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Bail reform embraced by Cook County State’s Attorney

Office of Cook Co. State’s Attorney

Bail reform embraced by Cook County State’s Attorney

Cook County State’s Attorney Kim Foxx, whose office is responsible for prosecuting crimes in the nation’s second-larget county, has launched a new approach to pretrial detention. Foxx announced earlier this month that her office would be recommending that people charged with misdemeanors and low-level felonies who do not have a history of “violent crime” or pose a risk to public safety be released pre-trial.

Foxx’s change in policy marks a significant victory for justice reform advocates who argue that the cash-based system of jailing people accused of crime is biased against the poor.

“Routinely detaining people accused of low-level offenses who have not yet been convicted of anything, simply because they are poor is not only unjust — it undermines the public’s confidence in the fairness of the system,” Foxx said in a written statement.

Foxx said crimes where people would be released on their own recognizance — under what is called an I-bond — would “include retail theft, possession of a controlled substance and criminal damage to property.”

If prosecutors believe there are circumstances that make the defendant a threat or a flight risk, they can seek extra conditions.

Foxx’s new approach is also expected to help alleviate jail overcrowding in Chicago.

Local law enforcement has been supportive of the measure. A spokesman for the Chicago Police Department told the Chicago Tribune that Superintendent Eddie Johnson “supports efforts to keep violent offenders behind bars but doesn’t think the system is working when nonviolent offenders spend more time in jail than those who use and carry illegal guns.”

Bail reform is gaining nationwide support. Washington, D.C. and New Jerseyhave largely stopped using money as a condition for release and court challenges have ended or dramatically altered money bail systems in a number of other jurisdictions around the country.

Although bail is ultimately set by judges, prosecutors wield significant powerin the process and there is increasing attention on the role they can and should play. Larry Krasner, the Democratic nominee for District Attorney in Philadelphia, has vowed to end cash bail if he’s elected. The subject has garnered increased attention in the campaign for Brooklyn District Attorney. This past spring, Kim Ogg, who was elected District Attorney of Harris County, Texas, in November 2016, threw her support behind bail reform in her jurisdiction.

Under Criminal Investigation, California D.A. Resigns

Under Criminal Investigation, California D.A. Resigns

In early June, District Attorney Mark Peterson was busy planning for his reelection campaign in Contra Costa County, California. But life comes at you fast, especially when you’ve admitted to embezzling $66,000 in campaign funds for hotel rooms, movie tickets, jewelry, and other frivolities. Peterson got an unusual taste of his own medicine when he was detained June 9th in his own county by the state’s Attorney General, who launched a criminal investigation into his five-year slush fund spree.

Peterson had been under fire before his detention, but it didn’t seem to shake his confidence in the upcoming election. In May, a civil grand jury recommended he be removed from office, and the county’s district attorney association, comprised of line prosecutors in Peterson’s office, voted “no confidence” in their boss. In spite of the public shaming, in April, Peterson stated that he planned to run for reelection.

It took being detained by law enforcement agents and having his iPhone and calendar seized to change his mind. Five days later Peterson finally resigned and pleaded no contest to a felony perjury charge. He’ll serve three years of informal probation and perform 250 hours of community service — a punishment much less harsh than those regularly sought by his office for lesser crimes.

While Peterson’s slush fund scandal and detention rightly incited a flurry of local media coverage, a greater impropriety has gone largely unnoticed. Throughout his 10-year tenure as D.A., Peterson’s policy choices have shown him to be out of touch with the electorate when it comes to criminal justice. He consistently failed to support and even campaigned against multiple ballot initiatives that his community favored, such as Proposition 47, which passed in 2014. In an op-ed penned for the East Bay Times, Peterson railed against the popular initiative, which reduced certain nonviolent felony charges to misdemeanors, arguing that “the people who are in prison are the ones who should be there.” Unmoved by his fearmongering, 66.1 percent of his constituency supported the successful initiative — reflecting a broader support for criminal justice reform in the county that Peterson continues to push back against.

His disregard for the county’s stance on reform wasn’t limited to Proposition 47. In 2012, Peterson opposed Proposition 36, which revised the state’s three strikes law in an attempt to decrease its bloated prison population. Meanwhile, over 70 percent of Contra Costa voters supported its passage. Last year, Peterson again opted to ignore the electorate when he opposed Proposition 57, which increased parole opportunities for nonviolent felons, while nearly 70 percent of county voters favored it. State-wide, California disagreed with Peterson on all of these successful ballot initiatives.

The staunch law-and-order candidate also repeatedly denied the existence of systemic racism within Contra Costa’s criminal justice system. At a Black Lives Matter rally in December 2014, a group of Bay Area public defenders called out the local system for disproportionately incarcerating people of color. Robin Lipetzky, a Contra Costa County public defender, spoke of the racial disparities she saw “every day in judicial decisions, and in District Attorney filing decisions.” Peterson went on the defensive, calling the accusations“unfair, unsubstantiated, and misleading” in a letter and using the phrase “All Lives Matter” three times throughout his retort.

“The Public Defender suggested that people of color are over-represented in our jails,” wrote Peterson. “The fact is the jails are populated disproportionately by those who commit the most serious crimes. Unfortunately, it’s a sad fact that these crimes are perpetrated disproportionately by poor people of color.”

Peterson doubled down on his denial of systemic racism in Contra Costa again in January 2015, defending his rebuttal to Lipetzky in an op-ed. In the editorial, he added that he would “welcome an independent and objective study of race in our criminal justice system.” In the absence of that local study, Peterson could easily turn to the vast number of national studies on racial disparities in the criminal justice system, which illustrate the myriad reasonsblack and brown people are overrepresented — many of which are empirically tied to racial bias, whether implicit or intentional.

Before Peterson was elected as D.A. in 2010, he served as a city councilman and mayor of Concord, the largest city in Contra Costa County. During that time, between 2001 and 2010, the racial disparity between marijuana arrests of black and white citizens in the county leaped to 150 percent. A 2015 study found that although one in ten county residents are black, more than a quarter of all criminal cases in the county involve black defendants. There was plenty of data to prove him wrong; Peterson just ignored it.

Before his detention and the A.G.’s criminal investigation, Peterson suffered few repercussions for his actions. He was fined $45,000 by California’s Fair Political Practices Commission following the embezzlement scandal, but remained a member of the state bar association. The lack of consequences for an offense of such gravity stood in stark contrast to the convictions doled out to Contra Costa residents by his office for far more minor crimes.

Aron DeFerrari, president of the Contra Costa District Attorneys Association, told the East Bay Times that the line prosecutors’ vote of no confidence “is for the defendants who wonder why one standard applies to the district attorney and another standard applies to them.”

While Peterson’s cocksure bid for reelection is now off the table and he’s out of office, voters in Contra Costa now have a chance to challenge the candidates opting to replace Peterson. There are currently two candidates: Santa Clara County Deputy District Attorney Patrick Vanier, who formerly worked in Contra Costa as a prosecutor, and Contra Costa-based prosecutor Paul Graves, who until Peterson’s resignation was running against his boss. After ten years of being “served” by a D.A. who consistently failed to represent the electorate, the next local election is an opportunity to bring in a district attorney who actually reflects the constituency.

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Police and Prosecutors Should Do More to Protect Immigrants

Police and Prosecutors Should Do More to Protect Immigrants

Overwhelmingly, “undocumented” residents are referred to by the current administration In Washington as “illegal aliens” and identified almost exclusively as Latinos. There is little, if any, subtlety in this regard. The administration’s policy is undeniably race based.

Fortunately, New York has been a leader for years in taking steps to protect undocumented immigrants living within the city. It has been a self-identified “Sanctuary City” since 1989, and local laws have been on the books for several years limiting local cooperation with Immigration and Customs Enforcement (ICE) officials. Mayor Bill De Blasio has been outspoken in his opposition to the President’s deportation policies, saying that the city has no intention of cooperating with federal immigration authorities to enforce immigration law or help them detain undocumented residents. But as a former police officer with the New York City Police Department, I know there is much more that city and law enforcement leaders can and should legally, practically and morally do.

While New York’s political leadership in this area has been critical, it is also important to remember that they are not the only change-makers on this issue. Police and prosecutors also have a crucial role in ensuring that undocumented residents are protected. A recent report by Harvard Law School’s Fair Punishment Project shows that one of the most important factors in protecting undocumented residents in any city is re-evaluating criminal justice policies and how police and prosecutors direct residents into the system. Jurisdictions everywhere must commit to keeping people out of the system for minor offenses that don’t materially endanger public safety, such as low-level drug possession, traffic violations, and violations of “vagrancy” laws, such as loitering or sleeping in public.

It is more important than ever that local law enforcement agencies use their wide discretion in determining what offenses to prioritize. First and foremost, the city should act to eliminate any and all local ordinances that criminalize the effects of homelessness and poverty. This is not to say that homelessness and its attendant quality of life concerns for all should be ignored. In 2016, the city passed the Criminal Justice Reform Act, which created a civil option for low-level offenses including “being in a park after hours,” littering, and public urination. New York City officers now have the option to bypass the criminal justice system in dealing with these minor infractions; they should utilize it at every opportunity. For the undocumented, any kind of law enforcement contact could significantly increase risk of deportation.

Prosecutors should also actively factor immigration consequences into decisions they make regarding the charging of certain non-violent, low-level offenses. It is not uncommon for prosecutors to take circumstances unrelated to a crime into account when they decide how to proceed with a case; for example, a prosecutor might show leniency to a defendant who has valuable information. New York’s prosecutors should decline to prosecute minor offenses when it may open a defendant up to an unnecessary risk of deportation.

Prosecutors also have the discretion to stop asking for cash bail. Cash-bail policies are the norm almost everywhere in America, but they often result in people without financial resources being held in custody for long periods of time. Undocumented immigrants are more likely to be cash-poor, and the consequences of them being held in jail unnecessarily could be disastrous, as detention makes them much more vulnerable to being deported by ICE. Studies show that bail does not measurably improve public safety, and several jurisdictions, like Washington D.C., have already eliminated cash bail pending trial. In 2016, Mayor de Blasio announced that the city would move towards reliance on “supervised release” programs for low-risk offenders, saying that “no one should be in jail simply because they cannot pay bail.” This is an encouraging step towards meaningful bail reform, and local prosecutors should stop asking for bail in the majority of cases.

New York has long been at the forefront of “sanctuary city” discussions, but it should strengthen its commitment in the face of the increased threat posed by the new administration. Law enforcement and prosecutors’ offices have a vital role to play in this fight, and conscious reform of the criminal justice system is one of the most important things that the city of New York can do to protect all its residents. New Yorkers should collectively say “no” to the new administration’s policies, because at their core, those policies are immoral!

Edgar De Leon has worked as a Detective-Sergeant and an attorney for the New York City Police Department (NYPD). The views and opinions expressed in this article are Mr. De Leon’s and do not necessarily reflect the views of the Fair Punishment Project.

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