonta’s predecessors were typical law-and-order avatars either, but both ended up doing far more to defend the existing criminal legal system than challenge it. As attorney general, Kamala Harrisfought a Supreme Court order to decarcerate California’s prisons.Lauded for his legal challenges to the Trump administration, Xavier Becerra has taken hundreds of thousands in campaign donations from law enforcement groups and refused to release police misconduct records.
Bonta’s record on criminal justice reform, and his ties to groups doing the frontline work to transform prisons and policing, are stronger than either Becerra or Harris. The political moment, too, is different; his nomination itself is testament to that.But the state Department of Justice will almost certainly be recalcitrant to change, and Bonta could fall prey to the same forces that stayed his predecessors’ hands from the bold action required to end mass incarceration and transform current systems of policing in California.
“He has a strong foundation to draw from, but he’s going to face a new level of pressure from the very powerful law enforcement lobbying groups, and it’ll be a test of his character,” Angela Chan, Senior Staff Attorney at Asian Americans Advancing Justice – Asian Law Caucus, told The Appeal.
Bonta’s career and public identity have hinged on his belief in the law’s capacity to engender social justice. His elevation to California’s “top cop” position, where he will become responsible for the vast bureaucracy of the state’s criminal legal system, will be a crucible for that belief.
Bonta was born in the Philippines, grew up around California, and attended Yale, where he hasrecalled cleaning laundry rooms to help cover his tuition. The attorney general has spoken frequently of his parents’ organizing work alongside labor rights icons like César Chávezand Dolores Huerta,saying that activism is“hard-wired into my DNA.” But Bonta also knew early that he would be a lawyer, not an activist. “I saw the law as the best way to make a positive difference for the most people,” hesaid on the day of his attorney general nomination. (Bonta did not respond to requests for an interview for this article.)
After law school, also at Yale, Bonta clerked for a U.S. District Court judge for a year and spent four years in private practice, followed by nearly a decade as a San Francisco deputy city attorney. Ann O’Leary, Governor Newsom’s former chief of staff, who worked as a city attorney at the same time and served on anAffirmative Litigation task force with Bonta, said he “had a very well-deserved reputation as a first-rate lawyer.” There, Bonta’s choice of law as a career path led to strategic litigation work defending consumers’ rights, where O’Leary described him as “very forward-leaning on the type of work we should take on.” It also meant occasionallydefending the city’s police against accusations of excessive force.
Involvement in Alameda Democratic politics and community groups—an oldCV reveals Bonta’s extensive list of public service affiliations—and a brief stint on the Alameda City Council led to his successful run for state assembly in 2012. Though O’Leary wasn’t surprised when her former colleague went into state politics, she was also aware of the trade-off: Bonta, she said, was “walking away from his top-notch legal career to become one of many elected representatives in Sacramento.” Bonta latersaid it was “the best decision I ever made.”
Bonta’s record in the state legislature has earned him a reputation as a champion of criminal justice reform. Over the past nine years, he has authored or sponsored bills toban private prisons,endfelony murder prosecutions, andmandate that DAs recuse themselves from investigations into police misconduct if they have accepted money from the police officers union.
Embraced by California’s Democratic establishment—Bonta is a close ally of Newsom—he is also genuinely well-regarded by many advocates and activists. “I have mad respect for any politician who’s willing to say ‘Anti Police-Terror Project,’” Cat Brooks, who co-founded the Oakland organization of that name, told The Appeal. “That’s a handful of folks, and he’s one of them.” Chan, of the Asian Law Caucus, has worked with Bonta on a wide variety ofimmigrant rightsbills. She’s come to trust the lawmaker for his collaborative spirit and willingness to listen. “He is great working in coalition, working in community spaces,” she said.
Bonta has often supported programs that advance community solutions to crime or policing issues, at times at odds with Newsom. Brooks said he has been a “champion” of Anti Police-Terror Project’s Mental Health First initiative, and was an early supporter and sounding board for theCRISES Act, which the governor vetoed last year. Recently, he introducedAssembly Bill 886, which would combat violence against Asian Pacific Islander communities by funding restorative justice programs and strengthening mental health support for victims of racist attacks.
The bill, which is now being sponsored by Assemblymember David Chiu, came about after Bonta approached the Asian Law Caucus to get their thoughts on potential policy solutions to anti-Asian Pacific Islander violence. “We don’t want these tragedies to be used to funnel more resources to local law enforcement, especially given the harm that this would cause to Black and brown communities who receive the brunt of law enforcement excessive force,” Chan told The Appeal. “I think our analysis really resonated with him.” At the press conference following his nomination, Bontatold reporters that he would not use his position as attorney general to double down on carceral solutions to hate crimes.
Still, Bonta’s time in the legislature has not been without its conflicts with activists. In 2016, he and Senator Bob Hertzberg introduced Senate Bill 10 to end the use of cash bail in the state. Though bail reform has long been a central goal of the criminal justice reform movement,the legislation ultimately dismayed many advocates for its significant concessions to probation lobbying groups.
The Los Angeles-based organization Dignity and Power Now was one of the few groups to oppose SB 10 from the beginning. Its director of campaigns and policy, Lex Steppling, told The Appeal he suspected the bill would get co-opted because of the probation industry’s involvement in its crafting. “I knew if things were to trend in the wrong direction, somebody like Bonta wasn’t actually going to do anything about it,” Steppling said. “I don’t think he was deeply familiar with the issue at the time.” Ultimately, he added, SB 10 “exceeded our worst expectations”: an 11th-hour rewrite gave the court system, and individual judges, control over the use of algorithmic risk assessments to determine pre-trial release. At the time, Bonta defendedthe bill from “rumors” that it had been watered down.
In November 2020, SB 10 was placed on the ballot as Proposition 25; it failed after being publicly opposed by both the bail industry and many racial justice organizations. Steppling did give Bonta credit for reaching back out to Dignity and Power Now following Prop 25’s defeat and introducing another bail reform bill that Steppling says may avoid some of SB 10’s pitfalls. “It’s way weaker than what we would do,” Steppling said, “but it’s certainly not a step backward.” Dignity and Power Now is lobbying to expand the bill’s scope and stop any potential use of electronic monitoring.
If Bonta pushes substantial criminal justice reforms as attorney general, he’s sure to face opposition. Some fear that the entrenched culture at the state DOJ will hamper Bonta’s efforts. “I worry that he’s potentially going to be very stymied by the long-term people in his office,” Jennifer Hansen, an LA-based appellate attorney, told The Appeal. “It’s really hard to go in and tell people how to do their job differently.” She pointed to thelegal battle between Los Angeles reform DA George Gascón and hisdeputy district attorneys as an example.
Neither can the political and financial muscle of law enforcement be underestimated. Bonta will have to defend his position in less than two years, when he will likely face a challenger with a more punitive approach: Sacramento DA Anne Marie Schubert, who has frequently criticized her more progressive counterparts, recently announced she will be running against him in 2022.
And although Bonta’s record as a legislator has produced a good deal of loyalty among many community organizations and advocates, his move to the Department of Justice may test these bonds.
“If he tends to skew more carceral and does not use his position to address police reform, address the death penalty, address racial justice, address mass incarceration—it could be an issue,” said Brendon Woods, the chief public defender of Alameda County, who has known Bonta for years.
“I am optimistic that he will be able to take the position and use it for good, but I think we also need to hold people in those positions to an extremely high standard,” Woods added. “It can’t be status quo.”
Brooks echoed his sentiment. “Just because I agree with Rob’s politics doesn’t mean that we don’t have every intention of holding him accountable to being the most progressive attorney general this state has ever seen,” she said.
Expectations are high, in other words. People interviewed for this article described a wide range of demands for Bonta’s new role, many of which would require him to wield the power of his office in bold and novel ways to meaningfully advance the work he started as a state legislator.
Woods said he hopes Bonta “has the will to dig into and understand the complete realm and complexity of collateral consequences that are attached to criminal convictions—and begin to unwind that system.” He and Hansen spoke of the need for more funding for and deference to defense. “I’ve been doing appeals in California for 13 years, and I’ve never had a case where the AG agreed that the defendant should get a new trial,” Hansen said. “I’m hoping [Bonta] might give his line attorneys more freedom to concede things when it’s appropriate.”
“One of the things that we’re going to ask of him is that he addresses not just interpersonal horrendous acts of violence, but also systemic state violence against API communities,” said Chan. She pointed to the state’s pattern of transferring Southeast Asian refugees who have completed prison sentences to ICE custody, where many will be deported to a country they’ve never known.
On June 2, 2020, Sean Monterrosa was shot to death by a Vallejo police officer named Jarrett Tonn in a Walgreens parking lot, not far from Bonta’s assembly district. Monterrosa wason his knees when the officer opened fire. Becerra, Bonta’s predecessor, announced an investigation into the Vallejo Police Department’s destruction of evidence in the case, but ultimatelydeclined to investigate the shooting itself. “It was a slap in the face,” Sean’s sister Michelle Monterrosa told The Appeal. “We deal with this weight every day.”
Michelle and Ashley Monterrosa met Rob Bonta in the months after their brother’s killing to discussAssembly Bill 767, legislation that Bonta co-authored that would have extended victim compensation funds to survivors of police violence and families of people killed by police.
“His track record is on the side of justice,” Michelle told The Appeal.
“Now that he has this position to actually really do something,” Ashley said, “I hope that he champions what he’s been trying to work on for the last few years.”
Last month, the Grassroots Law Project published apetition demanding that Bonta meet again with the Monterrosa family, this time as attorney general, to discuss Sean’s killing.
“I hope he can sit down with us and talk about our brother’s case, but also what real accountability looks like—for the Vallejo Police Department, but also throughout California,” Michelle said.
On June 4 last year, 11 days after former Minneapolis Police Officer Derek Chauvin murdered George Floyd, two-term San Antonio Mayor Ron Nirenberg stood in front of a crowd and encouraged his constituents to judge him on his ability to transform their city’s police department.
“When we ask you for your vote, or we ask you for your support, or we ask you for anything else, it’s because we’re asking you for the responsibility to make the change,” he said. “And we’re asking that responsibility not to be put on somebody else, but to be put on us. So hold me accountable.”
Now, nearly a year after Nirenberg made those public remarks, he is up for re-election on Saturday, and local civil rights organizers and activists told The Appeal this week that they believe Nirenberg has failed to fulfill any of his promises when it comes to policing. Multiple activist groups also said that, although they have little faith in Nirenberg’s ability to create transformational change, the entire pool of candidates in the upcoming race is such a disappointment that it appears nearly impossible to hold Nirenberg “accountable” at the ballot box.
“Neither the incumbent for mayor nor the challengers are vocally supporting police accountability, much less the reallocation of funds to crucial areas including public health, housing, and/or education,” the Defund Coalition SA, an activist group that is pushing the city to reallocate funding from the local cops to other city services, wrote in a statement to The Appeal. “We cannot in good faith support or stand by any of the mayoral candidates. Regardless, we will hold the winner of this election accountable to the community they have been elected to serve.”
On Sept. 15, San Antonio police shot and killed 55-year-old Darrell Zemault Sr. while attempting to serve him warrants. The police department made a series of statements about what happened: Officers initially said Zemault had hit a cop with a can of wood stain; on the day after the shooting, the police department revised its statements and said “the officer wasn’t sure exactly how he was injured, and he wasn’t sure if the actor intentionally hit him with the can or if the contact was incidental to the arrest.” Police later said that, after a scuffle ensued, Zemault reached for one officer’s gun, which prompted another cop to shoot Zemault in the back. In further revised statements, officers said they beat Zemault with their batons after he ignored their commands. An officer’s gun fell to the floor at some point, police said, and Zemault picked it up and “manipulated the gun in an attempt to point it at officers.” Zemault’s family has long disputed these accounts.
The family told the San Antonio Express-News that they’d requested to view the footage in September but were denied. In response, Nirenberg’s administration has claimed that the family had simply filed an improper records request. In February, the city finally agreed to show Zemault’s family two three-minute video clips from the incident, rather than the entire footage from that day.
“The Defund Coalition sat in meetings with Ron Nirenberg shortly after the murder of George Floyd where he looked us in the eye and said he was serious about police accountability,” the Defund Coalition told The Appeal. “But when police violence once again hit home in San Antonio when Darrell Zemault Sr. was murdered by SAPD in September, he was silent.”
“He never even said Darrell Zemault Sr.’s name,” they added.
Nirenberg’s campaign did not immediately respond to a request for comment.
Saturday’s ballot offers another way to hold San Antonio’s police accountable. Proposition B asks voters to decide whether to repeal the police union’s collective bargaining power. (Earlier this week, The Appeal: The Political Report published an explainer on Proposition B.) The San Antonio Police Officers Association has long had one of the strongest police union contracts in the country. As a result, the city has little power to hold officers accountable for misconduct. In 2020, local ABC affiliate KSAT published an investigative series on the substantial number of officers accused of misconduct who were allowed to keep their jobs because of union rules.
Kimiya Factory, founder of the local grassroots activist group Black Freedom Factory, told The Appeal that she is disappointed that Nirenberg has not taken a strong stance on Proposition B.
“He wanted [an] endorsement from SAPOA,” she said. “When he makes moves like that, it’s very clear he’s trying to secure certain conservative voters in the city, which is harmful to the movement when accountability is on the ballot.”
Factory said that, no matter who the next mayor is, she hopes that victims of police brutality and their families will have a stronger voice in setting policies. She’d also like to see the next mayor commit to taking a stronger stance on housing justice. (In February, The Appeal reported that Nirenberg’s administration bulldozed a homeless encampment and destroyed tents and blankets mere weeks before Texas’s unprecedented cold weather and power outages.) “There’s been a lot of shiftiness away from the issues that matter—especially police brutality in this city,” Factory said.
State pre-emption is a technocratic, legalistic term unlikely to be widely discussed like “defund the police.” But it has thwarted all sorts of other policy efforts by Democratic cities in Republican states, and it now poses one of the most serious threats to anything but the most moderate of criminal legal system reforms.
Pre-emption is a straightforward concept: Cities are the legal creation of the state government, so states are free to overturn any local law they wish. If a city passes an aggressive stay-at-home order during a pandemic and the governor responds by saying only lesser stay-at-home orders are permissible, the governor’s action invalidates the tougher local rule. For years now, legislatures in more conservative states have been increasingly relying on pre-emption to block more progressive policies enacted in their bluer cities, including higher local minimum wage laws, plastic bag bans, anti-discrimination rules, and even tougher COVID-19 standards. It’s gotten bad enough that Governing magazine recently ran an article headlined “States Pre-Empt Cities Almost to the Point of Irrelevance.”
Unlike tussles between the states and the federal government, cities have nothing like the Tenth Amendment to protect them. That amendment asserts, however weakly in practice, that certain policies properly belong to the states, and the federal government cannot directly interfere. The U.S. Supreme Court has made it clear, however, that it views cities as creations of state governments, and thus entirely subservient to them.
With one notable exception, state legislatures have not turned pre-emption toward criminal legal reform; after all, even conservative states’ legislatures have been passing reform bills. But the one exception—gun control—is telling and ominous. For years, all but seven states have had laws in place preventing cities from adopting gun control measures stricter than state laws. These pre-emption laws make it clear that state legislatures are more than willing to impede local reform efforts if they ever touch sensitive political issues or affect politically powerful groups.
That’s what criminal legal reforms like “defund” and progressive prosecution are starting to do—and states are responding accordingly. Unsurprisingly, perhaps the most sustained action by states is to defeat efforts to defund the police. In some cases, states are going after not just complete defunding but anyeffort to reallocate police spending to other agencies.
Florida’s HB 1 is the first law to significantly target defunding, but it will not be the last: By my count, at least 10 other states have bills pending that target defunding efforts, although two of them, in Kentucky and Oklahoma, are quite narrow. Florida’s bill is one of the more aggressive: Any cut to law enforcement budgets can be appealed to the governor, whose administration commission (the governor plus his cabinet) can then restore as much funding as it wishes, without any appeal.
Other states are experimenting with multiple ways to thwart local policy change. Some states, such as Alabama, Missouri, North Carolina, and Texas are threatening to slash aid to any city that cuts its police budget by any substantial amount (or, in the case of Iowa, seemingly at all) outside of a few narrow exceptions. Missouri’s bill allows the head of any city law enforcement agency to sue in state court for injunctive relief to block any cuts that exceed 12 percent. The Texas bill goes so far as to take inflation into account, so it effectively requires nominal police spending to grow. Legislation in Georgia simply makes it illegal to cut police funding by more than 5 percent over any rolling five-year period absent major revenue shortfalls (although the enforcement mechanism is not clear). An Arizona bill cuts state funds to retaliate for smallish reductions to law enforcement budgets but then allows the county sheriff to take over policing if the cuts exceed 25 percent. Wisconsin’s legislation doesn’t just cut funding if the police budgets shrink—with no apparent concession even for a fall in revenues—it also permanently locks state aid to the city at that lower level.
Not all are quite so aggressive: Kentucky’s controversial anti-riot bill contains some toothless but ominous provisions warning that the legislature may turn its attention to defunding if any city attempts it. And Oklahoma’s effort simply requires a popular referendum on any effort to redirect certain dedicated law enforcement taxes. But most are taking a pretty hard line.
Note that these are clearly not symbolic laws targeting the sort of complete defunding that no city is seriously considering. These laws are targeting even moderate rebalancings of local budgets, reforms that have widespread support, even among most white voters.
There have also been three earlier efforts to pre-empt defunding that have failed. An aggressive 2020 bill in Pennsylvania, which would have forbidden cities from hiring any sort of security if they disbanded their police, never made it out of committee; a Louisiana bill that would have cut state funds to cities whose budget cuts to police were found to impact public safety died in a floor vote in the state Senate in 2020; and a conventional bill that hinged on revenue loss was decisively defeated in the Indiana Senate this year.
The passage of HB1 in Florida suggests, however, that the current crop of anti-defund bills have better chances of succeeding. Of the remaining bills, Oklahoma’s has become law, Georgia’s is awaiting the governor’s signature, and two—in Kentucky and Arizona—have passed one chamber. And the protests of 2020 sparked by George Floyd’s murder have, unsurprisingly, caused conservative politicians to take increasingly hardline stands on criminal legal issues. It’s also worth noting that seven of the 10 pending bills are in states where the GOP controls both houses of the legislature and the governor’s mansion, which makes Democratic opposition tougher.
And, to be clear, these are not the only efforts to pre-empt local reforms. The Georgia legislature recently passed a law limiting bail options, which was considered a direct hit at reforms in Atlanta (and had clear support from the bail bonds industry). On immigration, at least nine states passed laws to pre-empt sanctuary policies that cities adopted to limit relationships with ICE.
Perhaps the other major source of growing pre-emption are legislative efforts to expand laws that give state actors the authority to intervene in local criminal cases. All 50 states already have some form of supersession law, although they vary widely on how aggressively officials like the state attorney general can take over a case. The attempts to expand these laws are a rebuttal to the rise of the progressive prosecutor movement.
In 2020, a last-minute, overlooked addition to a bill in Pennsylvania—a state that isn’t Republican controlled—ended up giving the attorney general concurrent jurisdiction over all gun cases, but only in Philadelphia. It was an unambiguously direct criticism of District Attorney Larry Krasner, a popular reformer currently running for re-election. And although Pennsylvania’s attorney general, Democrat Josh Shapiro, has said he will not use the authority the law gives him, it remains and awaits a Republican attorney general to usurp local control from Philadelphia.
And in Missouri, an effort to allow the state attorney general to take over homicide cases in St. Louis narrowly failed in the Missouri Senate. But North Carolina and Pennsylvania have given their attorneys general the power to prosecute cases involving monuments. A bill in Indiana would not only give the attorney general concurrent jurisdiction for several types of crimes, but would also give the office the power to appoint a special prosecutor should a local DA decide to categorically decline to charge certain specific crimes. Many progressive prosecutors have done this with respect to marijuana, with others, like Rachael Rollins in Boston and Marilyn Mosby in Baltimore, going even further.
There have been other types of supersession in recent years, so there’s no reason to assume we won’t see more of this. In 2017, Florida’s then-governor, Rick Scott, decided to reassign dozens of death penalty eligible homicide cases to other judicial districts when the Ninth Judicial District’s progressive prosecutor, Aramis Ayala, declared that she would no longer seek the penalty for any murder. Several of the cases—most notably, a police killing—were assigned to pro-death penalty State Attorney Brad King. And just last year, Maryland Governor Larry Hogan assigned 25 prosecutors from the state attorney general’s office to start handling homicide cases from Baltimore city. (Attorney General Brian Frosh is a hardliner who has fought to maintain Adnan Syed’s conviction.)
The solution here may be complicated and may point to the need for difficult political compromises. While reformers, including progressive prosecutors, often attack state district attorney associations for resisting change and pushing for severity, the association in Missouri played an important role in defeating the bill there that would have granted the attorney general concurrent jurisdiction over certain homicide cases in cities that are not part of a county. Conservative prosecutors were not fans of Kim Gardner—St. Louis’s progressive prosecutor and the target of the supersession bill—but they wanted to protect their own independence more than take power away from her office.
Pre-emption and supersession are not fundamentally antithetical to reform and greater law enforcement accountability, even if they are regularly used that way. In 2015, New York Governor Andrew Cuomo issued an executive order that gives the state attorney general the right of first refusal to charge police officers who kill people in the line of duty. The order was an effort to confront the long-standing concern that local prosecutors work hard to exonerate officers charged with homicide in their jurisdiction. In 2017, then-Attorney General Eric Schneiderman indicted Joel Abelove, the elected prosecutor of Rensselaer County, for violating the order. While Schneiderman’s office was debating whether to take the case, Abelove had rushed a grand jury to decline to indict an officer facing charges. (Abelove was later acquitted in a bench trial).
In recent years, however, the trend is clear: States, conservative-led ones in particular, seem ready to thwart politically sensitive local initiatives they disagree with. Pre-emption is used far more to constrain efforts to impose accountability on the police and other criminal legal system actors than to support them. And the success of Florida’s HB 1 is clear warning from red-state legislators and governors that moderate local reforms may be acceptable, but transformative ones face a daunting pre-emptive veto from the state.
John Pfaff is a professor at Fordham Law School and the author of “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.”
This month marked two decades since Cincinnati Police Officer Steve Roach killed Timothy Thomas, a 19-year-old Black man. On April 7, 2001, the police attempted to arrest Thomas on more than a dozen warrants, all for misdemeanors. Thomas, who was unarmed, ran into an alley and Roach shot him. Cincinnati community members demonstrated for days.
“Here we are 20 years later and we’re still facing a lot of the same issues nationally,” said Kimberly Elliott, a volunteer with the American Civil Liberties Union of Ohio. “We need to find alternative ways that deal with issues that so often escalate and end up in situations that happened 20 years ago and are still happening this week.”
Elliott is helping the ACLU of Ohio survey voters about police reform and the upcoming mayoral race. On Tuesday, Cincinnati voters will decide on two candidates from among six running in the nonpartisan mayoral primary. Public safety is among the most urgent issues facing voters, according to local activists whom The Appeal spoke with. True public safety, they say, means divesting from the police and investing in community needs.
After Roach killed Jones, the ACLU of Ohio, the Cincinnati Black United Front, the city of Cincinnati,and the Fraternal Order of Police agreed to a plan to enact reforms. These reforms, which were introduced over several years, included the creation of the Citizens Complaint Authority, an independent body that investigates allegations of police misconduct and abuse—an agency that the mayor plays a critical role in.
“The city manager is basically the CPD’s boss and so that’s a direct connection to make change in policing,” said Jennifer Kroell, an ACLU of Ohio volunteer. The next mayor, she said, can “make or break policing in our city.”
“Our team really sees policing as the most important issue in this mayoral race,” said Greer Aeschbury, the Cincinnati organizing strategist for the ACLU of Ohio.
Although public officials have lauded the local policing reforms that occurred in the last two decades, much work remains to be done, according to community activists.
“A number of public officials have pointed to the changes that have occurred,” said Annabelle Arbogast, an at-large executive committee member of Democratic Socialists of America Metro Cincinnati and Northern Kentucky, which has not endorsed any of the candidates. But those reforms, she continued, “are wildly insufficient and don’t actually shift the focus on achieving community safety towards things like housing and healthcare and workers rights and things that meaningfully achieve community safety.”
Last summer, the City Council and Mayor John Cranley, who is term-limited and cannot run for re-election, rebuffed community calls to take money from law enforcement and invest it in community needs. The approved budget essentially keeps police funding the same as the year before. At a budget hearing in June, council member David Mann, who is now a mayoral candidate, adjourned the meeting early after community members began protesting over police funding.
Several mayoral candidates have advocated for police reforms. At a recent forum, state Senator Cecil Thomas said professionals from the social services sector should take the lead on responding to mental health or child abandonment crises. Aftab Pureval, Hamilton County’s clerk of courts, said at the same forum that 911 must be reformed.
“We have to take action on this by making sure police officers are only responding to issues they’re trained for and where they’re not, sending unarmed, specifically trained professionals,” he said. “This is not just important for our Black and brown communities. Justice is important to all of us.”
Rather than investing in the police department, activists have demanded that the city expand the availability of affordable housing. In Hamilton County, there was a shortage of about 40,000 units of affordable housing for people earning less than $14,678 (or 30 percent of the county median income), based on 2010-14 data from the U.S. Census’s American Community Survey, according to a 2017 report by the Local Initiatives Support Corporation of Greater Cincinnati & Northern Kentucky. The majority of Black households in the county were spending more than a third of their income on rent and more than a quarter spent more than 50 percent of their income on rent.
“Our affordable housing in Cincinnati is very scarce,” said Chazidy Bowman, president and founder of Opportunities People’s Justice Leaders. “Affordable housing is the main thing on the agenda right now.”
In 2018, the city started a trust fund to create and preserve affordable housing, but it has been severely underfunded. Housing rights advocates hope to change that with the passage of Ballot Issue 3. Issue 3, which will be on the Tuesday ballot, would amend the city charter to require an annual investment of no less than $50 million to the fund. It is supported by the local chapter of the NAACP, as well as the Greater Cincinnati Homeless Coalition, the Metropolitan Area Religious Coalition of Cincinnati, and Affordable Housing Advocates.
The ballot initiative proposes several funding options, including city funds and a fee on real estate developers. It has faced steep opposition from the current mayor, several council members, and the local chapter of the AFL-CIO.
Two out of the six candidates for mayor—retired firefighter Raffel Prophett and educator Herman Najoli—support the initiative. Mann, Pureval, and Thomas oppose it. “I don’t know how we can get by with taking $50 million away from our general fund,” said Mann at the recent mayoral forum.
The sixth candidate, business owner Gavi Begtrup, who was formerly U.S. Representative Gabrielle Giffords’s policy adviser, has not stated his position. The current administration says if the initiative passes, it would lead to reduced budgets, including a $13.8 million cut for the police department.
“I would really like to see them cut the budget to policing and add those resources into affordable housing,” said Bowman, who supports Begtrup.
To make communities safer, Bowman said, underserved communities need more resources, especially when it comes to housing, not more police.
Hamilton County renters are particularly vulnerable to evictions. Last year, the Centers for Disease Control and Prevention imposed a limited federal moratorium on evictions, but a federal appeals court ruled this month that the CDC overstepped its authority by extending the eviction moratorium. In response to the court’s ruling, the Hamilton County municipal judge told the Cincinnati Enquirer that there was no longer a moratorium in effect for Ohio and other states under the federal court’s jurisdiction.
Pureval has publicly opposed the court’s decision. Ohio, Hamilton County, and Cincinnati do not have local eviction moratoriums in place, although two City Council members have proposed an eviction moratorium since the court’s ruling.
“There’s likely to be a profound eviction crisis if dramatic action is not taken by public officials and if working class people don’t come together to demand that,” Arbogast said.
Lori Lightfoot has had several chances to hold the Chicago Police Department accountable for its actions.
She had a chance in 2002, when she was the chief of the city’s Office of Professional Standards, and she ruled that an off-duty Chicago cop was justified in fatally shooting a 17-year-old Black boy. She had another chance in 2015, when Mayor Rahm Emanuel appointed her to a task force convened after Officer Jason Van Dyke killed 17-year-old Laquan McDonald. Most recently, she has had nearly two years to address the department’s culture of misconduct since taking over as mayor in 2019.
After the killing of 13-year-old Adam Toledo by Officer Eric Stillman, Lightfoot stood in front of reporters and tried to explain why one of her officers shot a child who had his hands in the air.
“Simply put: We failed Adam,” Lightfoot said during a press conference in which she urged Chicago residents to react with “calm” and peace. “We cannot afford to fail one more young person.”
Lightfoot campaigned for mayor on her record as a police reformer. That record, however, has long been criticized by local activist organizations, who say she’s failed to do much of substance in the years she’s overseen Chicago police. Other mayors—including some with seemingly less experience in police issues—have taken more drastic steps to reform their police departments in recent years. In Albuquerque, New Mexico, Mayor Tim Keller announced in June that his city planned to divert city funds to create an unarmed unit to respond to homelessness, addiction, and mental health crises around the city. (The Albuquerque Police Department had faced criticisms similar to those levied at the Chicago Police Department, and was also subject to oversight from the U.S. Department of Justice.) In August, San Francisco Mayor London Breed announced that her office would work to create a team of unarmed, behavioral health workers to respond to nonviolent calls for service in that city as well.
After a stint as a federal prosecutor, Lightfoot was appointed in 2002 as chief administrator of the Chicago Office of Professional Standards, an oversight body that reviewed complaints against the police. The office, which existed from 1974 until 2007, was a largely toothless board that was under the control of the police department itself and had no power to subpoena officers. In 2003, Lightfoot told the Chicago Reader that there had been at least 400 alleged misconduct cases sent to prosecutors for review since 1999, but that prosecutors filed charges in just one instance—for an off-duty incident.
Lightfoot also left a trail of questionable cases in which she appears to have covered for officers who committed acts of violence. Soon after her appointment, Lightfoot inherited the review of a shooting that occurred in June 2000, in which an off-duty cop named Phyllis Clinkscales fatally shot a 17-year-old Black boy named Robert Washington. According to the Chicago Tribune, the teenager had allegedly tried to steal Clinkscales’s car, and she responded by shooting him four times in the back of the head. Office of Professional Standards investigators found that Clinkscales lied about significant aspects of the shooting, most notably by claiming that she had fired from feet away and that Washington had pointed a gun at her. In fact, OPS investigators found, Clinkscales had shot him at such close range that the gun left powder burns and a muzzle imprint on his head.
Investigators ruled that the shooting was unjustified and moved to fire Clinkscales, a decision that then-Police Superintendent Terry Hillard disliked. During Lightfoot’s mayoral campaign in 2019, she told Chicago’s ABC affiliate that once Hillard rejected the findings of the investigation, her hands were tied. Lightfoot overturned the initial ruling, and Clinkscales was suspended for 30 days. In a 2015 investigation, the Chicago Tribune found that Hillard and the department’s general counsel had pushed back hard against Lightfoot’s predecessor, Callie Baird, as Baird’s administration investigated the shooting. Also in 2015, Cook County State’s Attorney Anita Alvarez’s office opened an investigation into the shooting, and no one was ever charged in the case.
Lightfoot endured further criticism for an incident that happened a year later. In 2003, two Chicago Police Department officers shot and killed 23-year-old Kenneth Dukes after he ran from police. The police and Dukes’s acquaintances tell drastically different versions of what occurred that day: Chicago officers said they heard shots fired, went to investigate, saw Dukes holding a gun, and then watched as Dukes ran. Dukes’s friend later told the Chicago Reporter that he and Dukes had noticed two undercover cops in a car idling on their street, and when the cops realized they’d been caught, they jumped out and Dukes ran. The officers shot Dukes five times.
“To justify Kenneth’s murder, the police investigating his death decided to concoct an elaborate lie,” Whitlow wrote. “They claim that Kenneth turned twice with a gun but never fired it and, in fear for his life, the officer shot and killed Kenneth. Lori Lightfoot, chief administrator of the Office of Professional Standards, was quoted as saying it’s preposterous to suggest that there is a police culture that condones murder, but in the case of my brother, the evidence does not support her statement.”
Dukes’s family sued the department, and the suit was voluntarily dismissed in 2006. A review by The Appeal shows the two officers named in the lawsuit, Edward Kos and Steven Del Bosque, have since been named in multiple lawsuits against the city. In 2005, for example, Del Bosque was involved in an incident in which cops wrongfully detained Noel Padilla on the street, and then drove Padilla to both his home and his mother’s home to look for drugs. The officers found none but arrested Padilla anyway on charges that were later dropped. Padilla sued, and the city paid him a $1.9 million settlement. According to the Citizens Police Data Project, Kos has received 28 complaints—a number that puts him above 94 percent of officers—since joining the force in 2000.
In October 2014, during Mayor Rahm Emanuel’s re-election campaign, Officer Jason Van Dyke fatally shot Laquan McDonald. Emanuel’s administration withheld footage of the incident and waited to settle a lawsuit from McDonald’s family until after he won the election.When the footage was finally released in November 2015, demonstrators took to the streets to demand change. Van Dyke was ultimately convicted of second-degree murder.
In 2015, Emanuel appointed Lightfoot to two police accountability organizations: He named her head of the Chicago Police Board, a nine-member civilian oversight agency created by Mayor Richard M. Daley in 1960 after a series of brutality scandals, as well as the leader of the new Chicago Police Accountability Task Force that would investigate problems at the department. Activist organizations were immediately skeptical of both groups, given their closeness to Emanuel. In December 2015, protesters stormed a Police Board meeting chanting for Lightfoot and the other members to “Step down!”
“CPD’s own data gives validity to the widely held belief the police have no regard for the sanctity of life when it comes to people of color,” the report stated.
Although the report was sharply critical of the department’s history, it did not call for drastic changes. Among other items, the report asked the city to mandate body-worn cameras and dissolve the Independent Police Review Authority, which replaced the Office of Professional Standards that Lightfoot used to run. The task force also recommended that the city mandate the release of all body-worn camera footage in shootings by police within 60 days, a change that Emanuel embraced.
“If the mayor wants to debate my record on police reform and accountability vs. his record, let’s start with the way that he handled the Laquan McDonald shooting,” she said in May 2018. “I am available for a one-on-one debate anytime, anywhere.” In campaign ads, she boasted that she’d spent her career holding Chicago cops accountable.
But in the three years since Lightfoot challenged Emanuel to a debate on police reform, few would claim that she’s drastically changed the culture or structure of the Chicago Police Department. Since taking the mayor’s office in 2019, she has failed to fulfill basic campaign promises regarding police reform. As the Chicago Tribune noted earlier this month, Lightfoot has still not unveiled a new plan for civilian oversight of the police department, something she promised to do within her first 100 days of office. Her office has repeatedly missed deadlines set by federal monitors from the U.S. Department of Justice, who began overseeing the police after the McDonald shooting. In her first year in office, her administration missed more than 70 percent of its reporting deadlines; in her second year, her office missed 60 percent. During the 2020 uprisings that occurred after George Floyd’s death, Lightfoot’s officers were filmed brutalizing peaceful protesters—while her administration approved raising bridges to keep demonstrators from wealthy downtown areas.
And her department has stalled public release of police misconduct videos. In December, a woman named Anjanette Young publicized body-worn camera footage that showed Chicago police officers raiding her home with guns drawn—while she was nude and changing. The police had failed to verify that it was raiding the correct address and raided her home by mistake.
Young shared the footage with the local CBS affiliate—but hours before CBS was set to air it, lawyers working for Lightfoot’s administration filed a court motion attempting to block the release. Lightfoot’s attorneys also asked the court to discipline Young for allegedly violating a confidentiality order she’d signed with the city.
Earlier this month, Lightfoot released footage of Chicago police killing yet another child—this time, 13-year-old Adam Toledo, who was filmed placing both of his empty hands in the air before he was shot to death.
Lightfoot responded, once again, by calling for peace. She warned local businesses to board up their windows. And she once again raised the city’s bridges.
Report Sheds Light On The Pattern Of Over-Policing That Led Cops To Pull Over Daunte Wright
The criminal legal system “relies heavily on collecting money from the very people targeted by the system,” in the process incentivizing police to punish as many people as possible, the authors of the ACLU report write.
Report Sheds Light On The Pattern Of Over-Policing That Led Cops To Pull Over Daunte Wright
The criminal legal system “relies heavily on collecting money from the very people targeted by the system,” in the process incentivizing police to punish as many people as possible, the authors of the ACLU report write.
When Brooklyn Center, Minnesota, police killed 20-year-old Daunte Wright during a traffic stop on April 11, his name joined a growing list of Black drivers killed after being pulled over for an infraction that constituted no threat to public safety.
In Wright’s case, he was pulled over for driving a car with an expired registration—an issue many drivers experienced as Minnesota’s motor vehicle department adjusted to limited services during the COVID-19 pandemic—and for an air freshener dangling from his rear-view mirror, which is illegal in Minnesota.
According to a report from the ACLU released today, Wright’s experience is more than just common; the policing of minor infractions, including nonpayment of fines or fees, is considered a significant source of revenue for local governments. The criminal legal system, the authors write, “relies heavily on collecting money from the very people targeted by the system,” in the process incentivizing police to punish as many people as possible. For the victims of such police activity, however, the fines and fees extracted from these kinds of stops themselves can create an unmanageable burden, and the failure to pay often results in a cycle of increased fees or warrants.
“You see it over and over again. Governments are strapped for cash, the first thing they do is create either new categories of fines and fees, or increase the dollar amounts attached to existing fines and fees,” said Emily Dindial, advocacy and policy counsel at the ACLU and co-author of the report. For example, the report refers to a study by the Department of Justice in 2015, which found that 23 percent of Ferguson, Missouri’s total municipal revenue came from fines and fees. The Florida Clerk of Courts Operations Corporations estimated that at least $20.8 million of its revenue came from the payment of license suspension debt. “The creation of all these offenses … create these regulations that have to be enforced; they make it so everyone is constantly breaking the law or out of regulation. They generate revenue by over-policing,” Dindial said.
According to the report, not being able to pay a fine frequently sets off a snowball effect of mounting fees that can end in thousands of dollars of debt or the suspension of a driver’s license. Many people are forced to choose between driving anyway (thereby committing a new crime) or trying to get by without a car. For instance, the authors of the report found that each year, over 100,000 Coloradans lose their licenses because of unpaid traffic debt or failure to appear in court. In 2019, Florida issued 1.2 million license suspension notices, 70 percent of which stemmed from the failure to pay fines and fees. “The system itself is self-defeating,” said Emily Greytak, the ACLU’s director of research and co-author of the report. “Most people use their cars as part of their work, or to drive to work—a suspended license takes away their livelihood, yet that’s what they need to pay the fees.”
In one case cited in the report, Dario, from Colorado, was pulled over for driving with windows that were tinted too darkly, fined $75, then given a $150 ticket for driving without a registration. But with 13 additional fees, Dario ultimately owed $1,032. “The ability to pay competes with the cost of rent and cost of food and daily expenses,” Dario told the researchers. “So it’s like, either pay the traffic fines, or pay for food.”
According to Greytak, the interviewees were well aware that not having money was the actual crime. “At least 11 million people are not allowed to drive simply because they cannot afford to pay fines and fees, while people who can afford to pay are spared,” the report reads. “The brunt of these policies falls disproportionately on people of color, contributing to existing racial disparities in the criminal legal system.”
Daunte Wright had a warrant out for his arrest because he did not show up for a court appearance for two misdemeanors, which were not related to driving. Skipping court appearances is common for people who are unable to pay fines and fees. For anyone with a warrant hanging over them despite committing no dangerous or serious crimes, minor infractions often become dangerous and sometimes deadly.
In 2016, according to the report, 95 percent of all arrest warrants issued in Texas were for unpaid fines and fees, sending more than 640,000 people to jail. In 2020, the report reads, one out of every seven adults in New Orleans had open warrants; the city vacated about 55,000 warrants that year, most of which were issued for nonpayment or failure to appear in court for a fine-only offense. Thirty-six percent of those with warrants were Black. And last year, the Las Vegas Justice Court in Clark County, Nevada, reported 270,000 open warrants for unpaid traffic tickets and failure to appear in court to resolve those tickets.
According to Dindial and Greytak, these policies do not improve public safety. Moreover, the report questioned if such policies, after accounting for the costs of enforcement and collection, generate that much revenue. “It makes no logical sense if you’re talking about public safety; it makes no logical sense if you’re talking about fiscal concerns,” Dindial said. “So ‘Why are they doing it?’ is a natural next question.”
The Oakland City Council in California is expected tofinalize approval today for a pilot program that would replace police with trained civilian responders for a host of 911 calls that often involve people struggling with mental health issues and homelessness.
The year-long pilot called MACRO—Mobile Assistance Community Responders of Oakland—is still in its infancy. It is expected to take months before being implemented in an area in East Oakland, but activists say the pilot is a major step toward eliminating law enforcement responses to 911 calls that risk escalation into police shootings of people experiencing homelessness or mental health crises.
“We don’t want [police] involved in these calls because we’re sick of the death count,” said Cathy Leonard, a steering committee member of the Coalition for Police Accountability, which has been pushing the city for a MACRO-like program since 2019. “We need resident-centered responses.”
Other mental health-oriented emergency response programs already operate in Alameda County, which includes Oakland, but those programs are staffed by licensed clinicians who respond in tandem with police. MACRO will function as a police-free program within the Oakland Fire Department. It will be staffed by two-person teams of emergency medical technicians and trained community members who advocates say are more equipped to respond to 911 calls about matters like public urination, erratic behavior, and welfare checks. The final structure of the program remains unclear, as the fire department and stakeholders hash out the details over the coming months.
Because the city of Oakland faces a pandemic-fueled budget crisis, the $1.85 million in MACRO funding is far smaller than the original vision, which was outlined in a report by the Urban Strategies Council and called for $3.09 million to employ 24 people. But City Council members say this new pilot is an important part of Oakland’s goal of reducing the over$300 million police department budget by 50 percent.
“The intent and the goal is that there be sort of three phases of the program, and within three years that about 20 percent of the low-level, nonviolent 911 calls would receive this response,” Nikki Fortunato Bas, the City Council president, said in an interview.
MACRO is inspired by Eugene, Oregon’s CAHOOTS program, a long-standing emergency response service that saves the city an average of $8.5 million annually and diverts anestimated 5 to 8 percent of 911 calls away from police. The Oakland City Council commissioned areport in 2019 to examine the feasibility and implementation of a CAHOOTS-like program locally, forming the foundation for MACRO.
According to one nationalstudy, people with untreated mental illnesses are 16 times more likely to be killed during a police interaction. Oakland’s pilot program follows several fatal police shootings of people experiencing mental health crises in the Bay Area, including Joshua Pawlik in 2018 and Miles Hall in 2019. Last summer’s racial justice protests following the killing of George Floyd in Minneapolis also added to the momentum to create the program.
Oakland community members have long said that police are ill-equipped to deal with people in mental and emotional crisis, not in small part because the primary response for law enforcement is to put someone in a 72-hour involuntary psychiatric hold known as a 5150. Alameda County has thehighestrate in the state for police use of 5150s, despite the fact that 75 percent of those held did not need acute psychiatric care. Meanwhile, people in the midst of a mental health crisis that do not qualify for an involuntary hold “receive essentially no services,” according to the county’s behavioral health care service.
“I think the worst way to provide mental health care is with an ambulance and a 911 call because we can really only be with somebody for five minutes and then they get taken to the emergency room,” said Zac Unger, who is union president for Oakland firefighters and often provides emergency medical care. “The hope is that there is somebody who actually has the resources and the skills to connect people in crisis with more long term resources.”
Loren Taylor, an Oakland City Council member, said MACRO is meant to respond to a range of community needs, beyond people experiencing mental health crises. He cited family disputes where relatives are seeking intervention and de-escalation. “They don’t want the person arrested. They don’t want them to be part of the criminal justice system,” said Taylor, who was co-chairperson of the city’s Reimagining Public Safety task force. “The only resource they know or they have is to call the cops right now.”
The pilot received unanimous support from the City Council yet it still faces uncertainties surrounding its bureaucratic structure and relationship with the police. The program was originally designed to be implemented by a nonprofit, but during acontentious City Council process, the nonprofits rescinded their bids and the council ultimately reversed course to place MACRO within the fire department.
According to David Harris, CEO of the Urban Strategies Council, which authored the initial MACRO report, the switch from a nonprofit to the fire department will help ensure that the program is sustainable and not “dumped” at a later stage. But the move adds a layer of bureaucracy and liability concerns that threaten to make implementing the pilot more complex. Already, the fire department indicated in a Marchmemo that MACRO might not operate around the clock, which was a key component of the program.
Another outstanding issue is exactly how many of the over 240,000 annual 911 calls to the police will be transferred to MACRO responders once the program is running or expanded. Onestudy of 911 calls from eight cities found that up to 38 percent of the calls can be handled by community response teams. But areport commissioned by the city identified only 7.5 percent of local 911 calls eligible for a non-police response and many of those calls, including traffic accidents, likely will not fall under MACRO’s jurisdiction.
The Anti Police-Terror Project (APTP), a local activist group working to abolish the Oakland Police, said MACRO is an important step toward its goal, but contend that the service needs to also be accessible through a non-911 number. “Large swaths of our community don’t call the police to begin with,” said Cat Brooks, one of the group’s founders. “So the fact that you can only access MACRO through 911 is a problem.” APTP has been running a non-police responseservice in Oakland since August, meeting the pent-up demand for an alternative to police with a dedicated phone line and access through social media channels. “Our phones ring off the hook from the time we open to the time that we close,” said Brooks.
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.”
For months, two Denver City Council members—Amanda Sawyer and Candi CdeBaca—have been working on a plan to stem the coming glut of eviction filings. When Colorado’s COVID-19 eviction moratoriums finally end, thousands of households may face evictions across the state. In March, the Colorado Sun reported that more than 20,000 people were still waiting for rental assistance from the state Department of Local Affairs. According to the U.S. Census Bureau’s Household Pulse Survey, roughly 100,000 Coloradans were behind on rent in February.
“The purpose is not necessarily to stop people from getting evicted if it’s a rightful eviction, but to level the playing field,” Sawyer told The Appeal. “We want to make sure people getting evicted have access to information, or to help with issues like language barriers, things like that.” Sawyer said she and CdeBaca are speaking to various stakeholders around the city—including local activist organizations and landlords—and trying to figure out the best way to fund the program. Sawyer said she hopes the bill will be ready for a vote by the summer.
Indigent people facing any type of civil lawsuit must often defend themselves without any training or knowledge of the law. Studies have repeatedly shown that those with counsel in eviction proceedings obtain dramatically better results and are more likely to stay in their homes. Nationally, studies suggest landlords have counsel in 80 to 90 percent of eviction cases, while those facing eviction obtain counsel in only 10 percent of cases.
According to a 2017 study by the Colorado Coalition for the Homeless, every single landlord who filed an eviction case citywide from 2014 to 2016 did so through an attorney. Meanwhile, those being evicted obtained an attorney in just 1 to 3 percent of cases reviewed.
Denver currently contracts with an outside nonprofit organization to provide eviction defense services during the pandemic. But last Friday during a town hall meeting to discuss expanding eviction-counsel rights, CdeBaca and Sawyer said that, since there is no citywide rule stating that tenants must be notified of their rights during eviction proceedings, few Denverites are aware of the program or have utilized it.
“A lot of times tenants don’t know how to negotiate an agreement that would allow for something to happen—even if that is a move-out—without a judgment on their record,” CdeBaca said. She added that evictions also put stress on other city resources, including homeless services.
“That’s one of our major issues in the city right now when we’re trying to get people out of homelessness, and an eviction makes it exponentially harder for someone to ever climb out of the hole of homelessness,” CdeBaca said.
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.”
Philadelphia has a gun violence crisis that is rightfully generating a lot of concern. But some of the responses we traditionally resort to—increasing police budgets, calling for crackdowns in the neighborhoods that are most affected, and insisting on more punitive responses from the criminal legal system—are misguided and will only perpetuate further harm.
As a recent article in The Appeal soberly illustrated, the rate at which Philadelphia police clear homicide cases—one of the best measures of a police department’s success in solving homicides—has dropped precipitously over the last few decades. (Although it’s widely used to tout success, declaring that a crime has been cleared does not mean that the crime has been solved; for instance, some departments clear crimes when a suspect has been identified.) Philadelphia has gone from a homicide clearance rate of nearly 80 percent in the 1980s to less than 50 percent in 2016. Last year, it dropped even further, from around 52 percent in 2019 to 42 percent in 2020. As The Appeal also reported, the stats are even worse for assaults committed with firearms—last year, that clearance rate was less than 20 percent, an at least 66 percent drop since 1969.
Those numbers show that despite being well-funded, police aren’t doing their job when it matters the most. The Philadelphia Police Department doesn’t use the funds we’ve given it to address our real public safety needs and focus on solutions for serious, violent crime. Instead, it spends the vast majority of its time on noncriminal calls, traffic infractions, and property or other nonviolent crimes, deploying law enforcement to nonwhite communities to over-patrol, surveil, and, quite frankly, harass people. According to reporting by WHYY, between October 2018 and September 2019, the department conducted a total of 309,533 motor vehicle stops, 90 percent of which were for minor traffic violations. The vast majority of these stops, nearly three-quarters, targeted Black drivers, but only 1 percent resulted in the confiscation of contraband such as illegal drugs or guns. Stop-and-frisks are also a pervasive problem in Philadelphia, even though 1 in every 3 is legally unfounded, according to a report by the ACLU. Black communities bear the brunt of this harrassment, with Black individuals being 50 percent more likely to be stopped without reasonable suspicion than white people.
The way Philadelphia allocates its public safety resources has utterly fractured trust in law enforcement, which is critical to solving violent crimes. A recent survey found that in neighborhoods where a shooting occurred within the last year, 62 percent of people found the police somewhat or very unhelpful. Eighty-three percent of people from those neighborhoods found police to be somewhat or very bad at preventing violence. An in-depth 2019 Washington Post investigation into unsolved murders reviewed a decade’s worth of data and found that “Black victims, who accounted for the majority of homicides, were the least likely of any racial group to have their killings result in an arrest.”
I live these realities regularly. Young people, around the same ages of my daughters are buried every single week. But Philadelphia police are not solving these crimes, and, in our community, police presence does not equate to feeling safe. We need to be surrounded by people who are clearly invested in the fate of our community, not just those who show up when we’re in crisis. We need Philadelphia to invest in far more violence prevention strategies and to build services and provide resources that create health, stability, and opportunities for growth. And we need Philadelphia’s law enforcement to take our tragedies seriously. To be clear, I’m not looking for the city to double down on aggressive policing or to dole out ever harsher criminal penalties. Rather, I want law enforcement to make good on its claims to prioritize violent crime by focusing its attention on gun violence and homicides instead of spending the majority of its time on issues that are better handled by others—medical professionals and counselors for mental health and substance use.
Scaling back the responsibilities and scope of law enforcement and investing instead in violence intervention programs and other alternatives to policing will do a lot more good for our communities and allow law enforcement to focus their efforts on solving the truly serious crimes. For example, by investing in Parks and Recreation and in our public schools—especially the 25 schools that half of all students impacted by gun violence attend—we can ensure our young people have access to the trauma-informed care and after-school programming needed to curtail and de-escalate conflicts. By prioritizing permanent, green, affordable housing in the city, we can stabilize families forced into precarity by the housing crisis. And by making significant investments in grassroots violence prevention work done by groups like YEAH Philly, the Youth Art & Self-Empowerment Project, Men of Courage, NOMO Foundation, CeasefirePA, and others, we can expand the scope of these programs and begin to treat gun violence like the public health crisis that it is.
This budget season, Philadelphia must begin to hold our law enforcement accountable for their failures by redirecting resources to other agencies and strategies that can help us. It is our responsibility as elected officials to listen to the vast majority of our constituents—nearly 96 percent of Philadlephians—who support diverting funds from police to community services, according to the 2020 Safety We Can Feel survey. It’s time we treat public safety as more than a political fundraising slogan and treat solutions to violent crime as more than a talking point. We need our public safety budgets to reflect real public safety solutions.
Kendra Brooks is an at-large councilmember in Philadelphia. She is the first Working Families Party member elected to the Philadelphia City Council.
A veteran D.C. police officer says the Metropolitan Police Department’s Gun Recovery Unit deploys illegitimate tactics in a war on guns that have fostered an adversarial relationship between the department and the communities they are supposed to serve.
‘Let Me See That Waistband’
A veteran D.C. police officer says the Metropolitan Police Department’s Gun Recovery Unit deploys illegitimate tactics in a war on guns that have fostered an adversarial relationship between the department and the communities they are supposed to serve.
Around 11:30 p.m. on Jan. 12, 2020, officers with the Metropolitan Police Department’s Gun Recovery Unit (GRU) turned their unmarked Chevy Malibu onto a residential street in Washington, D.C., where they spotted Dalonta Crudup walking with a backpack slung around his shoulder.
Crudup, a 23-year-old Black man, noticed the Malibu and shifted his backpack to both shoulders. According to a statement of probable cause, that was enough for the plainclothes GRU officers to jump out of their vehicle and stop Crudup.
“You don’t got no weapons on you?” one officer asked Crudup.
Crudup lifted his shirt and showed the police his waistband. There was no gun there. He told them he had marijuana—which is legal in D.C.—on him. Multiple times, the police, all wearing tactical gear, asked Crudup if they could search his backpack for weapons. Each time, Crudup told them no.
Then one of the cops claimed they heard something in the backpack. They patted it down, said they felt marijuana inside, and took the backpack. The officers said they found a gun and placed Crudup under arrest.
After his arrest, Crudup was offered a plea deal by the United States attorney’s office but refused to plead guilty. The police had no justifiable reason to stop him, let alone search him, and he knew that.
“What was written on the probable cause affidavit was just egregiously unconstitutional, in my opinion. I mean, he literally was stopped because he was walking while Black with a backpack,” Sweta Patel, one of Crudup’s lawyers, told The Appeal. “They really didn’t give any probable cause, reasonable suspicion, or anything.”
Fifteen minutes after Crudup declined to plead guilty, prosecutors dropped his gun charges.
Crudup is one of four plaintiffs in an ongoing class action civil rights lawsuit that attorneys Patel and Michael Bruckheim filed in federal court against the D.C. government. The lawsuit alleges that the GRU—which focuses on the interdiction and recovery of illegal weapons and the apprehension of people involved in illegal gun crime—has a policy of stopping, frisking, and searching Black people without reasonable suspicion or probable cause, and that they fabricate information to justify the stops, frisks, and searches. According to the lawsuit, despite D.C. having some of the strictest gun control measures in the country, the GRU has a “practice and custom of treating African American people as though they all carry illegal handguns.”
The lawsuit says the GRU officers use a person’s presence in a “high crime” neighborhood as a reason to approach them and often cite a person shielding themselves from officers jumping out of an unmarked car or running as further justification for a stop. When GRU officers ask if they can search someone, they often characterize how that person responds to the question as “suspicious” in order to justify a search, even if the person did not consent.
In November, attorneys for the city government wrote in a motion filed with the court that the “plaintiffs’ claims have no merit and should be dismissed” in part because “the officers had reasonable suspicion to support the stops and searches.” They said that none of the plaintiffs disputed that they were in possession of a firearm without a license and also denied that the GRU has a policy of engaging in unconstitutional stops and searches.
The leadership’s focus on GRU is stat driven. Leadership focuses on how many guns GRU recovers and if an arrest is made with the recovery. There is very little, if any, review of how the gun was recovered or how the arrest was made.Anonymous, a former command-level official with the Metropolitan Police Department
Now, a nearly 30-year Metropolitan Police Department veteran is speaking out about the GRU, blasting the unit as statistics-driven and engaged in a pattern and practice of illegal stop-and-frisks. The Appeal obtained a five-page letter written by the former command-level official about the GRU and the roles that this person says former chief Peter Newsham and current chief Robert Contee played in enabling them.
“These outdated practices have resulted in the adversarial relationship between the community and the police department,” the veteran wrote. “Sadly, the police leadership’s response to community concerns is to double-down on the practices that are of most concern to the community.”
The Appeal also spoke with the veteran, who said they were moved to write the letter out of concern for D.C.’s residents whose trust has been violated by the police, especially young Black men whose lives are being “ruined” by gun charges “inhibiting their future.” They requested anonymity out of fear of retaliation. Last year, Sgt. Charlotte Djossou alleged in a lawsuit that she was retaliated against for blowing the whistle on department abuses that included narcotics division supervisors instructing officers to target young Black men in low-income neighborhoods for jump-outs and reclassifying felonies as misdemeanors in order to improve crime statistics.
“The leadership’s focus on GRU is stat driven,” the veteran wrote. “Leadership focuses on how many guns GRU recovers and if an arrest is made with the recovery. There is very little, if any, review of how the gun was recovered or how the arrest was made.”
In early 2019, former chief Newsham defended the department’s use of stop-and-frisk as “constitutional.” In March of this year, Chief Contee said the department has not used jump-outs as a tactic in years, according to the Washington Post. But the veteran says the GRU violates residents’ Fourth Amendment rights and the practice is central to its gun seizures.
A “dubious tactic employed by GRU is jumping out on groups of people and fishing for statistics,” the veteran wrote. “Members of GRU would drive up to an area where multiple people were hanging out, jump out of the truck, and force everyone present to submit to stop and frisk without any articulable reason for being stopped and frisked other than their mere presence at the scene.”
The Metropolitan Police Department did not respond toThe Appeal’s request for comment about GRU’s tactics and allegations of civil rights violations by the unit. But Kristen Metzger, deputy director of the department’s communications office, emailed a statement to The Appeal emphasizing that “under Chief Robert Contee’s leadership, MPD has begun examining the Department’s strategies related to guns and violence. Chief Contee emphasizes a strategic approach aimed at getting the right guns out of the wrong hands in our communities. MPD has already shifted resources to focus on an intelligence-based policing approach to identify, interdict and interrupt violent offenders within the District.”
In the letter, the veteran accused the department of misrepresenting data regarding police stops gathered after the 2016 passage of the Neighborhood Engagement Achieves Results (NEAR) Act. The act compels the collection of information about the stop—such as the reason it happened, how long it lasted, whether it resulted in an arrest, and the race of the person stopped—and the release of that data to the public. But the department has a troubled history with compliance.
In February, ACLU-DC sued the police department. “MPD has failed to uphold its promise” of complying with the NEAR Act, the organization wrote in a statement, and “as of February 2021, MPD has not published any data since March 2020, and its published data only covers 6 months in 2019. No data on stops conducted in 2020 has been published.”
Days after the ACLU-DC filed the lawsuit, the police released stop data from Jan. 1 through June 30, 2020. The department released data for the rest of 2020 the following month and promised a comprehensive 2020 stop data report in April. The 2019 data released in March 2020 was also released after a 2019 ACLU-DC lawsuit.
The veteran says in their letter that when a judge ordered the release of stop data after the 2019 lawsuit, department command attempted to “manipulate the results” in order to evade accusations of racial bias. According to the veteran, one commander told officers to perform more stops in parts of D.C. with white residents “to balance the number of pedestrian stops against black individuals in her district.” Another commander instructed police to perform more car stops of white drivers “to neutralize the number of vehicle stops made against black individuals in his district.”
The result was more racial profiling rather than a reduction in stops: “Neither commander had a goal of decreasing unnecessary stops against blacks, only to offset the total number by increasing target stops against whites.”
Stop data shows that between July 22, 2019, and Dec. 31, 2019, 72 percent of all the department’s stops were of Black residents and 87 percent of “non-ticket stops” were of Black residents. Forty-six percent of D.C.’s population is Black. A 2020 National Police Foundation report revealed that between August 2019 and January 2020, 87 percent of stops, 91 percent of arrests, and 100 percent of use-of-force incidents by the Narcotics and Specialized Investigations Division, which includes GRU, were of Black people.
Although the Metropolitan Police Department is hesitant to release stop data as required by the NEAR Act, the veteran wrote, it closely tracks gun seizures, and command officers are held accountable for those statistics: “If there is a drop in the total recoveries as compared to the prior month, the Chief inquires as to why there is a decrease and what the Commanders plan to do to restore the number of recoveries. What is apparently absent in the agency’s review of gun recoveries is how the guns were recovered, specifically the constitutionality of the recovery.”
Each week, the department’s gun seizures are released publicly with details about each gun, the name of the person who allegedly possessed the gun, what they were charged with, and often a photograph of the gun.
Alex Vitale, a professor of sociology at Brooklyn College and the author of “The End of Policing,” told The Appeal that this focus on data conflates transparency with accountability.
“Both government officials and a lot of legal advocates come around to this idea that since we can’t really change anything—or we don’t really want to change anything—let’s collect some data,”Vitale said. “But we don’t need to haggle over the data. We need to quit engaging in this kind of enforcement.”
“The impression it leaves me, as a resident of the city,” said Patrice Sulton, executive director of D.C. Justice Lab and a member of the DC Police Reform Commission, “is that people in leadership care most about the number of guns they collected. That’s the metric they are paying attention to.”
You remember they used to put all of the drugs and the money out on the table? Now it's all about guns right?April Goggans, Black Lives Matter D.C.
According to department data, Dalonta Crudup’s Smith & Wesson M&P Bodyguard .380 caliber handgun was one of 46 guns the GRU recovered between Jan. 6 and Jan. 13 last year.
April Goggans of Black Lives Matter DC told The Appealthat the tactic of displaying gun seizures for the public is an example of how the police department’s “war on guns” mirrors the numbers game that fuels the war on drugs.
“You remember they used to put all of the drugs and the money out on the table?” Goggans said. “Now it’s all about guns right? And people in the city care about guns so they’re like, ‘Get them off the street’ but you try to tell people that there’s this many stops, this many searches, and they’re not finding a weapon most of the time—and the homicides are going up.”
In 2007, the year the GRU was formed, there were 181 homicides in D.C. In 2020, there were 198.
In the letter, the veteran expressed concern about a highly publicized June 2018 incident in which the GRU searched a group of Black men hanging out in front of Nook’s Barbershop in the majority-Black Ward 7. Video of the incident posted by Black Lives Matter DC showed plainclothes GRU officers attempting to conduct a search of a man in the group. When the man put his arms up, an officer pulled a gun from his pants. Officers then told the group that they had probable cause to search all of them for weapons.
The officers “then turned their attention to the other men present and forced them all to submit to a frisk,” the veteran wrote. “The justification the officers gave, which was supported by the Chief, was if there was justification to frisk one person, there was justification to frisk everyone.”
No other guns were seized by the GRU in front of the barbershop that day. Ward 7 commissioner Anthony Lorenzo Green said residents believed that police planted the weapon seized that day—a BB gun, which is illegal to possess in D.C—and that it was taken from an undercover officer, not a civilian, on the scene. “No one was arrested because none of the other men had drugs or firearms in their possession,” Green wrote in a June 24, 2018, letter to then-chief Newsham. “The officers acknowledged they did not get a call for loitering… I am convinced your department is not collecting that [NEAR Act] data because you want to hide the fact that your officers are making up opportunities to harass black and brown people in our city.” The Metropolitan Police Department denied that the man was an undercover officer and that the gun was planted.
During a 2018 D.C. City Council hearing held as a result of the incident, then-Councilmember at-Large David Grosso asked Newsham, “Why are we using the same tactics 30 years later?”
“It’s not the same tactics,” Newsham insisted.
Contee, then assistant chief, defended the incident to the council. He said it was an example of “intelligent policing,” which he differentiated from jump-outs because the cars parked in front of Nook’s had tinted windows and officers observed people going in and out of the vehicle. That was reasonable suspicion to search the group, Contee explained.
BLM DC’s Goggans told The Appeal that the tactics displayed in the Nook’s incident are commonplace within the GRU. She said the unit also detains people who don’t have weapons on them until the person can point them in the direction of a gun or someone who has a gun. “With Gun Recovery, they will get guys and they will say, ‘We’ll let you go if you call friends to bring a gun,’” Goggans said.
The veteran wrote that a 2018 video recorded by Ward 8 Councilmember Trayon White is illustrative of this GRU tactic. The video shows two teens detained for allegedly having an empty magazine.
“The GRU members told the teens they would not be released unless they disclosed the location of a gun or a person armed with one,” the veteran wrote. “MPD’s leadership has been made aware of this dubious tactic yet has taken no corrective action.”
Goggans described the GRU engaging in targeted harassment such as calling out the names of people while on patrol to “thank” them for talking to them—a clear implication that they are informants, which would threaten their safety in the neighborhood.
“The police see Black folks, people in this community, as enemy combatants. So once you’ve determined somebody is an enemy combatant, then the way you engage them is different,” Goggans said.
This “warrior” approach to policing is embraced by the GRU, Goggans said. She cited a 2016 photo of GRU members posing in front of a flag with “Gun Recovery Unit” written on it, along with the image of a skull with a bullet hole between its eyes and the words “Vest Up One In The Chamber.” The photo was part of a 2017 complaint by the advocacy group Law for Black Lives. That same year, Goggans notes, Officer Vincent Altiere of a plainclothes unit called Powershift was photographed wearing a shirt featuring a Grim Reaper, a Celtic cross, which is widely used as a white supremacist symbol, and the phrase “let me see that waistband.”
Bowser can wax poetic all she wants about George Floyd, but at the end of the day, Muriel Bowser is guilty of facilitating the very same kind of racist police here that killed George Floyd.Sean Blackmon, Stop Police Terror Project D.C.
D.C.’s war on guns raises constitutional concerns—and it also comes with fatal consequences. On Sept. 3, 2020, Metropolitan Police Department officers chased, shot, and killed Deon Kay after they said they acted on a tip that someone in the area had guns in their vehicle. Officers pursued Kay, who had a gun and ran. Although a GRU officer did not kill Kay, the ACLU-DC connected his death to the police’s focus on gun seizures.
“The D.C. police department’s approach to gun recovery has been dangerous and ineffective for years,” ACLU-DC executive director Monica Hopkins said. “The tragic shooting and death of 18-year-old Deon Kay is the logical conclusion of a policy that not only meets violence with violence, but actually escalates and incites it—especially in our Black communities.”
Kay’s killing came after a summer of protests in D.C. against police violence following the death of George Floyd in Minneapolis—and months after Mayor Muriel Bowser renamed two blocks of 16th Street NW “Black Lives Matter Plaza.” Bowser, however, seemed to justify Kay’s death as a necessary part of the police department’s war on guns.
“I know the officer was trying to get guns off the street,” Bowser said. “And I know he encountered somebody with a gun.”
Sean Blackmon of Stop Police Terror Project D.C. told The Appeal that Bowser’s stance on Kay is typical of a mayor who opposed the D.C. Council defunding the police by $15 million last year, then requested that $43 million be redirected to the police budget. Blackmon also pointed out that Bowser supported “Mr. Stop and Frisk himself, Mike Bloomberg” in the 2020 Democratic presidential primary.
“Bowser can wax poetic all she wants about George Floyd, but at the end of the day, Muriel Bowser is guilty of facilitating the very same kind of racist police here that killed George Floyd,” Blackmon said.
According to FiveThirtyEight, a Black person in D.C. is 7.3 times more likely to be arrested than a white person and 13.4 times more likely to be killed by a police officer.
Yet Bowser continues to support a 2019 citywide initiative called felons-in-possession that makes gun possession a federal charge for people with felony records, even though U.S. prosecutors revealed last year that the policy was enacted only in majority-Black districts. D.C. Attorney General Carl Racine called the initiative, which exposes people to harsher sentencing, “discriminatory.” A group of Black prosecutors also opposed it because of its “negative racial and social impact,” and an April 2020 amicus curiae brief from ACLU-DC argued that the initiative “makes federal cases out of purely local criminal matters.”
Bowser and then-chief Newsham both said they did not know felons-in-possession was not being applied citywide. The initiative remains in place today and has the support of Acting Chief Contee. Biden-appointed Acting U.S. Attorney Channing D. Phillips recently announced that felons-in-possession policy would remain in place even though a former assistant U.S. attorney called it “racist, unjust and unlawful” and said that Black people comprise 97 percent of felons-in-possession charges.
The racial disparities perpetuated by these kinds of federal initiatives has been known for decades. James Forman Jr.’s 2017 book “Locking Up Our Own: Crime and Punishment in Black America” notes that during the 1990s, then-U.S. attorney for D.C. Eric Holder said of Operation Ceasefire, which encouraged police to “stop cars, search cars, seize guns”: “I’m not going to be naive about it. The people who will be stopped will be young black males, overwhelmingly.”
GRU’s strategies resemble Holder’s Operation Ceasefire. He encouraged officers to “wrangle consent,” Forman wrote, and “blur the distinction between commands that a driver must obey (such as providing license and registration, or stepping out of the car) and requests that he may decline (such as giving permission to search).”
“But it was more than fear of crime or the credibility of black law enforcement officials that sold Operation Ceasefire,” Forman continued. “Also critical was the fact that the program targeted guns, not drugs.”
The veteran criticized former police chief Newsham for not only enabling the GRU but criticizing those who questioned the unit’s tactics, including fellow law enforcement.
Newsham “blamed [prosecutors] when cases were thrown out for procedural errors as opposed to using these cases as learning opportunities to better train his officers,” the veteran wrote.
The dismissal of handgun charges against a Black man after federal prosecutors said there was no probable cause for the arrest angered Newsham, the veteran wrote. During one staff meeting, Newsham “called the USAO [United States attorney’s office] ‘soft on crime’ and stated judges were no better.”
Newsham, who is now the Prince William County police chief, responded to The Appeal’s request for comment in an email from the department’s Public Information Supervisor: “Chief Newsham believes these claims are preposterous, inflammatory and/or noncontextualized, without knowing who you spoke to or what their motive was for suggesting these things, he would be unable to make any further comments on the matter. As for Chief Contee, Chief Newsham has every confidence that he is a very capable and committed police leader who will do what is in the best interest of public safety in the District of Columbia.”
A 2018 report by the radio station WAMU that analyzed almost 500 Metropolitan Police Department gun cases filed between 2010 and 2015 showed that nearly 40 percent of those cases were dismissed.
“MPD historically, and more so over the past four years, has demonstrated a pattern and practice of unconstitutional conduct,” the veteran wrote. “Even after having these concerns brought to its attention through citizen complaints, video footage of officer conduct, dismissed criminal cases, lawsuits, and court orders, MPD took no action to institute remedial training, implement new policy, or issue any discipline to officers for Fourth amendment violations. There is no accountability for these actions but instead plenty of praise for these results.”
The veteran also argued that Contee, who replaced Newsham at the beginning of the year, was complicit in GRU policy and practices.
“He was the Assistant Chief overseeing GRU,” the veteran wrote, during a time period that includes the Nook’s Barbershop incident and the recorded incident involving two teens. According to the veteran, Contee did not make any “meaningful” changes to GRU’s roster, its policies, or its training after those high-profile incidents.
“This statement is not accurate. The incident at Nook’s Barbershop was investigated by our Internal Affairs Division and the allegations of improper stops and searches were determined to be unfounded,” Metzger of the police department’s communications office wrote to the Appeal. “MPD is committed to listening and learning from the community and recently announced a partnership with Howard University to host community listening sessions.”
They love to play those semantic games. But at the end of the day, if you're violating my basic rights, if you're abusing me, if you're beating me, if you end up killing me, you could call it a pizza party—it doesn't change what it is.Sean Blackmon, Stop Police Terror Project D.C.
On Jan. 2, Contee was sworn in as chief, and he also spoke to the media about Antonie Smith, who was shot and wounded by department officers that morning. A resident had reported Smith was armed with a handgun.
“I have a swearing-in ceremony shortly in about an hour or so, but you know, this will continue to be a fight for the Metropolitan Police Department to get illegal guns off of our streets,” Contee said.
Three hours after the shooting, the police posted a photo of Smith’s gun on the department’s Twitter account.
In the weeks leading up to the D.C. Council’s vote to confirm Contee as Chief, he began talking reform. In a March 11 interview with the Washington Post, Contee said the department needed “to think beyond just getting the gun,” and change its approach on gun policing—especially within the GRU.
“I want to be more strategic about getting the right guns out of the wrong hands. We have already shifted resources to focus on an intelligence-based policing approach to identify, interdict, and interrupt violent offenders within the District,” Contee told the Judiciary & Public Safety Committee on March 25. “The goal is to build strong criminal cases on offenders and groups to ensure those repeat offenders cannot continue to endanger our communities.”
The Post quoted an internal memo from Commander John Haines, head of the Narcotics and Special Investigations Division, which houses the GRU. “No longer are we focused on getting guns,” the memo reads. “The focus will be on those that pull the trigger and directly or indirectly harm others.”
On March 31, the Judiciary & Public Safety Committee unanimously confirmed Contee, setting him up for a vote by the council on a date to be announced.
The veteran told The Appeal that they are not surprised to see Contee defending the GRU even as he calls for gun policing reforms. In the Post, Contee said officers are not “stopping as many people as they can to get whatever guns they need” and he does not “want that to be the perception of what is happening.”
“I think he’s saying what people want to hear. By saying ‘I’m not saying you’ve done anything wrong, we just need to change everything,’ he’s towing the line, he’s telling [the officers] ‘I got your back,’” the veteran said. “Getting guns off the street is worthy, but we don’t have to violate rights. It doesn’t help to make an arrest and violate someone’s rights: The case gets thrown out, and the person goes free.”
In an email to The Appeal, Metzger pointed to the Violence Reduction Unit, formed in 2020, as an example of how changes to gun policing have already begun: “The goal of this Violence Reduction Unit (VRU) is to build strong criminal cases on offenders and groups to ensure those repeat offenders cannot continue to endanger our communities. The VRU is already seeing success with its casework and MPD will continue to work with residents to ensure that our strategies support—and don’t undermine—the vibrant and safe communities where our residents—our youth, families and seniors—can thrive and succeed.”
For Stop Police Terror Project D.C.’s Blackmon, announcing new policing strategies and new units and denying the existence of jump-outs is another way for the department to avoid responsibility for its harmful and unconstitutional practices.
“They love to play those semantic games,” Blackmon said. “But at the end of the day, if you’re violating my basic rights, if you’re abusing me, if you’re beating me, if you end up killing me, you could call it a pizza party—it doesn’t change what it is.”
Goggans recognizes that some Black residents of D.C. who endure most of the city’s violent crime are willing to “trade off” freedoms for feeling safer: “I feel like so many people are OK with [GRU] because it’s like ‘good violence’ because it feeds off the fact that people are rightfully fearful of violence.”
People accept this kind of policing because it is the only solution offered by the city and substantively funded, Brooklyn College’s Vitale explained.
“This is what we call a supply side strategy to managing gun violence, right? Gun control laws, gun interdiction, gun enforcement. But D.C. is not funding the demand side enough, which is, ‘What are we doing to work with young people so that they don’t choose to pick up guns in the first place?’” Vitale said. “Anyone Black in D.C. already knows what’s going on. I think it’s pretty clear that that they just shouldn’t be doing the vast majority of the stops and a huge amount of them are pretextual.”
Sulton told The Appeal that “the message being sent to these officers is they are to hunt guns and drugs,” and that D.C. is “trying to solve violence with violence” and “trauma with trauma.”
“We can’t afford to keep doing this,” Sulton said.
A report released this month by the DC Police Reform Commission, of which Sulton is a member, makes numerous police recommendations policy including the immediate suspension of GRU and similar specialized units “unless and until the Department produces data showing they address violent and otherwise serious crime more effectively than ordinary patrol units.”
Crudup attorney Bruckheim said that unlike Crudup and the other class action clients, most arrestees in gun cases plead out, even when their Fourth and Fifth Amendment rights have been violated. When they do not enter a guilty plea or their charges are dismissed, the weapons seizure has already been memorialized in police department data as successful.
“At the end of the day, if they find a gun, they figure, ‘You know what, we got a gun off the street. So who cares if we violated someone’s rights,’” Bruckheim said. “But the fact is the Constitution of the United States is not limited by geography. I understand how some people will say, ‘What’s the big deal? At the end of the day, they recovered contraband, the city’s a little safer and so on.’ But you can’t go about it by violating the rights of citizens, number one. No matter what.”
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.
In 2018, more than 61 percent of Florida voters elected to pass a ballot measure that created a new set of “victim’s rights,” including giving victims of crimes the ability to speak at their assailant’s trials, to speak at their assailant’s parole or clemency hearings, to refuse interview requests from people who have harmed them, and to be notified before an incarcerated person transfers locations or is released. The measure, known as Marsy’s Law, also allows the victims of crimes to withhold their names from the press and public, ostensibly in order to prevent people from finding, stalking, or harassing victims.
On Tuesday, a Florida appellate court ruled that police officers who say they are attacked on the job can claim protections under Marsy’s Law and hide their identities, even if they injure or kill civilians. The ruling will make it difficult for the public—including victims of police abuse—to find out the names or career histories of cops who commit acts of violence on the job.
The original lawsuit, filed in June, concerned the 2020 police killing of Tony McDade in Tallahassee. McDade, 38, had allegedly been acting violently and erratically leading up to the shooting. On May 25, he allegedly stormed into the apartment of Jennifer Jackson, a woman he had been seeing, and pistol-whipped her. He claimed on a Facebook livestream that he’d been jumped by a group of men tied to Jackson’s son, Malik, and vowed revenge. Police had been called to McDade’s home twice the night of May 26, but did not arrest McDade either time. On May 27, Jackson’s family says McDade snuck up behind Malik as Malik sat parked in his Hyundai SUV and stabbed him to death while Jackson’s friends fought McDade off. McDade then fled and someone called the police. When Tallahassee PD arrived at McDade’s home, police claim, McDade pointed a gun at them. Police then fatally shot McDade.
After the shooting, the City of Tallahassee moved to release the names of the cops who’d killed McDade, but the Florida Police Benevolent Association—TPD’s police union—intervened and sued the city. In July, a local judge ruled that Marsy’s Law did not apply to officers while they’re on duty. This week, the appellate court disagreed, ruling that, since McDade had allegedly pointed “deadly weapons” at the officers, the cops involved were, in fact, crime victims.
“Because article I, section 16 [the Marsy’s Law amendment] does not exclude from its protections law enforcement officers or other public employees when they become victims of crime, Appellants had a right to seek confidential treatment for public records that could be used to locate or harass them,” the court stated.
Marsy’s Law provisions are now on the books in at least 12 states, increasing the likelihood that any judicial outcome in Florida may establish a wider precedent. Despite significant warnings from justice-reform groups in other states where similar laws had already been enacted, some of Florida’s most prominent Democrats, including State Senator Lauren Book, State Attorney Andrew Warren, and Miami-Dade County State Attorney Katherine Fernandez Rundle, campaigned to help pass the 2018 ballot measure.
“Marsy’s Law for Florida has really done a tremendous amount to make sure that survivors of violent crimes have a voice and have a stake,” Book said in a May 2020 video posted to the official Marsy’s Law for All YouTube channel.
Spokespeople for Book did not immediately respond to requests for comment. Rundle’s spokesperson, Ed Griffith, said the Miami-Dade County State Attorney’s Office is “presently reviewing the opinion.”
Warren said that he was disappointed in the ruling. “I don’t believe that withholding an officer’s name after they’ve used force on behalf of the state—on behalf of all of us—keeps with the spirit of Marsy’s Law,” he told The Appeal. “At a certain point, an officer goes from being a victim to being a sworn officer of the state, acting on behalf of the community, and if we want to rebuild trust with the community, that officer’s name should not be withheld.”
Grassroots activists in Florida were not exactly clamoring to pass a victims-rights amendment in 2018. Florida already had protections for victim’s rights; more than 30 years ago, it was the first state to enshrine the rights of victims in its constitution. Marsy’s Law is largely the brainchild of a single California billionaire—tech mogul Henry Nicholas, who co-founded the company Broadcom and is now using his immense fortune to push victims-rights laws in state houses around the nation. In 1983, Nicholas’s sister, Marsalee “Marsy” Nicholas, was murdered by an ex-boyfriend—and, since then, he has spent tens of millions of dollars campaigning for the rights of crime-victims nationwide.
But Nicholas’s crusade has brought out many critics, who say his “reforms” in many cases have been misguided, draconian, or outright harmful to criminal justice reform efforts.
In some states where Marsy’s Law is in effect, the provisions allowing victims to refuse interviews from their alleged assailants means that defense attorneys have been unable to obtain basic information about their cases, including where or when the crimes may have occurred. And provisions requiring victims to be notified before an incarcerated person is transferred or released from prison have slowed down jail and prison releases. Prominent justice-reform and civil-rights groups, including the American Civil Liberties Union, have stated that they believe Marsy’s Law appears to do more harm than good.
The Austin City Councilapproved a measure last month to expandsubstance use care in the city by providing nearly $1.5 million in funding to three social service agencies. The money will be used to hire additional social and healthcare workers, expand evening and weekend hours at a drop-in clinic, create a new mobile outreach clinic, and fund a residential treatment program for pregnant and parenting women seeking help with substance use.
About $1 million in funding for the initiativecomes from the police department’s budget. In August, Austin voted to immediately cut over $20 million from the department’s budget, with most of that money coming from cancelling cadet classes, reducing overtime spending, and eliminating contracts for supplies like license plate readers.
At that time, Councilmember Greg Casarintroduced an amendment to provide $350,000 in one-time funding and $650,000 in ongoing funding for substance use treatment in Austin.
“There are widespread substance use challenges in our community, and we know that we can’t arrest away addiction,” said Councilmember Casar. “Through this vote, we will do things differently. We’re expanding street medicine teams, developing health plans for residents experiencing homelessness, and establishing long-term recovery programs. For too long, we’ve measured public safety by how many people we can put in jail. With this change, we’re actually making Austin safer.”
Under the proposal, the city will award contracts to three social service agencies to provide substance use treatment to low-income individuals.
About $203,000 will be awarded to CommUnityCare to expand the organization’s street medicine team by hiring an additional social worker, community health worker, and medical assistant. The street medicine team works with people experiencing homelessness.
Another roughly $1 million in funding will be awarded to the Texas Harm Reduction Alliance. Over $684,000 will be used to fund more counseling and expand drop-in clinic hours. The remaining $350,000 will be used to create a new mobile outreach clinic.
The remaining $230,000 will be awarded to Austin Recovery and will be used to expand access to substance use treatment at the Austin Recovery Network’s Family House Program. The residential treatment program serves uninsured pregnant and parenting women. It allows women to bring a child with them into treatment for 90 days and provides on-site daycare and case management services. The treatment involves group counseling, education programs, individual counseling, and other services.
Earlier this year, the council alsoagreed to buy two hotels and turn them into permanent supportive housing for people experiencing chronic homelessness. The city will use some money from a$6.5 million fund taken from the police department’s budget to provide services to the residents of the hotels. At full occupancy (which wouldn’t happen this year), services and operating costs for these two hotels are expected to be about $3.8 million annually.
The city’s Homeless Services Division will contract with nonprofit service providers to cover operating costs and set up wraparound services for residents, like case management, support for mental health or substance use issues, workforce development programs, and job placement services. In total, the purchases will create about140 units of low-barrier permanent supportive housing with these kinds of wraparound services.
In addition to the $20 million in immediate cuts, the Austin City Councilagreed in August to take another $80 million from the police department’s budget by moving certain civilian functions out, like dispatch and the forensics lab—though that money will still be spent on those functions, just not within the department.
Austin has now begun the process of separating the forensics lab from the police department. About $13 million taken from the police budget will be used to create an independent forensics lab that carries out the same functions. Under the leadership of the Austin Police Department, the forensics lab had a decades-long rape kit backlog and was shut down after auditors found employees were mishandling evidence.
“Cities that have stepped up and tried to reallocate police budgets have facedbacklash usually driven by misinformation for the past few months, but I believe in the next few months, cities that reallocated police funds can start showing results, can start showing what cities can do when we reduce police overspending,” Casar previously told The Appeal. “It’s only possible if we keep rethinking our priorities instead of continuing to over-invest in policing.”
Tishaura Jones won the race for St. Louis mayor tonight with 51.68percent of the vote.
It was a close race between city treasurer Jones and her opponent, Alderperson Cara Spencer, who took 47.77 percent of the vote, according to unofficial returns. Both candidates had cast themselves as progressives and campaigned on promises to lead St. Louis in a new direction. The general election was unusually competitive this year thanks to the city’s new nonpartisan approval voting system, where voters can approve of as many candidates as they like in the primary election.
The stakes for the race were especially high, given the half a billion in federal aid St. Louis is set to receive in the coming months. Jones says the city is now at a crossroads.
“Our city is constantly shrinking in population, and the biggest thing at stake is our growth,” she previously told The Appeal. If St. Louis doesn’t elect a mayor who is dedicated to “changing the reputation of our city and bringing everybody to the table to do it,” she said, it will only continue to decline.
To make the city more liveable for everyone, Jones says she would take steps to prevent evictions, boost funding for homeless services, and invest in public safety beyond increasing the police budget.
“We have constantly increased our police budget over the last several decades and crime keeps getting worse,” Jones said. “We cannot keep throwing money at the same thing and expect different results. How do we look at other cities who have been where we are and adapt some of those things and tweak them for our city?”
St. Louis’s current mayor, Lyda Krewson, chose not to seek a second term. She’s leaving some controversy in her wake after repeatedly dismantling homeless encampments during the COVID-19 pandemic and doxing police reform protesters on Facebook Live, which led to calls for her resignation. Before the primary, polling had cast Jones and Lewis Reed, president of the Board of Alders, as the likely victors. But in the end, Reed, a more moderate Democrat who backed tax incentives for developers and supported privatizing the city’s airport, didn’t win a single one of the city’s 28 wards—not even his own.
“Over the past five years or so we’ve seen a shift in St. Louis politics, away from the old guards like Lyda Krewson and Lewis Reed,” Anita Manion, an assistant professor of political science at the University of Missouri-St. Louis, previously told The Appeal. “They come from decades of Democratic politics in St. Louis that have been very business-friendly, sort of pro-police, and some of the attitudes that, I think, doesn’t resonate with progressive voters or younger voters anymore. This is a changing of the guard that we’re seeing.”
About six-and-a-half years ago in St. Louis County, Ferguson police officer Darren Wilson shot and killed Michael Brown. Brown’s death, and the deaths of Eric Garner in New York and Trayvon Martin in Florida, gave rise to the Black Lives Matter movement.
Since then, former public defender and Ferguson City Council member Wesley Bell has ousted the longtime St. Louis County prosecutor who failed to charge Brown’s killer. Former Missouri state representative Kim Gardner also won her 2016 bid for St. Louis circuit attorney by pledging to move away from the office’s punitive practices and hold police officers accountable for use of force. And Cori Bush, a pastor, nurse, and activist who marched in the streets of Ferguson following Brown’s death, has toppled a decades-long political dynasty and become the first Black woman to represent Missouri in Congress.
Jones’s victory is the latest progressive win in the region, though local activists will be keeping a close eye on how Jones’s policies get implemented. She campaigned on promises to reimagine public safety and reign in policing, though she also supports bringing a focused deterrence strategy to St. Louis to drive down violent crime. The strategy identifies people who police suspect are likely to commit violent crime and offers them social services couched in the threat of harsh prosecution if they break the law. Some local organizers who spoke with The Appeal expressed concern that the approach could lead to more over-policing, while national criminal justice reform advocates familiar with focused deterrence stressed that the program must involve members of the community and offer robust social services in order to be effective.
Local organizers and community groupswho spoke with The Appeal hope St. Louis’s next mayor will be willing to try something different when it comes to solving the problems that have plagued the city for decades. A coalition of 38 grassroots organizations signed on to a comprehensive policy agenda,The People’s Plan. It puts forth a framework for how the city can move away from policies that have contributed to racial and socioeconomic inequity and endorses policies that could help lift more people out of poverty, end over-policing and mass incarceration, and keep people in their homes.
Jones has said the current system of policing is ineffective and fails to address the root causes of violence. She told The Appeal she would review the police department’s functions, look at what other cities are doing, and see where she might be able to transform some of the police department’s current operations into functions carried out by civilians. She also endorsed changing the city’s 911 system so that dispatchers send the appropriate professional to respond to the call, since, she said, people who call 911 do not always require a uniformed officer. And Jones pledged to close the Workhouse, the city’s notorious jail, within 100 days of taking office and use money saved from the closing to fund public programs, like those that help people struggling with substance use.
In an interview with The Appeal, Jones said she supports providing rent relief and mortgage relief to St. Louisans and would work with the courts to extend the local eviction moratorium in order to keep people in their homes. She plans to increase funding for the city’s affordable housing trust fund, expand support to the city’s homeless service providers, and ensure that more low-barrier housing options are available for people experiencing homelessness. On her campaign website, Jones said she would work with the Board of Alders to help pass a strong Tenant Bill of Rights.
“The first time I ran [for treasurer], it was an open seat, and I believed St. Louis needed a change,” said Jones. “Not just incremental. We’ve been making incremental changes. I want to do some really transformational changes. And that’s evidenced by the way I transformed the treasurer’s office.”
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.
Just ahead of the April 6 mayoral election in St. Louis, campaign finance filings show that the city’s real-estate and construction industries may have a favorite candidate. Of the more than $630,000 that Alderwoman Cara Spencer and her affiliated political action committee have raised in this campaign, at least $78,000 has come from real-estate and construction interests.
“Where her money is coming from shows her hand, really, and shows she’s willing to take money from development companies and property management companies that also finance a lot of really terrible things,” Kennard Williams, a lead organizer with Action St. Louis and a member of the St. Louis Housing Defense Collective, told The Appeal.
But the industry interests haven’t put all of their support behind one candidate. According to publicly available campaign finance reports analyzed by The Appeal, the other candidate, city Treasurer Tishaura Jones, has reported around $56,000 from the same industries.
Both Jones and Spencer released their final campaign-finance reports on March 29. Since the March 2 primary, Spencer and her affiliated political-action committee reported at least $40,175 in donations from real-estate and construction employees and executives, and another $13,086 from construction unions.
In the same period, Jones and her affiliated PAC reported at least $24,550 from developers and real-estate agents (including $5,600 from an affordable-housing developer), $10,050 from construction companies, and another $11,086 from construction-related unions.
This discrepancy between the two campaigns was evident before the primary: Prior to March 2, Spencer reported at least $23,150 as having come from the real estate industry, and Jones reported $12,950.
Despite this difference, Jones has raised more money overall. Between the primary and March 29, Spencer reported receiving $277,686; in total, her campaign has received at least $634,235 in donations. Her PAC has raised $162,617.38 overall. Jones’s campaign received $333,155 between the primary and the filing deadline and $666,814 during the entire election cycle. Her PAC has brought in $204,334.41. Neither candidate responded to requests for comment.
Spencer and Jones have both fundraised heavily from small-dollar and individual donors. (Attorneys made up a significant portion of donations to both candidates.) And both have shied away from some other controversial donors, such as police unions. Both candidates have accepted small amounts of money from energy-related donors as well: During the primary race, SpirePAC, the political-action committee for St. Louis natural-gas producer Spire, Inc., gave each campaign $1,000. Spire is considering a plan to raise rates on customers after the company incurred extra costs during the February midwestern cold-snap.
This year’s mayoral race is a particularly pivotal one in St. Louis. The next mayor will have a strong say in allocating the $500 million of federal aid from the COVID-19 stimulus package passed earlier this year—an opportunity to address the emergencies of the pandemic, many of which often also have long-standing precedent.
For instance, housing rights have been at the forefront of the campaign. In January, The St. Louis Post-Dispatch warned that the glut of thousands of pending evictions could create a “tidal wave of homelessness” once the local eviction moratorium ends on April 5. Prior to the pandemic, though, local developers have exploited local property tax-abatement schemes, and, in some cases, have been able to avoid paying property taxes on expensive, luxury developments. At the same time, the St. Louis city government has struggled to fund schools and social services.
In May 2020, city officials expressed concern after LuxLiving built a $30 million property in the city’s Central West End neighborhood, received a full tax abatement for 20 years from the city, and then sold the property to a San Francisco investment firm for $44 million. For years, St. Louis residents have complained that tax-abatements awarded to developers have been choking local city funds—especially when it comes to public schools. According to the Post-Dispatch, tax-breaks for developers cost city schools at least $35 million in 2020 alone. Earlier this year, the school board announced plans to close as many as nine public schools due to drops in enrollment and funding.
Similarly, advocates say Jones’s housing policy proposals also go a step further than Spencer’s. In interviews with the Post-Dispatch editorial board, the two candidates laid out differing visions for how the city ought to handle housing insecurity. Jones largely focused on ways to help renters. She stated the city’s biggest issue is “a lack of affordable, safe, and quality housing” citywide and said she would push the city to create more affordable-housing units.
“We need a Tenant’s Bill of Rights to make sure that landlords are held accountable when they are not providing quality units or making repairs, or also that there are rules in play when they decide to increase rent to a place where people can’t afford them,” she said.
Spencer said that she believes the city’s biggest housing issue is the number of vacant properties, which drive down real-estate prices and discourage investment in neighborhoods, including historically Black areas of the city. Spencer also said she would “go after” absentee landlords and land speculators while addressing crime in the city.
“We have got to get serious about addressing vacancy within our neighborhoods,” she said.
Both candidates have committed to ending the current mayor’s policy of dismantling homeless encampments during the pandemic. But Jones is the only candidate to say she would commit to extending the city’s eviction moratorium. Jones has also committed to increasing the city’s Affordable Housing Trust Fund.
The two candidates also have proposed different ways to spend the $500 million in federal stimulus funds: Jones has proposed using much of that money to provide affordable housing, rental assistance, and a targeted basic-income program; Spencer has proposed using some of that money for a “home-ownership down-payment program,” which will provide 1,000 renters up to $15,000 to put toward a down-payment on a home. Spencer would also give $15,000 to as many as 2,000 properties for home repairs, and up to $50,000 to 1,000 homes for “gut rehabs.” And she is calling for the city to spend $25,000 per property to rehabilitate half of the buildings owned by the city Land Reutilization Authority, which maintains thousands of vacant and blighted properties around the city. Critics have suggested Spencer’s plans focus too heavily on the needs of wealthier residents and existing homeowners and not enough on renters.
“I think the money tells us where priorities lie more than anything else,” Kennard Williams, of Action St. Louis, told The Appeal. “And in this time, when we’re in a crisis facing massive numbers of evictions in areas all across the city, which are affecting disproportionately Black and brown families—and more particularly a lot of Black women get affected the most by this—it’s very telling to see where somebody’s political priorities are.”
Cara Spencer is running for St. Louis mayor at a moment when she believes the future of the city and the region are at stake. The city is struggling with rising violent crime and a declining population. At the same time, St. Louis will be receiving half a billion in federal aid in the coming months.
“We’re facing a moment of crisis and opportunity,” said Spencer, alderperson of the 20th ward. “We have crises on a lot of fronts. But we have a lot of opportunity in front of us as well with the enormity of the federal aid package coming to St. Louis.” With it, Spencer said, the next administration can invest in the long-term growth of St. Louis and begin to reverse decades of population decline.
To do that, Spencer said she wants to drive down violent crime, stimulate economic growth and development, and reinvest in the city’s struggling schools and neighborhoods.
“The most important issues I see facing the city of St. Louis are extraordinarily high rates of violence, the racial segregation, and the stagnant, depressed regional economy and population loss,” Spencer told The Appeal. “I’ve been a big supporter of good government, transparency, and policies that move the needle forward. … Until we have real change, we’re not going to be able to move our community forward.”
Spencer got into politics in 2015, when the city shut down a public pool near her neighborhood. “That was what a lot of families here relied on in the summer for a healthy thing for kids to do,” Spencer said. So she decided to run against the 20-year incumbent in her ward and won. “The first thing I did was get the pool reopened,” Spencer said.
Since then, she has fought to transfer city-owned vacant buildings to private ownership in order to reduce the number of vacant lots in St. Louis and led the fight against privatizing the St. Louis Lambert International Airport.
Spencer and city treasurer Tishaura Jones, the two progressive candidates in the March primary, will face each other in the general election on Tuesday. Jones and Spencer wereapproved by 57 percent and 46 percent of voters respectively in the city’s first election under a new approval voting system, where voters can approve as many candidates as they like. Polls show Jones has aslight lead over Spencer, but it’s close.
Some local organizers and community groupswho spoke with The Appeal say they are hoping St. Louis’s next mayor will be willing to try something different when it comes to solving the problems that have plagued the city for decades. A coalition of 38 grassroots organizations signed on to a comprehensive policy agenda,The People’s Plan. It puts forth a framework for how the city can move away from policies that have contributed to racial and socioeconomic inequity and endorses policies that could help lift more people out of poverty, end over-policing and mass incarceration, and keep people in their homes.
Spencer has said she supports rethinking public safety bychanging the city’s 911 system to direct some calls to health professionals instead of police, andexpanding St. Louis’s Cops and Clinicians program, which sends health professionals to respond to crisis calls alongside police officers. In a candidate forum, Spencersaid the city has “some gross inefficiencies in our police department” and that the budget “has to be reoriented.” She indicated that funds should go to a broader range of safety measures, including non-police emergency responders.
At the same time, Spencer has also pledged to bring a focused deterrence policing strategy to St. Louis to drive down violent crime. The strategy identifies people who police suspect are likely to commit violent crime and offers them social services couched in the threat of harsh prosecution if they break the law. Some local organizers who spoke with The Appeal expressed concern that the approach could lead to more over-policing, while national criminal justice reform advocates familiar with focused deterrence stressed that the program must involve members of the community and offer robust social services in order to be effective.
“It certainly should not be an enforcement-only strategy or enforcement-mostly strategy,” said David Muhammad, who is the executive director of the National Institute for Criminal Justice Reform and who has worked with cities across the country to implement violence reduction programs. “It’s not carrot and stick. It’s not if you don’t take services you get enforcement.”
Spencer has previously described the focused deterrence strategy as a “carrot and stick” approach, though she told The Appeal she does not intend for her model to be a punitive one. She hasrepeatedlycited Oakland as a model she would base her administration’s focused deterrence strategy on and has said she would not use the threat of turning off people’s utilities to force compliance.
Activists in St. Louis want the next mayor toclose the Workhouse, one of the city’s notorious jails. Both Jones and Spencer have pledged to do so, with Jones saying she will do it in the first 100 days of taking office and Spencer saying she will try to do it by the end of the year.
Spencer has alsosaid if she were elected mayor she would prioritize swiftly dispersing federal funds to the renters who need it to keep people in their homes and wouldcontinue funding the city’s Affordable Housing Trust Fund at least the current level. She did not respond when asked by The Appeal if she would work with the courts to extend local eviction moratoriums. At the same time, campaign finance filings show that Spencer has taken plenty of money from real estate developers.
“We’ve seen this failure to actually invest in the people who live here right now,” said Kennard Williams, a lead organizer with Action St. Louis and a member of the St. Louis Housing Defense Collective. “We’ve seen continued excuses around keeping an incarceration site open. We’re seeing excuses as to why people can’t access this rental assistance. … We need a mayor who will address these issues in a serious manner and in a manner that treats people with dignity and respect.”
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.”
Today, the Seattle City Council voted unanimously to guarantee all indigent city residents the right to an attorney during eviction proceedings—a move that could drastically help keep people in their homes.
“Every eviction is an act of violence,” Councilmember Kshama Sawant, the bill’s sponsor, said during the meeting today. She added: “Every eviction adds to our community’s suffering.”
“The cases are not simple,” John Pollock, the coordinator of the National Coalition for a Civil Right to Counsel, told The Appeal last month. “The tenant may have paid the rent and the landlord may be saying they didn’t. … If the tenant didn’t pay the rent, they may have defenses as to why they didn’t pay.”
Seattle is already experiencing a high level of homelessness. A recent report by the Department of Housing and Urban Development ranks Seattle as having the third highest homeless population among major cities. But according to Eviction Lab, evictions can have severe consequences for people besides removing them from their homes. Those who are evicted often lose their belongings and their jobs, are subsequently forced into even worse housing situations, and are more likely to develop depression or other mental illness as a result.
“The evidence strongly indicates that eviction is not just a condition of poverty, it is a cause of it,” Eviction Lab writes.
Seattle follows New York City; Newark, New Jersey; Boulder, Colorado; Baltimore, Cleveland, Philadelphia, and San Francisco in making such a move. Data already shows that some of those programs have had a significant positive impact for people facing eviction. New York City Mayor Bill de Blasio, for example, signed his city’s right-to-counsel bill in 2017, and from July 1, 2019, through June 30, 2020, 86 percent of households with attorneys facing eviction were allowed to stay in their homes. (New York City’s legislation is currently being phased in over time.) San Francisco’s right-to-counsel bill passed in 2018; the following year, new eviction filings dropped by 10 percent and 67 percent of households with attorneys successfully fought off their evictions.
Seattle currently contracts with The Housing Justice Project to provide legal representation for tenants facing eviction. The bill that passed today says that “To make the right to counsel effective long-term, the City will need to commit ongoing funding to attorneys equipped to represent tenants.” Earlier this month, the Seattle Times reported that, in 2019, 52 percent of people with attorneys in Seattle eviction court did not lose their homes—but only 8 percent of people without attorneys successfully fought their evictions. During the meeting, Sawant said that more than 1,200 evictions had been filed in Seattle before the pandemic began, and more than 300 have been filed during the pandemic despite the ongoing moratorium.
The measure was originally written to award the right to counsel to all people facing an eviction, regardless of their income levels. But council members voted 8-1 today to amend the bill to guarantee attorneys only to people deemed indigent. Some members worried that guaranteeing the right to all residents would cost the city too much money.
The bill, however, does not state what income level qualifies someone as “indigent.” Councilmember Lisa Herbold claimed that if “just one person” who can afford an attorney uses a free city attorney instead, it could somehow “bring down” the entire program. Sawant, the only councilmember to vote against the amendment, disagreed.
The amendment, Sawant said, amounts to “asking people to jump through some sort of hoop to qualify.” She added, “People should have universal rights.”
Across New York State, millions of tenants are at risk of eviction and property values are falling. A recent analysis found that New York City renters in neighborhoods hit hardest by COVID-19—largely Black and Latinx communities—face nearly four times the number of eviction cases as less hard-hit areas. Local housing justice advocates fear a repeat of the 2008 housing crisis, when properties fell into distress and investors bought up 100,000 rental units across New York City, which, advocates say, led to displacement and worsened living conditions for many tenants.
Against this backdrop, advocates and some New York City councilmembers are calling for a bold possible solution: supporting efforts to turn the land that buildings sit on over to residents, and create more social housing—housing as a social good instead of as an investment vehicle.
“The pandemic is likely to exacerbate the predatory real estate activity as private financial actors look to take advantage of the real estate down cycle and residents’ increased economic vulnerability,” Debra Ack, a board member of Brooklyn’s new East New York Community Land Trust, said at a City Council hearing in January. “We need the City Council to take bold action to create this real social housing in New York City, and that means prioritizing [community land trusts] when it comes to land disposition.”
Typically, a property owner owns both the land and the buildings that sit on it; a community land trust (CLT) separates the two. The CLT, a nonprofit organization, maintains permanent ownership of the land and enters into long-term ground leases with building owners. Many CLTs are governed by a board that includes residents of the buildings, people who live in the surrounding neighborhood, and other stakeholders such as elected officials, funders, or non-profit leaders. This arrangement gives the CLT, not developers, the power to ensure permanent affordability and to say what the land is used for, and ensures local control while also balancing the interests of multiple stakeholders. CLTs typically obtain property with government funds, foundation grants, or private donations, or by forming agreements with local governments to take over vacant land or distressed buildings.
In recent years, community groups in New York City have formed over a dozen new CLTs, but most of these have yet to acquire land. Advocates are calling for a range of government policies that would more rapidly steer properties owned by the city and private entities into CLT control.
CLTs have been around since the 1960s, but the model has been growing in popularity in recent years: Between 2005 and 2020, the number of community land trusts in the country grew from 112 to 277, though many new ones remain small because of limited funding. As reported by Jacobin, an increasing number of progressive lawmakers across the nation are questioning the country’s prevailing method of building housing for poor and middle class families, which entails giving tax incentives to for-profit developers. Polls show that, just as the majority of Americans favor a “public option” for health insurance, they also favor a “public option” for housing.
“We feel like there’s a moment where there’s more recognition than ever of the need to pursue really bold strategies like community land trusts that get at the root causes of neighborhood inequality and housing insecurity,” says Deyanira Del Rio, co-director of New Economy Project and a board member of the New York City Community Land Initiative, an alliance of groups committed to advancing CLTs and housing justice.
The City Council has already taken steps to support the city’s growing CLT movement, including allocating funds for the past two years for CLT capacity building, community organizing, and legal and technical assistance.
Mayor Bill de Blasio’s administration has funneled grant funds to a CLT capacity building initiative, appointed a director of CLT initiatives to the city’s housing agency, and released a call for information about different types of shared equity models, among other efforts. In February 2020, the administration also committed to “include enough City owned land to gain over 3,000 units of community owned or shared equity housing.” According to city officials, projects including roughly 1,000 units have closed or are in a predevelopment stage, and more projects are set to close in coming years. (One advocate who met with the city’s Department of Housing Preservation told me that the city’s numbers include the existing CLT units that the city is helping to preserve.)
“New York City is deeply invested in creating pathways for nonprofits, MWBEs [minority and women-owned businesses] and various mission-driven groups, like CLTs, to acquire and build affordable housing. Their partnerships are an ever-expanding part of the City’s affordable housing pipeline,” Jeremy House, a representative for the city’s Department of Housing Preservation and Development, wrote in an email.
It remains unclear, however, exactly how quickly the city will complete these potential projects, and advocates say they will continue to pressure the city to meet and exceed the 3,000 unit target, to prioritize CLTs for subsidy that reaches the lowest incomes, for funds to support land acquisition, and to transfer public land to CLTs for both housing and non-housing purposes.
A number of mayoral candidates are already making CLTs a part of their campaign platforms, and advocates hope that the new City Council members, who will be elected in November, will make CLTs a significant part of a pandemic recovery plan. Alongside this, advocates are pushing for a range of bills they believe will facilitate community control of land.
First, advocates want a revamp of the city’s municipal tax debt collection system. Under current policy, the city sells property owners’ municipal tax debts to investors, who then tax indebted owners at interest rates of up to 18 percent. Advocates say the policy exacerbates gentrification and the racial wealth gap by pushing low-income Black and Latinx homeowners into foreclosure or into selling to house flippers.
Under a possible reform outlined by the New York City Community Land Initiative, the city would waive those debts if a homeowner sells their land to a CLT. Homeowners would have to abide by the CLT’s affordability rules, but they would remain homeowners and would not be displaced. After significant advocacy, the City Council passed a bill in January that will renew the existing policy for only one year and also launch a task force to consider future reforms, including the possibility of transferring delinquent properties to community land trusts.
Councilmember Brad Lander of Brooklyn has also proposed a bill to create a land bank—an entity that would acquire, hold, and transfer property to facilitate the development and preservation of affordable housing. Lander, who is running for city comptroller, says on his campaign website that the land bank could help facilitate the transfer of tax-delinquent buildings to CLTs, and it could also allow the city to acquire other distressed properties, like hotels shuttering as a result of the pandemic, and transfer them to CLTs and other nonprofits before predatory investors scoop them up.
Another related bill would require the city to give priority to reputable nonprofits that are dedicated to permanent affordability when it seeks to develop its own land with affordable housing. Advocates are generally supportive of these two bills and hope these efforts can be expanded to include the transfer of property to CLTs for non-housing purposes.
The CLT movement is also calling for the passage of the Community Opportunity to Purchase Act (COPA), which would require landlords to inform the city, as well as a list of nonprofits, CLTs, and other qualified mission-driven groups, when they are selling residential buildings. Those groups would have about four months to offer a buying price, and although the landlord would still be able to refuse the offer and seek a higher bid, the nonprofits would be given the opportunity to match new offers. Advocates are also pushing for the passage of the statewide legislation Tenant Opportunity to Purchase Act (TOPA), which would give building tenants a similar right to make a first offer. Similar legislation is already in effect in San Francisco and in Washington, D.C., and several cities are considering adopting TOPA-like bills. New York City advocates are also calling for boosted funding to help nonprofits purchase and rehabilitate buildings, as well as for $1.51 million from the City Council discretionary fund this year to help CLTs organize, educate community members, and obtain legal and technical support.
Advocates say these efforts are part of a larger movement for “housing justice, economic democracy and racial equity,” which they hope to be adopted in tandem with cuts to the NYPD budget, rent and mortgage cancellation for the duration of the pandemic, relief funds for nonprofit housing and small landlords, and more. Yet for-profit real estate actors have criticized some of the bills that give priority to community land trusts and nonprofits.
“Private developers are better equipped to navigate the myriad of complexities that arise in renovating tenanted properties, and we fail to see why New York City would want to limit the pool of qualified developers who are able to assist in preserving and increasing affordable housing throughout New York City,” the Real Estate Board of New York wrote in a recent testimony against the land bank bill. The board also called COPA “an over reach into private property transactions,” among other criticisms.
While CLTs are often primarily focused on creating permanently affordable homeownership opportunities, they are also used to fulfill other local needs, including rental housing, green space, or community and commercial facilities.
When Raymond Figueroa Reyes, an organizer in the South Bronx, learned that his borough had the highest COVID-19 morbidity rate in New York State, he knew this didn’t happen by accident. It was, he said, the result of “a cumulative history of land-use decision-making over decades that has resulted in generational, disproportionate environmental health disparities.” Prior to the pandemic, the Melrose, Mott Haven and Port Morris sections of the South Bronx, which are 97 percent Black and Latinx, had some of New York City’s worst health outcomes. The rate of diabetes here is almost twice that of the city at large; emergency hospital visits related to childhood asthma are nearly three times as common.
“For us, community land trusts are a very visceral response to something that is a function of structural racism playing itself out as we speak,” says Reyes, who is a board member of the South Bronx’s Mott Haven-Port Morris Community Land Stewards, which is seeking to convert an abandoned hospital facility into a center for health, education, and the arts. “If we controlled this land, if we owned this land, we could begin to chart a new way by which the community is developed, the built environment is configured. We could chart a new destiny for our community.”
Now the question, in New York and elsewhere, is whether this growing call for community-controlled development can overcome the still widespread belief that the private sector does things best.
After the economic downturn of the 1970s and 1980s, when the city grappled with widespread property abandonment, activists in Lower Manhattan took hold of foreclosed properties and later established Cooper Square CLT, the city’s most established community land trust, which today still stewards more than 320 permanently affordable homes as well as storefronts for local small businesses. These days, however, much of the city’s land has been privatized. In addition, nonprofit development organizations say they’ve been sidelined by recent mayoral administrations in favor of partnerships with for-profit affordable housing development companies.
“There’s going to be resistance to these ideas—I don’t think there’s really any question to that,” says Barika Williams, executive director of the Association for Neighborhood and Housing Development. “But I also think that we cannot let it stop us from working to transform what it means for communities of color to own, and to be in the driver’s seat of our community’s development and destiny.”
On Feb. 8, the Houston Police Department (HPD) arrested a homeless man, 57-year-old Israel Iglesias, for allegedly handing an undercover cop 0.6 grams of methamphetamine. Iglesias died the next day in the county jail. Results of his autopsy remain pending.
Iglesias’s death has raised obvious questions about what priorities the police and the Harris County prosecutor’s office have when it comes to solving or preventing crimes: Why, critics have asked, did police find it necessary to execute an undercover drug sting in the middle of the COVID-19 pandemic? Why did they choose to target homeless residents? And why did District Attorney Kim Ogg’s office believe this was a case worth charging?
Data from the Texas Criminal Justice Coalition, a civil rights nonprofit, helps shed some light. According to the organization’s record of criminal case dispositions between Jan. 29, 2019, and Jan. 28, 2021, the Harris County district attorney’s office charged at least 270 people with “manufacture or delivery of less than one gram” of a “Penalty Group 1” drug—which in Texas includes cocaine, heroin, methamphetamine, and ketamine. Of that number, 218, or more than 80 percent, were Black people. Only 20 percent of residents in Harris County identify as Black. (The data set doesn’t include cases that are pending in the court or those that may have been sent to pre-filing diversion programs. Nor does the data categorize race beyond Black or white, suggesting the percentage of non-Hispanic white defendants is even lower than the data states.) Of the 270 people charged, 44 were listed as either homeless or having no set address.
The data shows that Ogg’s office did temporarily stop filing Penalty Group 1 charges between April 30 and Oct. 15, 2020. Those charges have since resumed. Between January 2019 and 2021, Ogg’s office charged thousands of people for simple possession of less than 1 gram of a Group 1 controlled substance.
Of the 270 cases filed, 245 stemmed from Houston Police Department arrests. The other cases originate with the Harris County Sheriff’s Office, the Texas Department of Public Safety, and other offices. Charges for other, more serious tiers of drug delivery were also racially skewed, according to the Texas Criminal Justice Coalition’s data. Neither Ogg’s office nor the police department immediately responded to requests for comment.
Jay Jenkins, the Harris County project attorney for the Texas Criminal Justice Coalition, told The Appeal that the data shows Houston Police and Harris County prosecutors need to take a serious look at the communities they choose to target.
“In an overwhelming majority of cases, manufacturers or dealers of drugs are arrested based on possessing a large quantity of that drug—but the manufacture or delivery of small amounts of drugs requires either police surveillance or an actual police operation of an undercover buy,” Jenkins said. “So when you look at how the patterns shake out for these charges, you see they are overwhelmingly African American and they are overwhelmingly coming from African American ZIP codes, which tells us a lot about how the city of Houston is being policed and where officers are being sent.”
Low-level drug stings are sometimes referred to as “police created” crimes. In September, Katie Tinto, a professor at University of California, Irvine, wrote in USA Today that American police often “create elaborate schemes using significant public resources to tempt individuals who posed no public safety threat prior to the operation. And these examples reveal another tactic in the undercover sting playbook: targeting the most vulnerable and ‘temptable’ people, like students with special needs, individuals experiencing homelessness, and those who are in desperate need of money.”
The data recorded by the Texas Criminal Justice Coalition begins on the day of a 2019 raid. On Jan. 29, Houston police raided a home at 7815 Harding St. after officers Gerald Goines and Steven Bryant alleged that an informant had bought heroin from the couple who lived there—Dennis Tuttle, 59, and Rhogena Nicholas, 58. During the raid, officers killed Tuttle, Nicholas, and their dog, but did not recover any heroin. The families of the victims maintain that neither person ever sold drugs.