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Will The Coronavirus Push Us From Cruelty To A ‘Politics Of Care’?

Will The Coronavirus Push Us From Cruelty To A ‘Politics Of Care’?


“Epidemic diseases are not random events that afflict societies capriciously and without warning,” writes historian Frank M. Snowden in his most recent book, “Epidemics and Society: From the Black Death to the Present.” To the contrary, “every society produces its own specific vulnerabilities. To study them is to understand that society’s structure, its standard of living, and its political priorities.”

What does the growing coronavirus pandemic teach us about the United States? About our vulnerabilities and priorities? In the Boston Review, Yale Law School professors Amy Kapczynski and Gregg Gonsalves assess that, here, the virus “is a crisis of social solidarity and social investment,” one that “shine[s] a light on the cruelty of American life as it has been constructed for much of our lifetimes.”

That cruelty is reflected in how we divide, blame, punish, and exploit the vulnerable, pushing people down while at the same time screaming at them to get up. Our healthcare system is “rapaciously profit-driven” and excludes huge segments of people. We are, Kapczynski and Gonsalves write, “austerity-ravaged,” without an adequate social safety net or investments in public health programs. And we use a racist system of mass incarceration to deal with widespread health problems like mental illness and addiction. On the whole, it’s a system that leaves people to fend for themselves and then punishes those who falter.

That’s a terrible state of affairs when a public health crisis exposes our shared vulnerability. Successfully fighting or preparing for an epidemic disease requires understanding “that we’re all in this together, that what affects one person anywhere affects everyone everywhere,” Snowden told the New Yorker. “We need to think in that way rather than about divisions of race and ethnicity [and] economic status.”

The good news is that, according to new polling, American voters are thinking that way now. A new report from The Justice Collaborative and Data for Progress (I co-authored the report) shows broad bipartisan support for responding to the pandemic with aggressive government intervention to protect the most vulnerable and at-risk. That includes paid sick and family leave for all workers, along with free testing, vaccines, and comprehensive care. Some of these policies are included in the federal relief bill that cleared the House of Representatives over the weekend, though the polling supports relief that goes further—for example, by providing no-cost vaccines in addition to testing, and extending paid leave protections to freelance workers and employees at large corporations, two groups currently excluded from the relief legislation.

This broad demand for care in response to crisis echoes what Rebecca Solnit described in her book “A Paradise Built in Hell,” about how disasters—whether fires or earthquakes or epidemics—can unearth a spirit of collective good buried beneath a prevailing politics of individualism and unbridled capitalism. Ordinarily, she writes, we give in to the economic presumption that “we seek personal gain for rational reasons,” and we “refrain from looking at the ways a system skewed to that end damages much else we need for our survival and desire for our well-being.” But when disaster strikes, and “all the ordinary divides and patterns are shattered, people step up—not all, but the great preponderance—to become their brothers’ keepers.” In the process, “our sense of what is possible” can change. “If paradise now arises in hell,” she writes, “it’s because in the suspension of the usual order and the failure of most systems, we are free to live and act another way.”

Indeed, each day with the coronavirus yields new proof that we are free to live in a different, more caring way. In Slate, Dan Kois compiled numerous examples of governments and corporations discarding punitive policies because of the virus, revealing how there was no good reason to enforce them in the first place. All of a sudden, some corporations are providing paid sick leave to low-wage workers, cities are protecting people from eviction, and utility companies in some places are leaving the power and water turned on despite nonpayment.

“As long as COVID-19 remains a health concern,” said Detroit Mayor Mike Duggan, “no Detroit resident should have concerns about whether their water service will be interrupted.” Well, Kois writes, “why in the hell should any Detroit resident have concerns about their water service being interrupted, ever? Shouldn’t clean water be the absolute base level of service delivered by a city to its residents?”

The criminal legal system is also being scaled back. County jails are releasing people early and police departments are reducing arrests. Los Angeles has cut back from an average of about 300 arrests per day to 60. That’s because, according to BuzzFeed News, “those who can just be cited without being booked at local jails are being released,” which sounds a lot like a reason that could apply all the time, not just in the midst of a global pandemic.

“In every single one of these cases,” Kois writes, “it’s not just that most of these practices are accepted as ‘standard.’ It’s that they are a way to punish people, to make lives more difficult, or to make sure that money keeps flowing upward. Up until now, activists and customers have been meant to believe that the powers that be could never change these policies—it would be too expensive, or too unwieldy, or would simply upset the way things are done. But now, faced suddenly with an environment in which we’re all supposed to at least appear to be focused on the common good, the rule-makers have decided it’s OK to suspend them.”

The question now is: Will this last?

Will more policies that tear people down be replaced by measures to provide support, giving people access to housing, food, and healthcare when they may have no other income? Will we truly learn from this crisis and commit to long-term social and political change? Can we dispense with cruelty and promote, as Kapczynski and Gonsalves call for in the Boston Review, a “politics of care”?

It’s an ominous sign when the president assembles a group of CEOs at a Rose Garden coronavirus press conference to lavish them with praise, and meanwhile our inboxes are flooded with emails from seemingly every corporation with which we’ve ever interacted, assuring us that they are monitoring the situation, adhering to best practices, and have our best interests in mind.

In “A Paradise Built in Hell,” Solnit recalls that, after Hurricane Katrina, she “heard the infamous former Federal Emergency Management Agency (FEMA) director Michael Brown tell a group of disaster experts that business was the best leader of recovery because business had the best interests of the community at heart—a curious statement, to say the least.” After Katrina and other disasters, Solnit saw permanent change stymied because of “the men in power who provided some relief and got the city going again but also reinstated the old injustices and discriminations. They acted in their own self-interest as often or more often than in the public interest and sometimes viewed the public as an enemy to be conquered, controlled, and contained. The brief solidarity and harmony ended in part because the business community pitted its interests against those of the majority.”

Right now, the majority is calling for change, and we have seen, in myriad examples across the country, that change is possible—that policies of care are both popular and pragmatic, even necessary to the common good. It is true, after all, that we’re all in this together, and that will remain true whether we learn from this or not.

Kyle C. Barry is senior legal counsel for the Justice Collaborative. The Daily Appeal and The Appeal are editorially independent projects of the Justice Collaborative.

Coronavirus: We’re Urged To Wash Our Hands, But For Some It’s Not That Simple

Coronavirus: We’re Urged To Wash Our Hands, But For Some It’s Not That Simple


The World Health Organization has now confirmed that the coronavirus outbreak is a pandemic. The fast-spreading disease has been in the United States for weeks now, with more than 1,000 confirmed cases and at least 31 related deaths. The widening consensus is that aggressive measures will be required to lessen its impact.

“Wash your hands” is the universal recommendation, a way to reduce the risk of developing the virus and in turn reduce the risk of spreading it to others. This seems like the easiest, most actionable piece of advice. That is, until you consider the 550,000 homeless people in the United States and the over 2 million people in jails and prisons. Well over 2.5 million people live under conditions that make it difficult, even impossible, to wash their hands often and effectively. Social distancing, the other recommendation gaining ground, is also nearly impossible for people with little or no access to shelter and incarcerated people with no freedom of movement.

Yesterday, Thomas Fuller of the New York Times looked at how the more than half a million people nationwide who are unhoused are at great risk from the virus. “Medical researchers say the 550,000 people currently homeless across the United States have a double vulnerability to the coronavirus,” writes Fuller. “They are more susceptible to contracting the disease caused by the virus because of the cramped quarters in shelters, the sharing of utensils and the lack of hand-washing stations on the streets.” Bob McElroy, the head of a homeless shelter in San Diego, California, described his fears for the more than 300 people who sleep under the tent that constitutes the shelter, in bunk beds spaced just two feet apart. “We’re just saying our prayers,” McElroy said. “If it gets in here it would be a disaster.”

For people in prison and jails, the pandemic has drawn attention to a problem that rarely gets much attention—the fact that, as Beth Schwartzapfel and Keri Blakinger wrote for the Marshall Project, “behind bars, some of the most basic disease prevention measures are against the rules or simply impossible.” Homer Venters, former chief medical officer of Rikers Island in New York City outlined the obstacles to personal hygiene and disease control. “Jails and prisons are often dirty and have really very little in the way of infection control,” he told Schwartzapfel and Blakinger. “There are lots of people using a small number of bathrooms. Many of the sinks are broken or not in use. You may have access to water, but nothing to wipe your hands off with, or no access to soap.”

In New York this week, Governor Andrew Cuomo announced his ambitious plan for a made-in-New York hand sanitizer, that would relieve shortages and would be provided for free to government agencies and schools. The catch? It would be made by incarcerated workers in New York prisons, typically paid pennies an hour for their labor. The Washington Post’s Antonia Noori Farzan reported on the response that Cuomo’s announcement provoked. Formerly incarcerated people, organizers, and advocates pointed out that although the governor announced a response to the coronavirus that relied on people in prison, the state has done little to limit exposure for incarcerated people. The very sanitizer they would be making would be contraband if an incarcerated person had it and could expose them to punishment, even solitary confinement. (It is worth considering whether this might also be the fate that could await those who develop the coronavirus in prison. Last month, Juan Moreno Haines, who is incarcerated at San Quentin prison in California, wrote in The Appeal about how medical isolation in prison too often looks like punishment because people are placed in conditions that are the equivalent of administrative segregation, without adequate access to medical care.)

The lack of easy access to running water extends even beyond the incarcerated and the unhoused. In Detroit, thousands of households have been without water because of mass disconnections dating back to 2014 as a response to the city’s bankruptcy. Citing high rates of nonpayment, the city instituted shutoffs. “More than 30,000 households experienced a water shutoff” in 2014, reports Tracy Samilton of Michigan Radio. There were some efforts made to offer alternate payment plans for those with the least ability to pay, but even these failed to reach everyone unable to afford water prices. In 2019, at least 29,000 households experienced a water shutoff.

On Monday, the mayor of Detroit announced that the city had reached an agreement with the state to waive the $25 reconnection fee and defer the payment of outstanding charges for households in need of water supply. This is estimated to be 3,000 homes. But the outstanding charges will not be forgiven, meaning families could again face shutoffs.

Mark Fancher, an attorney with the ACLU of Michigan, which has sued and taken other action over the water shutoffs, told Michigan Radio that he welcomed the news but pointed out that the lack of water access has left people vulnerable for a long time. “If there is concern about the spread of that virus, and there should be, there should be concern as well about the spread of the flu, which quantitatively claims more lives than the coronavirus has claimed,” he said. He also pointed out the importance, in the long term, of making water affordable in the first place.

In Mic, Ray Levy-Uyeda looked at how the announcement in Detroit was necessary but far from a long-term solution. Levy-Uyeda wrote:

“Detroit’s water restoration initiative, while a win in some respects, thus calls into question the efficacy of shutting off access to a needed resource as a way to punish someone for their inability to pay for it. It also highlights what many feel to be a consequential difference in the language we use around things like water and housing; after all, the United Nations declares access to safe and clean water a human right, not merely a good to be purchased.”

Public Defenders Have An Obligation To Speak Out

Public Defenders Have An Obligation To Speak Out


In the last few weeks, there have been at least two occasions to reflect on the role of public defenders in the movement to end mass incarceration and the suffering caused by it. Both relate to bail reform.

The ACLU of Pennsylvania, along with other allies, filed a lawsuit last March against six magistrates in the Philadelphia area, arguing that they routinely violate rules laid down by the state Supreme Court pertaining to pretrial release determinations, resorting too often to requiring the payment of cash bail and, as a result, detention on the basis of poverty. The determinations were quick and defendants were not represented by lawyers. After witnessing 2,000 bail hearings, the organization concluded, as the deputy legal director told the Associated Press, that judges were “making decisions about people [sic] lives that will cost them their jobs, apartments and custody of their children in the time it takes to brush your teeth.”

Until last month, Dean Beer and Keisha Hudson were the chief public defender and the second highest-ranking public defender in Montgomery County, outside of Philadelphia. In early February, Beer and Hudson filed an amicus brief in the ACLU-PA lawsuit.  On Feb. 26, the county’s Board of Commissioners fired them, in what appears to have been an effort to punish them for filing the brief.

In the brief, Beer and Hudson explained their interest in the case:

“Our office has a substantial interest in this matter,” they wrote. “The law governing bail practices directly affects our clients, their families, and the communities we serve.” They explained their office’s philosophy: “We are a community-oriented defender organization that recognizes the inherent link between access to justice and access to healthcare, housing, education, and employment—all of which are hindered when cash bail is improperly and excessively imposed on clients.” And they described their expertise and experience. “We witness first-hand the multitude of individual and community harms caused by dysfunctional bail practices that result in unnecessary and prolonged pretrial detention. In addition to the human cost of unnecessary and disproportionate overincarceration, such practices create obstacles to the preparation of the defense, negatively affect case outcomes, and cost our office and the county taxpayer money.”

No official reason has been offered for the firings. Last week, Radley Balko of the Washington Post looked at the many problems with the decision. Balko wrote: “Public defenders are on the front lines of the criminal justice system. No one gets a better view of the day-to-day problems in the country’s courts. While much has been said (but less has been done) about the funding crisis in indigent defense services, it’s also vital that public defender offices be free from political pressure.”

The ACLU of Pennsylvania began a petition online calling for the defenders’ reinstatement. The petition describes how Beer and Hudson “have been excellent and effective defenders in Montgomery County, providing much-needed defense to poor defendants while working to reform how the county uses probation and cash bail.” It continues: “Nobody should lose their job because they are good at it. Your action has a chilling effect on public defenders across the state who are trying to represent their clients.”

At a rally before the county commissioners meeting on Thursday, more than 100 supporters of Beer and Hudson gathered to call for them to be reinstated. At the meeting, commissioners said they had no plans to reinstate the two defenders but would “explore how to make the public defenders’ office an independent entity outside of government oversight, similar to the system used in Philadelphia,” reported the Philadelphia Inquirer.

The terminations highlight the peculiarities in how Pennsylvania funds indigent defense (through counties rather than the state), the ways in which the funding of public defender offices leaves them vulnerable to political pressure, and the ways in which compromising the independence of public defenders compromises their ability to represent the experiences of their clients and advocate based on that knowledge.

Beer and Hudson’s brief is a reminder of why this advocacy matters. They detailed the experiences of some of their clients who were detained while awaiting trial. The first story told in the brief is that of a teenager who was breastfeeding her baby when she was arrested, for the first time in her life. At a hearing where she was not represented by counsel, she was charged with a violent offense involving another woman and a judge ordered her jailed unless she could pay $50,000 in bail. Because she was unable to pay, she went to jail for more than a month. She was separated from her child for the entire time and was not allowed to pump.

Because pretrial detention has become so routine, the suffering it causes is normalized. In discussions, the trauma of being jailed and the cascade of consequences for health, family, housing, employment, and education can be reduced to an abstraction. But the specific stories that cut through our collective numbness are not exceptional, they are representative. Listening to public defenders is no substitute for listening to people who are themselves jailed. But too often people with open criminal cases face demonization in the media or risk negative outcomes in their cases if they speak out.

In an opinion article last week, Emily Galvin, a former public defender, described why the voices of public defenders like Beer and Hudson matter and why they should not be punished for their advocacy. “What happened in Montgomery County,” she writes, “was an abandonment of justice. Expecting our courts and lawmakers to consider the stories of impacted people is the bare minimum of what we should demand in a fair system and society. Seeing those same officials use the power of their office to punish public defenders for offering the truth—in a formal, measured, and appropriate way, no less—is a shame that will mark the county for years to come.”

The role of public defenders has also been at the forefront in New York. In the last two months, law enforcement and some elected officials in the state have sought to roll back bail reforms that were passed last year. Weeks after the law went into effect on Jan. 1, opponents began blaming them for an uptick in crimes in certain categories of offenses. There have been many questions about whether these numbers represented a meaningful trend or were merely one of many short-term fluctuations.

Last week, a coalition of public defender offices in New York City released a statement calling into question the NYPD’s figures that show increased numbers of crimes in certain categories (car thefts is one example). Jake Offenhartz wrote for Gothamist: “Within weeks of the new laws taking effect, New York’s Republicanspolice leaderstabloids, and bail bondsmen all linked the reforms to a major crime spree. But defense attorneys say there was actually a 20 percent decrease in complaints docketed to courts in the first two months of the year, and a 17 percent drop in arrests.” (Christopher Robbins, also of Gothamist, delved into the NYPD’s history of adjusting crime statistics.)

When asked about the public defenders’ claims on Friday, on “The Brian Lehrer Show,” Mayor Bill de Blasio said he thought the public defenders should be “ashamed.” The mayor’s unequivocal, forceful response is indicative, perhaps, of a political and media climate in which he fears no political consequences for being dismissive of public defenders (whose offices are funded by the city) when they speak about what they see in court every day. The response from public defender offices was exemplified in this tweet from Tina Luongo, head of the criminal defense practice at the Legal Aid Society:

What Did Super Tuesday Mean For Criminal Justice?

David McNew / Getty Images

What Did Super Tuesday Mean For Criminal Justice?


As polls closed yesterday evening, it quickly became clear that Democratic primary voters have effectively narrowed the field of candidates to two: Joe Biden and Bernie Sanders. Voters in the primaries still to come now have a clear choice to make, given the distance between Biden’s and Sanders’s positions, including on issues related to criminal justice. (It is worth remembering, however, as Sarah Lustbader pointed out yesterday in the Daily Appeal that, despite President Trump’s attempt to present himself as a criminal justice reformer, any of the Democrats would be far better than Trump.) Meanwhile, Mike Bloomberg, who as mayor of New York presided over an explosion of stop-and-frisk policing that targeted Black and Latinx residents, spent hundreds of millions of dollars to win a single primary, in American Samoa, and announced today that he is dropping out of the race.

Yesterday’s elections were never only about the presidential race, though. As Daniel Nichanian documented last week for The Appeal: Political Report and has been tracking since results starting come in yesterday, there were enormously consequential down-ballot races as well. And the states that represented the two biggest prizes on the Super Tuesday map—California and Texas—were also the sites of important down-ballot elections.

In California, where it will take days, if not weeks, to assess the scale of a Sanders victory, the local action centered on Los Angeles. Voters faced two important choices related to criminal justice. The first was for district attorney. The incumbent, Jackie Lacey, has been assailed for policies seen as discriminatory and unjust: her pursuit of the death penalty (Los Angeles County sent more people to death row than any other county in California and all 22 people sentenced to death during Lacey’s time in office have been Black, Latinx, or Asian American); her refusal to prosecute police officers who have shot civilians (the county has the nation’s highest number of police shootings); and her opposition to bail reform, as well as marijuana legalization, Proposition 47, and Proposition 57. On Monday, the day before the primary, Lacey’s husband greeted unarmed protesters at his door by pointing a gun at them.

Two candidates challenged Lacey, promising to take the DA’s office and the county in a new direction if elected. The first was George Gascón, who introduced a range of reforms during his time as San Francisco DA and vowed to do the same, and more, in LA. Gascón, who had already announced he would not be seeking re-election in San Francisco, stepped down in October, shortly before Chesa Boudin was elected district attorney. The other challenger was Rachel Rossi who, like Boudin in San Francisco, offered voters the chance to support a public defender seeking to transform the DA’s office.

The outcome in Los Angeles remains uncertain. As of early this morning, the Los Angeles Times reported that Lacey was in the lead. But as ballots continue to stream in, Lacey is hovering just above the 50 percent of votes she needs to win outright. If she falls below that threshold, she will face the second-place candidate (who at the moment appears  to be Gascón) in a run off.

On a second important issue, there was overwhelming support in LA County for Measure R, a ballot measure that, as Nichanian wrote last week, would “direct a local commission to design a plan to reduce the jail population, and invest instead in community services, especially for mental health, substance use, and homelessness.”

In Texas, where Biden had a surprise victory over Sanders, the picture for reform DA candidates was mixed. Harris County, home to Houston, and Travis County, home to Austin, went in different directions, Jay Willis reported for the Appeal. In Harris County, incumbent District Attorney Kim Ogg won the Democratic primary, despite repeatedly disappointing progressives who had originally supported her. In Travis County, however, challenger Jose Garza, a former public defender, won 44 percent of the vote to incumbent Margaret Moore’s 41 percent. The run-off between them will take place in May.

Perhaps one of the most disappointing pieces of election-related news came not from the ballot box but from a federal court. In Mays v. Larose, the Sixth Circuit of Appeals issued a decision, reversing the district court below, finding that Ohio does not have an obligation to enable voting from jail for people arrested just prior to an election. The case was brought by Campaign Legal Center, Dēmos and the MacArthur Justice Center on behalf of Tommy Ray Mays II, Quinton Nelson Sr., and all late-jailed voters in Ohio in 2018, alleging violations of the First and 14th Amendments. Despite state policies that enable voting for people hospitalized immediately before an election and similarly unable to request absentee ballots before the deadline, the state had not accommodated people in jail.

Finally, some of yesterday’s most hopeful news did not pertain to elections or voting at all: In Chicago, a federal jury awarded over $5 million in damages to Stanley Wrice, a survivor of police torture. Wrice spent three decades in prison after being convicted of gang rape before he was exonerated and released in 2013. He maintained at his 1983 trial and since then that the confession introduced at trial was the product of torture. Specifically, he alleged that detectives, working under Chicago’s notorious police commander, Jon Burge, had brutalized him and forced a false confession out of him. He was convicted and sentenced to 100 years in prison. Wrice, like so many of the victims of Burge’s torture regime, went to prison for years before the truth emerged.

The Chicago Tribune reported yesterday that, “After an eight-day trial, the jury deliberated for about seven hours before finding in favor of Stanley Wrice on claims that detectives John Byrne and Peter Dignan violated his constitutional rights when they beat him with a flashlight and length of rubber hose in the basement of the Area 2 police headquarters.” The jury ordered $4 million in compensatory damages from the city and that Byrne and Dignan each pay $600,000 in punitive damages.

Under Mayor Lori Lightfoot, who was elected in 2019, the city of Chicago chose to fight the case through trial. Flint Taylor of the People’s Law Office, which represented many of those who had suffered at the hands of Burge and fought for justice for survivors, said that the verdict ended “a disgraceful chapter in the annals of the city’s defense of the indefensible.”

The city is likely to appeal the verdict and postpone payment of the award. But Wrice’s lawyer, Jennifer Bonjean, told the Tribune that the verdict “sends a message” to the Lightfoot administration. “For Mr. Wrice, just having a jury come back and say, ‘We believe you. We believe this happened to you in the basement of Area 2. We believe that Byrne and Dignan did this’ … is the most unbelievable feeling, because he’s been called a liar for so many years,” she said.

Another Reason To End Prison Gerrymandering: To Identify And Invest In Neighborhoods Most Affected By Incarceration

Another Reason To End Prison Gerrymandering: To Identify And Invest In Neighborhoods Most Affected By Incarceration


This week, Colorado’s Senate passed a bill to end prison gerrymandering, the practice of counting people where they are incarcerated rather than where they lived prior to incarceration. The governor is expected to sign the bill into law. Last month, New Jersey became the eighth state to end the practice.

For redistricting purposes, counting people where they are incarcerated skews political power. It swells the representation and voting power of (typically rural and heavily white) prison districts and diminishes representation and voting power for the districts from which people are disproportionately sent to prison. Furthermore, given that all but two states in the nation have felony disenfranchisement laws, people in prison suffer a dual injustice. Individuals are added to the population counts of the districts where they are incarcerated, rather than their home districts where their families might still live and where they are likely to return upon release, but they cannot vote and therefore have little power to shape representation in even the districts where they, technically, count.

In 2010, New York became one of the first states to end prison gerrymandering. Although state laws cannot change how the U.S. Census Bureau counts people, they can alter how people are counted for purposes of redistricting.

In a new report, the Prison Policy Initiative and VOCAL-NY demonstrate another benefit of laws to end prison gerrymandering: the data that became available about where incarcerated people are actually from. “By counting incarcerated people where they legally reside — at home, rather than in remote prison cells,” the authors write, “we are able to, for the first time, provide detailed state-wide data on the places imprisoned New Yorkers call home.”

There were two main findings. First, “that a relatively small number of areas in New York are disproportionately impacted by incarceration,” and second, that “high imprisonment rates correlate with other community problems related to poverty, employment, education, and health.” The authors are careful to note that correlation does not show causation but also make the point that “at a minimum, the correlations we find between imprisonment and other indicators of community well-being show that local imprisonment data are relevant to community discussions about issues beyond public safety and criminal justice.” They continue: “Our findings suggest the need for greater investment in programs and services that prevent criminal justice involvement or mitigate the harm of incarceration.”

So what does the data show about where incarcerated New Yorkers are from? Every county in New York State sends people to prison, but incarceration rates wildly vary. Albany County, home of the state capital, had the highest imprisonment rate, with 1,326 residents—or 434 per 100,000 residents—in state prison. (The report does not account for incarceration in local jails, federal prisons, or other facilities.)

A deeper examination shows that the ward-by-ward disparities are staggering. “Over half of everyone in state prison from Albany, for example, hail from just three of Albany’s 15 Common Council wards, which comprise most of the older, predominantly Black neighborhoods on the eastern side of the city along the Hudson River. Across the city, Ward 15 had only 3 residents in state prisons, whereas Ward 3 (north of the capitol building) had 206 residents in state prisons in 2010. People in Ward 3 are 67 times more likely to be imprisoned than the residents of District 15.”

The report then describes the correlations between high imprisonment rates and high rates of poverty, findings that, the groups write, “support previous research that finds strong links between both poverty and incarceration and incarceration and unemployment.” This newly available data allowed for research into what these links look like at the community level.

Two adjacent neighborhoods in northeast Buffalo offer “a stark example.” In one, the poverty rate is 10.4 percent and eight residents were in state prison in 2010. In the other, 43.2 percent of residents live in poverty, and despite having fewer residents overall, 59 people from the neighborhood were in prison in 2010. Their neighborhood imprisonment rates were 146 per 100,000 versus 1,449 per 100,000.

The most obvious use of this information would be to identify those districts where formerly reincarcerated people will return when they are released from prison and ensure that they have the resources and supports necessary for successful transitions. Another important use would be to change what cities and states spend money on. “In communities where the state or city has heavily invested in policing and incarceration (i.e. the high-incarceration neighborhoods we find in our analysis), our findings suggest that those resources would be better put toward reducing poverty and improving local health, education, and employment opportunities. Particularly as New York continues to reduce its reliance on incarceration—and therefore reduce the cost of incarceration to the state—any savings should be reinvested in the communities hit hardest by incarceration and criminalization.  To that end, these data can help with need-based decisions about resource allocation in these communities.”

Twenty-eight years ago, in an interview with the New York Times, Eddie Ellis, founder of the Center for Nu Leadership spoke of the “seven neighborhoods” study that he and other incarcerated men at Green Haven prison conducted on the high imprisonment rates in certain neighborhoods in New York City. That work foreshadowed later research on the millions spent to incarcerate people from certain New York neighborhoods, rather than to invest in those neighborhoods.

Life Sentences Lock Away Too Many People And Too Much Potential

Life Sentences Lock Away Too Many People And Too Much Potential


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

Yesterday in Pittsburgh and Philadelphia, hundreds gathered to call on state Attorney General Josh Shapiro to “show mercy” and increase his support for clemency. The state’s clemency process allows even a single member of the Board of Pardons to block a recommendation to the governor. Shapiro is one of the five members of the board, and local advocates have pointed out that he has frequently voted to oppose clemency.

Pennsylvania has over 5,000 people sentenced to spend the rest of their lives in the state’s prisons and among the nation’s highest rates of life without parole per capita. The county of Philadelphia alone has more people sentenced to life without parole than any other nation in the world.

Last week, the Sentencing Project released a new report highlighting the recent, in historical terms, growth in the use of life sentences in the United States. There are more people serving life sentences in the U.S. than the total number of people in prison in 1970. Although the total number of people in prison went down a tiny amount from 2003 and 2016, the number of life sentences went up by 16 percent. And the number of life without the possibility of parole sentences went up by 59 percent.

Even as widening circles of people acknowledge mass incarceration as a crisis, a specific focus on life and other extreme sentences has been slower to come. And in a state like Pennsylvania, where clemency is one of the avenues so needed for reckoning with the toll of extreme sentencing, procedural obstacles and individual votes, like those by Shapiro, a Democrat, have prevented that.

A comfort with life without parole sentences, or sentences that are so long that they guarantee or nearly guarantee one’s death in prison, is still a part of the Democratic political mainstream. As Ben Miller and Daniel Harawa pointed out last month in Slate, even Bernie Sanders and Elizabeth Warren, the furthest left of the presidential candidates and regular critics of our criminal legal system, default to life without parole as an appropriate alternative to the death penalty.

Increasingly, it has fallen to those intimately familiar with the prison system to describe how these sentences waste human potential.

In 2018, Darnell Epps, a Cornell University student who along with his brother Darryl spent 17 years in New York state prisons, wrote about his personal growth while incarcerated and how much he owed to the men who guided him in prison. “In prison, we shined because of, not despite, our circumstances, especially the presence of the ‘old-timers’ who helped guide us to our coming-of-age,” he wrote in the New York Times. “We owe them tremendous credit.”

The “50-, 75- and 100-year minimum sentences” that the men he knows are serving mean that their contributions are confined within the prison walls, he wrote. “When I hear of all the gun violence on Chicago’s South Side, for instance, I can’t help wondering what would happen if Illinois’s many reformed old-timers, who hail from those neighborhoods, were granted parole with a mission of working to reduce the violence.” People in prison who have so much to offer should be out instead, so that “there can be more stories like mine and Darryl’s, and fewer young people making the mistakes that get them sent to prison in the first place.”

This month, Robert Ehrenberg wrote in the Albany Times-Union about his experience of serving a death-by-incarceration sentence and the need for New York to pass elder parole legislation. One in every four people sent to prison in New York from Long Island is serving a life sentence. Ehrenberg, sentenced to 50 years to life after he shot and killed a man during a robbery in 1992, is one of them. He wrote about the “devastating harm” his actions that day caused and how “there is not a day that goes by that I don’t think about that awful day.”

Ehrenberg described the larger collective of which he is a part. “Year after year, incarcerated people dwell upon our past mistakes and the serious harm we caused that can never be reversed. We try to do all we can to transform our lives and the lives of those around us. This is especially true for the thousands of us serving life sentences with little hope and few, if any, avenues for release.”

He wrote about his efforts to grow, change, and serve those around him. “Over the last 27 years of my incarceration, I have channeled the accumulation of my regrets into my rehabilitation and into trying to positively change the lives of those around me. I immersed myself in higher education and received two college degrees with top honors. I’ve used the knowledge I acquired to educate, tutor, and mentor others by developing pre-college algebra courses. I’ve taught basic math to countless of my younger peers who will one day be free even though I’ll likely never have that same opportunity.” And he outlined the grim math of his likely longevity and his sentence if reforms are not passed: “I am currently 61 years old and not eligible to appear before the New York State Parole Board for a chance at release until 2042. By then, I’ll be 83 years old, an age I will likely never see.”

Survey: A Majority Of Voters Support Review Of Extreme Sentences

Survey: A Majority Of Voters Support Review Of Extreme Sentences


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

Last month, the Mississippi Supreme Court upheld a 12-year prison sentence for Willie Nash, a man convicted of having a cell phone with him in a local jail. Nash’s sentence, even in a country and state seemingly inured to harsh sentencing, drew national attention. In a guest post at the blog Sentencing Law and Policy in which he discussed a motion for rehearing in the case, one of Nash’s attorneys wrote that, “It is no exaggeration to say that the Mississippi Supreme Court’s affirmance of that sentence shocked the world: the decision made headlines as far as way [sic] as New Zealand.”

The gulf between the United States’s use of incarceration and that of the rest of the world has been increasingly well-documented. Information about other countries’ far less punitive and far more rehabilitative approaches to criminal justice has been used to mobilize support for a different approach to crime and punishment as well as to safety and well-being, more broadly understood.

A new report and survey, published today, looks at popular support for two specific policies that would reduce the number of people in U.S. prisons. The policies—second-look legislation expanding release eligibility and sentencing review units in prosecutors’ offices—give prosecutors and judges the ability to revisit sentences handed down years, even decades, earlier. This is an option that many judges and at least some prosecutors have wanted. The survey was conducted by Data for Progress, and the report was the work of Data for Progress, the Justice Collaborative, and Fair and Just Prosecution. (The Justice Collaborative and The Appeal are projects of Tides Advocacy.)

In July, Senator Cory Booker of New Jersey and Representative Karen Bass of California, both Democrats, introduced the Second Look Act. The bill was considered groundbreaking because it expanded the opportunity to be considered for resentencing available to anyone in federal prison who has served at least 10 years. It also created a presumption in favor of release for anyone 50 years or older. Significantly, it did not exclude people who had been originally sentenced for violent crimes. One advocate, Kara Gotsch of the Sentencing Project, told the Daily Appeal shortly after the Second Look Act’s introduction in Congress that she hoped it would offer a model for states to emulate.

Of the voters surveyed this month, 69 percent support “states adopting laws that allow for the re-examination of old sentences to provide a second chance for people who have been in prison for more than 10 years and who can be safely returned to the community.” Support even among “very conservative” voters was above 60 percent, while support among “very liberal” voters was above 80 percent. Nearly two-thirds of Republican voters expressed support.

There were similar levels of support for the second policy on which voters were surveyed—sentence review by prosecutors. In jurisdictions including Brooklyn, Philadelphia, and Seattle, prosecutors have sought to remedy past injustices in the form of excessive sentences. In 2018, California passed a law giving prosecutors the power to recommend that judges reduce sentences “in the interest of justice.” Last year in New York, state Senator Zellnor Myrie introduced a bill to give similar power to prosecutors.

Despite a national movement to end mass incarceration, the pace of decarceration has been slow. In 2018, the Sentencing Project pointed out that, at the current rate, it would take 75 years just to cut the number of people in prison in the U.S. in half. And that would still leave more than a million people in prisons and jails.

The report’s authors describe the scale of the problem. Some of the most vivid illustrations of the United States’s outlier status are included: More people are sentenced to life in prison without the possibility of parole in Philadelphia than in every other country in the world. There are more people today condemned to die in prison than the entire prison population five decades ago. And nearly half of them are Black, a large overrepresentation not just relative to the general population but also to the population of people who are incarcerated. Nor do these millions of prison years mean greater public safety. A 2016 report from the Brennan Center for Justice posited that of the nearly 1.5 million people in state and federal prison, well over half a million of them could be immediately released or placed in programs instead.

The authors also review how we got here. In terms of policies, they write that, while the causes are manifold, “one key driver has been the use of excessive sentences and the failure to do anything about them.” A web of “mandatory minimums, ‘habitual offender’ and ‘three strikes’ sentence enhancements, and truth-in-sentencing laws” made sentences of extraordinary harshness possible for a wide array of crimes. The enormous discretion handed to prosecutors, and their willingness to use it in favor of incarceration, are other culprits.

Even amid a historical decline in crime, fearmongering around criminal justice reforms is the norm, as ongoing efforts to reverse recent reforms in New York demonstrate. Yet, the survey published today shows that for a majority of voters, of all ideological stripes, policies that allow prosecutors and judges to reassess a person’s sentence, in light of subsequent reforms and who that person is today, are common sense, not controversial.

Collective Punishment At A Massachusetts Prison

Souza-Baranowski Correctional Center
Justin Kase Conder for The Boston Globe via Getty Images

Collective Punishment At A Massachusetts Prison


On Jan. 10, there was a disturbance at the Souza-Baranowski Correctional Center in Lancaster, Massachusetts. Multiple corrections officers were injured and prison officials described an assault by incarcerated men. The men alleged to have been involved in the assault were transferred. Media outlets reported that as of earlier this month, none of them had been charged in connection with the incident.

A few days after the disturbance, Prisoners’ Legal Services of Massachusetts issued a press release that made three points. First, the effort by the correctional officers’ union to blame criminal justice reforms from 2018 for a violent climate at the prison was dishonest and counterproductive. Second, very little had actually changed since the passage of the reforms because of resistance from the corrections department. And finally, the “violent climate” at the prison included “more assaults on prisoners at Souza-Baranowski than any other prison or jail in Massachusetts”—violence that attracted no condemnation from the correctional officers’ union.

The resistance to reform, culture of violence at the prison, and a turn to collective punishment characterized the weeks that followed, according to incarcerated people, their lawyers, and state lawmakers who made unannounced visits to the facility.

In 2018, Massachusetts passed a slate of criminal justice reforms. Among them was a measure to guarantee due process to people placed in solitary confinement for 22 hours a day or longer. The law, modest as it was, was meant to curb the use of isolation and eliminate it entirely for people with mental health conditions.

In the time since then, close observers of the system have said the state has, instead of implementing the restrictions on solitary, gone out of its way to undermine them. Last February, Adrian Walker, a columnist for the Boston Globe, wrote: “The Department of Correction has instituted changes that are widely viewed as an end run around the new law, policies that allow for 21 hours a day of solitary confinement rather than 22. Regulations for reviewing the status of prisoners in solitary have stalled.”

Thousands are affected. Walker wrote: “While data on solitary confinement has historically been spotty, the Department of Correction reported to the Legislature last year that roughly 3,200 inmates had spent time in solitary in the first six months of the year. (A follow-up report has not been released yet.) More than 200 of those inmates were placed in solitary for two months or more.”

A few months later, in July, Shira Schoenberg of MassLive.com reported that, rather than working to implement the new law, the Department of Correction was engaged in an effort to “hamstring an oversight committee with restrictive regulations that would limit members’ ability to visit prisons and bar them from speaking to the press.” The restrictions would effectively “place a gag order” on committee members.

The same month, the Boston Globe editorial board described the department’s new rules as “embarrassing for a state that was once a leader in prison reform.” It highlighted the department’s decision to create units where people would be locked in cells for 21, rather than 22, hours a day. “By renaming the units and insisting that only whatever remains of truly ‘restrictive units’ comes under the committee’s purview makes its role virtually meaningless,” the editorial board wrote.

In the wake of the lockdown at Souza-Baranowski, incarcerated people, lawmakers, and lawyers have drawn attention to prison officials’ punitive response. Some state lawmakers, who heard accounts of abuse at the facility, were concerned enough to make unannounced visits, with the first on Feb. 3. What they found deeply concerned them. On a follow-up visit on Feb. 7, lawmakers spoke with around 30 men incarcerated at the prison. One of the representatives told MassLive.com: “We talked to so many. We saw Taser burns. We saw dog bites. We saw so much evidence of suicide attempts: cut wrists, ligature marks.”

One man held at Souza-Baranowski spoke with the local radio station WBUR. ”They literally took all of our clothes off, stripped us to our underwear and shackled and cuffed us and beat us up,” he told the station. “Officers just started tasering me, beating me, punching me, calling me the N-word. And I went to the outside hospital,” he said. “I got stitches across my face. I have a black eye, busted lip, and my hands are still shaking.”

Elizabeth Matos, with Prisoners’ Legal Services, told WBUR that the organization has over 100 names of people who say they have been assaulted, have tried to kill themselves, or now have medical complications from abuse.  “Although violence at Souza has been a problem for a long time,” she said, “this is unprecedented.”

The Committee for Public Counsel Services (the state indigent defense provider) and the Massachusetts Association of Criminal Defense Lawyers have filed a lawsuit on behalf of three named plaintiffs, men at Souza-Baranowski, alleging a denial of access to counsel. “Currently, prisoners have only 15 minutes out of their cells each day to call their attorneys, and there is no guarantee that this time is during business hours, and has to be weighed against other basic needs, such as showering,” argue the plaintiffs.

None of this is new, according to Prisoners’ Legal Services. Prior to the January lockdown, interviews with people held at Souza-Baranowski had revealed “a clear pattern of collective and harsh punishment of all for the misconduct of a few and arbitrary retaliation from officers such as withholding food and unjustifiably confiscating personal property such as family photos and letters,” according to the organization’s Jan. 13 statement. And 24-hour lockdowns were common.

The barrier to improving conditions for incarcerated people and those employed at the prison, according to the organization, “is not the recent passage of evidence-based reforms like those that have been successful in dozens of other prisons and jails. Rather it is the refusal to change and to believe that those in the Commonwealth’s custody are not animals, but, in fact, are as human as the correctional officers who work there.”

Bail Reform Was Just The Beginning Of What Democrats Were Elected To Do

Voters cast their ballot in Brooklyn on November 6, 2018.
Angela Weiss / AFP via Getty Images)

Bail Reform Was Just The Beginning Of What Democrats Were Elected To Do


In November 2018, Democrats won control of the state Senate in New York. And they did so with authority. Vivian Wang of the New York Times reported after the election: “Democrats had needed to flip only one seat to erase the Republicans’ razor-thin majority. They blew past that number, unseating five incumbents and winning three open seats.” Democrats would hold 40 seats and Republicans 23. It was only the third time in 50 years that the party would control that chamber and, by extension, state government given their control of the Assembly and the governor’s office.

It was also more than a simple numerical victory. In 2012, when Democrats had won what looked like a majority in the Senate, a group that called itself the Independent Democratic Conference (IDC) decided to caucus with Republicans, leaving power in Republican hands. In the 2018 Democratic primaries, progressive challengers beat six of the eight IDC members, including their leader, Jeff Klein from the Bronx. The six challengers were among a wave of progressive candidates elected to the Senate in 2018, proof, the Times described, “of the energy in the party’s progressive wing.” The election victories also came despite attempts by Senate Republicans to win voters to their side by highlighting Democratic efforts at criminal justice reform.

What would Democrats do with the power that voters, including progressives, had given them? After decades of Republican and Democratic collaboration nationwide on mass incarceration, there was hope that in this moment of unprecedented activism, New York Democrats would begin to undo systemic harms. It was more than a hope; it was a demand.

Shortly after the election, I wrote in the Nov. 20, 2018, edition of the Daily Appeal: “In the two weeks since the election, groups have begun calling for legislative reforms that will reverse the tough-on-crime policies that created a bloated and inhumane criminal legal system and have fed a terrifying federal deportation machinery. The list is long, a reflection of the many years of Republican control in the Senate when little far-reaching legislation was possible.

Immediately after the election, the heads of five of New York City’s public defender offices sent a letter to Governor Andrew Cuomo, Assembly Speaker Carl Heastie and Andrea Stewart-Cousins, who would soon take office as Senate majority leader. There was much work to be done, and there was little time to waste.

“Impacted communities and the greater public—your constituents—recognize the profound injustices that Albany has permitted to exist for decades,” they wrote, “while other states have taken action to help fix the problems.” On some issues, New York was far behind states like Texas, as the Times editorial board pointed out.

During last year’s session, lawmakers and the governor agreed on laws to address matters including in the pretrial system, specifically speedy trial, bail, and discovery. An important law, spearheaded by domestic violence survivors, offered survivors who are in prison a chance to explain the role their victimization played in the crimes that led to their sentences. These, along with important laws regarding immigration, housing, and voting, were all necessary and urgent. But they were far from the only issues that needed immediate attention. Days before the end of the session, The City reported: “Proposals to limit the use of solitary confinement, ease the release of elderly prisoners and boost pay for labor behind bars are all coming down to the final days of the Assembly and Senate calendars without a clear path to becoming law.” As law professor Steven Zeidman wrote in the Daily News, once the session concluded with no action on any of those issues, “it is impossible to ignore a cruel and cowardly omission: the absence of any laws aimed at restoring a measure of dignity, decency and hope to the most vulnerable and ignored among us, the 50,000 people in New York State’s prisons.” New York also failed to enact marijuana legalization, which was passed in Illinois last year and went into effect this year.

On Jan. 1, the Brooklyn Eagle flagged 15 criminal justice matters awaiting action in this year’s legislative session. These include measures to give aging, low-risk people a chance to be considered for release from prison, a bill to end solitary confinement beyond 15 days that had the support of a majority of the Senate and Assembly but was never brought to a vote last year, bills to restore voting rights for incarcerated people and people on parole (as is the case in Maine, Vermont, and Puerto Rico), and a bill to restore the right to serve on a jury to people with felony convictions who have completed prison sentences and terms of parole supervision (a similar law went into effect in California this year). There are also measures to make policing more transparent and accountable, including a bill to require the NYPD to erase a “rogue” database containing the DNA information of more than 80,000 people, including many who were never charged with an offense.

People whose lives have been harmed by the criminal legal system, people who have lost loved ones to prison, and countless advocates have been in Albany since this year’s legislative session began to make clear to lawmakers the scale of support for criminal justice measures.

Despite the urgent work to be done, much of the news, in Albany and elsewhere, has been driven by the agenda of those who opposed last year’s reforms and who blocked reform for decades before. Police officials and other opponents of bail and discovery reform have successfully dominated the headlines since the year began. They blame changes in the law for everything, including a purported “spike” in crime and even a witness’s murder, undeterred by the lack of meaningful evidence or even evidence to the contrary. The media has, in many instances, treated mere allegations from reform opponents as substance for news coverage.

Senate Democrats, meanwhile, have signaled a willingness to retreat, pointing to the opposition as a reason to reconsider reforms that have been in effect for mere weeks and replace them with policies that were already roundly rejected. Assembly Democrats have, admirably, refused to go along with them.

A month ago, when the recent reforms had barely been in effect but a fearmongering campaign was already well underway, Mara Gay of the New York Times editorial board assailed Democrats who had “preened and crowed, congratulating themselves as progressive champions,” after the accomplishments of last year’s legislative session but were already, two weeks into the law being in effect, “buckling, crumpling in the face of an ugly campaign to undermine the bail law by forces long opposed to reform.”

She continued: “Democrats should grow a spine, stand up for the law and reassure the public that they are at no increased danger.”

The work at hand for New York’s Democrats, who rode a wave of progressive activism to win power, is twofold. They must defend the steps they have taken to address some of the most obvious injustices in our legal system. And they should recommit to the pressing work that still needs to be done.

Back in November 2018, at a rally after the election, Kassandra Frederique of the Drug Policy Alliance expressed the desire for “real change” that would disrupt the status quo. “We need to tear this whole system down,” Frederique said. “That happens with courage. That happens with fortitude. It happens with us.”

The Path To Liberation Does Not Go Through Pretrial Punishment

The Path To Liberation Does Not Go Through Pretrial Punishment


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

On Monday, a caller to the Brian Lehrer Show expressed his discomfort with the current debate about recent bail reforms in New York. The caller, a lawyer from near Lake Placid, New York, had this to say:

“I think the biggest problem that bothers me the most with this is that it’s not intellectually honest … What we’re talking about here is not bail. It’s preventive detention and we ought to bring it out and debate it.”

Preventive detention, the incarceration of someone because of a belief they pose a threat to others, was, not so long ago, a disfavored idea. A generation ago, wrote Sandra Mayson, a law professor at the University of Georgia, in 2018, “critics argued that no probability of future crime was sufficient to authorize preventive detention.”

In 1987, the U.S. Supreme Court considered the constitutionality of pretrial preventive detention in United States v. Salerno. Mayson described how “Justice Rehnquist, writing for the majority, concluded that none of the constitutional provisions invoked by the defendants categorically prohibits preventive detention.” Nevertheless, the Court affirmed that “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”

Despite the U.S. Supreme Court’s insistence on pretrial detention as a “carefully limited exception,” the number of people held pretrial has ballooned. The abolition of cash bail has been a high priority. But for some, that has meant opening the door to so-called “dangerousness” assessments.

In a letter to Democratic Governor Andrew Cuomo and political leaders yesterday, over 100 groups in New York argued that the state should not capitulate on recent bail reforms to allow for judges to order pretrial detention on the basis of these assessments.

“Adding ‘dangerousness’ to the bail law would codify racial profiling into pre-trial detention decisions,” the letter reads. “It is an invitation for bias … People of color would overwhelmingly bear the brunt of this misguided approach. According to a 2016 study, Black people were twice as likely as white people to be misclassified as ‘high risk.’ White people, meanwhile, were misclassified as low risk 63.2 percent more often than Black people,” reads the letter, as reported by the New York Daily News.

In a forthcoming essay, for the Law and Political Economy blog’s ongoing series on money bail, Mayson questions the legitimacy of a pretrial preventive detention system. “Absent money bail, we must make intentional decisions about when to restrict a person’s liberty to mitigate risk,” she writes. “But what degree of risk—of what kind of harm—is sufficient to justify depriving a person of liberty? Is the answer different for an accused person than for anyone else? As I have argued elsewhere, there is no reason that it should be different. If we take the presumption of innocence and prohibition on pretrial punishment seriously, there is no reason that the threshold of risk that justifies detention should be any different for a defendant than a member of the public at large. If this conclusion is uncomfortable, it should lead us to ask whether we are in fact willing to value the liberty of accused people in the same way we value our own.”

It is worth saying again: To be sent to jail in America is punishment. Jails are sites of suicidesoverdose deathsviolence (including by government employees), and sexual assault. And that is in addition to the separation from family, children, parents, schools, home, and work. The emphasis on money bail should not obscure the larger goal. A system of pretrial detention that sorts on the basis of money is not the only problem. The problem is incarceration and in America, it happens all the time, to millions of people.

Mass pretrial detention is an end run around the presumption of innocence. For punishment purposes, it brings arrests closer to convictions. New York’s bail reforms, over the past many years, have been steps away from this, lowering pretrial incarceration while crime rates continued to drop. The reforms that went into effect this year are another step in this direction. To roll them back and institute a new system of pretrial detention is not the answer.

Such a system gives enormous power to remove people from free society and imprison them to one set of actors: the police. Is it any wonder they are among the biggest opponents of recent bail reforms in New York? Absent a default of pretrial release, the scale of arrests shapes the scale of jail admissions. A lengthy criminal code, stuffed with charges that criminalize poverty and need, has given officers the power to exercise control over people based on neighborhood, race, and class. Any restriction on pretrial detention restricts that police power.

In New York city, where the blowback against bail reform has been furious and sustained, not a single police official is an elected official (Sheriffs in some upstate counties are elected). Yet these officers view themselves, not just as enforcers of law, but as arbiters of what the law should be.

They also want to both represent the power of the state yet take umbrage at criticism that is too pointed or is profane. Contrast police reactions to the use by protestors of the phrase “F*** the police,” in a demonstration two weeks ago, going so far as to claim it incited the shooting of officers a week later, with the language of a police union head, who described the man arrested for the shootings as a “mutt.” This is a phrase that appears to be part of the NYPD vocabulary. Also consider police union officials declaring “war” on New York City Mayor Bill de Blasio.

The most generous interpretation of law enforcement opposition to restraints on pretrial detention is that law enforcement officers are more focused on what they view as their duty to protect than on people’s rights and freedoms. Implicit in this, however, is that police and prosecutors see themselves as protecting a group of people separate and apart from those who need protection from incarceration itself. This means acknowledging that law enforcement does not view protection from harm at Rikers Island and other jails across the state, as something they should deliver, or even consider.

If you believe one group of people needs to be controlled, is per se dangerous, and that social policy needs to be set accordingly (cue the Michael Bloomberg defense of stop-and-frisk in a 2015 tape that was recently leaked), then the encounter on the street is preordained. Similarly, a society that decides jail is a necessary means of social control will find a way to funnel people into jail. The question is whether we have ideas for safety that go beyond incarceration. A different society, one in which Black and Latinx people were not treated as threatening, and which decided healthcare, housing, and education were basic rights, would not need to define so much as criminal in order to enforce that criminalization against some people.

The point is not that the rich should be jailed the way the poor are. The point is that jail is not the path to safety. Eliminating money bail is part of the path to eliminating pretrial detention and that is part of the path to collective liberation.

Bail Reform Is About Safety And Well-Being

New York, NY, January 10, 2020
Erik McGregor / LightRocket via Getty Images

Bail Reform Is About Safety And Well-Being


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

In May 2010, Kalief Browder, a 16-year-old from the Bronx, was arrested and charged with robbery. The allegation was that he had, along with a friend, stolen a man’s backpack. The judge who presided over his arraignment ordered him held unless someone paid $3,000 in bail to secure his release. He was sent to Rikers Island. Seventy-four days after his arrest, a grand jury voted to indict him. This triggered a violation on an open probation case, and Browder was remanded without bail. He remained at Rikers for over three years. He was placed in solitary confinement repeatedly, for a near-continuous stretch of 17 months. He was assaulted by a corrections officer and by other incarcerated people. He was ultimately released, after refusing multiple plea offers, because prosecutors dismissed the charges against him.

Two years after his release from Rikers Island, Kalief Browder died by suicide. His death came after several previous attempts, beginning while he was in solitary.

The story of Browder’s incarceration and death, told by Jennifer Gonnerman in multiple articles for the New Yorker, laid bare the systems that allowed for his detention, for years, in a violent, dangerous jail. The story forced attention to jail conditions, the lack of a right to a speedy trial, and the ways in which the use of money bail allows a two-tiered system such that poor people accused of crimes are detained pretrial while the wealthy are allowed to await trial from home. What he endured was common, but the details of his tragedy still shock, six years after Gonnerman’s first article. His death made those injustices harder to ignore.

Although Kalief Browder’s death drew attention to the problem of cash bail and pretrial detention in New York City, the problem has been statewide. In 2018, almost 70 percent of people in jail in the state were there before any finding of guilt. And while the rates of pretrial detention and jail incarceration have been significantly lowered in New York City, thanks to sustained organizing and policy change at the local level, pretrial incarceration in rural counties continues to climb. (Despite progress in New York City, the use of cash bail even for low-level charges continued. In June, Layleen Polanco died at Rikers after having an epileptic seizure in solitary confinement. She was sent to jail because she was unable to pay $500 in bail.)

A 2018 report by the New York Civil Liberties Union looked at more than five years of jail data in eight upstate counties and found that in those counties alone, more than 90,000 people had spent at least one night in jail from 2010 to 2014 because they were unable to pay the amount of money necessary for their release on bail. The majority of the tens of thousands of people were detained on bail on misdemeanor charges and noncriminal violation charges. More recent data from the Vera Institute of Justice reveals that in some rural counties, the jail incarceration rate was more than double that in New York City.

Rikers Island, while the most notorious jail in the state, or perhaps the country, is not the only one where New Yorkers face serious risks to their health and well-being.

In an article for The Appeal in 2019, Raina Lipsitz looked at the 24 deaths in the Erie County jail since Sheriff Tim Howard was first elected in 2005. Erie County jail was one of five jails that the state Commission of Correction identified as the worst in the state.  The commission’s 2018 report described them as jails that “pose an ongoing risk to the health and safety of staff and inmates and, in instances, impose cruel and inhumane treatment of inmates in violation of their Constitutional rights.”

Another jail, in Broome County, was the site of “six unexplained deaths” between 2013 and 2017, wrote William Martin for Jacobin in 2017. Martin described the “desperate pleas of medical neglect and abuse” as well as the “tales of beatings, abuse, and arbitrary solitary confinement” that came out of the jail. “These horrors peak in the hidden, brutal deaths in detention—almost always by those awaiting trial,” Martin wrote. Over 70 percent of those held in the Broome County Jail had been detained pretrial. “One of these was Alvin Rios, who died in the jail in 2011. A mandatory state report following Rios’s death confirmed he was left lying down and shaking, ‘in an emergent, life-threatening status without appropriate medical attention.”’

Bail reform was one effort to stem the flow of people into inhumane jails. Despite calls to abolish money bail entirely, state lawmakers and the governor ultimately settled on changes that would scale back its use, permitting it only in cases where a person faces a violent felony and is alleged to have engaged in violence or one of a small number of specified misdemeanor charges. They built on efforts already underway in some jurisdictions and the reforms continue what, at least in some parts of the state, has been a steady effort to reduce the use of pretrial incarceration. Under the law, judges have the authority to order conditions of release. A report by Insha Rahman of the Vera Institute of Justice stated that “a conservative estimate of the legislation’s impact suggests that New York can expect at least a 40 percent reduction overall in the state’s pretrial jail population.”

Despite the human costs of pretrial detention and the viability of reforms, opponents of bail reform have orchestrated a campaign of furious fearmongering in the last several weeks and months, tarring reforms and seeking new grounds for pretrial detention that have never been permitted in New York. In The Appeal’s Media Frame today, Adam Johnson looked at how the NYPD has peddled a story about a crime “spike” to discredit bail reform and how publications, including the New York Times, have treated it as a story worth reporting, despite questions about whether there is a trend to report. Defenders of bail reform told the Times that the police commissioner and mayor were “manipulating statistics to fit their misguided narrative that giving low-income New Yorkers the same privileges as wealthier people is somehow linked to crime.”

In October 2018, law professor Jocelyn Simonson wrote about the monthlong Mass Bail Out Action, which set out to pay bail and secure the freedom of every 16- and 17-year-old and woman held on Rikers Island pretrial. District attorneys warned that the 500 people whom it was estimated the action would release would pose a threat to “public safety.” Simonson argued that the response from elected prosecutors showcased a willingness to use bail as a tool, not to secure people’s return to court, but to incarcerate and essentially punish them before trial. She noted that 87 percent of the people held at Rikers pretrial were Black or Latinx.

This detention is justified in the name of “public safety,” Simonson wrote, despite evidence that the release of people pretrial does not pose a meaningful risk to community safety. “Only 3 percent of ‘at risk’ defendants who make bail are even arrested (let alone convicted) for a violent crime while their initial cases are pending. Similarly, a recent study by the Vera Institute of Justice tracked more than fifty people who were released from court in New York City without having to pay their entire bail—only two were rearrested on a new violent felony charge over the following year.”

It also reveals a narrowness in reform opponents’ conception of public safety.

Last week, on Twitter, the Bronx Defenders, one of New York City’s public defender offices, described how more than 400 of its clients had been able to return home pending trial. The benefits of this are real and will be long-lasting. “For David [name changed to protect identity], bail reform meant being home to witness the birth of his daughter. Through all the ups & downs of his case, reform meant all the difference for him in getting to hold his new daughter [in] the hospital and being there for his family for a moment they’ll never get back.” In other cases:

It was almost 10 years ago that Kalief Browder was jailed because he could not buy his freedom. Bail reform is a necessary, modest, and long overdue recognition of the harm perpetrated against him, Layleen Polanco, and tens of thousands of other people jailed pretrial. It is a recognition that to take away a person’s liberty, without even a trial or a conviction, shreds the presumption of innocence. It is an acknowledgment that we cannot end mass incarceration and criminalization without addressing mass pretrial detention.

Community well-being and public safety are served, not harmed, when people are allowed to live with their families, care for their children, work at their jobs, preserve their housing, go to school, and have access to medical care, substance use treatment, and mental health care. Bail reform will deliver these benefits, replicated across tens of thousands of lives. When opponents of bail reform resort to fearmongering, they reveal their indifference to the life potential and the safety of New Yorkers.

After A Long Fight, Facial Recognition Technology Is In One New York School District

After A Long Fight, Facial Recognition Technology Is In One New York School District


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

In 2015, a security consultant approached the Lockport City School District in western New York, offering to do a free threat assessment. The assessment of the schools was free but the recommended course of action was far from it: the purchase and installation of a camera system equipped with facial recognition technology for $1.4 million. The district followed the recommendation and in 2017, New York State Education Department authorities approved the project.

The decision was met with local skepticism and resistance, drew criticism from the New York Civil Liberties Union, and was eventually suspended as state authorities reviewed the implications of the project. Last month, after changes to address the state’s concerns were approved by the school board, the technology was turned on, making the Lockport school district the first in the state to use facial recognition software. Other school districts have also expressed interest in doing so.

In June, when the outcome was still up in the air, Jim Schultz, a local parent, columnist for the Lockport Union-Sun and Journal, and one of the earliest and most vocal critics of the plan, described his concerns in an opinion article in the New York Times. He noted that the school district planned to use money from a $4 million state grant for technology upgrades. He wrote: “While high-technology security is among the allowed expenditures under the Smart Schools Bond Act, it’s doubtful that facial-recognition technology is what voters had in mind. Neighboring districts invested their money in iPads and faster internet, while we bought spy cameras.”

Schultz highlighted what opponents of facial recognition around the country and the world have rallied against—the potential for error, the amplification of racial bias, and the privacy implications of a surveillance system that stores data about individuals’ movements and activities over a period of time. These concerns take on heightened importance in a school setting, given that students of color are disproportionately pushed out of school and into the criminal legal system. (Nearly 30 percent of students in the Lockport City School District are students of color, according to information from the state Department of Education website.)

In 2018, John Curr of the Buffalo chapter of the NYCLU criticized the proposal in an interview with the Buffalo News. “Tracking every move of students and teachers is not the best way to make them feel safe at school and can expose them to new risks, especially for students of color who are already over-policed in the classroom.” He continued: “Facial recognition software can be highly inaccurate, especially when it comes to identifying young people and people of color. This plan sets a dangerous precedent for constant surveillance of young people and risks exposing data collected about students and educators to misuse by outsiders or law enforcement.”

Schultz looked at how the use of the technology, even if narrowly tailored at first, could slowly expand. “The technology’s potential is chilling,” he wrote. “When Mr. Olivo [the consultant] was pitching the system, he explained that it would have the capacity to go back and create a map of the movements and associations of any student or teacher the district might choose. It can tell them who has been seen with whom, where and how often.”

“Even though district officials promised to never use the software in that way,” Schultz continued, “if we have learned anything from the privacy breaches at Facebook and elsewhere, what matters is not what those in charge promise but what an intrusive technology has the capacity to do.”

Around the world, the contest between privacy and racial justice advocates on one hand and proponents of facial recognition technology as a law enforcement tool on the other has yielded mixed results. The cities of San Francisco, Somerville, Massachusetts, and Oakland, California, have all banned law enforcement use of the technology, citing civil liberties and racial justice concerns.

In London, the Metropolitan Police announced last month that cameras equipped with facial recognition technology will be installed across the city, in popular shopping and tourist locations, reported The Verge. The stated purpose is to “scan for faces contained in ‘bespoke’ watch lists, which the Met says will predominantly contain individuals ‘wanted for serious and violent offenses.’” Previous use of facial technology by United Kingdom police had been limited to trials and concerts and football matches.

In China, the government has used the technology to track members of the Uighur minority. The New York Times reported in April that “it is the first known example of a government intentionally using artificial intelligence for racial profiling,” according to experts. More than a million ethnic Uighurs and other Turkic minorities have been placed in what the government calls re-education camps, where they have been subjected to a program of forced labor and brainwashing.

In the United States, Wired reported last year that at least eight other school districts in the country have deployed the technology. Hundreds of law enforcement departments across the country, airports, and even venues now use facial recognition software.

After the technology was activated in the Lockport schools surveillance system last month, Shultz said the district “turned our kids into lab rats in a high-tech experiment in privacy invasion.”

In his article last year, he described Lockport as “a beautiful small town that sits astride the Erie Canal just a short drive from Niagara Falls. It is a place where the usual debates are about things like where to shoot off our Fourth of July fireworks, not about artificial intelligence aimed at students.” His daughter told him, “It’s creepy that these cameras can watch you and can figure out who you are. We don’t even know who is watching us.” He remarked, “Being spied on like dissidents is not part of the high school experience that any of us would want for our children. Not here, not anywhere.”

A Chance To Repeal A ‘Walking While Trans’ Ban

The launch of the 20+ organization coalition, Decrim NY, to decriminalize and decarcerate the sex trades in New York city and state. February 2019
Erik McGregor / Pacific Press / LightRocket via Getty Images

A Chance To Repeal A ‘Walking While Trans’ Ban


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

In 1976, New York criminalized behavior described as “loitering for the purpose of engaging in a prostitution offense.” The statute faced constitutional challenges from the outset. Legal Aid Society lawyers, on behalf of a woman arrested the first day the law was in effect, argued that it was unconstitutionally vague and overbroad and inhibited free speech. Their efforts were successful in lower courts but the case went to the Court of Appeals, the state’s highest court, where the law was upheld as constitutional. In 1977, police made 9,565 “loitering prostitution arrests” in Manhattan alone, reported the New York Times the following year.

This history is recounted in a new report from the New York City Bar Association that was published Monday. With the report, the organization, which has a membership of over 24,000 lawyers, announced its support for a bill that would repeal the statute, Penal Law Section 240.37. Although the number of arrests under the law are a very small fraction of what they were in the 1970s, the statute continues to be part of a larger pattern of criminalization and marginalization.

Because of how Section 240.37 is enforced, it has come to be known colloquially as the “walking while trans” ban. The bar association report looks in detail at how arrests “disproportionately target and impact marginalized communities, in particular LGBTQ people (including runaway and homeless youth), women of color and immigrants.” Enforcement of the law has come to be particularly harmful for transgender New Yorkers “because the police are more likely to mistakenly believe transgender people are sex workers.”

These are the consequences of a statute that, the report says, “provides little to no guidance—and confers broad discretion—in enforcement, and inevitably encourages police profiling based on perceived ethnicity, national origin, and immigration status by permitting arrests of individuals who, according to police, ‘look like prostitutes.’”

Officers are guided by a pre-printed form they fill out to describe the basis of an arrest. The form varies between precincts, according to the report, but justifications encompass myriad activities that have nothing to do with sex work, including “being in an area for a certain amount of time and talking to people; wearing ‘provocative or revealing’ clothing; gesturing to those passing by; having been previously arrested under the statute; and being around people who have previously been arrested under the statute.” Women have been arrested for wearing “jeans and a tank top, or a dress with the bra strap showing, or a hoodie with tight pants.”

The consequences of this enforcement and the latitude afforded police can be grave. If a person who is stopped and searched has condoms on them, those can be used as evidence against them, discouraging people from carrying condoms, a result that runs counter to the city’s broader public health efforts. A trans woman arrested under the statute might plead guilty rather than risk being sent to the men’s jail at Rikers Island, where the risk of sexual assault is high. A guilty plea and conviction in turn can lead to an accumulation of convictions that will affect future employment and immigration possibilities.

For immigrants, the potential consequences of arrests and convictions are alarming. A conviction could lead to losing one’s immigration status, to deportation, and to being denied release on bond if placed in deportation proceedings. Being in immigration detention, in turn, for transgender immigrants, can often mean being in facilities that do not meet ICE’s internal guidelines regarding placement and care of transgender people. The sole ICE detention facility that is run in accordance with these guidelines is in New Mexico.

The push to repeal the “walking while trans” ban was part of a larger decriminalization effort last year, after Democrats took control of the state Senate for the first time in a decade. As Melissa Gira Grant described in an article for The Appeal, the organizers of the coalition Decrim NY, many with lived experience in sex work, successfully pushed for an agenda that put addressing criminalization and policing front and center.

For this year’s legislative session, organizers are starting with the repeal measure, which made it through the state Assembly last year. “The reason why [repealing] ‘walking while trans’ is at the forefront is because it is a bill that should have never been created and never been passed,” Black Youth Project 100 policy and advocacy manager Saye Joseph told Gay City News last week. “And it can pass this session, whereas the larger conversation around decriminalization of sex work will require a lot more political education.”

Last Saturday, Governor Andrew Cuomo, in a speech at the Human Rights Campaign gala, announced his support for a repeal of the ban, saying “this year, we must pass a repeal of the so-called Walking While Trans statute, so that people will no longer be unfairly targeted for what they look like.

Cuomo’s remarks came just two days after the publication of a nationwide poll showing that, for the first time, a majority of voters support some form of sex work decriminalization. Among younger voters, two-thirds support decriminalization. The polls were released along with a report authored by Nina Luo of Data for Progress and published by a coalition that includes the American Civil Liberties Union, Mijente, and the Human Rights Campaign.

Several 2020 Democratic presidential candidates have also lent support to the idea of sex work decriminalization. This is a significant shift at the national level from two years ago when, as Natasha Lennard of The Intercept writes, “every single Democratic presidential candidate who was then in Congress—from progressive Sen. Bernie Sanders to conservative Sen. Amy Klobuchar—voted for a bill that expanded the criminalization of sex work and imperiled sex workers nationwide.” Lennard writes, “While the issue has arisen as more a talking point than a clear policy proposal for the candidates, the positioning away from criminalization is marked.”

In addition to polling, the report lays out the argument for decriminalization. Bianey García of Make the Road New York described her experience of policing in Queens, the heavily immigrant borough that has experienced a disproportionate share of arrests under the statute. “I’ve been arrested four times for prostitution,” she said. “Only once was I actually doing sex work, the other three arrests were just profiling because I’m a trans woman.” Once, Garcia said, she was outside a bar with friends, when police officers jumped out of a van, pushed them against a wall, and searched their purses. “They found condoms, which was apparently enough for them to charge us with loitering for the purposes of prostitution.”

The Death Penalty Is Part Of A Larger System Of Punishment

The Death Penalty Is Part Of A Larger System Of Punishment


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

Colorado’s Senate took a critical vote on Thursday that put the state on the pathway to abolishing the death penalty. The body voted 19-15 in favor of a bill to repeal capital punishment. Around 11:30 a.m. local time today, Denver Post reporter Alex Burness wrote on Twitter to report further progress: “The Colorado Senate has given final passage to the bill to repeal the death penalty. This was expected, but still a huge moment. Colorado may now be just weeks away from becoming the 22nd state to repeal the death penalty.”

The expected victory in Colorado is a victory for death penalty opponents everywhere and other Western states may soon follow, as Liliana Segura and Jordan Smith of The Intercept chronicled last year. What is also crucial, as the number of people on death row shrinks and the number of people serving life sentences has ballooned, is to think about how a victory over capital punishment can either serve or undermine future victories over the larger system of punishment.

Colorado’s death row is representative of capital punishment nationwide in two ways. First, the three men on death row, all Black, were from the same county, products even, of the same high school in the city of Aurora. In this way, Colorado is emblematic of the hyperlocal nature of the death penalty today—the product, overwhelmingly, of a small number of outlier jurisdictions and prosecutors rather than of geographically broad use of the penalty.

Second, capital punishment has been on the wane in the state for a long time. The last execution was in 1997. Nationwide, there were fewer than 50 death sentences and fewer than 30 executions last year, for the fifth year in a row, according to the Death Penalty Information Center.

But even as its reach contracts, the death penalty continues to command particular attention in U.S. jurisprudence, national media attention, and international coverage of the U.S. legal system. The Supreme Court has said death is different and developed a jurisprudence that set capital cases apart from all others, with heightened (although still insufficient) protections. Conversations about the death penalty also have a particular moral valence, focused on the ethics of the taking of a life.

But that focus and that moral language can and should encompass the broader system of punishment. As we celebrate every single life that is not ended in an executioner’s chair, we can draw attention to the thousands of people in prison who will die far from their homes and families, and decades after the acts for which they were condemned to death. The death penalty is gruesome in how it dismisses the humanity of the condemned person and diminishes the humanity of those imposing and carrying out those sentences. But many other aspects of our system do the same things.

In the past month alone, 13 people in Mississippi state prisons have died. Jamelle Bouie of the New York Times wrote today about the ways in which that violence is coded into the DNA of the state’s prisons and the multiple failed attempts at reforms. “But no amount of change has been able to break the cycle of brutality,” he writes. “And why would it? The history of Parchman is a prime example of how dehumanization and neglect are intrinsic to separating people from their freedom.”

Many of the reasons to oppose capital punishment are reasons to end other harsh punishments: a belief in the inherent dignity of every human being, a belief that the state should not take a life even in exchange for a life, an understanding that the system of punishment we have is premised on racism and delivers on it, or an acknowledgment that our system is riddled with errors.

But there are other arguments against the death penalty that may entrench the larger system of punishment. These are the arguments that say the death penalty is too expensive because of the greater protections afforded those charged with capital crimes, when those greater protections should be extended to more people. Or the arguments that the death penalty should be done away with in favor of life in prison without hope of release. Ben Miller and Daniel Harawa wrote in Slate this month, speaking of the Democratic candidates whose (historical) opposition to the death penalty relies on an embrace of life in prison sentences: “We will solve nothing if we think the answer is to substitute one cruel punishment with another.”

This pairing of opposition to capital punishment with an embrace of life without parole sentences bears some responsibility for where we are today, with over 53,000 people sentenced to die in prison. In 2015, Ashley Nellis of the Sentencing Project and an author of the “The Meaning of Life: The Case for Abolishing Life Sentences,” explored the tensions between death penalty abolition work and efforts to end extreme sentencing in a law review article. The “rapid rise in LWOP [life without parole] sentences” she wrote, “can partly be attributed to a desire for a reliable, terminal punishment to replace the death penalty after it was declared unconstitutional in 1972.” But, Nellis said, it does not have to be this way: “Strategies to abolish the death penalty can be improved upon by viewing the successful elimination of the death penalty as just the first step on the road to the reformation of extreme sentences altogether. In this view, the efforts to eliminate the death penalty are not in conflict with efforts to eliminate LWOP.”

What is important, she wrote, was not just whether the death penalty is abolished but why. “The reasons why American society will eventually decide to eliminate the death penalty as a punishment are as important as the outcome—maybe more so.”

Kenneth Hartman, sentenced to life without parole in California, wrote in 2016: “Why not abolish the death penalty and life without the chance of parole? The assumption would be that it is possible for human beings to become better than their worst act.” Hartman described his own sentence as just a different kind of death: “Though I will never be strapped down onto a gurney with life-stopping drugs pumped into my veins, be assured I have already begun the slow drip of my execution [which] won’t come to full effect for 50, maybe 60 years.”

Why Police Violence Is A Public Health Problem

A silent march to protest NYPD racial profiling, June 17, 2012.
Tony Savino / Corbis via Getty Images

Why Police Violence Is A Public Health Problem


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

Last week, Joseph Goldstein of the New York Times reported the devastating story of Khiel Coppin and Na’im Owens, two brothers, both of whom were both shot dead by NYPD officers. Khiel, the older brother, was killed in 2007; Na’im, the younger, in 2014. The boys lived and died in the Bedford-Stuyvesant neighborhood of Brooklyn. Their mother, Denise Elliott-Owens, a teacher from Trinidad and Tobago, moved to New York in 1990 with dreams of becoming a lawyer someday. Her sons were 18 and 22 when they died. Goldstein spoke with Elliott-Owens and other family members.

Goldstein describes the circumstances of Khiel and Na’im’s deaths. Khiel was unarmed when police officers shot him, mistaking the hairbrush he held inside his sweatshirt for a gun. Na’im was armed, shooting as plainclothes and uniformed officers chased him, two months after police had informed him that his life was at risk because of money owed to him.

But for Na’im, at least, the police violence did not begin the day of his own death. First, he lost his unarmed 18-year-old brother to police bullets. Then months later, he became a regular target for cops. As Goldstein writes, Na’im, a 16-year-old Black boy, “had reached an age when the police began to notice him.”

Na’im’s adolescence overlapped with stop-and-frisk’s ascendance. In 2008, the year he was first stopped, there were 540,000 stops recorded by police officers, according to Goldstein. That number continued to climb until 2011, when it peaked at over 685,000 stops. The program experienced a significant expansion under Mayor Mike Bloomberg, who touted stop-and-frisk as an effort to address gun violence. The reality was that guns were recovered in less than 0.2 percent of all stops. The program subjected Black and Latinx boys and men to routine humiliation and abuse. Nearly 90 percent of stops from 2002 to 2011 were of Black and Latinx residents.

NYPD officers began stopping Na’im regularly. The ritual degradation of being forced to lean against a car, spread his legs, be patted down, became a routine experience. He was arrested on minor charges. In a recorded interview with investigators from the Civilian Complaint Review Board, he described how an officer beat him with a baton.

“It changed how I think he saw himself,” his sister Kay told the New York Times. (A lawyer, she asked to be identified only by a nickname.) “Stop-and-frisk is one of the reasons I think why our paths diverged and Na’im went toward the street.”

This month, the American Journal of Public Health published an issue focused on the public health concerns surrounding mass incarceration. The articles examine matters including the relationship between negative police encounters and depression for Black men, solitary confinement, and mass incarceration’s relationship to climate change. Several look at the effects of criminalization and incarceration on health, including mental health, at the individual and community level.

This issue of the journal comes more than a year after the American Public Health Association, a 25,000-member association, adopted a statement concerning police violence.

It was the first time that the association had done so, and the statement was urgent, clear, and ambitious. “Law enforcement violence is a critical public health issue,” it opens. The group End Police Violence, which drafted the statement and organized for years around its passage, described it as “firmly committed to a public health alternative, recommending upstream, community-based and community-led solutions.” Rewire reported at the time that the move by the organization could “galvanize new research that focuses on the root causes of law enforcement violence.” Also, the article continued, given the “relative lack of good data about law enforcement violence, a dearth caused largely by a lack of law enforcement transparency,” public health researchers could use their expertise to generate statistics and data that have been lacking for too long.

“Inappropriate stops by law enforcement” were identified as “one form of psychological violence with serious implications for public health.” The statement referenced studies that have found that “stops perceived as unfair, discriminatory, or intrusive are associated with adverse mental health outcomes, including symptoms of anxiety, depression and post-traumatic stress disorder.”

An article in the recent American Journal of Public Health assessed the progress in achieving the November 2018 statement’s recommendations. Interventions that minimize exposure to law enforcement violence and its health consequences are actionable, it concludes. More fundamentally, the authors argue for the important role public health can play to support organizers and affected communities.

They wrote: “A public health approach neither accepts harm as a given nor accepts punishment as prevention.”

This sentence, with its clarity and conviction, gives us a starting point while reflecting on the story of Khiel Coppin and Na’im Owens, and the larger conversations underway about our criminal legal system, and what safety, healing, and justice demand. It offers a straightforward refusal of the idea that safety comes through the infliction of violence. It reminds us that violent policing, criminalization, and incarceration are threats to health.

The authors conclude: “In short, to address law enforcement violence as a public health issue, it is critical that the public’s health and well-being be prioritized.”

When Jail Time Comes With A Bill

When Jail Time Comes With A Bill


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

In November 2018, a ballot initiative in Florida that would re-enfranchise well over a million people with felony convictions was hailed as a historic voting rights victory. In the months since, many of those people have seen their re-enfranchisement delayed because of an argument advanced by Republican lawmakers and the governor that they must first pay any outstanding legal system debt. For some people, this amount runs to tens of thousands of dollars, an amount that is impossible to pay.

The fight in Florida has drawn attention to the crippling financial obligations the criminal legal system imposes, how long these debts can trail people, and how various and significant the consequences can be. Nationally, an estimated 10 million people collectively owe more $50 billion because of their criminal legal system involvement.

Among the many kinds of fees imposed are “pay to stay” fees. They force the cost of incarceration by a state or locality onto the person who is incarcerated.

The first correctional fee law, wrote Lauren-Brooks Eisen of the Brennan Center for Justice, was introduced in Michigan in 1846. It authorized to charge people serving jail sentences for their medical care. Almost 140 years later, the sheriff and board of commissioners of Macomb County began collecting up to $60 a day from people, in an effort to recoup the costs of incarceration from the people subjected to it.

According to a 2015 report from the Brennan Center, at least 43 states now have laws authorizing “room and board” or pay-to-stay fees. Additionally, states authorize the booking fees charged by jails and the increasingly common charges for medical care in prison. While some state statutes allow fees to be waived if a person is indigent or has less than a specified amount in their commissary accounts, others do not address the issue. The result is that a vast number of people who are incarcerated, 80 percent of whom are poor, are charged fees they will never be able to pay. Once released, they and their families are at the mercy of debt collectors and have to suffer the effects on their credit if they are unable to pay.

A case now before the Kentucky Supreme Court advances what seems like a straightforward argument— that the cost of incarceration should, at the very least, not to be imposed on people who are not convicted of any charges. A local news television station, WDRB, reported on the case. The court is expected to rule in the next 45 days.

One of the plaintiffs is David Jones. Jones was arrested in Clark County, Kentucky, near Lexington, in 2013. He spent 14 months in jail awaiting trial and was charged $10 for every night in jail. He was released in 2015, after the charges against him were dismissed. After his release he received a bill for about $4,000.

The plaintiffs argue that the 2000 law that authorized the pay-to-stay fees explicitly required the sentencing judge to make a determination about a person’s ability to pay. This language was added in an amendment before passage and was intended to address concerns about charging people who could not afford the fees and about the constitutionality of charging someone who had not been convicted. The then-senator who introduced the original bill, said in an interview with WDRB, “That amendment passed. It seems the law has not been enforced to the letter.” The then-state Senate president, who added the amendment in question, told the station, “I don’t understand what authority [jailers have] to take any money for housing a prisoner if not found guilty.”

Yet, for 20 years, jails across Kentucky have been doing exactly that. Mike Simpson, who is the vice president of the jailers association, confirmed this to WDRB: “I can assure you the jailers in Kentucky are collecting those fees prior to people being convicted.”

The attorney for Clark County and the jail defended the practice in court. “When folks are brought into the jails, it’s not the jailers’ decision to determine guilt or innocence,” he said. “We have to house them, we have to provide for their medical needs, we have to feed them … and the courts have upheld the fact that we can secure partial reimbursement.”

(Meanwhile, Kentucky’s jail are dangerously overcrowded, as the Lexington Herald Leader reported in August, the result of the state’s escalating incarceration rate and the transfer of people serving sentences from state prisons to jails.)

The arguments being made in Kentucky reflect the extent to which government and private actors have come to rely on what one writer described, speaking of New Orleans, as “a river of money flowing from families and communities with the least amount to spare to government agencies and businesses that profit from charging for justice.”

“If you are arrested on a charge and taken to jail and the jail can clean your wallet out and keep the money regardless … of whether the charges are dismissed or you are acquitted, that just completely disregards the presumption of innocence,” Jones’s attorney, Greg Belzley, argued in court Wednesday, according to WDRB. “We’re balancing jail budgets on the backs of our most helpless and impoverished citizens. This has got to stop.”

Family Separation And ‘A Longer View Of Public Safety’: A Conversation With San Francisco D.A. Chesa Boudin

At the California Institution for Women
Tim Rue/Corbis via Getty Images

Family Separation And ‘A Longer View Of Public Safety’: A Conversation With San Francisco D.A. Chesa Boudin


Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal. This article is also part of The Stakeholders, a series of Q&As with state and local actors on the criminal legal system.

Recent research has quantified the extent to which incarceration has penetrated American life, hollowed out families, and caused multigenerational harm. Nearly 1 in every 2 adults has had a family member in jail or prison, an estimated 113 million people, according to a 2018 report. Among children, 1 in 5 has experienced separation from a parent. On any given day, an estimated 2.7 million minor children in the United States will have a parent in jail or prison, according to a 2010 report.

The Trump administration is rightly condemned for its policy of family separation at the U.S.-Mexico border. However, family separation is routine in the criminal legal system. That separation is enacted disproportionately against poor people and people of color and has profoundly negative short- and long-term consequences for children.

Jurisdictions around the country have begun exploring programs that offer alternatives to parental incarceration. California, last year, took the most significant step in this direction with the passage of Senate Bill 394. The law went into effect at the beginning of the year.

In an email, Erin Haney, senior counsel at #cut50, the organization that sponsored SB 394, told the Daily Appeal that the law “creates a rehabilitative program in the California court system.”  For a person identified as a primary caregiver for children, “the court would be responsible for identifying an available program/s that, if successfully completed, would allow the defendant to avoid incarceration and a conviction.” Program offerings could include, among other services, parenting classes, mental counseling, and substance use treatment.

What happens now that the law has gone into effect? “SB394 gave counties an option to stop the generational cycle of mass incarceration and mitigate the trauma of family separation,” Haney wrote. She continued: “SB394 only provided an option, however, not a mandatory or required path for every case or even every county.  The implementation of Primary Caregiver Pretrial Diversion courts are largely dependent on the District Attorney, Public Defender, Presiding Judge, and available collaborative court programming in each county.”

The first district attorney in California to announce that his office would offer a pretrial diversion program for primary caregivers under the new law was San Francisco’s new DA Chesa Boudin, who did so last week. Boudin, whose own parents were sent to prison when he was a year old for their role as getaway drivers in an armed robbery that led to three deaths, has described his experience of parental incarceration.

The Appeal spoke with Boudin about the new Primary Caregiver Pretrial Diversion program, how he hopes it will prevent harm to and strengthen families, and his view of what public safety requires. The interview has been lightly edited and condensed for clarity.

Your own parents were incarcerated when you were a very young child and you also, as a public defender, represented people who faced separation from their children when they were incarcerated. What are the problems that this program seeks to address and how is it part of the solution? 

One of the things that I saw growing up and that we know empirically is that when we put people in jail or prison, or even when we give people felony convictions, or misdemeanor criminal convictions, it interferes with and undermines their future life prospects. We justify those consequences for criminal acts a number of different ways—punishment, retribution, deterrence, sometimes people talk about rehabilitation, although I think everyone who looks at the data knows that our criminal justice system is abysmal when it comes to rehabilitation.

The problem that this program seeks to address is that when the people we seek to punish have children, the punishment is not limited to the individual who may have caused the crime, but actually impacts the whole family. It’s something I experienced and saw many other children experience. I saw so many children suffer trauma, economic deprivation, emotional suffering because of something that their parents had done. I also saw many of those kids who I grew up with in prison visiting rooms end up in the criminal justice system themselves.

The goal behind this program is to break that cycle. To find ways to hold people who cause harm accountable, to intervene in ways as serious as the crime they’re accused of warrants, but without doing damage to the entire family. And in fact the intervention is designed to recognize the sanctity of the family and put people who have gotten in trouble with the law in a better position to provide for and support the children who depend on them.

You’ve said “public safety is implicated when we tear a child away from their parents,” and have spoken about the need to have “a broader view of public safety.” Can you talk about that? 

Often the conversation about public safety is limited to a retrospective analysis: Someone committed a crime, therefore public safety demands punishment for the person who committed that crime. It fails to consider the ways in which our punishment or our intervention after the punishment can actually make us all less safe in the future. So for example, we now know empirically that putting people who are low-risk—say accused of nonviolent misdemeanors—in jail for two or three days makes it more likely they will end up committing a crime in the future as opposed to immediately releasing them and allowing them to go through diversion programs. There’s tremendous empirical data showing that.

Similarly, we know that depriving children of their parents, of the breadwinner in the home, puts them at risk for a wide range of trauma potentially, depending on the community they’re in, violence, and involvement in the criminal justice system themselves down the road.

And so, a longer view of public safety considers the message to the child who’s left behind when a parent’s incarcerated, and also the desire to prevent the parent and the child from ending up causing harm to another person in the future, which we know, again empirically, is often the result of parental incarceration.

What from your experience as a public defender informs your ideas about what a meaningful opportunity to complete a diversion program looks like?

San Francisco already has a very robust pretrial diversion program that’s currently limited to certain categories of misdemeanors. And the procedure that we envision for the primary caregiver diversion is similar but more focused on parenting issues and accessible to a wider array of defendants.

The way the current misdemeanor pretrial diversion program works is eligible cases get referred by the court, they then engage in classes as determined by our diversion agency, which is a nonprofit with about 40 years of a track record in San Francisco providing services to the courts.

This program will add a layer of programming which is focused specifically on parenting so there would be parenting classes, and maybe substance abuse classes or mental health therapy if those are appropriate for the person’s needs. The goal, and the responsibility that will fall largely on pretrial diversion, is to assess the individual and their family needs and create an individualized program they’d be asked to complete. And they’ll have six months to two years to do that. Some of the programs would require the full two years. Certainly some of the felonies that are eligible under the statute would require a more rigorous engagement with service and programming in order to earn a dismissal. Some of the lower-level misdemeanors would be more on the six months side of the spectrum.

What do you want prosecutors in your office to consider if a participant has been unable to comply or maybe slipped up and they’re deciding whether someone deserves another chance to complete a program? 

I’m a big believer in second chances. I wouldn’t be the district attorney of San Francisco if I hadn’t had countless second or third chances over the course of my life. I also know from my own life experience, my relationship with my parents, that we’re all much more than our worst mistake. And I think that perspective is important when we think of the best interests of a child, when we think about the sanctity of the family. When we think about trying to encourage people and support people to change their lives.

For far too long our country has focused narrowly on something that’s really easy, which is punishing people when they’ve committed a crime.  What is much harder is to intervene in a person’s life in a way that prevents them from committing the next crime. That breaks the cycle of crime and punishment and that’s how we make our communities safer. 

So the message that I’ve sent to my office and I’ll continue to send is there will be consequences for people who commit crimes, we will hold people accountable, and we will uplift victims and make every effort to give them a voice and restore them. But we will not narrowly focus on punishment, particularly when that punishment puts our communities at greater risk. Instead, we’ll focus on ways to intervene that rehabilitate and target the root causes of crime and that uplift our families and communities so that we’re all safer and for longer.

This program is for people charged with misdemeanors and some nonviolent, nonserious felonies. Many cases fall outside the scope of this program. Are there principles inherent in this policy that you want the DA’s office to incorporate into its treatment of other cases?

This is one policy, you know, among many that we are developing and rolling out. Even just in these first couple of weeks in office. It’s important to remember that many people who are not eligible under the statute for this particular program may be eligible for other programs. We do have a range of collaborative courts in San Francisco, which we’ll be expanding in the weeks and months ahead. And the guidelines on those collaborative courts, which are not focused on or limited to people who are parents but which certainly encompass people who are parents, have in some instances broader admission guidelines than the primary caregiver parenting program.

The other thing to remember is that we are moving very quickly away from a pretrial detention system that relies on wealth and towards one that relies on risk instead. If someone is a primary caregiver for children that will always be a very serious consideration in any pretrial release decision that my office makes. It will also be a serious consideration at the time of sentencing.

What that means is if there is a way to release an individual to their family that depends on them, that is consistent with public safety, we will do that during the pretrial period. And if there is a way to impose a sentence after trial or after a conviction that allows the individual to continue supporting their family that is consistent with the law and with public safety we will always do that.

We will prioritize family integrity and family unity at every stage of the process to the extent we can do so.

Similarly, are there principles that you hope to apply in considering the cases of noncustodial parents as well? What will that look like? 

So under the terms of the statute, folks in that circumstance would not be eligible for the program but, as I said, they may well be eligible for other programs. My hope is this program will encourage more people to step up and take on responsibility for their children. I think it would be great if we saw people meaningfully re-engage with their children. If getting arrested and facing criminal charges does nothing else but provide incentives for parents who have been out of their children’s lives to re-engage and take responsibility we will have accomplished at least that. 

Anything else that’s important for understanding the program? 

In response to some of the critics, I would just say, first of all, this is not some radical go-it-alone initiative that I’ve come up with. This was a state law that went through the entire legislative process, had ample opportunity for debate, amendments, for refinements and then was signed into law by the governor. And I would also say that the law on its face explicitly allows for exceptions, people who will not be allowed to participate in the event of some overriding public safety concerns.

So while critics will always point to the most extreme scenario, the reality is in extreme scenarios my office and the court have the discretion to deny access to the program. And regardless of what cases get referred, people will have to do a rigorous process of up to two years in order to earn a dismissal. And during that time period the court will get regular reports, there will be monitoring of their compliance with court orders.

If we have people who are justice-system involved who spend a two-year period not getting in trouble, taking care of their family, and engaging in programming that sets them up to succeed, I think it’s a significant success and it’s a significant win for public safety.

Uprooting U.S. Torture, Abroad And At Home

A demonstration in Chicago, July 2006
Tim Boyle / Getty Images

Uprooting U.S. Torture, Abroad And At Home


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

Yesterday, in the U.S. military courtroom in Guantánamo Bay, Cuba, one of the psychologists responsible for designing and carrying out the torture inflicted in CIA “black sites” around the world after the Sept. 11 attacks testified about his role in the torture program, reported the New York Times. James Mitchell was called by the defense at a pretrial hearing in the case against five men charged with helping to plan the attacks.

The defendants included Khalid Sheikh Mohammed, who “was waterboarded 183 times in March 2003 by a team including Dr. Mitchell.” Mohammed and the four other men were in the courtroom while Mitchell testified.

Mitchell and another psychologist, Bruce Jessen, designed what the government described as an “enhanced interrogation” system. The business they went on to establish supplied guards and interrogators to work at the secret prisons established by the CIA around the world after the 2001 attacks. They received $81 million for the contract.

Mitchell described his work on the torture program and his participation in the first known waterboarding, that of Abu Zubaydah in 2002. Zubaydah was the “first known CIA prisoner subjected to the full range of interrogation techniques, which also included sleep deprivation and being crammed inside a coffin-size box and slammed into a wall.” Mitchell defended his work, saying he would “get up today and do it again,” reported the Times.

In 2015, 13 years later, the largest association of psychologists in the United States voted “to begin reversing its policy of collusion in torture … by prohibiting members of the American Psychological Association from participating in the interrogation of U.S. prisoners on foreign soil,” reported The Guardian. The association’s council of representative’s vote was nearly unanimous, but it took years of fierce advocacy by APA members and human rights activists to get to that point. And it came “in the wake of a devastating internal report that undermined more than a decade of denial from medical professionals of their complicity in post-9/11 interrogations.”

Steven Reisner, one of the members of the council and a leader in the fight for the ban, told The Guardian: “This is an extraordinary victory because these prohibitions are clear, they’re implementable, and people will be held accountable.” The vote, he said will turn the APA “from leading us into the dark side to leading us out of the dark side.”

After the vote, legal commentators analyzed the APA’s prohibition. One of them, Marty Lederman of Georgetown University Law Center and co-founder of the online forum Just Security, noted that “for some reason, the new APA prohibition—unlike its counterparts for doctors and psychiatrists—expressly does not apply to ‘domestic law enforcement interrogations or domestic detention settings.’”

Reisner told The Guardian that reformers would hope to eliminate that carve-out in the future, saying they hoped to prevent psychologists from abetting “domestic cruelty” in the U.S. justice system. “We have to consider that in the future,” he said.

The spotlight on the torture carried out worldwide in the name of protecting Americans at home is still cause for reflection on the torture carried out by domestic law enforcement and the relationship between the two.

In February 2015, The Guardian reported on the abuses inflicted at Homan Square, “the domestic equivalent of a CIA black site” in Chicago. Writing in Reason shortly after, Noah Berlatsky looked at the interplay between the horrors of domestic law enforcement and the torture condoned under the war on terror. Black sites and torture were not new in police work, the organizer and educator Mariame Kaba told Berlatsky, and to describe them so, she said, “erases the histories of torture against many, many people.” The problem, Berlatsky wrote, “is not that the war on terror is bleeding into domestic policing, but rather that the war on terror and domestic policing are part of a single, vicious whole, in which tactics and ideologies are shared between military, police, and the public, allowing for state torture and violence both at home and overseas.”

In December, in an explainer for The Appeal, Kelly Hayes looked at Chicago police torture, the “heinous acts of violence and psychological abuse … perpetrated against over 100 Black men and women under the supervision of then-commander Jon Burge,” and Chicago’s reparations ordinance, the first of its kind in the country. In June, the Daily Appeal looked at the ordinance and the need for city funding for a public memorial for the victims of police torture.

The complicity of health professionals in the abuse, even torture, of detained people domestically continues to attract attention. Homer Venters, a former chief medical officer of New York City jails, has spoken out about the participation of jail medical staff in harming incarcerated people in his book “Life and Death in Rikers Island” and in interviews after its publication. Writing about Venters’s work last year, Jennifer Gonnerman looked at how he has specifically described the harms of solitary confinement, a practice that his research found put people at a substantially higher risk of suicide than the general population in jail, and the process of medical staff clearing people for placement in solitary. “Health clearance for solitary is not based on any reliable science and violates basic medical ethics because, of course, that patient is supposed to suffer,” Venters wrote.

Crashes, Injuries, Deaths: The Dangers of Police Chases

Crashes, Injuries, Deaths: The Dangers of Police Chases


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

Two recent investigative reporting series focus on the dangers of police vehicle pursuits. Last month, the Asbury Park Press and USA Today Network looked at police chases in New Jersey, which have resulted in dozens of deaths and thousands of injuries over the past decade, and that disproportionately kills African Americans at rates that exceed anywhere else in the country. In October, a three-part series in the Louisville Courier Journal looked at the loosening of rules around police pursuits in Louisville, Kentucky, (after earlier efforts to restrict the practice) and the results in people injured and lives lost.

The dangers associated with police chases of fleeing vehicles have been well-documented. A 2017 report by the Bureau of Justice Statistics found that 351 people died as a result of pursuit-related crashes in 2012. From 1996 to 2015, fatal crashes in police pursuits led to over 7,000 deaths. In that 20-year period, “there was an average of about one pursuit-related fatality per day.” This month, the Atlanta police department announced that it was halting police chases while it reviews its policies, following two deaths in a chase in December.

Nationally, the landscape around police vehicle pursuits has been shifting but remains uneven. In Louisville, when Chief Steve Conrad arrived in 2012, he said he intended to tighten the rules around pursuits and restricting the circumstances under which officers could engage in them. Yet, the Courier Journal reports, he waited. Seven months later, a woman died after a vehicle being pursued by police crashed into her car in an intersection.

“Less than a month after [Stephanie] Melson’s funeral,” wrote Matthew Glowicki and Mandy McLaren, “Conrad announced the new pursuit policy.” He told the Courier Journal in November 2012 that “the costs just do not justify the risks.”

The results were evident. The number of police chases dropped as did the number of crashes and people injured. There were seven deaths from 2007 and 2012. In the three years that followed, while a more restrictive policy was in effect, there were none.

But in 2016, the police chief reversed course. He did so, he said, to free officers to chase people suspected of engaging in drive-by shootings in stolen cars. A “special order” issued to officers in December 2016, authorized chases under three additional circumstances: when officers believed the person in the car committed, was about to commit, or was committing a violent felony, knew the suspect had a qualifying violent felony on their record, or knew the suspect was the focus of a violent felony investigation. In July 2019, the police chief publicly issued another temporary special order, allowing officers to also pursue stolen cars.

In the three years since restrictions began to be loosened, the number of police chases has gone up by more than 50 percent. Seven people had been killed when the Courier Journal investigation was published in October.

In December, the department announced that it was extending the special order that permits chases in cases of stolen vehicles, citing reductions in violent crime.

But the evidence of crime reduction is not so clear, the Courier Journal pointed out. “In the specific six-month period LMPD is citing as progress—July through December—homicide rates have remained stagnant over the past three years, with 40 recorded in each 2017 and 2018 and 43 recorded this year.” And roughly half of 2019 chases resulted in crashes.

Meanwhile, in New Jersey, an investigation by Andrew Ford of the Asbury Park Press into police vehicle pursuits has found that “New Jersey chases usually start with a traffic violation and usually don’t end with an arrest. … Even when someone is arrested, they’re usually not charged with a violent crime.”

“New Jersey police pursuits killed at least 63 people in the past decade and injured more than 2,500. Nearly half the people injured were bystanders and cops,” wrote Ford. More than half of those killed in vehicle pursuits were not in the car being pursued.

Among cities, “Newark police car chases killed black residents at a higher rate than any other city in the country, the last decade of federal fatal crash data shows.” Furthermore, the chases only led to arrests in fewer than half the pursuits, about 40 percent of the pursuits led to crashes, and nearly 1 in 5 resulted in injuries. The city police department did update its policies in 2017, restricting the circumstances under which police can initiate pursuits, which led to fewer chases, crashes, and injuries in 2017 and 2018.

The statewide review of police department policies in New Jersey found that officers are allowed to pursue cars even for motor vehicle offenses, as long as an officer feels the vehicle “is being operated so as to pose an immediate threat to the safety of another person.”

The chases are not yielding arrests for violent crimes either. “Two out of three eluders are not charged with a crime that the FBI tracks as violent, like murder, aggravated assault, robbery or rape,” writes Ford. Among those charged with violent crimes, the most common charge was assault on a police officer, “but most of those charges were dismissed later in court.”

Since the Asbury Park Press’s reporting, three New Jersey state senators have called for legislation to address the problem of these dangerous police pursuits.

Money For Militarized Evictions, But Not For Homes

Moms 4 Housing supporters in front of the Oakland home
Jane Tyska/Digital First Media/East Bay Times via Getty Images)

Money For Militarized Evictions, But Not For Homes


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

In political discourse, hypocrisy abounds around the importance of children and the sanctity of families. In Oakland, over the past two months, a few mothers engaged in what might be seen as a basic act of love for their children — they found them a home. Yesterday, they were forced out of that home by police officers who arrived in an armored tank.

One of the mothers, Dominique Walker, had fled intimate partner violence in Mississippi, traveling back to Oakland, her hometown, with her two children in April. Walker, an organizer since her high school days, found a full-time job as well as a part-time job. Priced out of Oakland’s real estate market, she tried living with family members, who had all been pushed far from the city, but this involved hours of commuting and living on couches. The hardest part, she told Marisa Endicott of Mother Jones, was that her children didn’t have their own space and constantly had to move. “My children weren’t able to really be free.”

The situation in Oakland, as in the rest of California, is dire. The unhoused population has increased by 47 percent in the last two years, according to data published in July. Elaine de Coligny, the head of the organization that spearheads the county’s homeless census, EveryOneHome, told Mercury News that for every homeless person who found housing in the county another three people were becoming homeless. Black people make up only 25 percent of Oakland’s total population but are 70 percent of the unhoused. Across California, over 150,000 are without shelter.

Bryan Schatz wrote in Mother Jones in its March/April 2018 Issue: “The right to adequate housing—not just four walls and a roof, but ‘a safe and secure home and community in which to live in peace and dignity’—is decreed by the United Nations, but you wouldn’t know it by looking around California, where nearly a quarter of the nation’s homeless people live. The housing crisis is often described as a shortage, the only solution being that we build our way out of it. But for every American living on the street, there are 13 empty, off-market units. In Oakland, where buyers routinely offer hundreds of thousands of dollars over asking prices, there are nearly four vacant properties for every homeless person. It’s not so much an issue of scarcity, but of distribution.”

Walker and another mother discovered a vacant home in West Oakland and decided to move in and make it their own. They had learned that the home had been bought at a foreclosure auction by Wedgewood Property Management, a company that specializes in “flipping” houses — calling itself, Mother Jones noted, “a ‘leading acquirer of distressed residential real estate.’” Companies like Wedgewood, housing advocates have long alleged, contribute to a lack of affordable housing. The house had been vacant for two years.

The mothers made the house on Magnolia Avenue a home. “They washed the walls, installed a water heater, hauled their kids’ bunk beds upstairs and appointed the living room with a mix of plants and soft furniture,” wrote Conor Dougherty in the New York Times today. “They paid the water and electric bills.” They did this, knowing that they might not stay long. On Democracy Now!, Walker described the month they had lived there as a victory. Her children had thrived with the experience of some stability, she said. Her 1-year-old had taken his first steps.

But Walker and the other Moms 4 Housing mothers also wanted to draw attention to Oakland’s crisis and how it affects families besides their own. They went to court in December, and argued for a right to stay in the house. They argued that housing, rather than being treated as a commodity, should be viewed as a human right.

The ask has not been that Wedgewood simply give away the house. City Council members had asked Wedgewood to sell the house to a Community Land Trust, so that it could be used as affordable housing. Wedgewood refused to negotiate, saying that the city council members were encouraging “criminal activity.” It offered, instead, to transfer the families to shelters for two months.

Last week, a housing court judge ruled against Walker and the other mothers, saying they had no right to remain in the home. The judge recognized, in one sentence of the one-page decision, international arguments about the right to housing but said the court was not the right forum for those arguments. He issued an eviction notice and ordered that the eviction take place within the next five days.

On Monday, community residents mobilized in support of the mothers. A crowd of about 50 gathered on the street. That night, when word spread that sheriff’s deputies might be on the way to carry out the eviction, hundreds gathered.

The next morning, Dominique Walker and Carroll Fife, of the Alliance of Californians for Community Empowerment, went on Democracy Now! to talk about their home, case, and cause. In response to a question about what it meant to her to see community support mobilize so quickly and completely, Walker said, “Last night was amazing. It just showed me that it’s still Oakland. We’re still Oakland. We are a town of resistance and we fight back and we saw our community have our full backs. Within 15 minutes, there were over , I think, 300 people mobilized, in 15 minutes. That’s people power.”

Walker also talked about what the house, and the fight for it, has been to her and her family.

“It’s just been amazing to have a shelter for my children and to be this example for them. People always ask me, there’s children involved, and I want my children to know their mother was on the right side of history.”

It was while Walker and Fife were on the show that word came of the sheriff’s deputies arriving at the house.

“Squads of sheriff’s deputies in military fatigues and riot gear arrived just before dawn Tuesday outside the old three-bedroom house on Magnolia Street in West Oakland, Calif,” wrote Katie Shepherd in the Washington Post (it appears the children had been moved out of the house the day before). “A BearCat armored vehicle rolled down the still-sleepy residential street. Officers broke through the reinforced front door with a battering ram and sent a small, camera-equipped robot into the home to check for any potential threats.”

There has been an outpouring of condemnation since from Oakland community advocates and officials.

“They came in like an army for mothers and babies,” Walker said at a press conference just after the eviction. “This movement is just beginning, and we see what we’re up against, but we also see what they’re afraid of. They’re afraid of us mobilizing over 300 people in 15 minutes.”

She continued: “If you’re not angry, you should get angry that our tax dollars went to this extreme force to evict mothers and children.”

A sheriff’s office spokesperson characterized the eviction’s mission as keeping things “simple,” “non-confrontational,” and as “low-key as possible.” He noted that it had cost tens of thousands of dollars, and the city could send Wedgewood the bill. Presumably, those tens of thousands of dollars exceed the money the company was willing to spend on sending the mothers and their families to a shelter.

Community organizations have been trying to draw attention to a bloated sheriff’s budget and misplaced budgetary priorities in Alameda County for some time. The sheriff’s office budget, under Sheriff Greg Ahern, was $443 million in 2019. The Ella Baker Center for Human Rights has been calling for an audit of the office. Alameda County’s jail population is half of what it was a decade ago, yet the sheriff’s office’s budget is $144 million more than it was at that time.

At the same time, the Santa Rita jail, run by Sheriff Ahern’s office, has been described as “the most dangerous place in Alameda County” in the East Bay Express and has been reported to have had the highest death rate of any Bay Area jail system. Ahern has blamed a lack of funding for the dangerous conditions in the jail he runs. (Santa Rita jail is also where the mothers, and two supporters, arrested yesterday were taken. They were later released.)

Last March, state senator Nancy Skinner, prompted by concerns over jail conditions and the report of a woman giving birth alone in her jail cell, wrote to the county board of supervisors, calling for an audit of Ahern’s office.

In its report, the Ella Baker Center looked at a few of the urgent needs, including housing, that could be addressed with some of the hundreds of millions currently going to the sheriff’s office.

“100,000 would provide 1,000 HIV tests in community-based clinics. $1.3M would provide after-school programming to 1,000 students for 1 year. $27.8M would house over 1000 individuals in a market-rate apartment for a year. $10M would house 300 of Alameda County’s poorest families for a year in a subsidized apartment,” according to the report.

The eviction Tuesday morning showcased an asymmetry in resources — on one side, the mothers who had moved into an empty home to provide their families a few months of stability; on the other, a sheriff’s department with the money to spend on driving armored vehicles down residential streets.

On both sides of this debate, people have deployed the language of crime and criminality. Wedgewood’s spokesperson referred to the moms as “criminals.” Condemning the police’s militarized response, Oakland’s mayor, Libby Schaaf, said, “These are mothers. They are not criminals.”

Speaking to Mother Jones last year, Walker described the crisis she sees and is experiencing: “It should be illegal to have vacant houses and have people sleeping on the streets. I feel like there’s a moral crisis. There’s a profiteering crisis…I think that’s where the crime lies.”

Sexual Abuse In Youth Detention Facilities

Sexual Abuse In Youth Detention Facilities


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

Dozens of men and women who were held at a New Hampshire youth detention facility as children are alleging, in a class-action lawsuit filed Saturday, that they experienced physical, sexual, and emotional abuse while they were incarcerated at the facility. The lead plaintiff, David Meehan, has said he was repeatedly raped by two men who worked as counselors at the detention center when he was incarcerated there in the late 1990s. Meehan’s allegations have also formed the basis of criminal charges against the two men who were indicted in July. The 35 other plaintiffs who have joined in the lawsuit say they were abused by staff between 1982 and 2014.

The lawsuit names the two men, four other individuals who worked at the detention center, the state of New Hampshire, the Sununu Youth Services Center (formerly the Youth Detention Center or YDC), and the agencies responsible for it as defendants. The complaint states that the lawsuit seeks to hold accountable both the individuals who are alleged to have abused the children as well as the state and other entities which, “through their systemic failure to promulgate any policies, procedures, rules, and regulations as required by legislative mandate … caused or contributed to decades of physical abuse, sexual abuse, mental/emotional abuse, solitary confinement, and deprivation of education of hundreds of children.” It alleges that “individuals deliberately intimidated and manipulated these children into believing that they had no recourse and that no one would believe them. Even when these children, sporting black eyes, swollen faces, and bleeding genitals, sought help from YDC staff, they were informed that they were mistaken and that the abuse had not occurred.”

Meehan was 14 years old when he was sent to the youth detention center. He started running away from home when he was in the fifth grade and was periodically homeless. While he was homeless, the complaint says, he “committed a number of burglaries in order to acquire the means to obtain food and shelter,” and was repeatedly arrested. Two months before he was sent to the facility, in October 1995, while being transported from a different detention center to court, he met another boy who had been at YDC who told him he had been raped. Both boys escaped and were on the run for two weeks before they were rearrested. In December 1995 he was sent to the youth detention center. The judge who ordered his commitment said he should “have individualized counseling as soon as practicable.”

About a year later, Meehan alleges, he was raped by a staff member for the first time. Another guard stood watch while it happened.

What followed over the next two years of Meehan’s incarceration, until he turned 18, were multiple attempted escapes, repeated punishment in the form of near-complete isolation (“room confinement”), and dozens of rapes, by two counselors on staff, both on and off the premises of the facility. He alleges he was forced to break up with his girlfriend before the first time one of the staff members raped him, that he was forced to witness the rape of a female friend by one of the men, and that he was raped at gunpoint.

The allegations in the complaint describe a system in which multiple abuses set the stage for the rapes that Meehan says he endured. He is described as being placed in room confinement for up to 10 days at a time on multiple occasions, allowed out for only 15 minutes in a 24-hour period, denied access to the classroom or to any educational materials. (The final allegation of the complaint is how the state violated the plaintiffs’ right to an education.)

Sexual abuse of incarcerated children, including by staff, is widespread and has been repeatedly documented. A 2018 report issued last year by the Bureau of Justice Statistics found that over 7 percent of incarcerated children reported being sexually abused in the previous year. This was down from close to 10 percent in 2012. This was the bureau’s third such survey of incarcerated children. Lovisa Stannow of Just Detention International noted the progress documented in the report but also pointed out that “as the report makes clear, this violence remains commonplace in youth facilities across the U.S.” Furthermore, the rates of reported sexual abuse are far higher in some states, including Texas and Florida, and in certain facilities.

Last month, the Daily Appeal looked at the reports of sexual assault by guards at the Chittenden Women’s Facility in Vermont. Following reporting by Seven Days, Sarah George, the Chittenden County chief prosecutor, expressed her outrage at the abuse and her concern about the women who remained incarcerated there, whom she described as her constituents.  George pledged to review the cases of the women at the prison who had been prosecuted by her office. She ended up taking steps to make four women eligible for release and, as of mid-December, told Seven Days that she was working on cases involving five other women.

Is decarceration the necessary response to abuse in the juvenile system, the site of so much violence against children entrusted to it? Across the country, advocates are pushing for the closure of youth detention centers and an investment in the systems that support children in their homes and communities. The New Hampshire lawsuit is a reminder of how the incarceration of children has constituted and continues to constitute a threat to their safety, their well-being, and their ability to go on to have safe and healthy lives. In a report released late last year, the Prison Policy Initiative looked at the 60 percent reduction in youth incarceration since 2000, celebrating that progress while noting that more can and must be done to release many of the remaining 48,000 youth who are in custody.

In New Hampshire, the Sununu Youth Services Center’s daily population has fallen significantly in recent years to below 30 from over 100, according to reporting by the Associated Press. For some, the population drop is evidence the facility should be shut down. But the state recently chose another route, reconfiguring a section of the facility as a youth substance use treatment center. The center, which was vigorously opposed by many advocates as an unnecessary, unproductive investment in a facility that should instead be shut down, has not been a success. At least two teenagers sent there overdosed in recent months.

New Hampshire’s Office of the Child Advocate released a report this month that found “more than 20,000 incidents of children being restrained or secluded in the state’s residential facilities during a recent five-year period, with 15,544 of them involving restraints,” including at the Youth Services Center, reported Manchester Link. This included the use of prone, or face-down, restraints, banned in many states. The Office of the Child Advocate was itself created in response to the deaths of children in custody in 2014 and 2015.

Life Sentences And ‘Draconian Power’ In The United Kingdom

H.M. Prison Manchester, in Manchester, England
Christopher Furlong / Getty Images

Life Sentences And ‘Draconian Power’ In The United Kingdom


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

Media reports on a trial in Britain that concluded Monday have noted that the judge said she had considered imposing a sentence of life without parole on Reynhard Sinaga, who was convicted of over 150 sexual offenses. Ultimately, the judge said, she concluded the case was “borderline.” Sinaga will now serve multiple concurrent life sentences with a minimum term of 30 years, ensuring his incarceration until he is at least in his 60s.

Had Sinaga been sentenced to die in prison, it would have been the first time a British court imposed such a penalty for a non-murder conviction. This fact alone sets Britain’s life without parole sentences, and life sentences more generally, apart from those in the U.S. Nearly a quarter of people serving life without parole in U.S. prisons were not convicted of homicide. But the numbers of life sentences in the United States and U.K. are also far, far apart. There were 68 people serving sentences of life without the possibility of parole in England and Wales in 2018. Compare this to 53,290 in the U.S. in 2016.

When it comes to lengthy prison sentences, the United States outstrips every other country in the world, many times over, in its use of life sentences. In 2014, the number of people in prison serving life sentences worldwide was estimated to be 536,000. The Sentencing Project noted that the United States, with over 160,000 formal life sentences and over 40,000 “virtual life sentences” (sentences with minimum terms of 50 or more years) accounts for a full 30 percent of that number. Advocates for racial justice and ending mass incarceration learn early that while the U.S. makes up only 5 percent of the world’s population it holds a quarter of the world’s incarcerated people. With life sentences, the numbers are even worse.

The U.K. is no model, though. Its incarceration rate is many times lower than the U.S. and its per capita rate of life sentences is also far lower (10.3 compared to over 50 per 100,000 population in the United States), but the use of life sentences has increased over the past decade. Among people in prison, life sentences account for a higher proportion of sentences than in the United States.

Moreover, the U.K., while less harsh than the U.S., is an extreme outlier among its European neighbors. In a 2018 report, Dirk van Zyl Smit and Catherine Appleton of the University of Nottingham, provide historical and geographical context for Britain’s use of life sentences. The sentences do not exist in Portugal, for example. In France, according to 2016 figures, there were 489 people in prison sentenced to life. In Germany, there were 1,863. In the U.K., the number was more than four times that at 8,554. The U.K. and Turkey together account for two-thirds of all life sentences in Europe.

Much of the increase in the number of life sentences can be attributed to legislation passed in 2003. The minimum terms that people sentenced to life are required to serve has been steadily going up, more than doubling since the passage of that law.

As in the U.S., the use of lengthy sentences in the U.K. has given rise to the phenomenon of a rapidly aging population of people in prison. People aged 60 and over are reported to be the fastest-growing group of people in prison, with three times more people in that age group in prison than there were 16 years ago.

Whole-life or full-life sentences, which the judge described considering in the Sinaga case, are rare by U.S. standards. But they are almost nonexistent elsewhere in Europe, and human rights advocates in the U.K. have fought fiercely against the practice. In 2006, the then-lord chief justice, reported The Guardian, argued that politicians and judges had been pushed into handing down longer sentences. “Some murderers are being sentenced to a minimum of 30 years, or even full-life terms,” he said. “But I sometimes wonder whether, in 100 years’ time, people will be as shocked by the length of sentences we are imposing as we are by some of the punishments of the 18th century.”

Van Zyl Smit and Appleton described life sentences in the U.K. and worldwide this way: “Indeterminate sentences, whether they are called life imprisonment or something else, have one particular feature that sets them aside from all other types of imprisonment. Persons on whom such sentences are imposed have no guarantee of ever being released. Their fate is fully in the hands of the state.” This already “draconian” power, they wrote, is especially so when it results in the imposition of whole life or life without parole sentences. “LWOP has been described as ‘death by incarceration,’ and represents state power at its most extreme,” they wrote.

The European Court of Human Rights considered a case that challenged whole-life sentences. Three men serving life without the possibility of parole argued that the sentence amounted to inhuman and degrading treatment as they had no hope of release. But the court rejected the argument in 2017, saying the European convention on human rights did not ban the imposition of a life sentence on a person convicted of murder as long as there was a prospect of release and a possibility of review. But as Van Zyl Smit and Appleton point out, “neither the secretary of state nor the judges who are making whole life orders are even paying lip service to the release requirements set in European human rights law. Not surprisingly, no prisoner subject to a whole life order in the UK has ever been released.”

Immigrant DNA Collection And The Fear Of ‘Population Surveillance’

Immigrant DNA Collection And The Fear Of ‘Population Surveillance’


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

On Monday, the federal government “launched a pilot program to collect DNA from people in immigration custody and submit it to the FBI, with plans to expand nationwide,” reported the Associated Press. Eventually, the administration intends to expand the program to collect DNA samples from people in both U.S. Customs and Border Protection and ICE custody. The samples will be forwarded to the FBI for analysis and then added to the Combined DNA Index System, or CODIS, database. As NPR reported in October, when the Attorney General first issued the proposed rule, the expectation was that “federal authorities will gather DNA information on about 748,000 immigrants annually, including asylum-seekers presenting themselves at legal ports of entries.”

The program expands on another pilot program started last year, in which ICE agents use rapid DNA tests on children and adults at the border to determine whether adults were the family members of the children with whom they were traveling. Unlike the rapid DNA test results, however, the New York Times reported in October, “the new program would … provide a comprehensive DNA profile of individuals who are tested, as opposed to the more narrow test that was used only to determine parentage. And unlike the testing under the pilot program, the results would be shared with other law enforcement agencies.”

Under the terms of the first phase of the program that launched this week, Customs and Border Protection officials will collect DNA samples from people detained by the Border Patrol in two locations—at the Canadian border in or near Detroit and “at the official port of entry at Eagle Pass, Texas, across from Piedras Negras, Mexico.” The pilot program is supposed to last 90 days. “In Detroit,” AP reported, “people as young as 14 will be subject to DNA collection.” People who refuse to consent to having their DNA samples taken could face federal misdemeanor charges.

The administration has described this move as a step toward compliance with a 2005 federal law. Yet, as Felipe De La Hoz and Gaby Del Valle of the newsletter Border/Lines explained in October, when the administration published the proposed rule, “like much in immigration policy, the mechanism here is a bit more complicated than the administration merely issuing a directive. Essentially, the rule would let the attorney general reverse existing government policy by eliminating an exception to a federal regulation.”

As they point out, while the new policy is a significant escalation in DNA collection, it also builds on previous legislation that paved the way for widening surveillance. “Like other Trump immigration policies, the new DNA rule is built on decades of bipartisan legislation. If it went into effect and the exemptions were not maintained by the attorney general, the new rule would severely increase the scope of the federal government’s surveillance of non-citizens—but the infrastructure needed for such a sweeping change to happen has been built up since the Clinton era.”

Immigration advocates have also warned that the DNA collection of detained immigrants is just another step in the continued expansion of collection. Three advocates wrote in the Daily News in October: “Under the proposed policy, U.S. Customs and Border Patrol officers, who have no training or experience with DNA collection, would collect samples, then input an estimated 748,000 new profiles every year into the FBI’s national database. This database, known as the Combined DNA Index System, was born to identify convicted sex offenders and serial violent crimes. The list has problematically been expanded to include those who have only been arrested and never convicted of any crime, a daily reality for many people of color subject to racial profiling and overpolicing. Now, this policy goes even a step forward to include those discretionarily detained by the U.S. government, including those encountered at the U.S. border, who include many asylum seekers who have committed no crimes other than immigration violations.”

Furthermore, an enormous database of DNA samples could pave the way for increasingly exclusionary anti-immigrant policies, the advocates noted. “Less than two weeks ago, DHS [the Department of Homeland Security] announced that it expects to have face, fingerprints and iris scans of at least 259 million people in its biometrics database by 2022. This would cover nearly 80% of the population of the United States. This expansion of biometrics in and of itself allows the government vast investigatory and identification resources over those crossing the U.S. border. Why then is DNA needed?”

They note that DNA can indicate “familial relations, ancestry and health predisposition,” including predisposition for thousands of diseases. “Given the Trump administration’s efforts to exclude intending immigrants deemed unhealthy and weak,” they write, “it seems natural that the government could use this data to deny admission to an otherwise eligible individual who may have a genetic propensity towards certain illnesses. In practice, this may mean an aspiring American is one day denied permanent residence because of predisposition towards an illness revealed by a forcible DNA test, a predisposition of which they may themselves not be aware, even if they are in perfect health.”

Vera Eidelman, of the American Civil Liberties Union, told the New York Times in October that the proposed program transforms DNA collection from a tool for criminal investigations to one of “population surveillance,” something “basically contrary to our basic notions of a free, trusting, autonomous society.” And it implicates both those whose DNA is collected and their family members.

One former deputy general counsel with the Department of Homeland Security told BuzzFeed in August that the widespread collection of DNA samples represented a huge shift “in that DNA testing of this type is used only in a pure criminal context.” He continued: “DNA testing is considered one of the more invasive actions that the government can take. You are obtaining a physical substance from a person’s body, with the potential to learn an almost infinite amount of information about the person.”

Illinois pardons are a reminder of the scale of marijuana arrests, past and present

Illinois pardons are a reminder of the scale of marijuana arrests, past and present


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

On Dec. 31, Governor J.B. Pritzker of Illinois announced that he would issue 11,017 pardons to people with low-level marijuana convictions. That announcement came on the eve of the state’s marijuana legalization going into effect.

Illinois’s law, passed by lawmakers and signed by the governor last year, makes it the 11th state to make recreational marijuana legal for people over 21 and the first to do so via legislation rather than ballot initiatives. The law makes the possession of small amounts of marijuana legal and allows licensed dealers to sell cannabis and cannabis products. It also incorporates a number of measures intended to remedy the injustices and harms of marijuana criminalization that largely affected Black and Latinx communities.

As he announced the pardons at a church on Chicago’s South Side, Pritzker said “the defining purpose of legalization is to maximize equity for generations to come.” The pardons, he promised, are only the first step in erasing the records of the hundreds of thousands of people across the state who have criminal records from low-level marijuana charges.

All told, state officials estimate that a total of 116,000 convictions involving 30 grams or less of marijuana are eligible for pardons under the new law, reported CBS News. The process is not automatic, but state officials have sought to make it as close to automatic as possible. There are also an estimated 572,000 marijuana arrests that will be expunged over the next five years. People may also apply for expungements of convictions for marijuana possession over 30 grams,  putting the total number of possible pardons at over 700,000.

That number is a reminder of the enormous scale of marijuana arrests in this country and the millions of people subjected to state force under marijuana prohibition. Marijuana laws, in Illinois and elsewhere, moreover, were and are not enforced equally. Despite similar rates of use between Black and white people, Black people are arrested for marijuana offenses at rates several times higher than those for white people.

A sobering fact is that racial disparities dog even those states that have taken steps toward legalization, as Vox’s German Lopez reported last year. As for cities, in New York City, where the total number of marijuana arrests dropped significantly following decriminalization by legislation last summer, the arrests for low-level marijuana possession that did take place in the immediate aftermath of the law were overwhelmingly of people of color. From June through September, officers arrested 262 Black and Latinx people for marijuana possession, reported Patch. They arrested 20 white people.

Nevertheless, legalization laws like Illinois’s seem consistent with the national mood regarding marijuana, and perhaps even a softening in attitudes toward drug possession (but not drug sales) more generally. In a November survey by the Pew Research Center, two-thirds of respondents thought marijuana should be legal, including a majority of Republicans. A third of U.S. residents now live in the 11 states and the District of Columbia where marijuana possession is decriminalized or legalized.

And yet, marijuana arrests continue apace. The FBI’s 2018 Uniform Crime Report, data from a majority of U.S. jurisdictions, shows that they remain the largest category of arrests among drug offenses and the largest category of arrest offenses over all. The New York Times’s Upshot reported in November: “Drugs have been the top reason people have been arrested in the United States for at least the past 10 years, and marijuana has been the top drug involved in those arrests.” Moreover, the fraction of arrests that were possession rather than sale or manufacturing went up in 2018. The numbers are staggering: “In 2018, there were 663,367 arrests involving marijuana, up from 659,700 in 2017, nearly 92 percent of them for possession.”

Tom Angell pointed out in Forbes: “There were more busts for marijuana last year than arrests for aggravated assault, burglary, arson, fraud, disorderly conduct or sex offenses, among other crime categories. Meanwhile, police only cleared 33 percent of rapes, 30 percent of robberies and 14 percent of burglaries by making an arrest.”

The attachment to marijuana arrests is evident in Fairfax County, Virginia. Steve Descano, the county’s new commonwealth’s attorney, ran on a platform of ending mass incarceration and specifically pledged to not prosecute low-level marijuana possession cases. In an interview with Daniel Nichanian of The Appeal: Political Report before his election in November, he explained his reasons, citing the racial disparities in marijuana arrests, the consequences of having a marijuana arrest on one’s record, and the immigration consequences for non-citizens.

A local NBC reporter, Drew Wilder, took to Twitter yesterday to describe the first day of Descano’s policy of not charging simple possession. The judge initially refused to grant the prosecutor’s motions to dismiss seven marijuana possession cases, and then relented. The Fairfax County police department, however, wrote Wilder, “says Descano’s policy will not change nor affect how officers enforce Virginia’s marijuana possession laws.”

Seeing The Humanity Of People Who Sell Drugs

Seeing The Humanity Of People Who Sell Drugs


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

In 2014, Morgan Godvin’s best friend, Justin DeLong, experienced a fatal drug overdose. She had sold him the heroin he used. The next night, police officers raided her apartment and placed her under arrest. She was 24, and her mother had died of an overdose three months earlier. Federal prosecutors charged Godvin with “delivery resulting in death” for her friend’s overdose, a charge that she was told carried a 20-year minimum sentence. She ended up pleading guilty to conspiracy to distribute heroin and spent the next five years in prison.

Last month, in a commentary in the Washington Post, Godvin laid out how misguided the government’s response to her friend’s death was and how it failed to recognize the overlap between those who use drugs and those who sell them. “To purchase heroin, you have to know someone who has it, or know someone who knows someone who does. Friends and acquaintances formed our network. The vast majority of heroin dealers I met were not in it to make money. They simply supported their own habit by selling to people they knew who were also addicted. The archetypal predatory drug dealer is a myth. For many, a sale is not about ruthless profit; it is about survival.”

But as the overdose crisis has taken hundreds of thousands of lives in recent years, prosecutions like Godvin’s have become increasingly common. Several states have enacted laws akin to the laws under which she was prosecuted or have made their existing laws harsher.

This week, the Drug Policy Alliance delivered a comprehensive rebuttal to this policy response and the worldview that drives it. In a new report, the organization calls for an end to the broad demonization of and harsh penalties for people selling drugs. It is necessary, the report says, to “rethink the ‘drug dealer.’” The authors note: “Policymakers in the United States increasingly recognize that drug use should be treated as a public health instead of a criminal issue.” Yet, “the softening of public opinion has not extended to people involved in drug selling or distribution, as politicians on both sides of the aisle have made clear.”

The impulse to conceive of people who sell drugs as a category distinct from people who use them is both misguided and counterproductive, the report states. “Politicians and prosecutors who say they want a public health approach to drug use, but harsh criminal penalties for anyone who sells, are in many cases calling for the imprisonment and non-imprisonment of the very same people.”

In 2012, over 80 percent of those arrested for distribution offenses in Chicago tested positive for drug use. In New York and Sacramento it was over 90 percent. Moreover, the laws criminalizing drug sales are written so broadly that people arrested with drugs for their own use are frequently charged as dealers.

The narrative of the dangerous drug dealer also has a long history. It is “a deeply racialized narrative in which illegal drug use is driven by drug sellers (often portrayed as people of color) who push drugs on vulnerable people (often white people) to get them hooked.”

Writing for The Appeal this week, Zachary Siegel reviews the report’s prescribed reforms, which include the repeal of drug-induced homicide laws; calling on progressive prosecutors to decline to prosecute certain sale and distribution-related offenses; and radically reducing the number of arrests police treat as drug sale and distribution.

While advocating for a number of “incremental reforms,” the Drug Policy Alliance remains committed to fundamental changes to how drug use and drug markets are  viewed. “As we consider new approaches for people who use, we also need to explore options for addressing drug sales outside the criminal justice system,” Lindsay LaSalle, managing director of public health law and policy at the Drug Policy Alliance told The Appeal. “We need a radical shift away from supply side interventions and must truly examine both the demand for drugs and the economic and structural reasons why people may be selling drugs.”

Ultimately, the distinctions between drug buyers and sellers draws on the same zero-sum instinct—the desire to sort people into opposing categories—as seen in conversations about victims versus offenders and people charged with nonviolent crimes versus those charged with violent crimes. In the discussions of reforms that help free people charged with nonviolent versus those charged with violent crimes, there is the constant risk of presenting one group as deserving at the expense of the other. In the conversations about victims and offenders there is a systemic unwillingness to recognize that many of those who commit harm have themselves been harmed. And for those who have suffered, it seems too often as though the state’s recognition of one’s humanity comes only in the form of the criminal legal system trying to find someone to blame and punish—however irrelevant an exercise that might be.

In her commentary, Godvin points out the lack of support available to her friend while he lived and the massive law enforcement resources mobilized in his name after he died. “Society offered no compassionate resources to Justin while he was alive—only a dozen arrests and a prison sentence, none of which helped him overcome addiction.” But “the federal government poured resources into convicting five people for his accidental overdose—me, my roommate who sold me my heroin, his dealer and that man’s two dealers—sentencing us to 60 total years in prison for Justin’s death.” That enormous amount of incarceration changed nothing. “The flow of heroin in our city, Portland, continued without a moment’s interruption. In the years after the trial, the rate of fatal heroin overdoses in Oregon even increased.”

The Damage Done By Foster Care Systems

The Damage Done By Foster Care Systems


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

The United States has a long history of separating children, especially Black, Latinx, and Native children, from their families. In 2016, according to a 2018 report, there were over 400,000 children in foster care, a 10 percent increase from 2012. The majority of children removed by child welfare systems are taken because of alleged neglect, a label that can too easily be applied to parents living in poverty. The removal of children, which is done in the name of protection, too often leads to them being placed in foster care systems where they receive little care, little protection from harm, and little stability. Rather, these systems can inflict enormous damage.

This week, the Kansas City Star published a six-part investigation into the foster care system. Its findings were damning. Among them were that “despite a 40-year-old federal mandate that prioritizes family preservation” most of the $30 billion spent each year on child welfare nationally goes to foster care or adoption systems. Even though more children are removed over neglect than abuse, “more dollars are spent on investigating families than trying to keep them together.”

In 2018, the legal scholar Dorothy Roberts and Lisa Sangoi of the Movement for Family Power wrote for The Appeal about the child welfare system and its punishment of poor families of color. “The child welfare system claims to be a non-adversarial legal system dedicated to ensuring the well-being and safety of children,” they wrote. “This claim obscures the oppressive political role it plays in monitoring, regulating, and punishing poor families and Black, brown, and indigenous families. The mass removal of Black children from their families in some ways parallels the U.S. criminal legal system’s mass removal of Black men and women from their communities.”

Professor Roberts and Sangoi described how “judges and officials use consequences of poverty, such as several siblings sharing a single room or lack of adequate heat, as evidence of child neglect” and how “parenting choices, such as whether to co-sleep with an infant or whether to leave an older child unattended at home, are routinely questioned and held against Black mothers in family court.”

They also noted that “racial disparities exist at every stage of child welfare decision-making.” Black families are “more likely to be reported to the child abuse hotline … investigated for child abuse and neglect … to have cases against them substantiated and to have their children removed from their care.”

Once in foster care, Black children “generally receive inferior services and are kept out of their homes for longer periods of time than their white counterparts.” What has been referred to as the “civil death penalty,” the termination of parental rights, happens to Black parents at higher rates than white parents.

After removal from their families, the Star investigation found, children are bounced from placement to placement, including away from supportive foster parents. “Some kids are moved dozens of times—a few as many as 100 times—over several years.” A lawsuit filed in Kansas last year alleges that children are subjected to shifting placements, causing them profound harm. One 10-year old boy, who had been in foster care for six years, had been moved between placements 70 times. In its defense, the state’s Department for Children and Families said the children had suffered no harm and their “own conduct was a contributing cause of injury.” Yet, children in foster care have post-traumatic stress disorder rates higher than that of Iraq war veterans, reports the Star.

Children who have been in foster care, especially those who have been subjected to multiple moves, are at a high risk of ending up incarcerated. The Kansas City Star reviewed surveys completed by nearly 6,000 incarcerated people across the country. It found that a quarter of the respondents had been in foster care. In the women’s prison in Kansas, nearly 40 percent of the respondents had been in foster care. “We think foster care ought to be a protective factor for children and it’s not—foster care is a risk factor,” said Sean O’Brien, a defense attorney who has represented many former foster children. “They take the kid in and then almost every adult beyond that point that touches this kid, they’re like, ‘What is the matter with you?’ They treat them like little criminals.” Foster children are more likely to be sent to prison than to go to college.

The story of Dontay Davis, told by Roxanna Asgarian in the Washington Post last week, exemplifies the tragedies so common in the experiences of children in foster care. Yet Dontay’s story might never have been told but for his proximity to a more unusual tragedy—that of the Hart family. In March 2018, Jennifer Hart drove an SUV filled with her wife and their six adopted children off a cliff. What came to light soon after were allegations of long-standing abuse and malnourishment.

Three of the six children were Dontay Davis’s biological siblings. When the Harts adopted them they declined to adopt Dontay, the oldest at 10 years old. Days after that separation, which would become permanent, he tried to kill himself. He remained in the Texas foster care system for eight more years. Four of those years were in a restrictive “residential treatment center.” For all those years and until his siblings’ death he held on to the hope of being reunited with them. Then at 19, he was in prison. It was while he was in prison that his siblings died, but he did not learn of their deaths until after he was released.

Dontay’s story highlights the cruelties of the child welfare system. As Asgarian writes: “Eight-year-old Dontay Davis acted out violently when the state removed him and his siblings from their home in 2005. In the years that followed, he was set on a path that advocates call the foster care-to-prison pipeline: separated from his brothers and sister, heavily medicated, shuffled between foster homes and shelters, institutionalized in a psychiatric hospital and placed for years in a restrictive treatment center. By age 19, Dontay was in a Texas prison serving three years for robbery.”

The removal of children from their families is, Roberts and Sangoi wrote, “one of the most violent acts a government can undertake against its people.” Thousands upon thousands of children are then separated from siblings, subjected to multiple placements, and left with little to no support, on a pathway to homelessness, incarceration, and unaddressed trauma. “Like prison abolitionists,” Roberts and Sangoi continued, “foster care abolitionists recognize this institutionalized disruption of Black families as a key aspect of the expanding carceral state. They therefore seek to dismantle the current foster care system and replace it with a radically different approach centered on the needs, dignity, and equal humanity of families.”

ICE’s Fake University Seemed To Be More About Creating Fear Than Addressing Fraud

Ann Johansson / Corbis via Getty Images

ICE’s Fake University Seemed To Be More About Creating Fear Than Addressing Fraud


In 2016, the University of Farmington was registered with the state of Michigan. It was an accredited university, according to a national accreditation agency. It was approved for participation in a government program for foreign students, according to ICE. Over the next year it admitted over 600 students, the vast majority from India. Students were charged around $12,000 a year.

The whole thing was a ruse. The University of Farmington was fake, created by ICE to ensnare people seeking a visa status that allows off-campus jobs for students who meet certain criteria.

In January this year, the arrests began. Two weeks ago, ICE announced that it had arrested 250 foreign students of the University of Farmington so far. Nearly all of them faced civil immigration charges. Eight people were criminally charged for recruiting students to the fake university, reported the Detroit Free Press.

The Free Press began reporting on the arrests in January and it chronicled the extraordinary lengths that ICE went to to present the University of Farmington as a legitimate enterprise. It was undercover agents from the Department of Homeland Security who registered the university. Homeland Security asked the national accreditation agency to list the fake university on its website. And the department included the University of Farmington on its list of universities approved for the Students and Exchange Visitor Information Program.

Shikha Dalmia of Reason, writing last week, described additional steps that ICE agents took to create the illusion of a functioning university. “Its website billed the now-disbanded university as a STEM school offering various graduate degrees,” she writes. “It pretended that the university was founded in the 1950s to offer returning soldiers from World War II a ‘quality and marketable education’ to help turn Detroit into a ‘center of innovation’ for manufacturing … It even invented a fake seal with the motto ‘Scientia et Labor,’ meaning ‘Knowledge and Work.’”

ICE “coordinated with DHS to ensure that the enrolled students would show up on DHS’s Student and Exchange Visitor Information System (SEVIS),” wrote Dalmia. She continued: “SEVIS is akin to an E-verify program for universities, a federal database that lists all foreign students in good standing with immigration authorities. Students not enrolled in a federally recognized university aren’t listed on SEVIS. For foreign students looking for American education, this is the ultimate seal of official approval.”

ICE agents then masqueraded as university officials to recruit students.

It worked. Some students, previously enrolled in programs that had lost their accreditation, made the switch to the University of Farmington. Some left legitimate degree programs for Farmington, due to the promise of cheaper tuition. Some, after enrollment, tried to quit once they realized the university was not holding classes. None of these categories were spared.

Despite ICE and Homeland Security’s elaborate efforts to present the University of Farmington as real, prosecutors claimed that people who enrolled could not have believed it was legitimate. In its indictment, ICE claimed that “each of the foreign citizens who ‘enrolled’ and made ‘tuition’ payments to the University” knew that the program was ‘not approved by the DHS’ and was ‘illegal.’” Dalmia writes: “This is simply not true. The university was listed as accredited on state and federal sites. Moreover, students also had no reason to believe that the university was fake given that the DHS handed them SEVIS authorization, which would not have been possible if it weren’t an approved school.”

The eight people alleged to have recruited people to enroll at the university were charged with “conspiracy to commit visa fraud and harbor aliens and profit from them.” From the reporting it does not appear that those eight people were charged with involvement in any other, non-ICE fake universities.

Lawyers and representatives for those arrested tell a different story. They describe students hoping to pursue degrees and people of little means who were cheated out of large sums of money. ICE has not announced any intention of returning the fees that people paid.

Dalmia writes: “The fundamental question … is what the government hoped to accomplish with this elaborate scheme … to the extent that ICE considers visa mills a problem, it would make more sense for it to go after existing visa mills rather than launching additional fake ones of its own. Instead of turning students into recruiters by throwing temptation in their way, ICE could have gone after professional recruiters. Nothing ICE has done so far has put a single university or recruiter out of business.”

A lawyer for many of those charged told Reason that the visa and diploma mills that do exist—and that have not been touched by these ICE operations—victimize foreign students. “And instead of rescuing them, ICE is victimizing them too,” Dalmia writes.

This is not the first time ICE has created a fake university. In 2015, ICE created the University of Northern New Jersey, which offered no classes but seemed to offer a way for enrolled students to again work off-campus. It seemed to offer people eager to stay in the United States a way to enroll and show that they were taking courses so that they could meet their visa requirements and be eligible to work. Many students appear to have expected a legitimate university. And it appears that ICE’s intended targets were not students, but brokers. Nevertheless, over 1,000 students lose their visa status and were forced out of the country.

As Liz Robbins reported for the New York Times: “More than a dozen students insisted that they were collateral damage in the sting operation, duped by both the brokers and the government … the students point to what they say was active deception by the government: in-person meetings with the university’s supposed president, letters confirming they could work instead of go to class, and Twitter messages about classes canceled because of bad weather.”

One Detroit-area professor placed ICE’s more recent sting operation in the larger immigration context. Amer Zahr, an adjunct professor of law at the University of Detroit-Mercy and a spokesperson for one of the students detained by ICE, spoke with the Detroit Free Press shortly after the arrests began. He said: “It seems quite clear the scheme was set up by the government not to go after legitimate offenders, but to create fear in our immigration system.”

Freeing People As A Response To Prison Rape

Freeing People As A Response To Prison Rape


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

Two years ago, the executive director of Just Detention International, an organization whose mission is to end sexual assault in jails and prisons, wrote in an opinion piece for the Los Angeles Times: “We simply can’t allow government officials to continue raping those in their custody.”

An imperative so clear, and a problem so shameful. The government officials in question: jail and prison employees across the United States.

The commentary, by Lavissa Stannow, was written nearly 15 years after the enactment of the Prison Rape Elimination Act. The promise of that legislation’s name has not been met. Prisons and jails in the United States continue to be sites of widespread sexual abuse and violence. And, as Stannow’s piece reflected, much of it is perpetrated by government employees.

Stannow was writing in late 2017, after the #MeToo movement had gained force. She wrote that the experiences of women sexually abused in prisons and jails “grimly echo the recent revelations about Hollywood and the media. The dynamic of the domineering, abusive man whose decisions can destroy your life is familiar to women everywhere, whether in Hollywood or in prison.”

Prison rape is a longstanding emergency, affecting incarcerated men and women. The people most vulnerable to sexual violence are people with mental health concerns; trans, gay, and lesbian people; and young people. Rape everywhere is underreported, even more so by people in carceral settings, where one’s rapist may be one’s captor. But incarcerated women are 30 times more likely to be raped than women who are not incarcerated, according to figures cited by The Nation in a 2015 article. Bureau of Justice Statistics estimates for 2011, based on anonymous surveys of incarcerated people, put the number of people sexually assaulted in U.S. jails and prisons at over 200,000. Incarcerated people In 2015, Just Detention International noted last year, made over 24,000 formal allegations of sexual assaults in jails and prisons, the highest number to date. Over half of the allegations (more than 58 percent) were claims that prison staff “victimized” incarcerated people.

Last week, Seven Days, a Vermont newspaper, published a report on allegations of rape and sexual misconduct by corrections officers at the state’s only women’s prison. Since 2011, officers at Chittenden Regional Correctional Facility sexually abused incarcerated women. Some officers, and other employees of the department, also continued to target women long after they were released.

Since Seven Days’s reporting, there have been several responses from government actors. These have included moving the facility under the Department of Human Services, actions against individual officers, and a request for a federal investigation. Advocates have emphasized that the issues that need to be addressed are systemic and include incarceration itself.

Karen Tronsgard-Scott of the Vermont Network Against Domestic and Sexual Violence, told Seven Days that the state needs to address a system that simply “moves women in and out and in and out of the facility.” She pointed out that most women at Chittenden Regional come with histories of substance use disorders and that as many as 80 percent of them were victims of sexual violence before they were incarcerated.

At least one Vermont official spoke of freeing women from the prison where the violence took place. Chittenden County’s chief prosecutor, Sarah George, told Seven Days that she would be reviewing the sentences of all 20 people in Chittenden Regional who were prosecuted by her office to determine whether they can be released.

George said it was her responsibility to take action, reported Seven Days, “because the women in question are her constituents—and she worries they are in danger.”

“If this was any facility other than a prison, people would be rioting over this. Nobody would stand for this,” she said. “Hopefully that’s what happens anyway.”

This response is unusual for a few reasons. First, George recognizes her office’s responsibility. For decades, prosecutors in the U.S. have sent people to jails and prisons in numbers and for lengths of time that are historical and international outliers. In doing so, they consigned millions of people to dangerous institutions.

Despite their reliance on prisons and jails, prosecutors were allowed to remain largely oblivious of and indifferent to what happens inside these facilities. No prosecutor would argue that rape is part of a just system’s response to wrongdoing. But is there a single prosecutor who can guarantee that someone committed to a jail or prison upon their request will not be sexually abused?

(In an interview with The Appeal: Political Report in August, George said she instructed all staff and prosecutors in her office to visit a state prison. Thirty-nine chief prosecutors have now made the same commitment.)

Second, in expressing concern about the well-being of her incarcerated constituents, George turned not to a carceral response, but a decarceral one. Her response to this failure of the criminal legal system was not to simply call for punishment for the individual officers but to think about how to take responsibility for the women her office sent there. The solution to a crisis of violence by corrections officers should not be to repose more faith in these institutions—it should be to free people from them.

It remains to be seen what conclusions George will reach after her review, whether she will seek anyone’s release, and whether other actors (namely judges) will share her sense of urgency if she does.

In 2017, Natasha Lennard reported for The Intercept on the rampant sexual violence in prisons. In 2016, she wrote, “a former prison warden and member of the New York City Board of Correction, Gerard Bryant, publicly stated, ‘As long as we are going to have prisons, we are going to have sexual abuse in prisons. That’s the reality.’”

Lennard reflects that “it might be the sort of sentiment that groups like Just Detention International are working tirelessly against; it could promote apathy by presenting a problem as truly intractable.” But the comment “offered an inadvertent recognition that the patriarchal, structural oppressions informing prison life are more inherent than incidental.” Victoria Law, the author of “Resistance Behind Bars: The Struggles of Incarcerated Women” (and an Appeal contributor), told Lennard, “If we want to think about this problem holistically, one way to do it is to reduce the number of people sent to prisons and detention centers in the first place.”

Decades-old Protections For Protesters Are In Jeopardy

Marchers in Baton Rouge protest the police shooting of Alton Sterling on July 5, 2016.
Mark Wallheiser / Getty Images

Decades-old Protections For Protesters Are In Jeopardy


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

“On July 5, 2016, Alton Sterling, a Black resident of Baton Rouge, Louisiana, was shot and killed by two on-duty police officers responding to an anonymous 911 call. Soon after, members of the city’s Black community took to the streets, including the area in front of Police Department headquarters, to express their anguish, celebrate Mr. Sterling’s life and humanity, and convey the need for accountability and transformative change.”

This is from the petition for certiorari presented to the Supreme Court by the American Civil Liberties Union in Doe v. McKesson. It continues:

“As with protests prompted by police violence elsewhere, one way those assembled conveyed their dismay was by insisting, to the police before them, their community, and the watching world, that ‘Black Lives Matter.’”

Alton Sterling was one of more than 200 Black men, women, and children killed by police in 2016. His death came just one day before the police killing of Philando Castile in Minnesota.

More than 100 people were arrested at the protest in Baton Rouge, most for obstructing a highway. Among them was DeRay Mckesson, the prominent Black Lives Matter activist. In an interview with the New York Times immediately after the protest and arrests, Mckesson said “the police want protesters to be too afraid to protest.”

During the protest, a police officer was seriously injured when someone threw a hard object that hit him. The person who threw the object was never identified. The officer, proceeding anonymously, decided to file a lawsuit. Its targets? The hashtag #BlackLivesMatter, Black Lives Matter, and Mckesson. Mckesson’s quote in the New York Times article published after the protest was cited in the complaint alleging that he was responsible for inciting violence.

The lawsuit was filed in federal district court, and the federal judge concluded it “bordered on the delusional,” wrote Adam Liptak of the New York Times. With respect to the first target, the judge wrote, “A hashtag is patently incapable of being sued.” Black Lives Matter was also an entity that could not be sued, he explained, describing it as “a social movement rather than an organization or entity of any sort.” Finally, the part of the lawsuit seeking damages from Mckesson was dismissed on First Amendment grounds. “Liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence,” the judge wrote, quoting from the Supreme Court’s  landmark civil rights decision, NAACP v. Claiborne Hardware Co, issued in 1982. (The case concerned a lawsuit by white merchants after some acts of violence during an economic boycott organized by the local NAACP.)

Yet the Fifth Circuit Court of Appeals ruled that although the Black Lives Matter hashtag and movement could not be sued, McKesson could, on the grounds that he “should have known that leading the demonstrators onto a busy highway was most nearly certain to provoke a confrontation between police and the mass of demonstrators.” A full panel of the court reviewed the case and issued what was, in effect, the same decision.

Constitutional law professor Garrett Epps, who has been following the casedescribed the offensiveness of the Fifth Circuit decision: “The stakes are high, and the Fifth Circuit panel’s offense is rank. The decision was not simply lawless, but insolently so.”

In the Claiborne ruling, Justice John Paul Stevens wrote that the organizers of the boycott sought “to challenge a political and economic system that had denied them the basic rights of dignity and equality that this country had fought a Civil War to secure.” To permit lawsuits  against individuals because of the violence of others would discourage those challenges and make it easier for the government to suppress the rights of Black citizens

Now, Mckesson and the ACLU have asked the Supreme Court to review his case and the Fifth Circuit decision.

If the case were allowed to proceed, Mckesson could prevail at trial. Yet the burden of defending himself is precisely the kind of cost that would chill free speech rights. And the ability to sue protesters for consequences entirely unrelated to their actions is exactly the power of harassment that law enforcement should not be allowed to wield.

The gulf (as Epps describes it) between the Fifth Circuit’s decision and the Supreme Court’s jurisprudence and the consequences that the circuit court’s decision will have for future protests are central to the importance of this case. The point of the lawsuits against protest organizers is not hard to discern. They are part of an effort, that predates our current moment, to make organizing and activism as personally costly as possible for organizers. Even if Mckesson were to win at a trial, he would have to expend the time, energy, and resources to defend himself until then. And the prospect of having to do that is meant to discourage organizers of future protests.

As Ian Millhiser wrote in ThinkProgress, the circuit court’s opinion “offers a road map to police officers—or, really, to anyone injured by a single participant in a political movement they disagree with—to shut down those movements with litigation.”

Alanah Odoms Hebert, the head of the ACLU of Louisiana, said in a statement to The Atlantic: “The principles outlined in this decision put civil disobedience at risk. If this doctrine had existed during the civil rights movement there would not have been a civil rights movement.”

The Supreme Court’s decision in Claiborne nearly 40 years ago was reached with an understanding of the need for political organizing. As Millhiser wrote: “Opinions like Claiborne exist for a reason. They exist because wise judges understood that the price of political organizing is that sometimes people with violent motives will join a movement without the knowledge of the movement’s leaders. If those leaders can be held liable for the wrongful actions of a fringe minority, then such organizing would be too dangerous for any but the most deep-pocketed movements, and core First Amendment rights will become meaningless.”

Kansas City Chooses Free Public Transit

Kansas City Chooses Free Public Transit


Kansas City, Missouri, will soon have a public transit system that is entirely free for riders. Yesterday, City Council members unanimously approved a resolution to stop charging bus fares in the next fiscal year. The city manager is in charge of developing a plan for implementation.

The move is heartening at a time when a transit system like that in New York City has found the money to add 500 police officers to a transit force of 2,500 but has not found the money to subsidize fares for people living in poverty. The arguments made in support of Kansas City’s move are a reminder that free, or heavily subsidized, public transit can alleviate poverty, enhance people’s chances to live healthy and productive lives, and increase civic participation.

Kansas City moved toward free transit in stages. Veterans began receiving free bus passes two years ago. A year later, the transportation authority issued free passes to students. Close to a quarter of all riders over the last several years have been able to ride buses for free. The city’s light rail system is also free.

The city will still have to find funding to make up for the revenue from fares, an estimated $8 million to $9 million. One council member said it is money the city can and should find. “When we’re talking about improving people’s lives who are our most vulnerable citizens, I don’t think there’s any question that we need to find that money,” Eric Bunch told KSHB. “That’s not a ton of money and it’s money that we as a city, if we want to prioritize public transportation, it’s something that we can find.”

Before the vote last month of the City Council transportation committee, supporters spoke about the importance of public transportation. A school district employee said students used free buses to get to internships and work. A representative from a work training program said the passes allow people looking for work to get to training programs, interviews, job fairs, and jobs.

“We can train people all day long but if they can’t get to a job, it makes no difference,” Clyde McQueen of Full Employment Council said. “A free bus pass could make the difference between someone making $30,000 on a job, or zero.”

The deputy director of the city health department described what free transit would allow people to have. Free buses “would provide access to grocery stores, education and health centers,” he said.

Other cities have been exploring free public transportation as well, although Kansas City was the first to achieve the goal. In Salt Lake City, a poll this summer showed that almost three-quarters of residents supported free transit as a way to increase ridership and reduce air pollution that has outsize consequences.

The editorial board of the Charlotte Observer hailed the developments in Kansas City yesterday and said such a step needed to be considered in Charlotte and Raleigh, North Carolina. The paper argued that “a robust bus service also can help with bigger equity issues in Charlotte and Raleigh.” Free fares would give low-income residents “more options for a ride to work or school and open up greater employment opportunities over a wider geographic circle.”

In The Appeal: Political Report in April, Daniel Nichanian wrote about obstacles to mobility for people living in North Carolina. Driver’s licenses were revoked for 1.2 million people in the state for failing to pay court fees and fines, without any opportunity to demonstrate their inability to pay. The inability to legally drive, in a state with poor transit options, can have disastrous consequences for people’s access to employment and make the same fees and fines that led to their license suspension even more impossible to pay.

Nichanian wrote: “Poor transportation, whether it stems from difficulties in acquiring a car or accessing transit, can harm the reentry of people who are involved in the criminal legal system, independently of whether they are eligible to have a driver’s license.” This also underscored “the pernicious nature of ideas like a New York proposal to ban people from using the subway for life if they have been convicted of certain offenses.”

New York’s Metropolitan Transit Authority, and Governor Andrew Cuomo, who appoints its members, have had a number of harmful ideas recently. The decision this fall to add 500 officers to patrol subway stations will cost over $50 million a year. It was justified, variously, as an effort to combat fare evasion, address rising crime in subway stations (despite evidence showing that crime is falling). Once hired, it seems unlikely that any drop in fare evasion, or further drop in crime in the stations, would quickly lead to 500 officers being let go.

The flood of officers has led to a wave of overpolicing and violent policing, chronicled in bystander videos that show NYPD officers arresting a woman who makes her livelihood selling churros in a subway station, officers chasing a teenager who hopped a turnstile and then drawing their weapons on him in a crowded subway car, and officers beating teenagers.

The rapid deployment of hundreds of officers at the cost of tens of millions of dollars each year has also raised questions about why the state and city could not find the money to more fully fund a program meant to make subway rides affordable for people living below the poverty line. Fair Fares, a program that anti-poverty advocates pushed for and the City Council passed to make fares half-price for people living in poverty, was rolled out this year. But only 30,000 of 800,000 people who live in poverty are eligible, and the program only received funding for its first six months.

Even while the Fair Fares program has been a low priority, there have also been calls to make the subway system free for all or at least some of its riders. These are ideas that have been considered in New York before, but the possibility of free ridership for at least some riders is coming up again.

When New York can find money for police but not for affordable transit, the move in Kansas City represents an important alternative vision—that a goal of public transit should be unrestricted public access.

Trump Makes The Most Important Anti-Hunger Program Harder To Access For People Leaving Prison

A sign noting the acceptance of electronic benefit transfer (EBT) cards that are used by state welfare departments to issue benefits at a convenience store
Justin Sullivan/Getty Images

Trump Makes The Most Important Anti-Hunger Program Harder To Access For People Leaving Prison


Under a new rule announced yesterday, the Trump administration expects to slash 688,000 from the rolls of people receiving short-term food assistance. The Supplemental Nutrition Assistance Program (SNAP), described as the nation’s “most important anti-hunger program,” is recognized as extraordinarily effective, keeping millions of people, including children, out of poverty and from hunger. The administration, in what Democrats denounced as an act of “cartoonish villainy,” is now using reports of low unemployment rates as an argument for making it harder for poor people to receive SNAP benefits. This change will have grave consequences for, among others, formerly incarcerated people and others with criminal legal system involvement who face enormous barriers to employment.

Under existing law, SNAP already ties assistance to employment. Adults without disabilities who don’t live with dependents are only eligible for three months in any 36-month period unless they are employed or in a work training program for at least 20 hours a week. The three-month time limit is “one of the harshest rules” of SNAP, according to the Center on Budget and Policy Priorities, a research and policy institute. States, meanwhile, are under no obligation to offer work or training programs and most do not.  The result, according to the CBPP, is that “SNAP recipients’ benefits are generally cut off after three months irrespective of whether they are searching diligently for a job or willing to participate in a qualifying work or job training program.” The effect is that “this rule is, in reality, a time limit on benefits and not a work requirement, as it is sometimes described.”

The time limit’s harshness has been alleviated to some degree by a waiver program that allows states to exempt people living in areas of high unemployment. The Trump administration’s change will limit the circumstances under which states can seek those waivers, making it harder for states to respond to periods of acute economic distress. A similar provision was removed from last year’s farm bill passed by Congress after progressive Democrats and Republicans from rural areas banded together to oppose it. Now the Trump administration is making it a reality via executive action. Two other provisions (which also failed to pass in last year’s farm bill) to shrink food stamp benefits are also under consideration, including one that would lead to over 900,000 children losing automatic eligibility for school lunches.

The just-announced rule will have serious consequences for people with criminal legal system involvement. A Center for American Progress report from March was clear about the implications of such a change. It pointed to the nearly 9 in 10 employers who use criminal background checks in hiring which means that “even an old, minor criminal record can serve as a life sentence to poverty and joblessness.” The unemployment rate among formerly incarcerated individuals is approximately 27 percent and “one study shows that 60 percent of formerly incarcerated individuals remain unemployed one year following their release.”

A CBPP report last year on the importance of waivers on time limits noted: “People with criminal records find it harder to be hired… It is unrealistic to expect these individuals to find work quickly, especially in weaker labor markets.”

Last year, when the provisions cutting SNAP benefits were still in the farm bill, DeAnna Hoskins of JustLeadershipUSA wrote in The Hill: “Every year, more than 600,000 people are released from incarceration. These individuals face 48,000 laws and statutes (approximately 70 percent of which apply to employment) that impede the rights of all people living with convictions; their right to eat should not be one. Yet according to one study, nearly 91 percent of people immediately become ‘food insecure’ upon release.”

The period of re-entry has been thoroughly documented as a time of extraordinary upheaval and vulnerability. People contend with high risks of relapse, recidivism, and even mortality. For people under parole supervision, the obligations of parole often take precedence over anything else, even seeking work, since failure to meet those obligations, on its own, can be grounds for reincarceration. And even for those who are able to prioritize job searching, many will face extraordinary odds.

SNAP benefits are small—$127 a month per individual, on average, or $1.39 a meal—but they make an enormous difference. In 2016, the Center on Budget and Policy Priorities estimated, SNAP benefits kept 7.3 million people, including 3.3 million children, out of poverty.

“The economic margins for the formerly incarcerated are narrower than many of us can imagine,” wrote Alex Busansky of Impact Justice, and Gary Maynard, a former head of the American Correctional Association, in the Washington Post last year. “Median annual income right after release from prison is about $6,500—effectively, a state of deep poverty. Today, around 70 percent of those released depend on SNAP two months later to survive.”

The president has given himself enormous credit for the enactment of the limited First Step Act, claiming a commitment to redemption and second chances, including for people returning home from prison. The cuts to SNAP betray this administration’s true character—a deep indifference to the challenges, even suffering, of people coming home from prison and a willingness to make their lives, and those of so many others living in poverty, even more desperate.

People Of Color Receive The Harshest Punishments, And The Disparities Are Growing

People Of Color Receive The Harshest Punishments, And The Disparities Are Growing


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

A new report from the Council on Criminal Justice takes a close look at the rates of incarceration for different racial groups. While disparities have gone down, Black and Latinx people continue to be incarcerated at far higher rates than whites.

The researchers looked at the rates at which people who identified as Black, Latinx, and white were in prison, in jail, on probation, and on parole. They then compared the rates between groups to calculate the disparities between Blacks and whites and Latinxs and whites for each category of correctional control and supervision. Disparities from 2000 data were then set against those from 2016 data.

Black people in 2016 (the most recent year for which Bureau of Justice Statistics figures are available) were still more than five times as likely as whites to be in prison and 3.8 times as likely to be in jail. Among all categories of Black and Latinx people under correctional control or supervision, only the rates of Latinx people on probation are equivalent to those of white people.

The decline in disparities has been driven in part by the fact that fewer Black and Latinx people are incarcerated or under supervision in 2016 than in 2000. Another factor has been an increase in the rates at which white people are going to prison or jail, or are on probation or parole. Finally, population growth among Black and Latinx people has been a factor since the rate is calculated using the total population of any group.

The total number of Black men in state prisons dropped by 9 percent from 2000 through 2016. That total, however, masks significant variation in incarceration for different categories of offenses. The number of Black men in prison for drug offenses has gone down by more than 50 percent and the number imprisoned for property offenses has gone down by 24 percent, according to the Council on Criminal Justice report. But the numbers of Black men in prison for violent offenses and public order offenses have gone up, shrinking the overall reduction to half of what it would have otherwise been.

This, in turn, is partly a function of long sentences getting longer and disparities in sentencing. Although Black people’s imprisonment rates have gone down, the length of prison sentences in prison continues to increase vis-à-vis those for white people. Put plainly, Black people are in prison for longer than white peers and the disparity is growing. This is especially the case with respect to sentences for violent convictions, according to the report.

The Marshall Project’s Weihua Li took a close look at this finding.

“For violent crimes,” Li wrote, “although both groups served longer from 2000 to 2016, the prison time for black people grew at a rate almost twice as fast, according to the report.” Experts Li interviewed, including an author of the Council on Criminal Justice report, attributed this to various factors:  the use of criminal history in sentencing which disproportionately affects people from communities most vulnerable to draconian policing and prosecution; the role of risk assessments, gang enhancements, and school zone enhancements; and pressure some prosecutors may feel to seek harsher sentences in cases involving violent charges at a time when there is pressure to use incarceration less for non-violent convictions.

Any effort to significantly cut the number of people in the U.S.’s state prisons (which hold the vast majority of people in prison) will require drastically reducing the number of people serving lengthy sentences for these violent convictions. The Council on Criminal Justice’s report and the Marshall Project’s reporting point out that Black people are affected by these sentences at rates far greater than white people.

As many states have enacted reforms to incarcerate fewer people, they have largely focused on people charged with nonviolent, low-level offenses. These reforms have succeeded in reducing the numbers of people in prison for these categories of offense. However, without reforms that have done the same for people serving convictions for violent crimes, the proportion of people in prison serving extremely long sentences has increased sharply.

According to the Sentencing Project, 1 in 9 people in prison are serving a life sentence. When “virtual life” sentences—sentences that exceed a person’s natural lifespan, guaranteeing they will die in prison—are included, that figure increases to 1 in 7. A sentence that is a rarity elsewhere in the world is commonplace in U.S. prisons. And this is the result of a historically recent shift. Ashley Nellis of the Sentencing Project wrote in a 2018 report that “there are more people serving life sentences than the entire prison population of the early 1970s.”

In its 2016 project “A Matter of Time: The Causes and Consequences of Rising Time Served in America’s Prisons,” the Urban Institute examined prison populations in 44 states and the District of Columbia. It found that the flood of extremely long sentences that begin with harsh sentencing laws in the 1970s and ’80s had led to a “stacking” effect, with so many sentenced for so long that prison populations grew rapidly and are now slow to go down.  Racial disparities in the prison system were intensified among those sentenced to the most time. In 35 of the 44 states examined, “racial disparities in prisons were starkest among people serving the longest 10 percent of terms.”

Black men, and especially Black men sentenced as youth were significantly overrepresented among those serving the longest sentences. Furthermore, “one in five people in prison for at least 10 years is a black man incarcerated before age 25.” People sentenced for crimes committed when they were very young were substantially overrepresented: “Nearly two in five people serving the longest prison terms were incarcerated before age 25, despite research that shows the brain is still developing through age 24 and that people tend to age out of criminal behavior.”

In death sentences too, racial disparities have worsened over time, even as the use of the death penalty wanes. The Intercept this week published a comprehensive data set that includes the cases of every individual sentenced in the era of the “modern” death penalty—since the Supreme Court decided Gregg v. Georgia in 1976, restarting the machinery of executions that had been halted by Furman v. Georgia, four years earlier. In accompanying articles, Liliana Segura and Jordan Smith examine the death penalty’s many facets and the ways it has fallen far short of what the Supreme Court said it was sanctioning. Today, the death penalty is in decline, both nationwide and in the pockets around the country that have been the main drivers of death sentences, and yet, Segura writes, “as we began to study the results of our data collection, we found indications that racial disparities are increasing as the use of the death penalty is decreasing.”

In Texas, where more people are sentenced to death than any other state, there are fewer such sentences each year. But “these sentences are exposing a stark reality about who still gets sentenced to die,” writes Segura. In the first decade after the Gregg decision, “people of color made up 51 percent of those sentenced to death. This percentage has grown to 75 percent in the past 10 years. Of just seven people Texas sent to death row in 2018, all of them were men of color.”

The Crisis Of Murdered And Missing Indigenous Women And Why Tribes Need The Power To Address It

Women's March California 2019
Sarah Morris / Getty Images

The Crisis Of Murdered And Missing Indigenous Women And Why Tribes Need The Power To Address It


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

Last week, President Trump signed an executive order creating a task force on missing and murdered indigenous women. The task force, which will develop protocols for cases and create a team to review cold cases, will be overseen by Attorney General William Barr and Interior Secretary David Bernhardt. The task force announcement came a few days after Barr said the Justice Department will take steps to improve its response to missing persons cases.

Trump’s intervention is surprising, but as Rebecca Nagle noted in The Guardian, it took place against the backdrop of Senate Republicans trying to compromise one of the few positive developments in the federal government in addressing violence against Native women in recent years.

Over 1.5 million Native women have experienced violence, including sexual violence, in their lifetime according to the National Institute of Justice. Native women experience violence of twice the rate of women in the U.S. and on some reservations, the murder rate of Native women is 10 times the national average. In 2016, 5,712 cases of missing Native women nationwide were reported to the National Crime Information Center. Only 116 of them were logged in the U.S. Department of Justice’s missing persons database, according to the Urban Indian Health Institute.

In addition to the sheer volume of violence perpetrated against Native women, what is striking is that 97 percent of intimate partner violence and sexual assaults are estimated to be carried out by non-Native men. This is unlike the vast majority of sexual assaults in the U.S., which are committed by people of the same race as the survivors.

Assaults of Native women by non-indigenous men are the product, at least in part, of the limits on the jurisdiction of tribal courts. The 2013 reauthorization of the Violence Against Women Act included amendments that, for the first time, recognized that tribal courts have jurisdiction over criminal cases brought against nonmembers. This jurisdiction was still limited, however, applying only in cases of intimate partner violence and only to non-Native people who met at least one of three criteria: resident of Native country, employed in Native country, or the current or former intimate partner of a Native person living in Native country or a tribal member. It also imposed obligations that many tribes would struggle to meet, including the obligation to fund indigent defense. As of March 2018, only 18 tribes had met the requirements for expanding their jurisdiction.

Federal jurisdiction remains the default and it is characterized largely by unresponsiveness. In 2016, U.S. prosecutors declined to prosecute 46 percent of reservation cases, reported the Associated Press. Assault (which includes intimate partner violence) and sexual assault cases were declined more than any other offense category. Some tribal leaders and victims’ families report that authorities can be unwilling to help search for missing persons or even file a report.

While many believe that the problem of unchecked violence against Native women can be partially traced to the limitations on tribal jurisdiction, there is also powerful opposition to expanding that jurisdiction. As a senator, Jeff Sessions opposed the 2013 Violence Against Women Act reauthorization, in part because of an objection to expanding tribal jurisdiction to non-Native people.

The act lapsed this year. Now, even while bills to address violence against Native women have made progress in Congress, Republican Joni Ernst of Iowa has introduced a reauthorization measure that would make it easier to challenge tribal jurisdiction. Deborah Parker, a board member of the National Indigenous Women’s Resource Center described the bill as one that “in its current form, would constitute a significant rollback of the protections that VAWA 2013 provided to Native women. We cannot afford to step back. We can only move forward.”

In the 2016 law review article “Crime and Governance in Indian Country,” UCLA professor Angela Riley noted the irony in Native tribes demanding greater powers of policing and punishment at a time when issues of incarceration and criminalization of poor people of color finally figure prominently in the national conversation.

But the reason, Riley pointed out, was the horrific level of violence that had gone unaddressed for so long. Tribes had been stripped of the jurisdiction that would have allowed them to respond to the violence. The federal government, vested with that power, failed to respond. The result was near-total impunity for people committing acts of terrible violence and an absence of protection for those fearing harm.

In her article, three years after the 2013 Violence Against Women Act amendments, Riley looked at the prosecutions that had been brought under the new law by the 18 tribes that availed themselves of the expanded jurisdiction.

Riley considered how jurisdiction represents both an opportunity and a risk for tribes. It represents an opportunity to regain some of the power to ensure safety essential to a sovereign that was denied tribes for many decades. But it also requires that tribes adopt rules and safeguards that make their justice systems more like the federal government’s, compromising their values and autonomy.

The solution, Riley argues, is for tribes to avail themselves of the laws, passed in response to relentless mobilization and advocacy, that give Natives greater power to respond to crimes of intimate partner violence but to then use that power, where possible, to turn to non-incarceratory responses that reflect their own cultural values and knowledge.

The Yurok Tribal Court in Northern California, run by chief justice Abby Abinanti, is an example of a court that draws on tribal traditions, including in handling cases that involve intimate partner violence. Abinanti, the first Native female member of the California bar, told The Nation in 2017 that she asks: “How did we resolve things before our cultural interruption, when invasion occurred? We were village people, and we sat around and had discussions. My purpose is to help you think up how to make it right if you made a mistake. … For me, jail is banishment. It’s the last resort.” The program includes consultation with elders as well as training in anger-management skills. As of 2017, none of its participants had gone back to jail for domestic violence.

Riley, in considering what jurisdiction offers tribes, writes:

“I argue that expanded criminal jurisdiction and punishment authority have, perhaps paradoxically, enhanced the ability of tribes to develop and enforce policies, laws, and procedures that are consistent with tribal custom and tradition, and this presents a unique opportunity worthy of further exploration. In other words, rather than sovereignty and assimilation expanding in tension with one another, I find that the strengthening of sovereignty simultaneously enhances the ability of tribes to further protect traditional tribal values and indigenous justice systems. I seek to urge tribes even further in that direction, to view this enhanced tribal criminal authority as presenting an opportunity to only selectively engage the American system of criminal justice, and to deviate from it, when possible, in favor of experimenting more thoughtfully with indigenous methods of justice and restoration.”

The Costs Of Not Releasing People From Prison

Photo illustration by Anagraph. Photo by Andrew Burton/Getty Image

The Costs Of Not Releasing People From Prison


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

Texas prisons hold an increasingly aging, ailing population. The Texas Tribune reported this week on the changing demographics of who the state incarcerates and its consequences for healthcare provision, quality, and cost. Even as the total number of people in prison has fallen this decade (although only by 3 percent) the number of people in prison who are 55 or older has gone up by 65 percent. State costs for healthcare for incarcerated people have gone up by more than 50 percent in the past seven years. “The main reason,” for the ballooning costs, is “an older, sicker prison population.”

This is the result of policy choices. One expert told the Tribune that Texas residents shouldn’t expect costs to decrease if the state continues to incarcerate “the same kind of demographics you’re sending to prison now.”

Across the country, there is a growing push to reconsider the extreme sentences that set the United States apart in their harshnessdisproportionately fall on Black and Latinx people, and have contributed to the decades-long buildup in prison populations. What is required are changes that will allow people who have been in prison to be considered for release, based not on what they were sent to prison for, but on who they are now.

In New York, advocates have been calling for the passage of two bills that would expand opportunities for people who pose little public safety risk to be considered for release. As the Brooklyn Eagle reported today, the two bills are the Fair and Timely Parole bill and the Elder Parole bill. In keeping with the intent of parole, the first would require that decision makers evaluate a person’s eligibility for release based on their recent record of conduct and accomplishments, rather than on what might be decades-old convictions. The latter would allow for anyone who has already been in prison for 15 years and is at least 55 to be considered for release. In August, the death of 61-year-old Valerie Gaiter, in prison since 1979, longer than any other woman in the state, brought renewed public attention to the need for elder parole in New York.

As Jose Saldana, director of the Release Aging People in Prison (RAPP) campaign told the Brooklyn Eagle yesterday, “Men and women in New York State’s prison system are growing old, sick and dying because of the culture of punishment perpetuated by the New York State Parole Board.” In New York, as in Texas, the number of elderly people in prison has increased significantly in the past decade, even while the overall number of people in prison has fallen.

In Pennsylvania, home to one of the nation’s largest populations of people serving life without parole sentences, advocates are mobilizing around parole reform as well. Over 5,400 people, under current law, have been sentenced to die in prison in that state alone. This is one in every 10 people in prison on a life without parole sentence in the country. Other jurisdictions, including Texas and the District of Columbia, are considering introducing or expanding second-look legislation that would give people sentenced for crimes committed when they were young an opportunity to be considered for release after a set number of years.

As the Sentencing Project and other advocates have long pointed out, there are also sentences that are not formal life without parole sentences but, by virtue of their minimum length or because of the breakdown in parole release mechanisms, will also condemn people to a lifetime in prison.

This month, The Appeal published a photo essay by Joshua Vaughn on the life that men approaching death lead inside a Pennsylvania prison. The men were photographed from behind to protect their identities. The photos show a series of stooped and white or gray-haired men, in wheelchairs, with walkers, connected to oxygen tanks, or simply still next to their hospital beds. The photos could be from any hospital unit dedicated to the care of elderly patients. The photos make absurd what is already a strained argument—that people in their 50s and 60s, far from the actions of their youth, debilitated by illness and imprisonment, pose a threat to public safety that requires their continued incarceration by the thousands.

In The Appeal last week, Lauren Gill reported on the case of Willie Mae Harris in Arkansas, “now 72 and blind,” who “has been incarcerated at the Wrightsville Women’s Facility, southeast of Little Rock, for 34 years.” After turning down a plea deal with a maximum sentence of 20 years and the possibility of release after 13, Harris went to trial in 1985 on charges that she had shot and killed her abusive husband. After a one-day trial, she was found guilty of first-degree murder and sentenced to life in prison.

She has been recommended for release five times and each time, the governor, who has the final say, has denied her clemency. Her daughter, Silvia, who was 14 when Harris was sentenced to life in prison and had witnessed her father’s violence toward her mother, told The Appeal, “I didn’t just lose my daddy. In one instance, I lost both my parents.” She continued: “If I tell anybody my biggest fear, it’s burying my mother in prison.”

For The First Time, A Vote For Marijuana Legalization In The House

Spencer Platt / Getty Images

For The First Time, A Vote For Marijuana Legalization In The House


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

On Wednesday, the House Judiciary Committee voted in favor of the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, a bill backed by advocacy organizations, that would legalize marijuana at the federal level. Declassification of marijuana as a controlled substance alone would have significant ramifications because it would allow states to chart their own course on regulation.

Other effects of federal legalization would include allowing researchers to conduct studies of the marijuana in wide use, rather than being limited to the samples grown in a single federally approved university program. People treated at Veterans Administration hospitals could be treated with medical marijuana. These are all significant. But the bill is aptly named because it would also do much more.

The bill’s supporters in the advocacy community, including the recently formed Marijuana Justice Coalition, made up of the Drug Policy Alliance and several other civil rights organizations, and the bill’s sponsors, have insisted that as jurisdictions legalize marijuana they must also address the harms of criminalization and its enforcement for millions of people, largely Black and Latinx. With the MORE Act, at least in its current form, they celebrate a victory because the bill acknowledges and addresses the vast disparity in how communities experienced criminalization and what they deserve going forward.

The bill provides for expungement and sealing of criminal records; eliminates the immigration consequences of marijuana use or convictions; removes barriers to licensing; establishes resentencing guidelines; and eliminates the consequences for employment, education, housing, and public benefits.

The MORE Act’s chances for passage in a Republican-controlled Senate led by Mitch McConnell are scant. But the vote by the House Judiciary Committee, led by Representative Jerrod Nadler, the bill’s sponsor in the chamber, is a momentous first. And as public opinion and political pressures on marijuana legalization continue to evolve, Republican senators in at least a few states have been under pressure to support legalization in some form.

In September, the House passed the SAFE Banking Act. The bill, which passed by a 3 to 1 majority, including from half the Republicans in the chamber, would allow the cannabis industry access to banking and financial services, even while marijuana remained illegal under federal law. Advocates for an approach that incorporated racial justice and equity were concerned about the bill’s narrow focus, describing it as an “incremental industry bill,” and after it passed the House they reiterated that what matters is not just whether marijuana is legalized but how.

For 2018, the FBI’s estimated crime statistics show over 650,000 arrests for marijuana. That number, enormous as it is, is definitely an undercount because the agency relies on voluntary reporting and many jurisdictions did not share their data. But from the FBI data, it appears that drug arrests were the single-largest contributor to arrests and marijuana arrests were the single-largest contributor to drug arrests. Around 90 percent of the marijuana arrests were for possession.

These numbers, at a time when two-thirds of Americans support marijuana legalization, are shocking. And they are a reminder of the inequities built into drug laws and the enforcement of those laws. In New York City, between June and September, over 90 percent of arrests for marijuana possession were of Black and Latinx New Yorkers, according to NYPD figures released on Monday. As with all drug laws, the choices about whom and where to police, and whom and what to prosecute, make marijuana criminalization a nuisance for some people and a nightmare for others.

Black and Latinx New Yorkers remained at greater risk for punishments even beyond prison that include deportation or the loss of their children, Anthony Posada, of the Legal Aid Society’s community justice unit, told Patch in an interview. “The human cost is too high,” he said.

Before the vote in the Judiciary Committee on Wednesday, Maria McFarland Sánchez-Moreno’s, head of the Drug Policy Alliance, said at a press conference: “The reality is that marijuana prohibition has, for millions of Black and Brown people in the U.S., been the gateway to arrests, incarceration, loss of livelihoods and lives. Those are concrete, real harms, that affect real people every day. Continuing the status quo of prohibition is not just inaction: it means turning your back on those harms, and condemning hundreds of thousands every year to continuing that misery and oppression.”

It is this gulf between communities in how they have experienced the war on drugs that has made many advocates and lawmakers insist that marijuana legalization alone—legalization that is simply a windfall for people eager to enter a new business—is insufficient and unconscionable. (Consider the example of former Speaker of the House John Boehner, an opponent of marijuana legalization while in office who has been on  the board of a cannabis company since 2018.)

Provisions that would give communities most harmed by marijuana criminalization a meaningful chance to benefit from its legalization became a sticking point in legislation considered in New York last legislative session. Ultimately, the governor and certain Democrats refused to support those measures and full legalization remains a goal for the 2020 session.

It is provisions like these that make Illinois’s law that will go into effect in January so remarkable. Illinois became the 11th state to legalize marijuana but the first to do so in a way that acknowledged the ways people and communities had been harmed. The law provides for low-income communities of color to have a real opportunity to get licenses before the law goes into effect, and 25 percent of the tax revenues from the cannabis industry will go to those communities disproportionately harmed under criminalization. The law also includes expansive expungement and clemency provisions, and Governor J.B. Pritzker has said he intends to erase the criminal records of nearly 800,000 people who faced low-level marijuana charges.

State Representative Jehan Gordon-Booth, a sponsor of the Illinois bill, told ThinkProgress after it was signed into law: “What we are doing here is about reparations.” She continued: “After 40 years of treating entire communities like criminals, here comes this multibillion-dollar industry, and guess what? Black and brown people have been put at the very center of this policy in a way that no other state has ever done.”

Ilhan Omar Asks For Restorative Justice For The Man Who Threatened Her Life

Rep. Ilhan Omar of Minnesota
Chip Somodevilla / Getty Images

Ilhan Omar Asks For Restorative Justice For The Man Who Threatened Her Life


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

With impeachment hearings underway, there is more news than it’s possible to process coming out of Washington. But aside from the bombshells emerging from witness testimony, something else entirely stood out yesterday: a letter from Representative Ilhan Omar of Minnesota to a federal judge in New York.

Omar’s letter was sent to Judge Frank Geraci of the Western District of New York. The case it concerns is against Patrick Carlineo, who pleaded guilty Monday to making threats on Omar’s life and faces a maximum sentence of 10 years in prison. Omar wrote to say that she hoped the judge would not sentence Carlineo to a “severe prison sentence or a substantial fine.” Instead, she said, she hoped for a process that would actually address the harm he had caused and allow him to do something about it.

The letter, shared by Omar on Twitter, begins:

Honorable Judge Geraci,

As you deliberate the sentencing of Patrick W. Carlineo, Jr., a man convicted of threatening my life, I write to ask for a system of compassion to be applied in his sentencing.

In these times, with a president who has viewed the criminal legal system as a space for expressing racism and his pardon power as a tool for pursuing his self-interest (which are related), Omar’s full letter is a bracing read. It is full of concepts our criminal legal system lacks: “compassion,” “amends,” and “repair.” These are goals that animate systems of transformative or restorative justice but are rarely at the center of the day-to-day decisions made in criminal courts across the country.

Omar’s letter is also pragmatic. (This is a word that Danielle Sered, the founder of the restorative justice organization Common Justice, frequently uses when describing survivors of harm.) A punitive approach, Omar writes, will not stop Carlineo from “committing a crime again” or be a deterrent for others. “Only restorative justice can do that,” she continues. That means “he should understand the consequences of his actions, be given the opportunity to make amends and seek redemption.”

And Omar, an elected representative with a background as an organizer, asks her audience to consider how a system invested in retribution, rather than accountability and repair, shapes a nation.

As the organizer and educator Mariame Kaba said on the Justice in America podcast last year: “People who are practitioners of restorative justice see restorative justice as a philosophy and ideology, a framework that is much broader than the criminal punishment system. It is about values around how we treat each other in the world. And it’s about an acknowledgement that because we’re human beings, we hurt each other. We cause harm.”

It is impossible to think Omar wrote her letter casually. Carlineo’s threats against her came in a phone call to her office in March. He was able to reach a staff member and, according to the complaint against him, described Omar as “terrorist.” He went on to say, as the New York Times reported: “Somebody ought to put a bullet in her skull. Back in the day, our forefathers would have put a bullet in her [expletive]. I’ll put a bullet in her [expletive] skull.”

When FBI agents interviewed Carlineo at his home, a week later, he admitted to some version of those remarks. According to the Times reporting, which relied on the criminal complaint, he also told them that he was a patriot who “loved Trump” and hated “radical Muslims in our government.” Officials later found “a loaded .45-caliber handgun, three rifles, two shotguns and hundreds of rounds of ammunition” at his home. Because of a previous felony conviction, he could not legally own a firearm and also pleaded guilty to illegal possession of a firearm on Monday.

The Southern Poverty Law Center discovered Carlineo’s racist and Islamophobic Facebook posts, endorsing violence, going back as far as 2014. And the hatred that Carlineo expressed is only a symptom of the larger environment of Islamophobia and rising threats against Muslims in the U.S.

Despite this, in her letter Omar refuses to do what actors in our criminal legal system so often do reflexively. She refuses to treat Carlineo as “other.” And she describes him as someone who can change. The hatred he expressed toward her, she asserts, can be replaced. She writes:

As Nelson Mandela said, “People must learn to hate, and if they can learn to hate, they can be taught to love.”

We must teach the defendant love. 

And she closes the letter as she begins, calling for compassion toward Patrick Carlineo:

For this reason, I do not believe the defendant would be served by a severe prison sentence or substantial financial fine and ask you to show compassion in your sentencing.

Omar is, of course, not the only target of threats or violence who has said that they want something for the person who harmed them that is different from vengeance. Too often, though, survivors and even people who live with haunting loss are ignored. As the federal government plans to resume executions in December after a nearly 20-year hiatus, Attorney General William Barr has described the decision as what the government “owes victims and their families.” Yet, because of qualms after seeing the sentencing process up close, at least one family does not want to see the person who killed their relatives put to death. Campbell Robertson reported for the New York Times last month on how the Department of Justice has ignored their desires.

Ilhan Omar is harder to ignore than the average victim and it remains to be seen what impact her letter will have. Representative Ayanna Pressley of Massachusetts, her close colleague in Congress whose recently introduced resolution to transform the criminal legal system includes restorative justice funding, applauded her, writing on Twitter: “Met with egregious attacks that put her life at risk, my sister @IlhanMN responds with compassion, humanity, and clarity that our criminal legal system is unjust.”

The Way Forward Against Death By Incarceration In Pennsylvania

The Way Forward Against Death By Incarceration In Pennsylvania


Yesterday, the Philadelphia Inquirer editorial board looked at two overlapping injustices in Pennsylvania: the large number of people sentenced to die in prison and the use of this sentence against people who are considered accomplices to a crime but did not kill anyone and are convicted of felony murder. It also discussed a mechanism for addressing these problems: the state’s clemency process, sidelined for decades but now experiencing a revival through the leadership of Lt. Gov. John Fetterman.

A sentence of life in prison is an extreme punishment, yet these sentences are common in the United States. The Sentencing Project has found that 1 in 7 people in prison in the U.S. are serving a life sentence or what, by virtue of sentence length, is its equivalent. There are more people sentenced to die in prison than there were people in prison in the early 1970s.

Pennsylvania is one of the worst U.S. states on the matter of life without parole sentences. There are more than 5,300 people in prison for life in the state. (In absolute numbers, only Florida has more people in prison for life.) These sentences have been incredibly concentrated, with more than half of those people sentenced in Philadelphia. And while life without parole sentences have been used disproportionately against Black and Latinx people across the country, Pennsylvania is even worse than the national average on this measure.

These numbers are the product of the tough-on-crime sentencing laws that swept the nation in the ’80s. In commentary for the Inquirer in January, Ashley Nellis of the Sentencing Project and co-author of “The Meaning of Life: The Case for Abolishing Life Sentences,” identified three sets of laws that contribute to Pennsylvania’s flood of life sentences. First, a life sentence in Pennsylvania is automatically a life without parole sentence. (It is one of only five states where parole is not available for anyone sentenced to life in prison.) Second, life sentences are automatic for anyone convicted of first- or second-degree murder. This includes felony murder, in which a person who is considered an accomplice to murder but did not kill anyone, which is second-degree murder. Finally, the state charges children as young as 14 as adults, resulting in, as Nellis wrote, “the nation’s—and the world’s—largest population of lifers who were juveniles at the time of their offense.”

The problem has been clear for some time. State lawmakers have introduced bills to restore parole eligibility for some people sentenced to life in prison. There have also been legislative efforts to address the injustice of felony murder sentencing. These bills have not yet passed in the legislature.

At the local level, in Philadelphia at least, there has been an attempt to correct the practice of overcharging that contributed to so many people being sentenced to death in prison. For too long, at the local level, district attorneys have used harsh sentences as a tool to extract pleas and have made bringing the highest charges possible the default. These charging decisions, made by prosecutors with full information about sentence lengths (unlike jurors, who lack this information at trial), make extremely long sentences the norm. Philadelphia District Attorney Larry Krasner is trying to change this, introducing a policy of carefully considering the full spectrum of charges available in homicide cases and evaluating which is most appropriate on a case-by-case basis.

These necessary efforts all address the front-end and the flow into the prison system. But as is the case nationally, it is important to couple these efforts with mechanisms to release the people who are already in prison. In Pennsylvania, Lt. Gov. Fetterman, chairperson of the state Board of Pardons, has made restarting the clemency processincluding for people convicted of violent crimes, a priority. Since Governor Tom Wolf took office, he has granted commutations to 11 people who had been sentenced to die in prison. In September, the Pennsylvania Board of Pardons recommended commutations for nine people in prison for life. In Philadelphia, the DA’s office Conviction Review Unit examines cases for unjust sentencing as well as wrongful convictions.

The work to address Pennsylvania’s incarceration system has been underway for a long time. The movements that propelled Krasner to Philadelphia DA have also envisioned the review of extreme sentences. People who have lost loved ones both to homicides and to the prison system have described themselves as “dual victims” and called for an end to life without parole sentences.

Last year, the Philadelphia-based Abolitionist Law Center issued a report on life without parole sentences in Pennsylvania and recommendations for ending the practice.

“The situation of permanent imprisonment for more than 5,300 people in Pennsylvania is untenable,” the authors wrote. “It does not have to be this way. In the vast majority of the world, it is not. DBI [death by incarceration] sentences are another peculiarly U.S.-based phenomenon. Around much of the world such sentences are not permitted, and where they are they are not imposed at anywhere near the levels that they are imposed in this country. The racial demographics of DBI sentences are a scandal and a human rights travesty.”

And these sentences do not just affect people in prison. They afflict families and cripple communities. “The consequences of DBI sentencing extend far beyond the prison walls,” the authors continued. “The total absence of redemptive opportunity hardens punitive attitudes in society by legitimating the most destructive and divisive impulses within people: fear, vengeance, racism, and cruelty.”

To fight to end death by incarceration sentences, they wrote, is also to fight for a society ordered around different values. “Ultimately, the fight to abolish DBI sentences is a fight over what type of society we want to live in, whether we will organize around values of restoration and redemption and healing or continue down the path of fear and stigma and vengeance. The fight is about how much injustice people will tolerate from the government.”

Massachusetts’ Highest Court Is Urged To Address A Crisis In Indigent Defense

Massachusetts’ Highest Court Is Urged To Address A Crisis In Indigent Defense


What you’ll read today

  • Spotlight: Massachusetts’ highest court is urged to address a crisis in indigent defense

  • Tuesday’s election boosts voting rights for people with past convictions

  • Deadlocked San Francisco district attorney race shows strength of progressive prosecutor movement

  • 39 years after a death sentence, Bobby Moore resentenced to life in prison in Texas

  • In response to Freedom of Information request, Brooklyn DA releases names of officers with credibility issues

In the Spotlight

Massachusetts’ highest court is urged to address a crisis in indigent defense

Fifteen years ago, people arrested and charged in Hampden County, Massachusetts, but unable to afford representation, were jailed pretrial with no lawyers to represent them. The cause was a steady shortage of “bar advocates” (private attorneys assigned cases and paid an hourly rate) willing to take these cases, due to low rates of compensation.

In a 2004 case, Lavallee v. Justices in the Hampden Superior Court, the state’s highest court ruled that anyone in jail pretrial for more than seven days who did not have counsel had to be released, and that anyone deprived of counsel for more than 45 days would be entitled to dismissal of charges (without prejudice).

Today, the same court, the Supreme Judicial Court of Massachusetts, will confront a similar crisis in attorney shortage as it hears arguments in Carrasquillo v. Hampden County District Court. The case could have far-reaching consequences for the right to counsel for people arrested in the state. Fifteen years since the Lavallee case, when compensation rates for bar advocates in Massachusetts were the lowest in the country, they have barely moved. The current rate of compensation is $53 an hour for district court cases—a $3 increase over the rate paid 10 years ago. Representation in superior court cases earns $68 an hour in non-homicide cases and $100 an hour in homicide cases. These rates fall far below that available in private practice. There are also statutory caps on the number of hours attorneys can bill.

In spring 2018, the Springfield office of the Committee for Public Counsel Services (CPCS), the statewide public defender, began to be asked to represent clients in Hampden County who would normally be represented by bar advocates. The result was a rapid increase in public defender caseloads, going beyond individual attorneys’ “capacity to provide effective representation,” including for a three-month stretch from April to June this year. In June, when the heads of the office informed a judge that their attorneys were overburdened and could not handle a steady flow of new clients without compromising representation of their existing clients, the judge instead issued an order that the office “accept appointment in all cases as ordered by the Court to represent clients at arraignment, bail hearings, hearings … and any other matter that the Court deems necessary” for bail and all other purposes.

CPCS attorneys moved to vacate the order, arguing that “the burden of a systemic lapse can’t be borne by the defendant. And once we allow lawyers who are already overburdened to take on new clients who they really can’t represent, it’s the client who’s bearing the burden of this systemic lapse.” The motion was denied and the office was assigned “approximately 113 cases under protest” over a three-week period before a single judge of the Supreme Judicial Court issued an order that stopped the assignments.

Rather than assign the cases to individual CPCS attorneys, however, the office responded to the additional assignments by instituting “an emergency duty day payment” of $424 for private attorneys to work “duty days” and accept assignment of the cases arraigned that day.

The higher rate of emergency duty day payment worked. As CPCS details in its brief: “The number of Hampden County district court defendants without counsel decreased from 169 on July 3, 2019, to 72 cases on August 5, 2019. As of September 10, 2019, there were three district court defendants without counsel.”

But the emergency payment had negative consequences for surrounding counties, which then suffered their own shortages in bar advocates as attorneys chose to take the assignments in Hampden County instead.

The statewide problem, which is particularly profound in Hampden County, requires a statewide solution.

An amicus brief, filed by the Hampden County Lawyers for Justice and the Massachusetts Association of Criminal Defense Lawyers, urges the court to go beyond the “stopgap measure” designed in the Lavallee ruling and find “a permanent remedy for … a systemic problem of constitutional dimension.” Compensation rates for bar advocates, the brief notes, barely budged in the two decades before Lavallee and, despite the court’s ruling, have stagnated since. The result is that fewer private attorneys are willing to handle the cases, compromising the right to counsel for individuals in the present, and risking a trend of fewer attorneys being available for criminal defense in the future.

Any remedy, they argue, must include “declaring the statutory rates unconstitutional as applied to Hampden County, and by expressly authorizing compensation rates in excess of what the Legislature has appropriated.”

The lawyers groups also urge the court to “order that judges confer with prosecutors and encourage or require them to dismiss cases with prejudice in order to manage judicial resources (i.e. attorneys) and ensure that each defendant has the effective assistance of counsel.”

Issues of low pay also affect the state’s public defenders, and therefore, the statewide quality of indigent defense. In 2004, before the Supreme Judicial Court’s decision in Lavallee, David Feige looked at the larger problems with assigned-counsel plans, writing in Slate that “assigned-counsel rates should rise” but “raising them without a re-examination of standards or the establishment of a well-funded public defender system replete with caseload caps and ancillary services, is only burying the larger issue.”

This year, for the sixth year in a row, Massachusetts public defenders lobbied for the passage of a bill that would allow them to unionize. An article on last year’s effort reported that a public defender in Northampton who joined the office in 2012 said he started out at around $38,000 or $39,000. Public defenders are among the lowest-paid actors in the system, earning less than court officers and probation officers.

A 2014 Massachusetts Bar Association report looked at pay and compensation for assistant district attorneys, public defenders, and private attorneys appointed as bar advocates. The authors wrote: “The present salaries paid to attorneys working in our criminal justice system are so inadequate that they cannot meet the financial obligations attendant to everyday, normal living. The unvarnished truth is the compensation is so poor that it drives these lawyers away from the criminal justice system or into the ranks of the working poor.”

Stories From The Appeal

Apparent Governor-elect Andy Beshear celebrates with supporters in Kentucky. [John Sommers II/Getty Images]

Tuesday’s Election Boosts Voting Rights for People With Past Convictions. A claimed victory in Kentucky and wins in Virginia mean hundreds of thousands of people could have their right to vote restored. [Kira Lerner and Daniel Nichanian]

Deadlocked San Francisco District Attorney Race Shows Strength of Progressive Prosecutor Movement. Chesa Boudin narrowly trails Suzy Loftus, even after local law enforcement spent hundreds of thousands of dollars to defeat him. [Elizabeth Weill-Greenberg]

Stories From Around the Country

39 years after he was sentenced to death in Texas, Bobby Moore resentenced to life in prison: Bobby Moore was sentenced to death in 1980. The U.S. Supreme Court considered his sentence twice, the second time deciding that Moore did have an intellectual disability that rendered the death penalty unconstitutional in his case. It had previously thrown out the state’s highest court of criminal appeals’s method for identifying a disability. After the most recent decision, the Texas Court of Criminal Appeals had no choice but to resentence Moore to life in prison. Life sentences in Texas at the time of Moore’s conviction all allowed for the possibility of release on parole, so Moore’s sentence will be life with the possibility of parole. Harris County District Attorney Kim Ogg supported Moore’s resentencing. [Jolie McCullough / Texas Tribune]

In response to Freedom of Information request, Brooklyn DA releases names of officers with credibility issues: In April, Gothamist and WNYC reported that all five New York City district attorneys were creating lists of officers whose credibility was in question. In response to a request under the state Freedom of Information Law, the Brooklyn district attorney’s office released a small part of its list to Gothamist and WNYC. It includes 53 state and federal cases in which officers’ testimony was either “discredited or called into question” by judges. A staff attorney at Brooklyn Defender Services who reviewed the records said they included information that had not been previously provided to public defenders and necessitated a review of past convictions that involved officers with credibility issues. The district attorney’s office “declined to release another list, containing Civilian Complaint Review Board complaints, NYPD Internal Affairs Bureau records, and other credibility findings by judges and Brooklyn prosecutors themselves.” [George Joseph / Gothamist and WNYC]

People in prison run enormous risks when they speak out. They need to be heard.

People in prison run enormous risks when they speak out. They need to be heard.


What you’ll read today

  • Spotlight: People in prison run enormous risks when they speak out. They need to be heard.

  • Rep. Ayanna Pressley unveils sweeping plan to reshape American criminal legal system

  • The Appeal Podcast: States turn to nitrogen gas for executions, despite serious concerns

  • As Michigan raises the age, advocates vow to press for more change

  • After bail reform, a drop in arrests in New Jersey

  • Ban on warrantless ICE arrests in Oregon courthouses

In the Spotlight

People in prison run enormous risks when they speak out. They need to be heard.

In April, the U.S. Department of Justice issued a report on conditions in Alabama state prisons, detailing the findings of a more than two year investigation. The DOJ found “overcrowding, dismal conditions, a lack of staff, and deliberate indifference from prison officials contributed to rampant unchecked violence, sexual abuse, and extortion,” reported Raven Rakia for The Appeal. The DOJ report elaborated on what had come to national attention that month, when more than 2,000 photographs were smuggled out of one notorious Alabama prison and published in various outlets, including the New York Times and Splinter. The pictures, believed to have been shared by a corrections officer at the St. Clair Correctional Facility, showed rampant violence and bloodshed, abysmal medical care, and untreated mental health issues.

The revelations were not new to people in Alabama’s prisons who, Rakia wrote, “have tried to expose this reality for years.”

But as Melissa Brown of the Montgomery Advertiser points out in an article this week, incarcerated people’s own accounts of life inside these places has rarely been sought out or heard in a way that matches their importance. “All too often,” she wrote, “the voices of the people directly affected by the Alabama prison system are not heard.” In fact, “Nearly every day, accounts released by state officials are reported without verification, despite the fact multiple federal institutions have found that [the Alabama Department of Corrections’] own employees have lied in their record-keeping and under-counted violent incidents as severe as murder.”

Brown shares the accounts of multiple men incarcerated in Alabama prisons who spoke up about the degrading, violent conditions in prison. “I have found myself living in hell,” said Wendell Roberts. Another man described the elderly men incarcerated decades after their convictions. “What threat are they to society? I’m talking about people in their 80s. Some of them in here are blind. They have to put their hand on another person’s shoulder to go to the chow hall or the store.”

The men describe a situation in which the state has abdicated any responsibility for the people it imprisons. They speak out at what they assume will be significant risk to themselves.

The impeachment hearings underway in Washington are a reminder that in times of crisis, we rely on people who speak up, sometimes at great personal risk, to alert us to grave danger and wrongdoing. The horror of our criminal legal system—its racism and violence, the millions of years taken from millions of lives, the indifference to human suffering and disregard for human potential—will never command the coverage of a presidential impeachment proceeding. Incarcerated people who share their experiences from our prisons—taxpayer-funded institutions, Brown points out—may never be hailed as heroes.

But the risk they run in speaking out is real. In today’s Washington Post, Jessica L. Adler looks at how people in prison have spoken out for decades but “even as legal precedents and criminal justice policies have changed,” people “have been consistently and flagrantly intimidated, discredited and worse, with far-reaching consequences.” She mentions the example from 1975 of one woman who told a federal judge “that she was placed in solitary confinement for 54 days and beaten after making her dissatisfaction with prison administrators known, in part by publicly singing ‘We Shall Overcome.’”

In the April article, Rakia reported on alleged state retaliation against people in Alabama prisons who said they were being punished for trying to improve conditions and reduce violence. Members of the Free Alabama Movement and Convicts Against Violence alleged that they were transferred and placed in solitary confinement because of their organizing work inside prison. One man described the conditions they found themselves in after the transfers to The Appeal: “They were just put in the cell with no soap, no toiletries, no toothbrush, no nothing—nothing but a mattress. Some of them didn’t even have a sheet or blanket. They were transferred from St. Clair to Holman with nothing. The COs [corrections officers] took all their property. They were left in there for about a week, I think, before DOC even gave them any tissue.”

During the 2018 national prison strike, Rakia reported on how the organizers of the strike had “decided to remain anonymous in their interactions with the public to try to prevent the type of retaliation” experienced by previous prison strike organizers.

What they feared was violence by corrections officers. “Several guards beat alleged strike leader Terrance Dean unconscious” after a 2010 Georgia strike,” wrote Rakia. ““The system is not a game to be played with,” one organizer told her. “The one thing [strike organizers] always said was don’t put your face out there, don’t put your name out there under any circumstances because if we’re doing five or 10 years [in a] supermax, there’s nothing [the public] can do” to prevent reprisals.”

“Correctional officers who retaliate … cannot be regarded as rogue actors,” wrote James E. Robertson in a 2009 law review article. “They act within the norm.” That norm is the product of the “surplus power” of prison staff, the gaping power differential state policymakers create between the incarcerated and guards. “The cell door symbolizes surplus power,” Robertson wrote, since it is the officers, not the people in the cells, who decide when the door is opened or closed. That power differential builds off the unchecked latitude handed to officers, “rule enforcement powers that readily mask retaliatory intent” because of  “the frequent vagueness of disciplinary rules,” which give them “ample leeway in deciding when and where to enforce these rules.” They have the power to write disciplinary tickets backed up by little or no evidence and the power to throw someone in an isolation cell.

In New York, the suspicious death of a man in one of the state’s most notorious prisons would not have come to light but for the efforts of incarcerated people to speak about it, despite these risks. Last month, Jan Ransom of the New York Times wrote about the January death of 67-year-old John McMillon, billed as a heart attack by department officials but described as the result of a brutal beating by nine men incarcerated with McMillon who said they witnessed what happened. In a follow-up piece, Ransom described how her reporting was driven by the willingness of people in prison to talk to her, in some cases even allowing her to use names.

The reasons they gave for talking to her were strikingly similar to what men in Alabama told Melissa Brown: feelings of fear, vulnerability, fellowship, and responsibility. In New York, Ricardo Rosado told Ransom, “If it had happened to me, I would want someone to do the same thing.”

In Alabama, one man told Brown, “If I die in here, I don’t want it to be a waste. Maybe what I’m saying will save somebody.”

Stories From The Appeal

Representative Ayanna Pressley of Massachusetts in January. [Tom Williams/CQ Roll Call]

Rep. Ayanna Pressley Unveils Sweeping Plan to Reshape American Criminal Legal System. Under the proposal, localities would be incentivized to significantly decrease prison populations. [Kira Lerner]

The Appeal Podcast: States Turn to Nitrogen Gas for Executions, Despite Serious Concerns. Appeal staff reporter Lauren Gill discusses the questions around nitrogen gas and the continuing search for ways to end human life behind bars. [Adam H. Johnson]

Political Report: As Michigan Raises the Age, Advocates Vow to Press for More Change. A major new law will put an end to the automatic treatment of all 17-year-olds as adults. But state prosecutors will retain “ridiculously broad” discretion. [Daniel Nichanian]

Stories From Around the Country

After bail reform, a drop in arrests in New Jersey: In New York, prosecutors and police have been fearmongering around bail reform that will go into effect in January. But in New Jersey, where similar reforms went into effect in 2017, the rate of reported crime has declined. NJ Advance Media reports that bail reforms have also coincided with “fewer people being arrested for low-level crimes, jail populations that plummeted even more than expected and an increase in defendants set free without conditions such as ankle-bracelet monitoring.” This is according to a study published yesterday. The study was funded by Arnold Ventures, which also created the risk-assessment tool that New Jersey courts use instead of relying on cash bail. The New Jersey law moved away from the use of cash bail but did not eliminate pretrial detention. And one area where implementation has failed has been with respect to detention hearings that were supposed to happen within three days of arrest to determine whether someone would be held in pretrial detention. Instead, these “commonly occur about a week after arrest,” according to the study. [S.P. Sullivan and Disha Raychaudhuri / NJ Advance Media]

Ban on warrantless ICE arrests in Oregon courthouses: The Oregon Supreme Court has issued a rule limiting the power of ICE agents to make arrests in state courthouses. The rule requires that ICE officers have a signed judicial warrant, rather than an administrative warrant signed by other ICE officers, if they plan to enter a courthouse to make an arrest. Under the rule, civil immigration arrests in courthouses, their parking lots, sidewalks, and entryways are also banned without a judicial arrest warrant. Oregon becomes the third state, after New York and New Jersey, to have a statewide court rule. A California law offers similar protections to immigrants, according to the ACLU of Oregon. [Conrad Wilson / Oregon Public Broadcasting]

Speaking Out About Prison Conditions Is Risky. Incarcerated People Do It Anyway.

Speaking Out About Prison Conditions Is Risky. Incarcerated People Do It Anyway.


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

In April, the U.S. Department of Justice issued a report on conditions in Alabama state prisons, detailing the findings of a more than two year investigation. The DOJ found “overcrowding, dismal conditions, a lack of staff, and deliberate indifference from prison officials contributed to rampant unchecked violence, sexual abuse, and extortion,” reported Raven Rakia for The Appeal. The DOJ report elaborated on what had come to national attention that month, when more than 2,000 photographs were smuggled out of one notorious Alabama prison and published in various outlets, including the New York Times and Splinter. The pictures, believed to have been shared by a corrections officer at the St. Clair Correctional Facility, showed rampant violence and bloodshed, abysmal medical care, and untreated mental health issues.

The revelations were not new to people in Alabama’s prisons who, Rakia wrote, “have tried to expose this reality for years.”

But as Melissa Brown of the Montgomery Advertiser points out in an article this week, incarcerated people’s own accounts of life inside these places has rarely been sought out or heard in a way that matches their importance. “All too often,” she wrote, “the voices of the people directly affected by the Alabama prison system are not heard.” In fact, “Nearly every day, accounts released by state officials are reported without verification, despite the fact multiple federal institutions have found that [the Alabama Department of Corrections’] own employees have lied in their record-keeping and under-counted violent incidents as severe as murder.”

Brown shares the accounts of multiple men incarcerated in Alabama prisons who spoke up about the degrading, violent conditions in prison. “I have found myself living in hell,” said Wendell Roberts. Another man described the elderly men incarcerated decades after their convictions. “What threat are they to society? I’m talking about people in their 80s. Some of them in here are blind. They have to put their hand on another person’s shoulder to go to the chow hall or the store.”

The men describe a situation in which the state has abdicated any responsibility for the people it imprisons. They speak out at what they assume will be significant risk to themselves.

The impeachment hearings underway in Washington are a reminder that in times of crisis, we rely on people who speak up, sometimes at great personal risk, to alert us to grave danger and wrongdoing. The horror of our criminal legal system—its racism and violence, the millions of years taken from millions of lives, the indifference to human suffering and disregard for human potential—will never command the coverage of a presidential impeachment proceeding. Incarcerated people who share their experiences from our prisons—taxpayer-funded institutions, Brown points out—may never be hailed as heroes.

But the risk they run in speaking out is real. In today’s Washington Post, Jessica L. Adler looks at how people in prison have spoken out for decades but “even as legal precedents and criminal justice policies have changed,” people “have been consistently and flagrantly intimidated, discredited and worse, with far-reaching consequences.” She mentions the example from 1975 of one woman who told a federal judge “that she was placed in solitary confinement for 54 days and beaten after making her dissatisfaction with prison administrators known, in part by publicly singing ‘We Shall Overcome.’”

In the April article, Rakia reported on alleged state retaliation against people in Alabama prisons who said they were being punished for trying to improve conditions and reduce violence. Members of the Free Alabama Movement and Convicts Against Violence alleged that they were transferred and placed in solitary confinement because of their organizing work inside prison. One man described the conditions they found themselves in after the transfers to The Appeal: “They were just put in the cell with no soap, no toiletries, no toothbrush, no nothing—nothing but a mattress. Some of them didn’t even have a sheet or blanket. They were transferred from St. Clair to Holman with nothing. The COs [corrections officers] took all their property. They were left in there for about a week, I think, before DOC even gave them any tissue.”

During the 2018 national prison strike, Rakia reported on how the organizers of the strike had “decided to remain anonymous in their interactions with the public to try to prevent the type of retaliation” experienced by previous prison strike organizers.

What they feared was violence by corrections officers. “Several guards beat alleged strike leader Terrance Dean unconscious” after a 2010 Georgia strike,” wrote Rakia. ““The system is not a game to be played with,” one organizer told her. “The one thing [strike organizers] always said was don’t put your face out there, don’t put your name out there under any circumstances because if we’re doing five or 10 years [in a] supermax, there’s nothing [the public] can do” to prevent reprisals.”

“Correctional officers who retaliate … cannot be regarded as rogue actors,” wrote James E. Robertson in a 2009 law review article. “They act within the norm.” That norm is the product of the “surplus power” of prison staff, the gaping power differential state policymakers create between the incarcerated and guards. “The cell door symbolizes surplus power,” Robertson wrote, since it is the officers, not the people in the cells, who decide when the door is opened or closed. That power differential builds off the unchecked latitude handed to officers, “rule enforcement powers that readily mask retaliatory intent” because of  “the frequent vagueness of disciplinary rules,” which give them “ample leeway in deciding when and where to enforce these rules.” They have the power to write disciplinary tickets backed up by little or no evidence and the power to throw someone in an isolation cell.

In New York, the suspicious death of a man in one of the state’s most notorious prisons would not have come to light but for the efforts of incarcerated people to speak about it, despite these risks. Last month, Jan Ransom of the New York Times wrote about the January death of 67-year-old John McMillon, billed as a heart attack by department officials but described as the result of a brutal beating by nine men incarcerated with McMillon who said they witnessed what happened. In a follow-up piece, Ransom described how her reporting was driven by the willingness of people in prison to talk to her, in some cases even allowing her to use names.

The reasons they gave for talking to her were strikingly similar to what men in Alabama told Melissa Brown: feelings of fear, vulnerability, fellowship, and responsibility. In New York, Ricardo Rosado told Ransom, “If it had happened to me, I would want someone to do the same thing.”

In Alabama, one man told Brown, “If I die in here, I don’t want it to be a waste. Maybe what I’m saying will save somebody.”

Democrats Should Deliver On Gun Control That Doesn’t Feed Mass Incarceration

Democrats Should Deliver On Gun Control That Doesn’t Feed Mass Incarceration


What you’ll read today

  • Spotlight: Democrats should deliver on gun control that doesn’t feed mass incarceration

  • Why prisoners get the doctors no one else wants

  • How district attorney Jackie Lacey failed Los Angeles

  • Philadelphia trauma center closure could mean more shooting deaths—and more tough-on-crime talk

  • Harmless Error: Explained

  • After denying it existed, the NYPD finally destroyed an illegal database of children’s fingerprints

  • Philadelphia DA’s conviction integrity unit has set aside 10 murder convictions since last year

In the Spotlight

Democrats should deliver on gun control that doesn’t feed mass incarceration

Last week, voters delivered decisive wins for Democrats in Virginia, giving the party full control of state government for the first time since 1994, according to the New York Times. Daniel Nichanian of The Appeal: Political Report highlighted the victories of three Democratic prosecutor candidates running on decarceration platforms in the state:  “The Election Day results overhauled Virginia’s landscape in particular, broadening the geography of decarceration, and paving the way for advocates to scale up county-level reform into demands for statewide change.”

“The legislature could tackle proposals to decriminalize pot, restrict disenfranchisement, lessen sentencing guidelines and felony thresholds, and strengthen discovery rules,” Nichanian wrote. The newly elected prosecutors all pledged to challenge the lobbying power of the Virginia Association of Commonwealth’s Attorneys, the state prosecutors group that consistently opposes reform.

With Democrats taking control in the state and voters in multiple jurisdictions supporting prosecutor candidates who believe it is their responsibility to tackle mass incarceration—in their jurisdictions and at the state level—the stage should be set for the state to shrink the footprint of and repair some of the harm inflicted by the criminal legal system.

For this reason it is especially important to follow one of the major issues that Virginia Democrats ran on: gun control.

For too long, the central debate in gun control policy has been between Republicans who oppose limits on gun ownership and Democrats who advocate limits. In this debate, the National Rifle Association and its adherents are the easy villains. But this obscures the questions about the type of policies adopted, as Daniel Denvir has pointed out. For too long, gun control has defaulted to using criminal law and the punishment system, with the familiar, inexcusable risks for people of color, particularly Black, Latinx, and Native men and boys.

In a 2015 law review article, Benjamin Levin, a professor at the University of Colorado Law School, argued that the lessons of the war on drugs should be applied to gun control policies.

“Like criminal drug statutes, existing and proposed criminal gun possession statutes should also trigger skepticism from critics of mass incarceration,” Levin wrote. “If we are concerned about mass incarceration because of its social or economic costs, we should subject to close scrutiny any legislation that further ramps up punishment or potentially increases the number of individuals serving extended sentences.”

Levin looked at how gun possession laws were the product of two troubling trends. Criminal laws that target gun possession, he wrote, “stand at once as markers of two concurrent, and seemingly inconsistent, trends in U.S. penal culture: criminal law as the regulatory mechanism of choice and punitive, extended incarceration as the dominant form of punishment. That is, the state governs through crime, stripping the criminal offense of many of its exceptional qualities; yet, the state punishes as though the criminal law remains exceptional, a space reserved for those who have violated the deep-seated moral values of the community, rather than those who have fallen afoul of yet another legislative diktat.”

What is urgent, Levin wrote, is to consider how we might “imagine a legal architecture for gun regulation that avoids the pitfalls of the War on Drugs.” And in what might serve as a caution for (mostly Democratic) legislators and journalists around the country, he noted that, “We live in a world of hard cases, and criminalization and turning to criminal punishment should be hard. Recognizing the seriousness of a social problem should not necessarily be enough to trigger a harsh criminal solution. Recognizing criminal law’s staggering social costs should be the legacy of the War on Drugs.”

Last month, The Appeal’s Media Frame column looked at one-sided reporting on gun violence in Charlotte, North Carolina. “When the problem of gun crime is examined through the eyes of law enforcement only, the solutions to the problem are unsurprisingly myopic,” wrote Adam Johnson. “Those interviewed in the piece believe the answer lies with ‘tougher laws’ and more resources for police and prosecutors. The well-documented idea that gun violence could be prevented or deterred by investing in resources into health clinics, anti-poverty programs, recreation centers, schools, public parks, or other public services that improve community ties and increase standards of living is never explored.”

The debates, which develop momentum after mass shootings, also ignore the complexity of gun violence and the reality that gun deaths are largely suicides and homicides that disproportionately affect communities of color. Black men and boys make up 6 percent of the U.S. population but are more than half of the country’s gun homicide victims.

(In a policy plan released last month, Senator Cory Booker, a Democratic presidential candidate, and Representative Steven Horsford introduced a bill that would fund a multi-year approach to addressing gun violence that does not default to using the criminal legal system. The plan calls for the allocation of $90 million a year to reducing gun violence. As The Guardian reported, the “bill does not include any gun control provisions: it’s focused on strategies that prevent shootings by focusing on the people, not the guns.” It is explicit about lessening the reliance on policing, requiring cities to give at least half of their federal grant dollars under the bill to community organizations that provide services to high-risk people, or to a public department “that is not a law enforcement agency.”)

In Virginia, the “gun control bills” championed by Governor Ralph Northam bills seem to rely on further criminalization of gun possession. As voters, media outlets, and state representatives and prosecutors move on from the recent elections, we should pay attention to whether the measures that Democrats introduce to reduce gun violence will build on or flatly contradict the recognition that mass criminalization and mass incarceration are not the social policies we need.

Stories From The Appeal

Illustration by Claire Merchlinsky

Why Prisoners Get the Doctors No One Else Wants. Even after a major class action suit required Illinois to revamp its prison healthcare system, doctors whose alleged neglect resulted in major injury or death still remain on the prison system payroll. [Taylor Elizabeth Eldridge]

Harmless Error: Explained. As one of the most frequently invoked doctrines in all of criminal appeals, “harmless error” has a profound influence on the behavior of everyone inside our criminal system, including police, prosecutors, defense attorneys, and judges. [Gabe Newland]

Stories From Around the Country

After denying it existed, the NYPD finally destroyed an illegal database of children’s fingerprints: Since 2015, the Legal Aid Society of New York has battled the NYPD “over retention of the fingerprint records of children under the age of 16,” reports the Intercept. This retention was illegal under state law. The Legal Aid Society told The Intercept that the NYPD confirmed to the lawyers last week that it had destroyed the database. “To date,” writes Alice Speri, “the department has made no public admission of wrongdoing, nor has it notified the thousands of people it impacted, although it has changed its fingerprint retention practices following Legal Aid’s probing.” The NYPD’s secret database deepens concerns over police handling of other private information, such as DNA and data from facial recognition technology. [Alice Speri / The Intercept]

Philadelphia DA’s conviction integrity unit has set aside 10 murder convictions since last year: After taking office as Philadelphia’s district attorney last year, Larry Krasner relaunched the Conviction Integrity Unit, one of 49 conviction review units in prosecutors’ offices nationwide. Since then, the unit has set aside 10 murder convictions. Three of them stemmed from the work of one longtime homicide detective who has been “accused of intimidating and sexually assaulting witnesses,” reports the Washington Post. After the accusations came to light, defense attorneys began revisiting the detective’s cases and sending them to the Conviction Integrity Unit. Krasner predicts more instances of cases that will require scrutiny. “I am aware that what is going to come out is that a short list of detectives are going to require systemic review of their convictions,” he told the Post. “The volume will get bigger soon because of the systemic corruption in Philadelphia.” [Tom Jackman / Washington Post] Last month, The Appeal published a photo essay on Terrance Lewis, the thirteenth person exonerated in Philadelphia since last year and one of the 10 who had been convicted of murder. He served 21 years in prison.

Democrats Should Deliver On Gun Control That Doesn’t Feed Mass Incarceration

New York City, 2012
Tony Savino / Corbis via Getty Images

Democrats Should Deliver On Gun Control That Doesn’t Feed Mass Incarceration


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

Last week, voters delivered decisive wins for Democrats in Virginia, giving the party full control of state government for the first time since 1994, according to the New York Times. Daniel Nichanian of The Appeal: Political Report highlighted the victories of three Democratic prosecutor candidates running on decarceration platforms in the state:  “The Election Day results overhauled Virginia’s landscape in particular, broadening the geography of decarceration, and paving the way for advocates to scale up county-level reform into demands for statewide change.”

“The legislature could tackle proposals to decriminalize pot, restrict disenfranchisement, lessen sentencing guidelines and felony thresholds, and strengthen discovery rules,” Nichanian wrote. The newly elected prosecutors all pledged to challenge the lobbying power of the Virginia Association of Commonwealth’s Attorneys, the state prosecutors group that consistently opposes reform.

With Democrats taking control in the state and voters in multiple jurisdictions supporting prosecutor candidates who believe it is their responsibility to tackle mass incarceration—in their jurisdictions and at the state level—the stage should be set for the state to shrink the footprint of and repair some of the harm inflicted by the criminal legal system.

For this reason it is especially important to follow one of the major issues that Virginia Democrats ran on: gun control.

For too long, the central debate in gun control policy has been between Republicans who oppose limits on gun ownership and Democrats who advocate limits. In this debate, the National Rifle Association and its adherents are the easy villains. But this obscures the questions about the type of policies adopted, as Daniel Denvir has pointed out. For too long, gun control has defaulted to using criminal law and the punishment system, with the familiar, inexcusable risks for people of color, particularly Black, Latinx, and Native men and boys.

In a 2015 law review article, Benjamin Levin, a professor at the University of Colorado Law School, argued that the lessons of the war on drugs should be applied to gun control policies.

“Like criminal drug statutes, existing and proposed criminal gun possession statutes should also trigger skepticism from critics of mass incarceration,” Levin wrote. “If we are concerned about mass incarceration because of its social or economic costs, we should subject to close scrutiny any legislation that further ramps up punishment or potentially increases the number of individuals serving extended sentences.”

Levin looked at how gun possession laws were the product of two troubling trends. Criminal laws that target gun possession, he wrote, “stand at once as markers of two concurrent, and seemingly inconsistent, trends in U.S. penal culture: criminal law as the regulatory mechanism of choice and punitive, extended incarceration as the dominant form of punishment. That is, the state governs through crime, stripping the criminal offense of many of its exceptional qualities; yet, the state punishes as though the criminal law remains exceptional, a space reserved for those who have violated the deep-seated moral values of the community, rather than those who have fallen afoul of yet another legislative diktat.”

What is urgent, Levin wrote, is to consider how we might “imagine a legal architecture for gun regulation that avoids the pitfalls of the War on Drugs.” And in what might serve as a caution for (mostly Democratic) legislators and journalists around the country, he noted that, “We live in a world of hard cases, and criminalization and turning to criminal punishment should be hard. Recognizing the seriousness of a social problem should not necessarily be enough to trigger a harsh criminal solution. Recognizing criminal law’s staggering social costs should be the legacy of the War on Drugs.”

Last month, The Appeal’s Media Frame column looked at one-sided reporting on gun violence in Charlotte, North Carolina. “When the problem of gun crime is examined through the eyes of law enforcement only, the solutions to the problem are unsurprisingly myopic,” wrote Adam Johnson. “Those interviewed in the piece believe the answer lies with ‘tougher laws’ and more resources for police and prosecutors. The well-documented idea that gun violence could be prevented or deterred by investing in resources into health clinics, anti-poverty programs, recreation centers, schools, public parks, or other public services that improve community ties and increase standards of living is never explored.”

The debates, which develop momentum after mass shootings, also ignore the complexity of gun violence and the reality that gun deaths are largely suicides and homicides that disproportionately affect communities of color. Black men and boys make up 6 percent of the U.S. population but are more than half of the country’s gun homicide victims.

(In a policy plan released last month, Senator Cory Booker, a Democratic presidential candidate, and Representative Steven Horsford introduced a bill that would fund a multi-year approach to addressing gun violence that does not default to using the criminal legal system. The plan calls for the allocation of $90 million a year to reducing gun violence. As The Guardian reported, the “bill does not include any gun control provisions: it’s focused on strategies that prevent shootings by focusing on the people, not the guns.” It is explicit about lessening the reliance on policing, requiring cities to give at least half of their federal grant dollars under the bill to community organizations that provide services to high-risk people, or to a public department “that is not a law enforcement agency.”)

In Virginia, the “gun control bills” championed by Governor Ralph Northam bills seem to rely on further criminalization of gun possession. As voters, media outlets, and state representatives and prosecutors move on from the recent elections, we should pay attention to whether the measures that Democrats introduce to reduce gun violence will build on or flatly contradict the recognition that mass criminalization and mass incarceration are not the social policies we need.

Massachusetts’ Highest Court Is Urged To Address A Crisis In Indigent Defense

Massachusetts’ Highest Court Is Urged To Address A Crisis In Indigent Defense


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

Fifteen years ago, people arrested and charged in Hampden County, Massachusetts, but unable to afford representation, were jailed pretrial with no lawyers to represent them. The cause was a steady shortage of “bar advocates” (private attorneys assigned cases and paid an hourly rate) willing to take these cases, due to low rates of compensation.

In a 2004 case, Lavallee v. Justices in the Hampden Superior Court, the state’s highest court ruled that anyone in jail pretrial for more than seven days who did not have counsel had to be released, and that anyone deprived of counsel for more than 45 days would be entitled to dismissal of charges (without prejudice).

Today, the same court, the Supreme Judicial Court of Massachusetts, will confront a similar crisis in attorney shortage as it hears arguments in Carrasquillo v. Hampden County District Court. The case could have far-reaching consequences for the right to counsel for people arrested in the state. Fifteen years since the Lavallee case, when compensation rates for bar advocates in Massachusetts were the lowest in the country, they have barely moved. The current rate of compensation is $53 an hour for district court cases—a $3 increase over the rate paid 10 years ago. Representation in superior court cases earns $68 an hour in non-homicide cases and $100 an hour in homicide cases. These rates fall far below that available in private practice. There are also statutory caps on the number of hours attorneys can bill.

In spring 2018, the Springfield office of the Committee for Public Counsel Services (CPCS), the statewide public defender, began to be asked to represent clients in Hampden County who would normally be represented by bar advocates. The result was a rapid increase in public defender caseloads, going beyond individual attorneys’ “capacity to provide effective representation,” including for a three-month stretch from April to June this year. In June, when the heads of the office informed a judge that their attorneys were overburdened and could not handle a steady flow of new clients without compromising representation of their existing clients, the judge instead issued an order that the office “accept appointment in all cases as ordered by the Court to represent clients at arraignment, bail hearings, hearings … and any other matter that the Court deems necessary” for bail and all other purposes.

CPCS attorneys moved to vacate the order, arguing that “the burden of a systemic lapse can’t be borne by the defendant. And once we allow lawyers who are already overburdened to take on new clients who they really can’t represent, it’s the client who’s bearing the burden of this systemic lapse.” The motion was denied and the office was assigned “approximately 113 cases under protest” over a three-week period before a single judge of the Supreme Judicial Court issued an order that stopped the assignments.

Rather than assign the cases to individual CPCS attorneys, however, the office responded to the additional assignments by instituting “an emergency duty day payment” of $424 for private attorneys to work “duty days” and accept assignment of the cases arraigned that day.

The higher rate of emergency duty day payment worked. As CPCS details in its brief: “The number of Hampden County district court defendants without counsel decreased from 169 on July 3, 2019, to 72 cases on August 5, 2019. As of September 10, 2019, there were three district court defendants without counsel.”

But the emergency payment had negative consequences for surrounding counties, which then suffered their own shortages in bar advocates as attorneys chose to take the assignments in Hampden County instead.

The statewide problem, which is particularly profound in Hampden County, requires a statewide solution.

An amicus brief, filed by the Hampden County Lawyers for Justice and the Massachusetts Association of Criminal Defense Lawyers, urges the court to go beyond the “stopgap measure” designed in the Lavallee ruling and find “a permanent remedy for … a systemic problem of constitutional dimension.” Compensation rates for bar advocates, the brief notes, barely budged in the two decades before Lavallee and, despite the court’s ruling, have stagnated since. The result is that fewer private attorneys are willing to handle the cases, compromising the right to counsel for individuals in the present, and risking a trend of fewer attorneys being available for criminal defense in the future.

Any remedy, they argue, must include “declaring the statutory rates unconstitutional as applied to Hampden County, and by expressly authorizing compensation rates in excess of what the Legislature has appropriated.”

The lawyers groups also urge the court to “order that judges confer with prosecutors and encourage or require them to dismiss cases with prejudice in order to manage judicial resources (i.e. attorneys) and ensure that each defendant has the effective assistance of counsel.”

Issues of low pay also affect the state’s public defenders, and therefore, the statewide quality of indigent defense. In 2004, before the Supreme Judicial Court’s decision in Lavallee, David Feige looked at the larger problems with assigned-counsel plans, writing in Slate that “assigned-counsel rates should rise” but “raising them without a re-examination of standards or the establishment of a well-funded public defender system replete with caseload caps and ancillary services, is only burying the larger issue.”

This year, for the sixth year in a row, Massachusetts public defenders lobbied for the passage of a bill that would allow them to unionize. An article on last year’s effort reported that a public defender in Northampton who joined the office in 2012 said he started out at around $38,000 or $39,000. Public defenders are among the lowest-paid actors in the system, earning less than court officers and probation officers.

A 2014 Massachusetts Bar Association report looked at pay and compensation for assistant district attorneys, public defenders, and private attorneys appointed as bar advocates. The authors wrote: “The present salaries paid to attorneys working in our criminal justice system are so inadequate that they cannot meet the financial obligations attendant to everyday, normal living. The unvarnished truth is the compensation is so poor that it drives these lawyers away from the criminal justice system or into the ranks of the working poor.”

The U.S. Has No “Right To Be Forgotten.” But One News Outlet Is Weighing The Costs Of The Internet’s Long Memory.

The U.S. Has No “Right To Be Forgotten.” But One News Outlet Is Weighing The Costs Of The Internet’s Long Memory.


What you’ll read today

  • Spotlight: The U.S. has no “right to be forgotten.” But one news outlet is weighing the costs of the internet’s long memory.

  • Commentary: New York subway police make us less safe

  • Democrats flip prosecutors seats in Virginia

  • Despite bipartisan pledges, drug arrests have gone up in recent years

In the Spotlight

The U.S. has no “right to be forgotten.” But one news outlet is weighing the costs of the internet’s long memory.

Last week on the podcast “On the Media,” Molly Webster looked at the unusual experiment underway at a Cleveland paper. In a 2014 decision, the European Union’s highest court recognized a “right to be forgotten” enforceable against Google and other search engines. The decision recognized a right, for all individuals in the countries within the court’s jurisdiction, to prohibit Google from linking to items that were “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.”

As the consequences of that decision reverberated across Europe and globally, the newsroom of Cleveland.com began to grapple with the easy accessibility of its own online archives and the consequences for people whose past is chronicled in them. (Last month, the EU’s Court of Justice declined to broaden the scope of the decision and said it requires Google to delist applicable search results only on platforms identified with an individual’s country of residence or the EU as a whole. In other words, on Google.de or Google.fr, for example, but not Google.com.)

In the United States, where there is no recognized right to be forgotten (and First Amendment jurisprudence makes the likelihood of one far-fetched), a quick Google search can dredge up newspaper accounts of convictions or even arrests that are years or decades old. This means that people in a wide variety of circumstances—who were arrested but not convicted of a crime, who were convicted of crimes less serious than the arrest charges, who had legal justifications or defenses for the actions they engaged in, whose convictions were eventually expunged, who were wrongfully convicted and later exonerated—must deal with the possibility that a potential employer, or landlord, or neighbor, will find information about them that is damaging, and possibly inaccurate.

In Cleveland, Chris Quinn, editor and president of Cleveland.com/Advance Ohio began considering the question publicly in a number of columns in the wake of the EU decision. Quinn announced in a column in July 2018 that the outlet would start to “consider requests for removal of names from dated stories about minor crimes from people who have had their records expunged.”

The publication also decided to substantially reduce its use of mug shots because of the concern that the photos, “taken while people are in crisis, often inebriated and usually angry, afraid or upset,” reinforced racial stereotypes for no justifiable reason. Additionally, Quinn announced that the publication would “stop naming most people accused of most minor crimes,” arguing that there was little public value in sharing the names of people arrested for low-level offenses.

The “On The Media” episode captured a newsroom grappling with the requests it received from people asking, years after a low-level conviction, often after a court-ordered expungement, for the site to remove their names from stories that continued to play an outsize and harmful role in their reputations, their prospects, and their ability to live, grow, and change.

What had moved the newsroom to action was a recognition, as Quinn said, that previously “you had to really want to find something about a person’s past” and “spend hours or days scrolling through microfiche slides” to read a newspaper’s archives. Now the same thing was available in a few minutes of idling on the internet.

Webster spoke with Viktor Mayer-Schönberger, an Oxford professor who has been described as “one of the intellectual godfathers of the right to be forgotten.” Mayer-Schönberger said: “I’m not in favor of annihilating memories. I’m in favor of putting them in the shoebox and stashing them in the attic. If you really want to make the effort to go up there you can take them down, pour yourself a glass of wine and go through them but you don’t stumble over them every day.”

He also illuminated the costs of that easy, constant access to another person’s history, including their mistakes, saying, “We don’t know how to forgive if we remember. So as we become a remembering society, we become an unforgiving society.”

The United States has long been an exceptionally unforgiving society, especially for Black, Latinx, and Native people, and for poor people, from the point of police contact through the scores of consequences, including voting rights, that trail people with criminal legal system contact for years, or for life. Convictions, even arrests, can diminish a person’s chances at employment, education, and housing—the ingredients necessary for a stable, healthy existence.

In recognition of the damage a criminal record can do, state governments have begun to take steps to make sealing and expungement of records an option for people convicted of low-level offenses. So far the best of these, like Pennsylvania’s Clean Slate law, provide for automatic expungement. A recent Appeal article pointed out that in New York, where a record-sealing law that could apply to more than 600,000 eligible people, only 1,758 people had availed themselves of its provisions in the two years since it took effect, due to the complexity of the process.

Yet even the best record-sealing laws cannot address the damage of online information about a person’s criminal record. While we need generous expungement laws we also need news outlets to consider what value, if any, they add when they report on arrests; action by state actors to stop the flow of information to unethical actors; and restrictions on state actors themselves. And, of course, the recognition that the reams of information available online about contact with the criminal legal system are the byproduct of a system that inserts itself in millions of Americans’ lives.

That long, unforgiving reach of the criminal system is a stark contrast with the secrecy that surrounds the work of the state actors. As Sarah Esther Lageson wrote for Slate in March: “it’s far more important to demand access to public records that actually tell us about police, prosecutor, and prison officials’ behavior.” In New York, a law banning the release of mug shots and arrest information faced hostility from news outlets on grounds of transparency, even accountabiltiy,, as Lageson chronicled. But the NYPD has fought for years to restrict public access to information in police disciplinary records, an issue that first received widespread attention after the killing of Eric Garner in 2014 by NYPD officer Daniel Pantaleo.

Stories From The Appeal

New York City police officers at a subway station in Times Square [Drew Angerer/Getty Images]

Commentary: New York Subway Police Make Us Less Safe. Recent violent arrests in the city subways should make New Yorkers question the push by Governor Andrew Cuomo and the MTA to hire 500 new transit police. [Jonathan Ben-Menachem]

Stories From Around the Country

Democrats flip prosecutors seats in Virginia: Democrats won four prosecutors’ races in Northern Virginia yesterday, ushering in what one veteran defense attorney told the Washington Post would be “a sea change” in the region. Three of the four ran on promises to be “progressive prosecutors,” promising a sharp break from past practices, including “moving away from the death penalty, dropping prosecutions for mar