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Changing the Politics of Mass Incarceration

Changing the Politics of Mass Incarceration

It’s been almost 50 years since President Richard Nixon played the law-and-order card to help him win the presidency. Decades later Donald Trump has adopted the same playbook, telling his own version of the forgotten American who is at the mercy of a crime wave. It didn’t matter that facts didn’t support candidate Trump’s arguments. Politically speaking, it worked.

Nixon’s tough on crime political playbook, used by generations of American politicians after him, including Bill Clinton during the introduction and passage of the 1994 crime bill, has resulted in a mass incarceration crisis. On any given day, 2.3 million people are locked up, more than in any other nation. This mass incarceration crisis has devastated families and communities, particularly low income communities of color.

Yet in the same way that politics got us into this mess, politics have to get us out of it.

I spend a lot time thinking about how we end mass incarceration in the United States. On some days, it feels like we’re winning. Not a month goes by when we’re not getting some form of criminal justice reform legislation passed in the states or litigation won in the courthouses, whether on bail reform, drug or property law reform, or reforms to mandatory minimum laws.

Yet on many other days it feels like we’re losing, badly. Incarceration has only decreased 5 percent since 2009. We now spend roughly $80 billion per year on incarceration alone. And the poisonous rhetoric of law-and-order still spews out towards us on a daily basis. In many places, including in the White House today, when a politician needs a bump, he still relies on the law-and-order narrative borne out of the Nixon years.

But what if it didn’t have to be like this? What if criminal justice reform advocates on the right and left, the broader civil rights community, and more politicians jumped into electoral fights with the same vigor as the law-and-order crowd but not being scared to talk about compassion, rehabilitation and reinvestment as a replacement of law-and-order?

There are glimmers of hope that this strategy can work, and it is coming from surprising places. For decades it had been assumed that the only way to win an election for one of America’s approximately 3,000 district attorney seats is by being the toughest, least compassionate candidate in the race. Yet in several cities and counties this is beginning to change.

Philadelphia has most recently exemplified this phenomenon. The city has a long history of electing politicians who ran on a law-and-order platform. Former Mayor and Police Commissioner Frank Rizzo took pride in being a “tough cop.” Lynne Abraham, elected district attorney of Philadelphia from 1991 to 2010, was called America’s “Deadliest D.A.” by the New York Timesbecause of her zeal for pursuing the death penalty. For reformers living in that era, it would have been impossible to imagine a politician who could win on a criminal justice reform agenda, let alone a politician running to be the city’s top prosecutor.

Yet today, the leading candidate for Philadelphia district attorney is a civil rights lawyer who has never been a prosecutor, and who won the Democratic primary running on a platform centered on criminal justice reform and ending mass incarceration. With the overwhelming advantage for Democrats in the general election, it is fair to assume that Larry Krasner will be Philadelphia’s next district attorney.

The turn of events didn’t happen by accident. It represented a strategy deployed by local and national criminal justice and civil rights organizations (including, to name a few, the Philadelphia Coalition for a Just District Attorney, Color of Change, Safety and Justice PAC, and the Working Families Party). Support poured in to engage in aggressive voter education and turnout efforts, elevating the importance of alternatives to incarceration, bail reform, and rejection of policing practices that criminalized communities.

The ACLU alone organized our 11,438 members who are registered to vote in Philadelphia, knocking on more than 26,000 doors and hiring and training 51 canvassers who are formerly incarcerated to approach our members, in a non-partisan way, about why it was important to vote for a district attorney committed to ending mass incarceration. Our preliminary analysis reveals that our members, even ones who have note voted in recent elections, responded to our outreach by casting a ballot in this election. And the strategy succeeded by elevating the issue of ending mass incarceration to the forefront of the election.

Philadelphia is not alone in this example, as reform candidates have begun winning in cities and counties across the nation. But while prosecutors are the most powerful politicians in the criminal justice system, there are many additional actors who need to be held accountable.

Similar strategies and resources must now be deployed in elections up and down the ticket. In fact, state and local races are usually where it matters most in the fight to end mass incarceration. Ninety-percent of people who are incarcerated in the United States are under state and local jurisdiction. A state governor or assembly member matter a lot more when it comes to criminal justice reform than a congress member. It may be more interesting to talk about United States senators, but a state senator has much more power in deciding who and how many people are locked up in prisons and jails.

In the past few weeks alone, the ACLU has launched voter education efforts related to prosecutorial races in California, Oregon, Massachusetts and New York. In 2018, we will double down on this strategy and deploy it all over the nation, expanding it beyond prosecutors to include politicians of all types who decide the fate of the millions of people incarcerated in our nation today.

For the politics of mass incarceration to genuinely change, electoral strategies must use all of the tactics in the political handbook that candidates for office have perfected. This includes strategic get-out-the-vote efforts, phone banking, mailers to voters, and more. It must also include pressuring the party machines on both the left and right to elevate the importance of criminal justice reform. There has been a lot of talk over the years about how criminal justice reform is one of the few remaining bipartisan issues. Well now it’s time to test that theory in political races on the right and on the left.

We’ve seen it happen before in the United States; culture and political incentives change. Yet it never happens accidentally, but rather through the concerted efforts of organizers and activists and voters demanding a different way. The time has come to retake what it means to keep communities safe, and to change the incentives for politicians who shape our nation’s criminal justice system.

We can’t legislate or litigate our way out of mass incarceration. But we can and must change the culture and politics that have led to mass incarceration in the first place.

How the Manhattan DA’s Use of Big Data Targeting Risks Changing the Rules of Prosecution

West Midlands Police

How the Manhattan DA’s Use of Big Data Targeting Risks Changing the Rules of Prosecution

A book excerpt from The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement (NYU Press 2017)

In downtown Manhattan, an experimental prosecution unit has begun rethinking how to reduce violent crime. Under the leadership of dis­trict attorney Cyrus Vance Jr., the Manhattan District Attorney’s Office created the Crime Strategies Unit (CSU) to target the bad apples in com­munities and take them out by any means necessary. Call it the “Al Capone” approach to crime, only the targets are young men suspected of violence, not national mob bosses. Dubbed “intelligence-driven prosecution,” police, prosecutors, and analysts target individuals for incapacitation and thus removal from problem areas of the city.

Analytical and aggressive, CSU prosecutors build cases against the primary crime drivers in a neighborhood. First, crime data allows pros­ecutors to isolate high-violence areas for scrutiny. By crunching police crime data and mapping neighborhoods, prosecutors identify particu­lar hot spots of violence. These areas become known as “Bureau Based Projects” (BBP). A small team of prosecutors oversees each BBP and coordinates intelligence gathering in the area. These prosecutors work closely with the main CSU staff and may or may not take the cases that result from NYPD making arrests in the hot-spot areas. A “violence timeline” is created for each area, highlighting the past pattern of vio­lence between groups, gangs, and individuals. The timeline lists details of each shooting with suspects, victims, and facts, along with time, loca­tion, and date.

Second, particular individuals are identified for police attention. Each BBP selects ten or so “priority targets” — “people whose incapacitation by the criminal justice system would have a positive impact on the community’s safety and/or quality of life.” Field intelligence officers, detectives, and patrol officers help identify the priority targets for removal. These individuals have at least five criminal convictions and a history of violence. Some have been un­cooperative victims of past shootings. Others are associated with gangs or criminal groups. A “target tracker” of each young man populates the data system with photos, prior criminal history, and other personal information. These individuals become the targets. Like Al Capone, who eventually faced prosecution for tax-evasion charges rather than the more violent crimes he engaged in, these priority targets do not have outstanding arrest warrants and cannot be arrested based on existing evidence.

Prosecutors input the names of priority targets into an “arrest alert system.” ­This arrest alert system then allows prosecutors to know if a target has been arrested. Routine fingerprinting keyed to a person’s criminal history (rap sheet) triggers the alert. Under the old system, if a target got arrested for scalping Broadway tickets or simple assault (or some other minor offense), line prosecutors would have no way of knowing the level of threat posed by the individual. Now, alerts (usually an email) inform prosecutors throughout the office that a wanted target has entered the criminal justice system. The arrest alert system triggers a process whereby all the power of the prosecutors’ office can be used to incapacitate the individual. Enhanced bail applications can be used to argue for pretrial detention. Additional charges can be added to ratchet up pressure to plead guilty. Harsher sentencing recommendations can be sought to increase punishment. Even after sentencing, prosecutors are alerted to a defendant’s release, so that the Manhattan parole system can monitor reentry back into society.

Data sharing also allows a more comprehensive intelligence-gathering operation. A new data system allows over 400 prosecutors to prosecute 85,000 cases a year. Information about cases, suspects, neighborhoods, witnesses, gangs, nicknames, rivalries, crimes, tips, and a host of other data is coordinated through shared searchable databases. Prosecutors debrief individuals in the arrest alert system, looking for more informa­tion about networks of violence. Photos of criminal associates, social media postings, and other tips become part of the data-collection sys­tem. NYPD police commissioner William Bratton called it a “seamless web” of shared data between police and prosecutors and termed the partnership one of “extreme collaboration.” Inspired by the sabermet­rics approach to baseball and finance, Cy Vance Jr. likened it to a “Mon­eyball” approach to crime fighting.

On a few occasions, this person-based targeting has led to large-scale arrests and prosecutions. Utilizing the intelligence-driven prosecution platform, the Manhattan District Attorney’s Office has prosecuted sev­eral violent gangs in New York City. In one case, the District Attorney’s Office in collaboration with the NYPD studied violence patterns, gang activity, and even social media before indicting 103 members of local crews. In 2014, the prosecution of these youth gangs for homicides and shootings in West Harlem stood as the largest gang conspiracy indict­ment in New York City history.

New York City has seen record low crime levels both before and after implementation of the intelligence-driven prosecution methods. Vio­lence rates remain low in the targeted microareas, and shootings have dramatically declined. As a result of the initial success in Manhattan, the concept of intelligence-driven prosecution is being replicated across the country. In Baltimore, San Francisco, Philadelphia, Richmond, and Baton Rouge, intelligence-driven prosecution is using data to target the bad apples for removal from society.

The idea behind person-based targeting is both old and new. Police have always known the bad apples in a community. Prosecutors have regularly targeted them. Yet a policing philosophy that uses data and predictive analytics to prioritize the crime drivers in a society signifies a new approach. [Three] main changes emerge from these technologies — insights that will shape the future of who gets targeted.

[P]roactively targeting violent social networks will change how local police respond to crime. Traditionally, local police might react to calls for service, rely on observations on patrol, or respond to com­munity complaints. With person-based predictive targeting, police can instead target suspects for surveillance or deterrence before needing to respond to a call. For local prosecutors, this represents a significant change. As the former head of the Manhattan Criminal Strategies Unit stated, “It used to be we only went where the cases took us. Now, we can build cases around specific crime problems that communities are grappling with.” Big data policing makes police more proactive. In many ways, intelligence-driven prosecution and policing at the local level are really just mirroring some of the approaches federal investi­gators and federal prosecutors have used for years. While the FBI and U.S. Attorneys regularly investigate completed crimes, they also focus on surveillance and investigation of criminal networks to prevent or disrupt future crime. For local police, the study of gang networks means a simi­lar change from reactive policing to proactive policing.

[M]oving from traditional policing to intelligence-led polic­ing creates data-quality risks that need to be systemically addressed. Intelligence-driven systems work off many bits of local intelligence. Tips, crime statistics, cooperating witnesses, nicknames, and detective notes can get aggregated into a large working data system. Yet the qual­ity of the data is not uniform. Some tips are accurate, and some are not. Some biases will generate suspicion, and some informants will just be wrong. An intelligence-driven policing or prosecution system that does not account for the varying reliability and credibility of sources and just lumps them all together in the name of data collection will ultimately fail. Just as national security intelligence agencies have layers of intelli­gence analysts to examine incoming information, so police departments must develop similar structures to vet this intelligence-like data. Blind data collection without information about sources, reliability, or test­ability will result in an error-filled database. Systems must be designed — before adopting data-driven technologies — to source, catalogue, and make the information useful for officers. Especially when these systems are used to target citizens for arrest or prosecution, the quality-control measures of black-box algorithms must be strong.

Other data-integrity concerns may arise when detectives, gang ex­perts, or police intelligence officers control the target lists. While these professionals have close connections to the community and valuable knowledge of local gangs and potential targets, the ability for risk scores to be manipulated by police interested in prosecuting certain individuals opens up questions of the objectivity and fairness of the lists. If a gang detective can put someone on the list and there is no process to change or challenge the list, the system could be abused. If there is one thing that has been demonstrated regularly with the proliferation of gang da­tabases, these lists are rife with errors. After all, without formal crite­ria to be a member of a gang, rumor, assumptions, or suspicion can be enough to be labeled part of a gang and thus result in an elevated risk score. Worse, there is usually no easy way to get off the list, despite the fact that circumstances change, time passes, and the data grows stale.

Finally, big data policing may distort traditional roles of prosecutors and police officers. Prosecutors seeking to incapacitate individuals on their “primary target” list can bump against ethical lines. During a training on intelligence-driven prosecution, one supervising prosecu­tor spoke of a case involving a young man (a primary target) running toward a street fight holding a lock in a bandana. While the man was likely up to no good, holding a lock in a bandana is not necessarily a crime. But prosecutors chose to charge the man with carrying a dan­gerous weapon with the intent to use it (despite equivocal evidence of intent). Such a serious criminal charge might not have been pursued if the suspect had not been on the primary target list and may not even be supported by the facts. But when incapacitation is the goal, the pros­ecutor’s power to use charging, sentencing, and bail determinations aggressively can distort the traditional focus of the prosecutor. Such a distortion is not necessarily bad. If the prosecutor was correct and the primary target was a violent risk to the community, maybe such aggres­sive predictive prosecution makes good sense. But if this type of human targeting is inaccurate and if it is misused or even if it is unchecked, it can be damaging to the perception of fairness in the justice system.

Excerpted from The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement (NYU Press 2017).

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Municipal courts in Colorado are a mess, and they’re not alone

Municipal courts in Colorado are a mess, and they’re not alone

North of the New Mexico border sits Alamosa Municipal Court. An unassuming brick building with a terra cotta roof, the local court looks like a sleepy place you might duck into to pay a traffic ticket. Yet the mostly poor Alamosa residents who appear before Judge Daniel Powell are routinely denied counsel, face jail because of their poverty, and are forced to plead guilty without the advice of a lawyer, a new ACLU of Colorado report finds.

The report, Justice Derailed, documents the alarmingly frequent constitutional and statutory violations taking place in municipal courts across the state, and is the product of a multi-year investigation. Powell’s courtroom — run “like a fiefdom” — stood out to the report’s authors as one of the worst offenders in the state.

“Judge Powell is operating a two-tiered system in which defendants are punished for their poverty,” said Becca Curry, the report’s co-author in a statement. “Those with means might only appear once in court and pay their debt, while those who lack financial resources face a cruel form of injustice.”

A series of case studies illustrate what the report calls Powell’s “shocking and egregious” behavior, which falls the hardest on indigent defendants — most of whom are in court for minor, non-violent offenses.

Ashley Medina experienced Powell’s harsh rule firsthand when she landed in his court for three petty theft convictions. The theft of items such as laundry detergent and makeup, which took place when she was unemployed and struggling with substance abuse, left her almost $800 in debt to the court. Though she managed to pay $259 over the course of her cases, she didn’t have the means to pay the entire fine, particularly while struggling to treat her addiction with treatment programs that weren’t covered by Medicaid. Medina’s family repeatedly sent letters to Powell explaining her situation.

Powell responded to the family’s pleas by having Medina arrested three times for her inability to pay. In total, Medina spent 36 days in jail over the course of her cases because she couldn’t afford the $1,000 bond set by Powell. Her incarceration, the report notes, cost the city $2,287.

While stories like Medina’s may sound like egregious outliers, defendants in many municipal and misdemeanor courts across the country face similar situations largely because of their economic status. These courts — of which there are thousands in the U.S. — handle millions of cases each year, with little regulation or oversight. The most prominent example in recent years came out of St. Louis County, Missouri, after the fatal shooting of Michael Brown by a police officer in 2014.

Brown’s death cast a spotlight on the many inequities of Ferguson, Missouri’s local criminal justice system, including its municipal court. The cash-strapped city, the U.S. Department of Justice found, increased municipal fines as a source of alternate income, “exhort[ing] police and court staff to deliver those revenue increases.” The result was a police and court system that targeted black residents, charging inflated fines and fees for minor crimes. Those who couldn’t pay, as in Powell’s courtroom, were locked up.

In addition to exorbitant fines, defendants in municipal and misdemeanor courtrooms across the U.S. are routinely not assigned or are flatly denied counsel in cases where jail time is a possible outcome. This blatant Sixth Amendment violation often leads to plea bargains, in which prosecutors woo defendants with freedom from jail in exchange for a guilty plea. In 2015, Sen. Chuck Grassley chaired a Senate Judiciary Committee hearing on the Sixth Amendment right to counsel for misdemeanor defendants.

“No Supreme Court decisions in our history have been violated so widely, so frequently, and for so long,” Grassley told the Committee.

Still, as the ACLU of Colorado demonstrates, it keeps happening.

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