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A Massachusetts District Attorney Tries To Crown His Successor

In the Berkshire County DA race, the establishment is resorting to extreme measures to ensure it maintains power and avoids change.

Departing Berkshire DA Doug Capeless and his interim successor, Paul Caccaviello
Berkshire County District Attorney

A Massachusetts District Attorney Tries To Crown His Successor

In the Berkshire County DA race, the establishment is resorting to extreme measures to ensure it maintains power and avoids change.

Berkshire County, the sparsely populated Massachusetts region abutting New York, should be gearing up for an unusual event in the fall: an open race for the district attorney’s seat. But the departing DA short-circuited that electoral process and anointed his successor through backdoor channels. Emails obtained by The Appeal reveal how the old guard has tried to hold on to power and beat back reformers’ challenge.

On March 1, Berkshire District Attorney David Capeless stepped down after 14 years in office. The resignation was apparently a strategic move to ease the path to election for his hand-picked successor, First Assistant District Attorney Paul Caccaviello, with the help of Governor Charlie Baker.
“I’m taking this step now,” Capeless told reporters at his resignation press conference, “because I want Paul to be able to run as the district attorney, as I did 14 years ago…. I want to thank Governor Baker and Lt. Governor [Karyn] Polito for their careful consideration and confidence that Paul is the right person for the job.”

Running as an incumbent is a huge advantage, said Drew Herzig, an organizer with Indivisible Pittsfield, a local progressive group. Incumbency affords candidates the weight of the office and allows them to draw on existing donor and influence networks — no small feat in the Berkshires, where candidates don’t need a lot of money to be competitive and where reputation and connections can be key to influencing voters.

Emails between Capeless and Baker’s office, reviewed by The Appeal and included below, tell a story of what numerous criminal justice professionals and observers described as an unprecedented level of cooperation between the DA’s office and the Baker administration to handpick the DA.

The handoff appears to have received the governor’s blessing after a meeting on Feb. 7, the emails show. Baker’s chief legal counsel, Lon Povich, coordinated meetings for Capeless and Caccaviello with both Baker and Polito. Capeless sent the governor’s office a timeline for his resignation and Caccaviello’s appointment, the emails show, but Povich was unable to endorse Capeless’s proposed sequence of events until the February meeting.

Capeless told Povich he intentionally took out re-election papers before his March 1 announcement to confuse  local media.

“Still on track,” Capeless reassured Povich of the handoff to Caccaviello, “just stalling.”

Later, Povich provided feedback on Capeless’s resignation letter.

“Glad this is working out,” he wrote.

Capeless said repeatedly in emails to Povich that he was delighted that the transfer of power would ensure Caccaviello had a leg up on the competition in the Democratic primary. To that end, the departing DA presented Povich a proposed timeline that would allow the governor to appoint Caccaviello and give the new DA “ample time to form a campaign committee and gather the necessary signatures to get on the ballot.”

In a brief phone interview, Capeless said that because this was the first time he had resigned from a position, he couldn’t speak to how normal the process was. The former DA said Povich’s edits to Capeless’s resignation letter and the governor’s involvement with Capeless’s resignation timeline was “not unusual” and that he would not discuss the February private meeting.

Caccaviello was unavailable for comment for this article.

A Democrat, Caccaviello will face two progressive challengers in the primary on Sept. 4:  local defense attorneys Andrea Harrington and Judith Knight. Harrington, who was the first to publicly announce her candidacy, entered the race with an existing political machine that was ready to go after an unsuccessful state Senate bid in 2016. She told The Appeal she plans to pursue a different approach to criminal justice.

“This is a really important race for the future of Berkshire County,” Harrington said. “It’s an opportunity to move into the future with a DA using evidence-based programs that address the root causes of why people get involved in the criminal justice system.”

Restorative justice, an approach to crime that seeks to rehabilitate and repair harm rather than punish, is gaining in popularity in the country. Harrington hopes to pursue these ideals in her DA office, she said. She wants to create a citizens’ advisory board to hold her office accountable and to get input from the community for what crimes to prioritize. As DA, Harrington said, she would work to ensure not only that people who have been in and out of the criminal justice system have a chance to rehabilitate themselves without facing unfair incarceration, but also that people just entering the system have the opportunity to keep their mistakes off their permanent record.

While it’s an idea of criminal justice that might have been out of place in decades past — especially after the “tough on crime” legislation of the Reagan era — today Americans are more amenable to restorative justice and alternatives to punitive incarceration.

“The conversation over crime has been fear-based; to be a DA, you must run on being ‘tough on crime,'” said Harrington. “Now, I think because of the opioid crisis, the conversation has opened up and all people are seeing what communities of color have known for a long time: The system doesn’t work.”

It’s a theme that has become more prevalent as liberal candidates join the criminal justice system—most famously in the last year with the election of District Attorney Larry Krasner in Philadelphia.

“I was very inspired by Krasner,” Harrington said. “I look forward to working on specific policies like ending mandatory minimums, limiting fines and fees for the indigent, ending overcharging for nonviolent offenses, and diversion programs that shift resources from incarceration to programs that address underlying causes leading to criminal conduct.”

Along with the already established Berkshire County Drug Court, Harrington wants to pour resources into diversionary programs for established and new offenders. To do that, the DA’s office under Harrington would choose not to prosecute certain crimes if the defendants seek treatment and therapy.

The prospect of change, Harrington believes, scares the DA’s office. Capeless’s office has long had a reputation in the commonwealth for being particularly draconian and harsh. Locally, the former DA is known for his zealous pursuit of drug crimes: In one instance, he tried repeatedly to use school zone charges against one teenager over a decade ago. Capeless has also railed against marijuana legalization and opposed the creation of an alternative drug court.

Harrington sees the power transfer between Capeless and Caccaviello as evidence that the office is afraid of a real debate on the issue of criminal justice and fears being held accountable by the public.

“The fact that they will go to these lengths to avoid a contested election where the community is looking to have these important conversations on criminal justice just says they are afraid of that conversation,” said Harrington. “And I think they have good reason to be afraid.”

Rahsann Hall, director of the American Civil Liberties Union of Massachusetts’ Racial Justice Program, said the handoff is especially “disturbing” because of its impact on the democratic process. The power transfer in the Berkshires adds to the public’s misconceptions about the office, he added. In fact, an ACLU of Massachusetts poll found that 38 percent of state residents don’t even know DAs are elected.

Massachusetts has one of the lowest incarceration rates in the nation, Hall said. But that disguises an ugly truth: The commonwealth has one of the highest racial disparities in incarcerated people and a high rate of recidivism.

“This suggests that the system, as it functions now, does not work,” said Hall, “at least not in a way that promotes healthy and happy communities.”

With all the discussion around mass incarceration and the recent passage of criminal justice reform in Massachusetts, Hall said, choosing the right DA is more important than ever—though he made clear that he was not endorsing any candidate either personally or officially.

“The most significant player in the criminal justice system that has most power is the DA,” Hall said.

DAs have control over prosecution decisions, said Harrington, and that should lead to more fair and just outcomes. But Caccaviello’s office and the office of his predecessor haven’t taken advantage of that discretion. Rather, the policy of the office is that their role is solely to enforce the law, and that’s a position that Harrington disagrees with vehemently.

“The reason we have an elected DA is because the DA is supposed to be the conscience of the community,” she said. “The fact that we have a DA that doesn’t understand that should trouble people.”

Why do Prisoners in Florida Keep Dying?

With privatization of the state’s prisons in full swing, this year is on track to be its deadliest on record.

Credit: Tami Jo Urban (Flickr/CC by 2.0)

Why do Prisoners in Florida Keep Dying?

With privatization of the state’s prisons in full swing, this year is on track to be its deadliest on record.

On June 6, the Florida Justice Institute filed a wrongful death lawsuit against the state’s Department of Corrections over the murder of Anthony Vidal. A prisoner at Dade Correctional Institution, Vidal was serving 15 years for a nonviolent robbery. On March 11, 2016, Vidal’s cellmate, Tarrin Blue, beat and strangled him to death, according to the lawsuit. The Florida Department of Law Enforcement and Miami Dade Police Department still have an open investigation into Vidal’s death.  

Blue had a history of mental illness and attacked another prisoner in front of officers just a month earlier, according to the lawsuit. Instead of placing Blue in a mental health ward, he was housed with Vidal in the prison’s administrative confinement, which is given closer supervision than the rest of the prison. Vidal was there for violating prison rules by possessing a bootleg cellphone.

For nearly 10 minutes during the attack, the lawsuit alleges, Vidal cried out for help, but correctional officers did nothing and audio in the cell had been turned off. Vidal wasn’t found until a routine check revealed what happened, and it took another 10 minutes for medical personnel and officers to arrive. No correctional officers were held accountable for placing Blue in a cell with another prisoner and failing to intervene when other prisoners tried to alert them to the attack. The Florida Department of Corrections declined to comment on Vidal’s death other than to say it is still “an open and active investigation” with the state and county police.

What happened to Vidal is part of a worsening trend in the Florida Department of Corrections. Florida is currently on track to outpace its 2017 record for most prison deaths at 428, with 97,794 prisoners in the state system. As of June 2018, 216 people have died in Florida prisons. In 2015, the Miami Herald chronicled a steep rise in prison deaths since 2000, and since then the numbers have continued to climb. A portion of these deaths are natural, but many occur under suspicious circumstances and investigations regularly take several months to years to determine a conclusive cause of death.

Based on the most recent data from the Bureau of Justice Statistics, between 2001 and 2014, the average mortality rate among prisoners in the United States was 256 per 100,000 state prisoners. In 2014, Florida was just behind Texas in highest number of in-prison deaths with 346 total, though Texas has a substantially larger state prison population at 166,000 prisoners. Florida’s prison mortality rate has steadily increased since 2013, despite a decrease in prison population.

Critics blame the rise, at least in part, on understaffing and inadequate healthcare, problems they say have grown under Governor Rick Scott. Before Scott was first elected in 2010, he promised to reduce prison spending overall by $1 billion. His strategy was to reduce overall prison costs by privatizing the state’s prison facilities and services.

In his first budget, Scott cut 1,690 state correctional jobs and move 1,500 prisoners to private facilities. During a Florida Senate Appropriations Committee hearing in March 2017, the Florida Department of Corrections secretary, Julie Jones, noted that turnover for correctional officers had increased 95 percent since 2009, and over 75 percent of correctional officers in the state prison system had less than two years of experience.

Randall C. Berg, executive director of the Florida Justice Institute, said cutting corners on prison spending is dangerous. “The state prison system is understaffed by at least 1,000 guards. Florida is the third-largest prison system in the country. It’s very expensive to run a system this large and the legislature doesn’t want to pay for it.” Berg said.

The governor’s privatization of healthcare has also caused problems, Berg argued. The institute has filed several wrongful death lawsuits against Florida Department of Corrections and led class action lawsuits on behalf of prisoners who were denied treatment for hernias and hepatitis C. A court ordered a preliminary injunction requiring the corrections department to treat prisoners with hepatitis C in December 2017 and the department settled the hernia lawsuit for $1.7 million in April 2017.

In 2014, the Palm Beach Post reported that early in the corrections department’s contract with Corizon, one of the country’s biggest prison healthcare providers, prison deaths hit a 10-year high. Several prisoners complained of health problems being left untreated or said they were given Aleve and Tylenol to treat serious illnesses, the story explained.

One of those prisoners, Donna Pickelsimer, died after she was treated with Tylenol and cold compresses for months as her lung cancer remained undiagnosed. The same year, 48-year-old prisoner Michelle Tierney died at Lowell Correctional Institution. Tierney was reported to have cysts, pneumonia, and septic shock, which the infirmary diagnosed as arthritis. Both deaths were reported as natural. Contacted by The Appeal, the Department of Corrections said these deaths “occurred in 2014 when the department was under different leadership and contracted with a different provider for inmate health services.”

At the time, Corizon provided health services to Florida’s prisons, but the company ended its five-year $1.2 billion contract three years early in May 2016. Corizon said at the time that it terminated the contract because of inadequate funding from the state, but it had also been under fire from lawmakers and advocates for the quality of its care. Corizon declined The Appeal’s request for comment about deaths that occurred during its contract. “Providing medical information on those individuals would be a violation of HIPAA privacy laws,” Martha Harbin, a spokesperson for Corizon, said.

Shortly before the contract ended, Michael Baker, 42, died on March 10, 2016 at Santa Rosa Correctional Institution in Milton, Florida, after complaining to family members for months he was being denied medicine for sickle cell disease. “Baker wrote to me over a period of weeks from the fall of 2015 until early 2016,” Baker’s attorney, James V. Cook, told The Appeal in an email. “Somehow I couldn’t get a medical release from him to review his medical files. He mentioned two nurses … He said he would complain to them of severe pain, throwing up blood and they would tell him to ‘go ahead and give up and die,’ and ‘lay your Black ass down and wear it.’ He said they refused to let him see a doctor. By the time I finally got his medical records, he was dead.”

Cook is in the discovery process of a wrongful death lawsuit filed on behalf of Baker, and he said the trial will most likely begin in the middle of next year. A spokesman for the Florida Department of Corrections, Patrick Manderfield, wrote in an email to The Appeal:  “The death of Michael Baker is currently still under active investigation by our department’s Office of the Inspector General. Due to its open status and the HIPAA federal privacy rule, we don’t have any additional information available to provide at this time.”

The department cited a variety of possible reasons for the recent rise in prison deaths. “The influx of contraband, specifically synthetic and homemade drugs, is a contributing factor to the increase in inmate violence and in-custody deaths,” Manderfield wrote. The department also cited an increase in an elderly prison population, defined as prisoners age 50 or older, and an increase in prisoners with mental illnesses.

But David Fathi, director of the ACLU’s National Prison Project, says privatization is part of the problem. “The claim a private corporation can do the same job as state employees more cheaply and create profits for its shareholders sounds too good on its face and the evidence suggests it’s false,” he told Prison Legal News last year.

The most recent private contract for prison health services was awarded to Centurion, the only government contractor providing health care to prisoners held by the Florida Department of Corrections and a prolific donor to the Republican Party. The $375 million deal to provide healthcare services to all Florida state prisons is nearly $40 million higher than previous contracts to provide healthcare, and includes an 11.5 percent “administrative fee.” The department did not respond to a request for comment on Centurion’s contract.

In May 2018, Governor Scott signed an $87 billion state budget that shorted prison funding by $28 million. The Florida Department of Corrections announced plans to cut mental healthcare, substance abuse, re-entry and work release programs to cover the shortfall. “In order to secure a health services contractor, fund the increased pharmaceutical budget, and adjust for reductions, we’ve unfortunately had to make some very difficult decisions,” Jones, the corrections department secretary, said in a statement at the time. The department would not comment on current staffing levels, but a spokesperson said a 2017 pay raise for correctional officers and human resources improvements have been implemented as a result of the cuts.

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Queens DA releases final report on massage worker’s death, calling sex work ‘degrading and humiliating’

As anticipated, district attorney finds no misconduct in raid that led to Yang Song’s fatal fall.

The door to the room where Yang Song's final interaction with an NYPD officer took place. After her death, the door was secured with a cable lock and mourners left bouquets of flowers.
Scott Heins for The Appeal

Queens DA releases final report on massage worker’s death, calling sex work ‘degrading and humiliating’

As anticipated, district attorney finds no misconduct in raid that led to Yang Song’s fatal fall.

A redacted report released Thursday by the Queens district attorney’s office on the November 2017 death of Yang Song, a 38-year-old massage worker, confirms that prosecutors found no misconduct in her death. According to the report, which recommends that the case be closed, Yang Song “either intentionally leapt [or] accidently [sic] fell” from the fourth-floor apartment where she worked providing massage services while “attempting to flee apprehension by law enforcement officers, as a result of her unlawful conduct.”

The report and accompanying compilation of surveillance footage also provide a snapshot of what an NYPD vice operation looks like, and how the top Queens prosecutor understands sex work. “The death of Ms. Song is sad and tragic,” Queens District Attorney Richard Brown said in a statement that accompanied the report’s release. “I have always maintained that prostitution is a degrading and humiliating industry.”

In the same statement, Brown praises his office’s participation in prostitution diversion programs, like the Queens Human Trafficking Intervention Court. “My office has long been at the forefront in helping those trapped in the sex industry find an escape through programs and assistance as an alternative to incarceration,” he said.

Yet Yang Song’s experience, as elaborated in the report, reveals the limitations of any approach that attempts to rescue sex workers by first arresting them. According to the report, Yang Song was nearly finished with a mandate from the Queens Human Trafficking Intervention Court—five counseling sessions at Restore NYC to resolve a September 2017 prostitution arrest—when the raid took place. She had one session remaining, scheduled for three days after her death.

Hai Song, Yang Song’s brother, was disappointed with the report. “The police are completely off the hook,” he told The Appeal. “As if they’re doing it [the operation] perfectly.”

The redacted report also confirms that Yang Song filed a complaint about a violent incident to the 109th Precinct in October 2016. She reported that a man presented himself as an undercover police officer and sexually assaulted her at gunpoint. A retired U.S. Marshal turned himself in that month, after the New York Police Department’s Police Impersonation Unit produced a wanted poster based on surveillance footage, the report states. He was released, however, after Yang Song selected a different man in a lineup. A subsequent DNA test found that the retired marshal “was not the source of the DNA in all samples” taken from Yang Song’s clothing. The case was closed in April 2017.

Yang Song’s family and former immigration attorney also told The Appeal last year that she had confided in them about being asked to become an NYPD informant, something else that led the family to believe she feared police. There is no mention of this in the redacted report.

The Queens Vice Enforcement Squad planned the Nov. 25 raid at Yang Song’s place of work in response to a civilian complaint on Nov. 15, according to the redacted report. The complainant alleged that “females were offering massages, but were selling intimacy” at the 40th Road location. Prostitution arrests have decreased in New York City since the police pledged to curb them in February 2017. Yet raids and sweeps in response to community complaints have continued, apparently at odds with the agency’s stated goal to build trust among vulnerable immigrants.

Though the police did not break protocol during the raid, according to Brown’s team of investigators, their activity apparently put Yang Song on high alert in the minutes leading up to her fatal fall. The report states that she brought an undercover officer into her apartment shortly before 7:30 p.m. When he exited the bathroom, she allegedly asked him “Are you a cop?” and he replied “No.” (The report cites audio collected from a one-way recording device the officer wore.) Video shows Yang Song opening the door for him to go out, and watching him walk down the stairs before closing the door.

The report also states that although she was alone when she either jumped or fell, Yang Song was aware of several police officers directly outside her bedroom door. At 7:25 p.m., a sergeant, a police officer, and two detectives entered the building, according to the report. They passed the undercover on his way downstairs and “knocked repeatedly” at Yang Song’s door, “stating in sum and substance: police, open up.” The DA’s report concluded that a detective’s “knocking on the subject apartment door while startling does not rise to the level of recklessness or neligence [sic].”

Concurrent video inside the apartment shows Yang Song pacing back and forth and staring at a live surveillance feed of the police in the hallway before moving out of the frame. Surveillance footage collected from a camera on the exterior of the building also shows what looks like a body falling through the air. A commotion ensues on the sidewalk, although the body lands outside the frame.

As part of the investigation into Yang Song’s death, the Queens DA pulled arrest data for the building in which she worked. According to the office’s records, there were 43 prior arrests made at the same address. The most recent, on Sept. 27, 2017, was of Yang Song.

This recent arrest may well have been front of mind for Yang Song in the moments before she fell, prosecutors acknowledge. The Appeal asked the district attorney’s office if it would continue to prosecute such cases, considering its conclusion that Yang Song’s death came after fleeing such an arrest.

“We cannot predict how anyone reacts to the prospect of being arrested on any charge,” Kim Livingston, a spokeswoman for the Queens County DA, said. “It is our job to enforce the law but we do so in these instances fairly and compassionately.”

Asked about the purpose of Brown’s comment about Yang Song’s “degrading and humiliating” profession, Livingston said it stood on its own. “There was no victim-blaming,” she told The Appeal.

Soon after the report and footage was released, Flushing residents and activists discussed it in a group chat created shortly after Yang Song’s death. Seeing her alone and panicked in the video was frightening, wrote Ms. H, a 52-year-old woman living in Flushing. She used to work as a phone operator for a massage business, so the video hit home.

“I’ve … heard many arrest [stories] before, the damage and PTSD for workers,” Ms. H said via a social messaging app. She questioned “why it’s a vice job” to police massage workers.

Yang Song knew she was about to be arrested again, Ms. H said. “Anyone would [be] scared at that moment. Would you?”

Additional reporting by Rong Xiaoqing.

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