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California could soon end money bail, but at what cost?

The passage of Senate Bill 10 would decimate the bail industry, but many advocates say it falls short of true reform.

California Assembly Member Rob Bonta (D-Alameda) discusses the bill at a recent press conference.

California could soon end money bail, but at what cost?

The passage of Senate Bill 10 would decimate the bail industry, but many advocates say it falls short of true reform.

This week, California took a major step toward eliminating cash bail and dealing a significant blow to the predatory bail bond industry when Senate Bill 10, which would replace cash bail with a risk-based system, passed the state Assembly and Senate. It appears almost certain that Governor Jerry Brown will sign it into law.

While some bail reform advocates hailed the victory as a milestone, others say the bill could actually increase the number of people detained pretrial.

“The new version essentially replaces the evils of money bail with a worse evil known as preventative detention,” San Francisco Public Defender Jeff Adachi wrote in an editorial in the Sacramento Bee that blasted the legislation. “This is not the bail reform California needs.”

In earlier drafts of the bill, all defendants would have appeared before a judge with a presumption of release. To detain someone, prosecutors would have had to make a case with convincing evidence that there was no way to release the person while ensuring his or her next court appearance and protecting public safety.

This month, however, a new draft of the legislation began making the rounds that vastly altered its vision and scope. While abolishing cash bail and mandating the release of most people arrested for nonviolent misdemeanors within 12 hours of being booked, the new draft gives county judges wide-ranging discretion over which defendants deemed “medium risk” could be detained pretrial.

The bill also creates broad categories of defendants who could legally be detained without prosecutors having to make an argument about why. Under the current system, even those charged with serious crimes have the presumption of release, albeit often with bail attached. Under the new system, these categories of defendants would automatically be presumed for “preventive detention” instead, flipping the burden of proof onto defense attorneys, who could still argue for their release. The categories include individuals charged with violent felonies, anyone convicted of a violent felony within the past five years, anyone deemed by a risk assessment tool as a “high risk” to public safety, or anyone on supervised probation.

Supporters of the current bill believe the changes were necessary to gain support from both the state’s Judicial Council, the rule-making arm of the California court system, as well as Governor Brown, who had pegged his support of a bill to whether the state’s judges were behind it. The Judicial Council, in a report released last October, called for an increased discretionary role for judges in determining who could safely be released. The Judicial Council and county courts across the state now will have until Oct. 1, 2019, to implement the new system.

“Ultimately the Judicial Council and the chief justice got the pretrial structure that they wanted,” said Anne Irwin, director of Smart Justice California, an advocacy organization that once supported the bill but has now taken a neutral position. “We know their support mattered immensely for Governor Brown.”

Yet the current bill is a grave disappointment to many advocates who initially fought for the legislation. Within days of the new draft’s circulation, groups like Human Rights Watch, the California Public Defenders Association, and the NAACP dropped their support. On Monday, the ACLU, after taking a neutral stance toward the altered legislation, shifted its position to one of opposition.

Chesa Boudin, a deputy public defender in San Francisco who has worked on litigation challenging cash bail in the state and who was on the advisory committee to the drafters of the original bill, says the new bill penalizes people regardless of guilt, not unlike the bail system it was intended to replace. “It creates a system where, by law, California would punish people just for being arrested, rather than waiting until they’re convicted of a crime.”

Advocates are also concerned about the role of risk-assessment tools, which help judges weigh a person’s likelihood of absconding or posing a threat to public safety. A previous draft of the bill used risk assessments to determine a defendant’s conditions of release (such as where the person could travel or whether he or she had to wear an ankle monitor). In the bill that passed the legislature, these tools could be used by judges to determine whether a person should be released. While that’s not uncommon around the country, it is often contested. Many reform advocates argue that risk assessments rely on data, such as employment and criminal history, that’s tainted by discrimination. In communities of color that are overpoliced, for example, there are likely to be more people with prior arrests.

The Superior Court in each county will be allowed to choose their own risk-assessment tools from a list approved by the Judicial Council and decide independently which charges should automatically result in detention hearings, which could lead to huge variations across the state. Statewide, most defendants who have been given a “low risk” designation by the risk-assessment tool will be automatically released.

“The fate of pretrial incarceration in California is now in the hands of judges,” Irwin said.

While that leaves many unknowns, Irwin says, there are reasons to worry. Earlier this year, Judge Aaron Persky was recalled after he handed out what was regarded as a “lenient” sentence to a man found guilty of sexual assault. It was the first judicial recall in California in more than 80 years, and Irwin says it may cause judges to think twice before choosing less punitive options for defendants.

“Right now, judges, for the first time are looking over their shoulders, and when they exercise their discretion to give what is perceived to be leniency to defendants, they now risk losing their jobs,” Irwin told The Appeal. “You have to question the theory that judges are going to exercise the discretion given to them by SB 10 in a way that actually releases more defendants pretrial.”

She said judges could also be motivated to keep defendants detained in order to better manage caseloads—the longer people are detained, the more likely they are to take a plea deal. In addition, if a judge wants to schedule a hearing on short notice, the defendant can readily be produced in court.

The question of whether risk assessments are a reasonable trade-off for bail reform is complicated. In New Jersey, whose jail population dropped 20 percent after it abolished cash bail in 2017, judges use analytic tools to inform their decisions about pretrial release, though state law ensures that a relatively broad group of defendants are given the presumption of release.

Informed by an algorithm or not, judges still bear the most responsibility for deciding who should be released, argues KiDeuk Kim, a senior fellow in the Justice Policy Center at the Urban Institute who has studied the use of risk assessment programs across the country.

“The tool is meant to help with resource allocation,” Kim said. “[Judges] can decide who to put in jail or release to the community depending on their ability to supervise them in the community. It depends on the jurisdiction’s capacity … [the judges] can decide the threshold.”  

In some other cities that have restricted the use of cash bail, judges have been reluctant to take chances. In Baltimore, the jail population rose between March 2017 and March 2018 after judges were instructed not to set bail for people who couldn’t afford it beginning in January 2017. Instead of releasing arrestees without monetary conditions, however, judges opted instead to detain more people.

Reformers fear the same rise in detention could happen in California.

The bill still faces stiff opposition not only from former supporters, but from the state’s law enforcement and bail bond lobbies, for different reasons. California’s bail industry stands to lose hundreds of millions of dollars per year. The median bail amount in the state is $50,000 dollars, over five times that of the rest of the country.

“We’ve slayed one big dragon,” Irwin said. “The predatory bail industry will … in effect be eradicated, as well as wealth-based detention. The most laudable victory here is one of economic justice, and that is a giant step forward.”

Both the bill’s supporters and opponents are committed to improving it. Some advocates and lawmakers are already working on legislation to improve its data collection mechanisms, and root out the racial bias often inherent in risk assessments.

“There is a lot of additional work to be done as it related to how this bill will be implemented,” said Lenore Anderson, executive director of Californians for Safety and Justice, an organization that supported the bill through its passage. “The implementation process will be key in developing how the new pretrial system unfolds. … We are going to be actively engaged and involved, and rolling up our sleeves to make sure that the goal that we all want is achieved, which is a fair pretrial system and reducing unnecessary incarceration. ”

States use anti-protest laws to protect oil pipelines and criminalize environmental activism

States use anti-protest laws to protect oil pipelines and criminalize environmental activism

What you’ll read today 

  • Spotlight: States use anti-protest laws to protect oil pipelines and criminalize environmental activism

  • A troubled federal prison unit gets a new life in a different state

  • Three more deaths in Mississippi prisons

  • California sheriff’s office illegally recorded attorney-client conversation

  • Candidate with felony record cleared to run for City Council in Austin, Texas

  • A death-penalty reporter sues to witness executions in Missouri

In the Spotlight

Spotlight: States use anti-protest laws to protect oil pipelines and criminalize environmental activism

Three water protectors arrested in Louisiana this month became the first to be charged under the state’s new law targeting oil pipeline protesters. The Bayou Bridge Project is a 163-mile-long pipeline that cuts through the Atchafalaya Basin, the country’s largest wetlands region. It has faced sustained opposition from environmental and indigenous activists. The project is the southern leg of a pipeline system stretching from the Gulf Coast to North Dakota and is a project of Energy Transfer Partners, the same company responsible for the Dakota Access Pipeline which fueled the months-long protests at Standing Rock.  According to the group L’eau Est La Vie, the water protectors, who have been trying to halt the pipeline’s progress, were charged with trespassing on critical infrastructure, a felony. [Mike Ludwig / Truthout]

Louisiana’s new law went into effect on Aug. 1. It added pipelines and pipeline constructions sites to a list of “critical infrastructure.” Unauthorized entry of critical infrastructure is punishable by up to five years in prison. Disrupting operations is a crime punishable by up to 20 years in prison. [Mike Ludwig / Truthout]

A number of states began introducing “critical infrastructure” bills after the protests at Standing Rock. Oklahoma passed a law last spring. “Drawing inspiration” from the Oklahoma legislation, the American Legislative Exchange Council (ALEC), a conservative group of state legislators backed by corporate sponsors, finalized a model Critical Infrastructure Protection Act in January. Similar bills were later introduced in Iowa, Ohio, Wyoming, and Minnesota. [Alleen Brown and Will Parrish / The Intercept]

In April, Iowa’s governor signed into law a bill that the Huffington Post described as a “ramped-up version” of ALEC’s model bill. The Iowa law criminalizes protest on anything that could be conceivably understood as part of the fossil fuel industry’s “critical infrastructure.” It makes an action that intends a substantial and widespread “interruption or impairment of a fundamental service” of gas, oil, petroleum or refined petroleum products a felony, punishable by up to 25 years in prison. [Jeff Biggers / Huffington Post] The bill was developed by a group that included Energy Transfer Partners, the Dakota Access Pipeline parent company. [Alleen Brown / The Intercept]

The chairperson of the Iowa Sierra Club told Public News Service that historically, critical infrastructure has been a term applied to public lines that transport electricity, gas, and water. “The bill is particularly dangerous because it slips in the idea that a crude oil pipeline owned by a massive corporation not even located in Iowa is critical infrastructure,” she said. [Roz Brown / Public News Service]

Louisiana’s law, as originally drafted, also criminalized acts beyond what was included in the ALEC model bill. It would have created the crime of “conspiring” to trespass on critical infrastructure sites, punishable by up to five years in prison. A lawyer from the Center for Constitutional Rights, which represents the Bayou Bridge Protestors, dubbed it “ALEC-plus.” [Alleen Brown and Will Parrish / The Intercept] The US Protest Law Tracker website, which follows state and federal initiatives that limit the right to protest, explains that, as originally introduced, the law was written “such that individuals who only planned to hold a peaceful protest on infrastructure property could be prosecuted.” Ultimately, the law hewed closely to ALEC’s model bill. [International Center for Not-for-Profit Law]

ALEC’s influence on the criminal legal system is not new. In 1995, 25 states adopted “Truth in Sentencing” laws developed by the group. ALEC pushed “Stand Your Ground” laws across the country. It was also influential in lobbying for laws that benefited its private prison company sponsors, including Arizona’s infamous immigration law, Senate Bill 1070.  [Mike Elk and Bob Sloan / The Nation] Most recently, a 2017 report by Color of Change and the ACLU looked at the insurance corporations participating in and profiting from the bail bond industry. It found that the big insurance companies behind bail “have been very effective at crafting and institutionalizing laws, regulations, and practices that protect their profits.” The key to this was the more than 20-year relationship the industry has cultivated with ALEC, to write and promote the passage of laws in state legislatures, while “very effectively derailing alternatives and reforms.” [Color of Change and ACLU]

The anti-protest bills that have been introduced since 2016 have had another set of influential supporters: law enforcement groups. In These Times reported this year that law enforcement in at least eight states lobbied in support of anti-protest bills in 2017 and 2018. These bills included provisions to increase the penalties for blocking highways as well as measures similar to those in Louisiana’s bill to criminalize protest against oil pipelines. Because police support for legislation rarely takes place in public it is impossible to know the full extent across the country. Traci Yoder of the National Lawyers Guild, who analyzed the role of ALEC and corporations like Energy Transfer Partners in pushing anti-protest bills, told In These Times that law enforcement support for this legislation is “a direct response to the success and visibility of recent movements of color such as Black Lives Matter and #NoDAPL.” She added: ”The collusion we are seeing between law enforcement, lawmakers, and corporate interests is undemocratic and designed to deter social movements for racial and environmental justice.” [Simon Davis-Cohen and Sarah Lazare / In These Times]

Stories From The Appeal

Drawing of a cell by Patrick Bearup, a man held in solitary confinement. [Patrick Bearup, by permission from Architects / Designers / Planners for Social Responsibility (ADPSR)]               

A Troubled Federal Prison Unit Gets a New Life in a Different State. Instead of changing conditions and practices, the Bureau of Prisons is simply moving a problem-plagued federal prison unit in Pennsylvania to Illinois. [Victoria Law]

Stories From Around the Country

Three more deaths in Mississippi prisons: As of Monday, Mississippi’s Department of Corrections had reported that seven men incarcerated in the state’s prisons had died this month. Yesterday, the department reported the deaths of James Myrick, Nija Syvallus Bonhomme, and John Luttrell, bringing the total to 10. A statement from the commissioner says the department believes “most of the 10 deaths” are from natural causes but does not have final information on the causes of any of the deaths until autopsies are complete. The chairperson of the state Senate corrections committee said he would be meeting with the commissioner to discuss the large number of deaths in quick succession. [Sarah Fowler / Clarion Ledger]

California sheriff’s office illegally recorded attorney-client conversation: In court on Monday, Alameda County public defender Brendon Woods asked a judge to order the county sheriff’s office to bar “eavesdropping and illegal recording of privileged communications” between attorneys and their clients. A hearing on the matter is scheduled for Friday. The public defender’s office had obtained an illegal recording of a conversation between a client and his attorney and a body-camera recording of a sheriff’s sergeant’s conversation that suggested that illegal recordings were common. The revelations are especially troubling given that “numerous conversations between in-custody clients and their attorneys happen under the control of the sheriff’s office,” including in jail meeting rooms, jail phones and courthouse holding cells. Secretly recording conversations between people in custody and their attorneys is a felony under California law, and the Alameda County district attorney’s office, which turned over the recordings in discovery, has said it is will investigate whether to file charges. [Megan Cassidy / San Francisco Chronicle]

Candidate with felony record cleared to run for City Council in Austin, Texas: On Friday, the Austin city clerk asked Lewis Conway Jr. to prove his eligibility to run for City Council, pointing to provisions in the Texas election code that she argued barred his candidacy. Yesterday, a city spokesperson said city attorneys have determined that Conway can run. Conway, who was convicted of manslaughter in 1993, had been anticipating a challenge to his candidacy. He and his lawyers maintained, however, that his completion of parole and the restoration of his voting rights amounted to the release from his conviction’s “resulting disabilities,” a requirement under Texas election law for a person to be eligible to run for office. [Sydney Greene / Texas Tribune]

A death penalty reporter sues to witness executions in Missouri: In 2016, Chris McDaniels and the ACLU filed a federal lawsuit alleging that Missouri was barring McDaniels from being an execution witness because of his extensive and critical reporting on the state’s lethal-injection protocol. The suit demands that the state be required to adopt a policy for choosing witnesses, something that every other death-penalty state has. In Missouri, the power to select witnesses rests entirely with the head of the corrections departments. McDaniels, who applied to be a witness in 2014, told the Columbia Journalism Review, “I think it’s a very important press-access issue. … [T]he biggest power a government can have is taking the life of someone, and it’s also the thing that’s carried out with the most secrecy at the state level.”  [Lauren Gill / Columbia Journalism Review]

Thanks for reading. We’ll see you tomorrow.

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Notoriously Brutal, Racist Plainclothes Policing Makes A Return In Baltimore

After the Gun Trace Task Force scandal rocked the police department, plainclothes policing was spurned. But a recently resigned commissioner championed plainclothes units, a decision the department seems to be sticking with.

Former Baltimore Police Commissioner Darryl De Sousa, April 26, 2018.
Baltimore Police Department

Notoriously Brutal, Racist Plainclothes Policing Makes A Return In Baltimore

After the Gun Trace Task Force scandal rocked the police department, plainclothes policing was spurned. But a recently resigned commissioner championed plainclothes units, a decision the department seems to be sticking with.

“The number one thing you will see,” Baltimore’s new police commissioner Darryl De Sousa promised at his introductory press conference earlier this year, “is more police officers on the streets in the community in uniform. They are going to do proactive, constitutional policing.”

De Sousa’s announcement about an increased uniformed police presence came in the wake of former commissioner Kevin Davis’s decision in 2017 to disband the department’s plainclothes units because of the arrests of seven members of an elite squad of Baltimore Police Department officers known as the Gun Trace Task Force, or GTTF, on federal charges of robbery, theft, extortion, and drug sales. The GTTF was one of the many “proactive” specialized units tasked with targeting gun offenders and violent crime generally. Without the task force on the street, gun arrests in the BPD’s Operational Intelligence Division (OID) plummeted by nearly 70 percent from the unit’s indictment in March 2017 through November.  

The indicted GTTF officers either entered guilty pleas or were convicted at trial. The loss of these elite officers as well as the purported decline of their style of proactive policing has been lamented by cops and criminologists alike as a driver for the increase in the murder rate in post-Freddie Gray Baltimore. In 2016, Peter Moskos, a professor at John Jay College of Criminal Justice told Time magazine, “There was less proactive policing, criminals were not being confronted by police routinely, and violence and murders went up.” A recent USA Today article, which also quoted Moskos, pointed to the decrease in officer initiated actions between the years 2014-17 as a sign police were being less proactive in Baltimore City.

Such stats—and a rise in violent crime—led Mayor Catherine Pugh to fire Davis and replace him with De Sousa, a champion of proactive policing, in January. So in addition to considering a return to plainclothes policing, De Sousa created the Mobile Metro Unit, also referred to as the “10th district.” (Baltimore has nine permanent patrol districts.)  The officers in the Mobile Metro Unit wear full uniform and drive marked police vehicles, but they don’t operate as normal patrol officers who perform tasks like answering radio calls and taking reports. Instead they are deployed to “hot spot” areas known for violence and drug dealing, and they respond to shootings or homicides. This is the same function plainclothes units served prior to being disbanded.

Then, in April, De Sousa created a new plainclothes unit called the Anti-Crime Section, which comprises  two sergeants and 12 officers divided between the east and west sides of Baltimore. The public learned about the Anti-Crime Section only last month, after one of the unit’s sergeants, Larry Worsley, was arrested for a DUI-related accident in an unmarked departmental vehicle while he was off duty. (In May, De Sousa resigned after being hit with federal charges for failing to file tax returns; the department is now headed by Interim Commissioner Gary Tuggle). 

Plainclothes cops like the Anti-Crime Section or the GTTF before them are known as “knockers” and “jump out boys.” They wear street clothes and tactical vests emblazoned with POLICE on the back and they patrol hot spots. Jump out boys are exactly what the name implies: a group of plainclothes cops who will pull up to a corner full of people, jump out of their vehicle and search them. Their tactics and style of policing have a notorious history in Baltimore. One of the GTTF’s favorite tactics, for example, was the “door pop,” which meant driving an unmarked vehicle quickly toward a group of people, slamming on the brakes, popping open the doors and then chasing anyone who ran. When GTTF members Daniel Hersl and Marcus Taylor went to trial in federal court in January on charges including racketeering and robbery, one detective testified that the unit would conduct door pops up to 50 times a night.

De Sousa’s plainclothes Anti-Crime Section proves that proactive policing hasn’t disappeared even after De Sousa’s resignation in May when he was charged federally for failing to file tax returns (the department is now headed by Interim Commissioner Gary Tuggle.) Indeed, after “disbanding” plainclothes units after the GTTF scandal, Davis created new uniformed specialized units called District Action Teams (DAT). There are DATs assigned to each of Baltimore’s nine police districts. Baltimore’s police districts and their focus remains on gun arrests, so the units were new in name only. Before they were referred to as DAT, the district units were known as “flex squads.” Flex squads, which operated in plainclothes, were a source of serious misconduct allegations for over a decade. In June 2009, Detective Jemell Rayam, later one of the indicted GTTF officers, was assigned to the Northern District flex squad when he was accused, along with two other officers, of stealing $11,000 in cash during a car stop.  In July 2013, Abdul Salaam accused two members of the Northeast flex squad, Nicholas Chapman and Jorge Omar Bernardez-Ruiz, of beating him up after a traffic stop. Seventeen days later, Chapman and Bernardez-Ruiz were present when Tyrone West died during a struggle with police who attempted to arrest him after a traffic stop. The officers didn’t face criminal charges for either incident and were cleared by internal investigators of any policy violations. So simply placing officers like Chapman back into uniform didn’t change their tactics. The problem is the officer wearing the uniform, and perhaps the institution of policing itself, not the uniform (or lack thereof).

When I was a police officer in Baltimore, I worked in a proactive specialized unit called the Special Enforcement Team (SET) from 2006-08. The unit was made up of two uniformed and two plainclothes squads. We were encouraged to make as many arrests as possible during our shifts. The ultimate goal was a gun arrest, but a high quantity of any arrests would do. One summer night I arrested 10 men at once for trespassing on the steps of two vacant rowhomes, city-owned properties marked “No Loitering/No Trespassing.” Police officers have wide discretion in dealing with many crimes, especially minor ones,  so I could have issued these men citations, or done nothing at all. But when I worked with SET, I felt pressured to make as many arrests as possible. We stopped just about every adult we saw on the street to check their names for open warrants. We conducted car stops with the intended goal of searching the vehicles. Most of our car stops were done at night, since that’s primarily when we worked, so we would look for minor infractions like broken headlights or tail lights. The most common reason we used to search a vehicle was the “freshly burned scent of marijuana.”  Later in my career, from 2013-16, I was an Internal Affairs detective and I investigated officers in these specialized units for misconduct allegations like the planting of evidence, lying in search warrants, excessive force, and theft. Shortly before leaving Internal Affairs, I handled a case against an officer who would later be arrested as part of the GTTF. In March 2016, the GTTF’s Wayne Jenkins confronted me in the parking lot of the Internal Affairs office over another officer I was investigating. That officer was later terminated.

Like the GTTF, earlier iterations of units like De Sousa’s Anti-Crime Section were involved in troubling incidents. In 2013, Detective Kendall Richburg of the Violent Crime and Impact Section (VCIS), another plainclothes unit, was indicted on federal gun and drug charges. On a wiretapped phone call, Richburg discussed planting evidence and setting up people to be robbed—a precursor to the GTTF scandal. Just before Richburg’s arrest the unit was renamed the Special Enforcement Section (SES), but retained many of the same officers. VCIS had come to the attention of the city council because of their tactics and volume of complaints.  One of those officers was Fabien Laronde, who had a well-documented history of alleged misconduct including a questionable shooting, stealing, and witness intimidation. He was the subject of civil lawsuits alleging illegal strip searches, assault, and even illegally detaining a man inside a courthouse. BPD terminated  Laronde in 2016. Before his firing, Laronde said of the complaints against him that “it goes along with the type of proactive work I do.” And before his assignment in the Anti-Crime Unit and his recent arrest, Larry Worsley was a District Action Team supervisor; he also worked with Wayne Jenkins of the GTTF and Laronde in the SES. On July 25, the police department announced the arrest of Officer Spencer Moore, once a colleague of Richburg’s in VCIS, on drug trafficking charges.

These units operate the same way: Small groups of handpicked officers, who are expected to be aggressive and proactive, target high-crime areas of Baltimore and produce a large amount of stops, arrests, and gun seizures. This is “proactive” policing, and no matter what acronym the BPD comes up with, the tactics don’t change. Unfortunately for the community, neither do many of the officers.

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