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Can Police Opposition Overturn Parole Reform?

courtesy of Release Aging People in Prison

Can Police Opposition Overturn Parole Reform?

On March 14, Herman Bell learned that after 45 years behind bars, he would soon be released from prison. The 70-year-old former Black Panther was convicted in the 1971 shooting deaths of two New York police officers. Since 2004, he appeared before the state’s parole board seven times; each time, he was denied parole because of the nature of his crime.

“There was nothing political about the act, as much as I thought at the time,” Bell said during his March 1 interview with the parole board. “It was murder and horribly wrong … It was horrible, something that I did, and feel great remorse for having done it.”

Though the parole board said that Bell’s crime “represents one of the most supreme assaults upon society,” two of the three commissioners nonetheless voted to grant Bell parole. In their vote, they cited his age, near-perfect prison record, college degrees, wide network of supporters and, perhaps most significantly, a letter of support from Waverly Jones Jr., the son of one of the slain officers. “The simple answer is it would bring joy and peace as we have already forgiven Herman Bell publicly,” Jones wrote in his letter to the board. “On the other hand, to deny him parole again would cause us pain as we are reminded of the painful episode each time he appears before the board.”

Bell’s parole comes after years of advocacy by formerly incarcerated people, their family members, and activists to change the state’s parole process. In 2011, an executive law directed parole commissioners to assess a defendant’s probability of recidivating rather than basing a decision on the nature of the crime. But in the following years, commissioners continued to hold 10-minute hearings before denying parole based on the defendant’s crime rather than their rehabilitative efforts in prison. That’s what happened to 70-year-old John MacKenzie in 2016 when he was denied parole during his 10th hearing; nine days later, he died by suicide, becoming a symbol of what critics called a “broken” parole system.

Advocates, including formerly incarcerated people who faced multiple parole denials, have pushed to change the composition of the parole board. Because commissioners are appointed by New York’s governor for six-year terms, advocates pressed Governor Andrew Cuomo not to reappoint commissioners with punitive track records; they also urged him to appoint commissioners with backgrounds outside of law enforcement. (Potential commissioners must have a college degree and five years’ experience in criminal justice, sociology, law, social work, or medicine.)

Advocates also pushed for changes to parole regulations, which now require the board to issue individualized reasons for denial.

In June, Cuomo chose not to reappoint three commissioners and appointed six new commissioners. Since then, says Steve Zeidman, director of the Criminal Defense Clinic at the CUNY School of Law, parole hearings last longer than 10 minutes, commissioners’ questions have focused more on the defendant’s rehabilitation, and release rates have increased. In the following months, parole approvals rose from 24 percent to 37 percent. Two of these new commissioners served on Bell’s parole panel (though only one voted for his release).

Unsurprisingly, the decision to parole Bell has been blasted by the Patrolmen’s Benevolent Association (PBA), the NYPD commissioner, Cuomo, Mayor Bill de Blasio and Diane Piagentini, the widow of the other slain officer in the case. The PBA, along with several Republican lawmakers, are demanding that Cuomo fire the commissioners who approved Bell’s parole. Cuomo’s office has not returned a request for comment about these demands.

And even though the parole board voted to grant Bell his freedom, they can still rescind his parole should information emerge that commissioners had not been presented. That’s what happened to 58-year-old Shua’Aib A. Raheem who was sentenced to 25 years to life for a 1973 shooting in which one police officer was killed and two others wounded. In 2007, after Raheem was granted parole during his sixth hearing, the PBA fought to allow one of the injured officers and family members of the dead officer to submit victim impact statements. At a rescission hearing, the board rescinded his release. Raheem spent another three years in prison before being released on parole after another hearing in 2010.

Zeidman, however, cautions that such rescissions are rare; he told The Appeal that he can count the number of rescissions he’s seen in his 25-year career on one hand. Opponents can go to court to block Bell’s release, said Zeidman, but they are unlikely to find any relief. Indeed, in December 2017, the New York State Troopers’ Union filed a lawsuit to block the release of 74-year-old John Ruzas, who had been imprisoned since 1975 for fatally shooting a state trooper and had been denied parole 10 times. The judge, however, dismissed the case and Ruzas was released that month.

Still, the backlash about the parole board’s vote on Bell — “Law Enforcement Rages Over Cop Killer’s Parole” blared a New York Post headline the day of the decision — could influence its future decisions, particularly regarding defendants convicted of murder. “The intent behind the pressure is to make people afraid” of granting parole in controversial cases, Zeidman noted. He points to the fallout following the 2003 parole of Kathy Boudin, a former Weather Underground member who participated in a 1981 robbery of a Brink’s truck that left a security guard and two police officers dead. The two commissioners who granted her freedom were not reappointed.

“It sends a message that, even if you follow the law, you’ll be fired if it’s an unpopular decision,” Bell’s attorney Bob Boyle told The Appeal.

Against the backdrop of such repercussions, “what the parole board did [in granting Bell parole] was courageous,” said criminal defense attorney Zeidman. “Most people would say that they just followed the law, and that’s true. But they haven’t been following the law before. And they knew that there was going to be this kind of backlash and this kind of attack.”

Waverly Jones Jr. wrote in a statement to the media that he, too, is concerned by the resistance parole commissioners have faced for their decisions. “Particularly upsetting is the attack on the Parole Commissioners who made the decision to release him,” Jones wrote. “The fact is that Mr. Bell has taken responsibility for his actions, has expressed genuine remorse, is 70 years-old,and has been in prison for 45 years. In these times of increased hate, we need more compassion and forgiveness.”

“There’s been a sea change,” reflected Zeidman. “Whether this [backlash] has the power to stop this in its tracks is what people are afraid of.”

Black Families Matter: How the Child Welfare System Punishes Poor Families of Color

Credit: Aikawa Ke / Flickr (CC BY-NC-ND 2.0)

Black Families Matter: How the Child Welfare System Punishes Poor Families of Color

A few days after an argument with her boyfriend led to a 911 call, Ms. L, a mother of two young boys, received an unexpected visit from Child Protective Services (CPS). The caseworker asked her if she used drugs, and Ms. L truthfully responded that she smoked marijuana from time to time. According to Ms. L’s attorney, the admission led to a child neglect proceeding against her in which the state claimed that Ms. L did not properly care for her children. The only evidence presented on the petition was Ms. L’s admission that she smoked marijuana. The court adjudicated her as “neglectful” and implemented a “family service plan,” a combination of ongoing state surveillance and mandatory “services.”

Her family service plan included the following: parenting classes; anger management classes; parenting classes for children with special needs; participation in a drug treatment program; submission to drug testing; submission to unannounced visits from CPS, including full access to the apartment for inspection; and participation in all family court conferences and hearings, regardless of her work schedule.

When Ms. L was unable to comply with all these demands on her time while maintaining her job, her children were taken from her and placed in foster care. The state then added individual and family counseling services to her service plan, along with supervised visits with her children. Ms. L eventually quit her job in order to comply with the plan. Yet, despite her Herculean efforts at compliance, Ms. L still faced termination of her parental rights. Her children have rotated through different foster care placements, and the emotional stress of separation from their mother has taken its toll. The children’s CPS caseworker reported in her notes that the children are “prone to angry outbursts at school,” “lack interest learning,” and “show no concern for their own well-being.”

Ms. L’s story is by no means atypical — millions of families have been forcibly torn apart by the state on similarly flimsy grounds.

The child welfare system claims to be a non-adversarial legal system dedicated to ensuring the well-being and safety of children. 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. Like prison abolitionists, 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.

Every day in family court buildings across the country, thousands of people, but disproportionately Black mothers, stand before child welfare officials and family court judges who subject their parenthood to extraordinary scrutiny and vilification. These 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. Family members who have prior criminal or family court involvement are deemed risks to their children, without any consideration for the well-documented overcriminalization of poor Black communities.

Many of the grounds for removal are paternalistic and arbitrary, as well as racially biased, in nature. 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. Low-income parents battling substance use problems or mental illness are labeled incapable of caring for their children, while wealthier parents’ access to child care or quality healthcare often insulates them from such judgment. Poverty and marginalization are also often a factor in the minority of family court cases that involve allegations of physical abuse. Parents who succumb to the incredible pressures exerted on them by structural inequality and inflict physical harm on their children are not offered the type of meaningful resources that can strengthen family relationships and prevent future incidences of violence.

Racial disparities exist at every stage of child welfare decision-making. Black families are more likely to be reported to the child abuse hotline and investigated for child abuse and neglect. They are more likely to have cases against them substantiated and to have their children removed from their care. In 2000, Black children represented 36 percent of children in foster care, despite accounting for only 15 percent of the child population. Despite a trend toward decreasing foster care rolls since the early 2000s, Black children still comprise nearly a quarter of the children in foster care, according to a 2016 report. In places like New York City and Chicago, Black and brown families compose virtually all families under supervision and virtually all the children in foster 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. Black parents are also subjected to termination of parental rights at higher rates than white parents.

Research shows these racial disparities, resulting in the overrepresentation of Black children in the child welfare system, are not due to a higher incidence of abuse and neglect in Black families as compared to white families. For example, a study in the New England Journal of Medicine found that despite similar rates of substance use between Black and white pregnant women, Black women were 10 times more likely to be reported to child welfare authorities for substance use during pregnancy. Other studies have found that doctors are more likely to report injuries on Black children as suspected child abuse than identical injuries on white children. Still other studies have found that caseworkers are quicker to perceive Black children as being at risk and in need of removal from their homes.

Black people in America are targeted by the punitive arm of every legal system at disproportionate rates, whether it is Black immigrants for deportationBlack children for suspension in school, or Black adults and youth for arrest and incarceration. Thus, it should come as no surprise that Black families are more commonly targeted for child welfare supervision, child removal, and termination of parental rights. Indeed, we should consider foster care an extension of the same racist carceral regime that includes these other punitive systems.

The history of how racism expanded the punitive practices of the child welfare system is well documented. Since its inception in the late 1800s, the child welfare system has always operated with animus toward people of color. However, after the civil rights movement succeeded in increasing Black people’s access to public assistance, attitudes toward welfare shifted significantly. There was a sharp contraction of the welfare state and a corresponding expansion of punitive measures against welfare recipients, such as denial of benefits after a family reached a certain size (to discourage child bearing), or drug testing of welfare recipients on the assumption that recipients were diverting welfare funds for drugs. Fueled by the disparaging myth of the Black “welfare queen,” Congress replaced the entitlement to welfare with block grants to states in 1996, resulting in fewer familiesreceiving assistance and subjecting recipients to even more oppressive regulation.

The child welfare system paralleled these developments, with funds available for foster care and adoption sharply increasing while the funds available for in-home services such as child care decreased. Then-Congressman Newt Gingrich, one of the most infamous opponents of guaranteed cash assistance, stated that government funds that were supporting poor mothers should instead be used for orphanages and adoption of their children. This sentiment became law in the passage of the 1997 Adoption and Safe Families Act, which created compelling financial incentives for states to reduce their foster care populations by increasing adoption rather than offering cash, food, housing or childcare assistance to families. At the time this law was passed, well over 40 percent of America’s foster care population was Black.

This system inflicts incredible harm on Black families and their communities. Removing a child from his or her home is one of the most violent acts a government can undertake against its people. Yet the child welfare system has operated in this discriminatory and dehumanizing way with too little attention from society. In part, this inattention reflects the success of the system in hiding behind the smokescreen of those rare but highly publicized cases of tragic deaths of children who have come into contact with the system. It also reflects the secretive nature of courts deciding child welfare cases — unlike criminal courts, the vast majority of family courts are closed to the public. And it reflects the success of imagery such as the Black welfare queen in denigrating Black motherhood and normalizing the control and punishment of Black parents and their families.

Like the prison and immigration systems, the child welfare system frays family and community bonds and strains the ability of affected communities to politically organize and resist attacks on their children and families. All are oppressive systems that work together to regulate, punish, and control the most marginalized people, fueled by a racist ideology. We need to link the abuses within the child welfare system with the broader assault on Black humanity and dignity, and amplify the voices of thousands of parents who fight for their families in the halls of family court and in their communities every day.

Dorothy Roberts is the George A. Weiss University Professor of Law, Sociology, and Africana Studies at The University of Pennsylvania and the author of Killing the Black Body: Race, Reproduction, and the Meaning of Liberty and Shattered Bonds: The Color of Child Welfare. Lisa Sangoi is an attorney and Soros Justice Fellow at the NYU Law Family Defense Clinic. The views expressed in this column are their own.

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In an Upstate New York Community Wracked by Overdoses, Prosecutor Pursues Users in Homicides Cases

A billboard in Broome County, NY
DA Steve Cornwell / Twitter

In an Upstate New York Community Wracked by Overdoses, Prosecutor Pursues Users in Homicides Cases

In August 2017, 29-year-old Richard Gaworecki of Union, New York trembled as a Johnson City Village Court judge read charges that included selling heroin that led to the death of Nicholas McKiernan, 26, that July.

About one month later, Broome County District Attorney Steve Cornwell, assisted by his first ever “overdose investigator,” upgraded Gaworecki’s charges to include second-degree manslaughter. For Gaworecki, the manslaughter charge meant that he faced 14 years in prison instead of four.

“Whenever we can, we separate out dealers and users,” Cornwell said. “That’s the goal. But when someone is selling drugs that kill somebody, then they can expect to be charged. We’re going to find those people and target that investigation to get to the root of the crime.”

A Broome County attorney with direct knowledge of Gaworecki’s charges, who asked not to be identified because he is not authorized to discuss the case, told The Appeal that Gaworecki was a heroin user, not a drug dealer. “I believe the underlying drug deal here was the result of Gaworecki supporting his own habit,” the attorney said. “I also believe that the proposed manslaughter charges against Gaworecki were completely unjust and politically motivated by the ambitions of District Attorney Cornwell.”

Public health activists and families who have lost loved ones to overdoses in Broome County are growing increasingly critical of Cornwell’s approach to “treat overdose deaths as crime scenes.” Out of over 95 overdose deaths in 2016, 84 have become potential homicide investigations, according to local news reports. Cornwell’s critics say that most of those designated dealers are actually users themselves who, like Gaworecki, sell small amounts of drugs to their peers to support their habit, and that locking them up is counterproductive. The number of overdose deaths in Broome County, which jumped 55 percent in 2016, appears to support that argument. There were just 10 fewer overdoses in 2017, according to Cornwell’s final count.

“Our elected officials’ actions do not match their words,” Broome County resident Alexis Pleus told The Appeal. Pleus started Truth Pharm, a nonprofit that helps families deal with the legal consequences of addiction, after losing her son to an overdose shortly after he was released from jail in August 2014. “At every turn, it seems District Attorney Cornwell promotes arrests while saying, ‘We can’t arrest our way of out of this crisis,’” she said.

Cornwell’s office did not return multiple requests for comment from The Appeal.

Pleus and other Broome County advocates argue that resources that could otherwise be spent on substance abuse treatment and keeping people alive are instead spent on lengthy and expensive law enforcement investigations.

In July 2016, over 100 local, state, and federal law enforcement officers conducted a drug raid as part of “Operation Get Money” that resulted in one of Broome County’s largest seizures of heroin and cash — 2,700 bags of heroin and $38,000. “These people are not replaced in a matter of hours, contrary to what you hear other places,” Cornwell said about the alleged dealers arrested in the raid. “We have had a significant impact on the heroin trafficking in Broome County. No one fills their shoes that quickly, it’s not how it works.”

Despite the DA’s claim that the multi-agency raid impacted local heroin trafficking, August saw the most overdoses of 2016. A recent study from Pewthat analyzed state drug imprisonment rates helps explain why that’s the case: “The analysis found no statistically significant relationship between state drug imprisonment rates and three indicators of state drug problems: self-reported drug use, drug overdose deaths, and drug arrests.”

And in February 2018, Cornwell boasted on Facebook that for the first time in five years, one month went by in the county without any fatal overdoses. Several commenters were critical of the boast about such a serious public health issue and some found their comments deleted by Cornwell’s account. One aggrieved commenter noted that there are only 28 days in February, and that a 29-year-old military veteran and Broome County resident named Matthew John Titman died on March 2 after overdosing the previous day.

“Our District Attorney has used drug overdoses and even the death of our children as an opportunity to ramp up criminalization and incarceration,” Truth Pharm’s Pleus said, “and neither of these have anything to do with a public health approach.”

Gaworecki’s manslaughter case was recently dismissed by Judge Kevin Dooley, citing the fact that the grand jury wasn’t given proper instructions about the charges. According to the state’s manslaughter statute, Gaworecki would have had to have ignored a “substantial … risk that another person’s death will occur” and the judge determined that there was no evidence that Gaworecki was aware of the potency of the heroin he sold. Indeed, during an interview with detectives, Gaworecki said that he told McKiernan, the overdose victim, to be “wicked careful” with the drugs he sold him.

Despite the evidence that Gaworecki was a user supporting his habit — he was even caught with a syringe — Cornwell appealed the judge’s decision to dismiss the grand jury indictment. Gaworecki is now facing up to nine years for criminal sale of a controlled substance and for possessing a hypodermic instrument.

“It’s time to save local addicts from the drug epidemic plaguing our community,” Cornwell said in 2016 when he announced a partnership with Police Assisted Addiction Recovery Initiative (PAARI), a program in which “committed police departments” encourage opioid users to seek recovery.

But Cornwell did not apply PAARI’s approach — which rejects the idea that law enforcement can “arrest our way out of the problem of drug addiction”—to Gaworecki, who was seemingly just a drug user trying to survive.

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