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Despite Public Outcry Over Pay-to-Play Justice, Prosecutors Just Don’t Get it

Mecklenburg County Courthouse. By Upstateherd
Wikimedia Commons [CC BY-SA 3.0]

Despite Public Outcry Over Pay-to-Play Justice, Prosecutors Just Don’t Get it

Mecklenburg, North Carolina District Attorney R. Andrew Murray doesn’t seem to understand the problem with the county’s deferred prosecutions system, even after a group of faith leaders held a press conference Monday morning, arguing that the current system discriminates against the poor most in need of help.

The protest was timed with a hearing in the case of Charlotte resident Rahman Bethea, who was arrested and charged in March 2016 for stealing audio-visual components from his workplace. Bethea, who already was paying over $500 monthly for child support, found himself in a crushing financial situation — he lost his home and was forced to ask his mother to take care of his young son while Bethea was homeless. He applied for other jobs, but no one would give him a chance because he had a pending criminal hearing that appeared on background checks.

Then the DA’s office offered Bethea a chance at redemption: he was eligible for a deferred prosecution program whereby Bethea would be able to go on probation for a set period of time and avoid a conviction on his record. The program theoretically offers a second chance for people to avoid a criminal conviction, which has serious collateral consequences and can affect someone’s ability to go to school or get a job.

But redemption came with a price — $900. Before he could qualify for the deferred prosecution program, Bethea needed to pay down the restitution he owed to $1,000 or lower. (It was set at around $1900.) That was $800 too much. While Bethea managed to scrape together $100, he couldn’t afford any more without a new job. Trapped in the cycle common to many, Bethea wasn’t sure where to turn.

Deferred prosecution agreements are available to first-time offenders with no previous convictions. Similar to the same deferred prosecutions agreements regularly used with corporate defendants, a deferred prosecution agreement allows an individual to pay a fee and go on probation for two years (usually) in lieu of pleading guilty. Once the probation period ends, the slate is wiped clean. It is as if the crime hadn’t happened at all.

But it’s not that simple for people who cannot afford to pay. Bethea, for example, struggled to come up with the money required to enter the diversion program. Although there is no exact figure on how many people cannot afford deferred prosecution programs, almost half of Americans, according to one study, cannot cover an unexpected $400 expense. Across the county, advocates and civil-rights attorneys have drawn attention to these formal and informal debtors’ prisons — and exposed the many ways that our justice system relies on money and ensnares the poor, from cash bail, to fines and fees.

At a hearing last Wednesday, Elizabeth Gerber, Bethea’s public defender, argued that Mecklenburg’s deferred prosecution program discriminates against the poor, pointing to the fact that someone able to easily pay the money can access a benefit that a poor person cannot. Deferred prosecution programs and diversion programs almost always require some form of payment in order to participate. Less obvious are the ways that this pay-to-play system disadvantages people who cannot afford the payments. When the poor fail to pay, they end up facing even more serious consequences and greater barriers to reentering society post conviction.

In Mecklenburg County, the prosecutors decide who is or isn’t eligible for deferred prosecutions based on the statute. And, while the program overall is innovative and works well for those who can afford to pay, Gerber has argued that it still denies a second chance to those who probably need it most — the poor, who simply don’t have the money to pay for a second chance.

The Charlotte Observer reported on Bethea’s plight, and several people volunteered to donate money to help Bethea cover the $800 he couldn’t afford. Religious leaders called out for reform, calling the current system unethical. Said Rev. Rodney Sadler, “The courts have a middle-class standard and when poor people get caught in that system they get ground up we need to find a way for poor people to have adequate access to the division program.” Despite the public outcry, a judge denied Bethea’s motion this week, and he faces a trial in November for a felony.

DA Murray appeared to be unmoved in the press. He said in a press statement, “Without [the restitution limit], the DA’s office would be turning its back on innocent victims of crime.” He shucked any responsibility on the part of his office to give the poor access to diversion programs — arguing that religious organizations should set up their own way to fund the poor.

Update: In Justice Today received the following comment from the Mecklenburg County District Attorney’s Office:

The Mecklenburg County District Attorney’s Office created our deferred prosecution program to allow for restorative justice. This program gives eligible offenders the opportunity to take responsibility for their actions and earn a dismissal of a non-violent crime, avoiding the long-term consequences of a criminal conviction. A crucial aspect of this program must consider the rights of innocent crime victims.

Many victims experience severe financial hardships as the result of the crimes committed against them. Someone who steals lawn equipment from a landscaper struggling to make ends meet has deprived that person of their means to earn a living. A single mother whose car is stolen loses her transportation to the job that provides for her children. Those are the kinds of incidents that can push families — by no fault of their own — deeper into poverty. They are innocent victims facing financial hardships caused by those who made the decision to commit a crime.

The DA’s Office must weigh its duty to protect victims with the understanding that there are offenders who should be given a second chance. The program requires the balance of restitution to be no more than $1,000 before they can participate in deferred prosecution. Without this requirement, the DA’s Office would be turning its back on innocent victims of crime. This office routinely allows offenders who cannot immediately meet this requirement lengthy periods of time so that they can become eligible for the program. This office does not handle any funds involved in this program and all restitution goes directly to the crime victim.

The DA’s Office remains open to conversation about the deferred prosecution program. We have, and will continue to engage the Public Defender’s Office and other community leaders in conversations about the deferred prosecution process and how, as a community, we can all work toward a fair system for both victims and defendants.

The Mecklenburg County DA’s Office is not blind to inequities in the criminal justice system. In fact, this office has been working for years to address these issues. From implicit bias training for prosecutors to the office’s involvement in the national Safety and Justice Challenge, the office is a leader among prosecutors and the criminal justice community in working to combat inequities. Our deferred prosecution program is consistent with our commitment to fairness. This program is about restorative justice in which a victim’s losses must also be considered.

“It Is So Loud Inside My Head”

The words of a mentally ill man the state of Arkansas hopes to execute on November 9th

Photo: Arkansas Department of Correction

“It Is So Loud Inside My Head”

The words of a mentally ill man the state of Arkansas hopes to execute on November 9th

It is so loud inside my head. It feels like electrical impulses are going through my head all the time. If you took that pen and tapped it on the table I can feel it all the way down my spinal column. It is so loud inside my head.”

Those are Jack Greene’s words. He is the 62-year-old man that the state of Arkansas hopes to execute on November 9th for the 1991 killing of Sidney Burnett. Greene suffers from crippling psychiatric deficits, a possible intellectual disability, and a mental illness so severe that there are questions about his competency. He received such grossly inadequate representation at trial that the jury that sentenced him to death never heard of his devastating mental illness — a refrain all too familiar in capital cases. The state is aware of the glaring problems in Greene’s case, but it still hopes to execute him next month.

Greene, for example, regularly stuffs his ears and nose with paper “to alleviate perceived (but delusional) injuries.” Sometimes he intentionally causes his nose to bleed, and guards discover his face covered with blood. He eats out of his sink; his toilet is his desk. He thinks his central nervous system is totally destroyed, caused by, in his words,

[t]he prolong and repeated injuries on me . . . by staff of the Ark. Dept. of Corrections with the deliberate permanent destruction of such vital bodily functioning organs that’s caused injuries so severe and traumaticly [sic] inflicted to my brain, head, left inner ear, etc. . . . for all of which is so painfully torturing and inhumane I can no longer humanly function properly and live with.

He believes that his ex-attorney, the prison warden, a nurse, and a prison guard have conspired together (in that “chronological order”) to destroy “these vital functioning organs,” and that they are also preventing him from being extradited to North Carolina, where he could receive adequate medical care. He thinks his looming execution is part of this conspiracy.

Doctors believe Greene has organic brain damage. He has had a serious head injury in the past, and neuropsychological testing reveals damage to his frontal lobes. Several experts who have examined him have diagnosed him with a psychotic disorder, and his current lawyers are certain he is not competent to be executed. He also might be intellectually disabled, a status that, like incompetence, would render him categorically ineligible for the death penalty.

Then there is the trauma and the familial mental illness visible in many of Greene’s relatives. Greene’s father killed himself when Greene was an infant. His mother would later overdose on pain pills, and his brother later shot himself. Greene’s grandfather physically abused him and his siblings, sometimes rubbing salt in the wounds he caused. Greene lived in a house with no running water, electricity, or plumbing. At eleven, his grandfather handed him over to a notorious state-run training school for boys. While there, Greene was sexually and physically abused.

The evidence described above is the type that often causes juries to spare someone’s life, according to the findings of the Capital Jury Project. But at Greene’s sentencing trial, his attorney did not put on a mental-health expert and he presented no other mental-health evidence, although the signs of his illness were readily apparent. Instead, to convince the jury to spare Greene’s life, his lawyer presented a measly 46 pages of testimony, 33 of which were read from a cold, emotionless, transcript from a prior proceeding.

What happened next is equally disturbing. During post-conviction proceedings, an expert found that Greene might be intellectually disabled but stated that he needed to do additional testing to confirm. Greene, insistent that his lawyers were conspiring to torture him, asked the district court to withdraw the claim. He accused the Federal Defender’s Office of “making [him] out to be some kind of incompetent retard to get their office appointed to [his] case and try and cover up crimes of inhumane injuries maim and torture.” The judge found Greene competent to abandon this potentially life-saving claim and withdrew it. No court has ever heard it.

Perhaps the most shocking thing in Mr. Greene’s case is that, with a little more than two weeks until the scheduled execution, he has yet to receive a hearing to determine whether he is competent for execution under U.S. Supreme Court precedent that bars the execution of persons who lack a rational understanding of the punishment they are to receive. Arkansas’s unusual statute gives the Director of the Department of Correction sole discretion in making competency determinations. This means that the same person who is in charge of carrying out Mr. Greene’s execution also gets to determine –without a fair and independent court hearing — if he is competent for execution.

If the state has its way, Jack Greene will join a group of four other men executed by Arkansas in 2017, a group that to a man suffered from the most debilitating illnesses and trauma and received the worst lawyers. Ledell Lee, who might have been intellectually disabled, had lawyers who tried to withdraw from his case, citing a “gross [ethical] conflict,” a drunk lawyer, a mentally ill lawyer, but never, until it was too late, a competent lawyer. Marcel Wayne Williams had a mother who pimped him out for sex at ten and who tortured him by pouring boiling water on him and covering him with tar; Kenneth Williams may well have been intellectually disabled; and Jack Jones suffered from extreme physical abuse, was brutally raped by strangers, and suffered from bipolar disorder. Juries never heard these stories because of ineffective lawyering.

What is happening in Arkansas is a stain on our country’s moral conscience. Under the Eighth Amendment, the death penalty is supposed to be reserved for the worst of the worst, society’s most culpable. The prosecutors’ continued push for death in the face of severe illness and trauma, never heard about by juries, flouts that constitutional promise. And each time a court allows a state to carry out the harshest of punishments on the most impaired and least represented, it mocks the promise of justice. Will a court finally recognize this reality and intervene? Or will Greene become another tragedy in a system that is completely and utterly broken?

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Indiana prosecutor takes “a hard line” on opioid dealers

Terry Curry

Indiana prosecutor takes “a hard line” on opioid dealers

Marion County Prosecutor Terry Curry has vowed to seek longer prison terms for drug dealers in an attempt to crack down on the opioid epidemic damaging Indianapolis and large regions of the country.

“Our office has made a decision that we are taking a hard line,” Curry recently told Fox 59 in Indianapolis. “We just feel it’s important that we make a statement and don’t lose sight that there is a criminal side to the opioid epidemic that’s occurring.”

Curry said his office will continue to divert low level drug possession cases and first time offenders to drug court for treatment in lieu of pursuing criminal sanctions. But he simultaneously argued it was important to push for long prison sentences for those dealing in large quantities of opioids and other drugs.

“There’s a distinction between those battling addiction and those who are feeding addiction,” Curry said.

The prosecutor showed he was serious earlier this month when his office secured long prison sentences for two individuals convicted of selling heroin. Frank Dangerfield was sentenced to 26 years in prison and Braxton Buxford was sentenced to 30 years in prison on similar charges. In addition to heroin, police found $7,928, 36 grams of cocaine, 125 grams of methamphetamine and 160 grams of fentanyl in Buxford’s vehicle.

Curry’s hard-line approach, however, is increasingly coming under fire by those who maintain that the opioid epidemic in this country should be treated as a public health, not criminal justice, crisis. For example, Northeastern University Law Professor Leo Beletsky, a public health and drug policy expert, said sending more people to prison for longer periods of time has never been an effective crime or drug prevention strategy.

“Locking people up during the 1980’s and 1990’s didn’t lower the crime rate or prevent people from using, and the same is true with opioids today,” Beletsky said. He argues that law enforcement should step aside to allow the health care community to play a larger role in addressing widespread opioid use. He concedes, however, “that’s hard for prosecutors to understand.”

“This gives them a chance to make themselves central to the crisis,” Beletsky said. “But we don’t usually expect prosecutors to respond to an epidemic.” Rather, he suggested, “that’s a role for epidemiologists and other medical personnel.”

Beletsky also maintained that Curry’s distinction between users and dealers — and the different treatments they should receive — is not always realistic.

“The people who sell are also the people who use,” he said. “And if you study the history, users always end up getting arrested.”

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