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St. Louis County Could Oust The Prosecutor Who Helped Ignite Ferguson Protests

His opponent in Tuesday’s primary helped establish new police accountability and court reforms in Ferguson after the police shooting of Michael Brown.

St. Louis County Prosecuting Attorney Bob McCulloch
Michael B. Thomas/Getty Images

St. Louis County Could Oust The Prosecutor Who Helped Ignite Ferguson Protests

His opponent in Tuesday’s primary helped establish new police accountability and court reforms in Ferguson after the police shooting of Michael Brown.

St. Louis County prosecutor Bob McCulloch, who received both national attention and scorn for his handling of the 2014 police shooting of Michael Brown in Ferguson, Missouri, is up for re-election Tuesday, hoping to fend off a reformist challenger for a seat he has held for nearly three decades.

Tuesday’s primary is the first contested race for McCulloch, 67, since his office declined to charge Ferguson police officer Darren Wilson in the shooting death of Brown, an unarmed Black teen. McCulloch’s status as a high-profile, longtime incumbent is expected to work to his advantage in securing an eighth term in office. Still, voters are heading to the polls just two days before the anniversary of Brown’s death—a test of whether McCulloch’s stronghold can withstand pressure from a region that sparked a nationwide reckoning over criminal justice reform.

Challenging him is Wesley Bell, a two-term Ferguson City Council member with experience as a public defender, municipal judge, and prosecutor. Bell rose to prominence in a wave of Black leaders who were elected after the Ferguson protests highlighted a glaring lack of diversity in local government. He has since helped establish new police accountability and court reforms in Ferguson, efforts he now hopes to replicate through countywide office.

“People realize the need for change, they realize the need for criminal justice reform,” Bell, 43, said. “When we talk about reforming the cash bail system or ending mass incarceration, I wouldn’t call those radical. I would call those policies that work and help people.”

The race realigns focus on the fallout from the Ferguson protests and the rounds of criticism that followed McCulloch at virtually every juncture. Early on, McCulloch’s cozy relationship with law enforcement raised questions of his ability to remain impartial. Despite that, he resisted calls to appoint a special prosecutor in the case. He further inflamed critics by taking an unorthodox approach toward the grand jury process, in which his office plied jurors with volumes of documents and testimony, yet never offered recommendations on whether to indict Wilson. McCulloch knew of at least one witness who most likely lied in her testimony, he admitted weeks later. Now, one Ferguson juror is suing for the right to publicly speak out about their experience, which they say contrasts McCulloch’s account of the process.

Compounding the tensions, McCulloch announced the non-indictment decision in a winding speech that pushed late into the evening, a move that sparked rounds of rioting and looting. At no point in his address did McCulloch mention that Brown was unarmed at the time of his death.

“He completely dropped the ball,” Bell said. “I don’t think anyone denies that the way that it was handled was incompetent—at best—and a sign of a need for change.”

McCulloch has stood by his handling of the Brown case. If anything, he has said, his office could have done a better job communicating to the public and explaining the grand jury process. McCulloch did not respond to request for comment.

The prosecutor had shown reluctance to prosecute police officers before Wilson’s case. In 2001, he declined to prosecute two undercover drug officers who fired 21 shots at two unarmed Black men at a Jack in the Box parking lot. McCulloch later concluded that the agents were justified in the shooting, and is on record describing the two victims as “bums.”

Wesley Bell, right, is running against Bob McCulloch.
Wesley Bell's campaign website

Local activists have since responded by trying to force McCulloch out of office. Some filed an ethics complaint against him and his two assistants. Others filed a lawsuit claiming McCulloch “never intended to prosecute” Wilson. Thousands more protested at the ballot box, with 11,000 write-in votes cast against McCulloch during the 2014 general election, even though he ran unopposed that year.

Demonstrations continue to this day. Activists are coming out in support of prominent Ferguson protester Joshua Williams, who was sentenced to eight years in prison after prosecutors from McCulloch’s office asked the court to “make an example” of him for setting fire to a convenience store during a 2014 protest. Last week, a state senator asked the governor to pardon Williams.

McCulloch is also facing pressure for his decision to adamantly defend the 2001 conviction of Marcellus Williams, who was put on death row for the fatal stabbing of a local reporter. In a rare move, the governor stepped in to halt Williams’s execution in light of new DNA evidence that could potentially exonerate him, even as McCulloch maintains there is “zero possibility” he is innocent.

On the campaign trail, McCulloch highlights his nearly three decades in office, noting that Bell has never tried a felony case as a prosecutor. “The public has the confidence in the job I’ve done,” McCulloch said during a candidate’s forum last month. “It takes experience. It takes knowledge. … This is an office that I would put up against any office in the country.”

Indeed, there are signs that the inertia of McCulloch’s incumbency is factoring into the race. The latest local polling, in June, placed McCulloch 18 points ahead of his opponent, with 46 percent of likely voters saying they would re-elect the incumbent. He has also outraised Bell by well over sixfold. According to the latest filings, McCulloch had amassed more than $750,000 in his campaign coffers, compared to Bell’s $120,000.

Activists see Tuesday’s primary as an opportunity to change the culture of an office that has aggressively pursued a “tough on crime” agenda. “Bob McCulloch represents institutional racism in criminal justice,” said Redditt Hudson, vice president of civil rights and advocacy at the Urban League of Metropolitan St. Louis, and one of the four activists who sued to have McCulloch removed from office. “Wesley Bell represents the opportunity to create change.”

The stakes are high for this Democratic primary. Without a Republican on the ballot for county prosecutor, it’s down to only the match between McCulloch and Bell to decide who will advance unopposed for the general election in November. McCulloch has only faced three challengers over the course of his 27 years as St. Louis County prosecutor. No Republican has even appeared on the ballot since 1994. Taking note of that trend, national progressive organizations are stepping in to influence the outcome.

“We understand that Wesley Bell is a huge underdog in this race,” said Arisha Hatch, director of Color of Change PAC, a national group seeking to oust McCulloch. “But folks have gotten away with running unopposed for decades. In this work to reform the criminal justice system, sometimes that means getting involved in primaries and kicking out incumbents.”

How Criminal Justice Reformers Should Confront Justice Kennedy's Retirement

First, look to local prosecutor elections.

U.S. Supreme Court Associate Justice Anthony Kennedy
Photo by Chip Somodevilla/Getty Images

How Criminal Justice Reformers Should Confront Justice Kennedy's Retirement

First, look to local prosecutor elections.

The retirement of Justice Anthony Kennedy from the Supreme Court this week has left advocates of civil liberties in great despair. Kennedy, a moderate conservative who was often the court’s swing vote, will most likely be replaced by a staunch conservative. Abortion rights, voting rights, affordable healthcare, and many other issues that affect the daily lives of Americans now hang in the balance.

What will this sea change mean for the future of the criminal justice system? It is hard to tell. The system is in dire need of reform: Too many people are incarcerated for far too long; people of color are treated worse than their white counterparts; and the quality of justice one receives depends far too often on one’s income. But even while Kennedy sat on the bench, the Supreme Court has never provided a remedy to these problems. In fact, one might argue that the Court has been part of the problem.

The Supreme Court gave us Terry v. Ohio, a case that permitted cops to stop and frisk individuals based on “reasonable suspicion”—a standard even lower than the probable cause required for an arrest.  Many cops stop, search and harass individuals without even meeting that low standard. Terry laid the groundwork for racial profiling, and the Court’s decision in Whren v. United States left no doubt that the Supreme Court would not provide a remedy for this practice.  The Fourth Amendment to the U. S. Constitution prohibits unreasonable searches and seizures, but the Supreme Court has created so many exceptions to the warrant requirement that the exceptions devour the rule. Cases like Graham v. Connor, Scott v. Harris, and most recently, Kisela v. Hughes, give cops permission to use excessive and deadly force in far too many circumstances. This is all settled law. With another conservative justice on the Court, it could get worse.

That is why it is so important, now more than ever, that we pay attention to the election of prosecutors at the state and local level. Over 99 percent of all criminal cases are resolved in state court, and the most powerful official in the system is the prosecutor. Prosecutors alone decide whether to bring criminal charges and what those charges should be. They decide whether to offer a plea bargain and what the plea should be. The charging and plea-bargaining decisions effectively control the system and even predetermine the outcome in most cases, especially when one considers the fact that 95 percent of all criminal cases that result in convictions are resolved with a guilty plea. The power and discretion of prosecutors is almost unlimited, and unfortunately most prosecutors have pursued tough-on-crime agendas that exacerbate the problems in our criminal justice system, like mass incarceration and racial disparities.

The good news is that prosecutors can use their power and discretion to reform the system—if they have the will to do so. That is why we must work to elect progressive prosecutors. Progressive prosecutors can choose not to bring charges for minor offenses and can divert nonviolent cases out of the system. Progressive prosecutors can oppose cash bail and propose alternatives to incarceration.  Even with a Supreme Court hostile to criminal justice reform, progressive prosecutors can make a difference. They can dismiss cases based on racial profiling and unconstitutional searches, and they can prosecute cops who use excessive force. But they will only do this if we demand it.

Recently elected progressive prosecutors are demonstrating the power of their offices to create change. Philadelphia District Attorney Larry Krasner, who took office this year, issued a memo to the prosecutors in his office directing them to decline certain charges, divert more cases, and seek lower sentences.  In Cook County, home of Chicago, State’s Attorney Kim Foxx, has made significant progress toward bail reform, increased transparency, and making fairer charging decisions since her election in 2016. Houston District Attorney Kim Ogg, also elected in 2016, has declined prosecution of minor marijuana offenses and implemented bail reform.

Even as the Supreme Court moves further to the right, we can fix our broken criminal justice system if we elect prosecutors committed to meaningful reform and hold them accountable. No matter who is on the Court, prosecutors can use their power and discretion to reduce the incarceration rate, eliminate racial disparities, and create a criminal justice system that is fair and just for all. We must demand that they do so.

Clarification: This article cited Harris County District Attorney Kim Ogg’s commitment to bail reform. Shortly after this piece was published, a leaked email from Ogg revealed that her office is continuing to request high bond amounts for minor crimes, a policy inconsistent with a commitment to serious bail reform in the opinion of the authors.

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Philadelphia Courts are Running a Financial Scheme That Profits Off The Poor

And padding city and state coffers with millions of dollars.

Wayne Styles
Maura Ewing

Philadelphia Courts are Running a Financial Scheme That Profits Off The Poor

And padding city and state coffers with millions of dollars.

The night before New Year’s Eve last year, Wayne Styles was on his way to a hip Philadelphia jazz club. But he never made it downtown. Two white police officers pulled over Styles, who is Black. According to the police report, the reason for the stop was that his windows were tinted too dark. His front windows were down because he was airing out his car, so the officers could see the color of his skin. The stop did not only dampen the evening, it spurred a months-long legal saga.

While Styles, a 52-year-old security guard employed by the city, shuffled through his wallet for his driver’s license, the officer saw his permit to carry a firearm. He asked if Styles was carrying; he was. The officer inspected his gun and saw that the serial number had been scratched.

“I let him know that that gun was stolen in the past and that it was court ordered for me to have my gun back,” Styles said. The thief had damaged the serial number, but when the gun was recovered, the court decided it was legible enough and ordered it returned to him.

Not swayed, the officer arrested Styles on federal felony charges of possessing a firearm with an altered serial number and brought him to the precinct. There, by video, a judge slammed him with a $25,000 bail. He couldn’t immediately post the required $2,500 so was hauled to jail.

One day and four phone calls later, Styles found someone who had that kind of money: his longtime friend Alexander William, a retired sanitation worker. “I don’t have a lot of money, but it wasn’t no problem,” William said. “He’s a good friend of mine.”

On Feb. 20, when Styles finally had a court hearing, the charges were tossed. In theory, bail is used to ensure that a defendant doesn’t flee. But in Philadelphia, like many other jurisdictions, the court keeps a portion of that deposit as a “processing fee.” It is a full 30 percent in Philadelphia—whether a person is convicted or not. So, when William got his money back, it was short $750. “They always told me they kept a little bit of it, but I didn’t know how much,” William said. In effect, he paid hundreds of dollars for his friend’s wrongful arrest.

Unlike most cases, the judge ordered the entire bail be returned. Nevertheless, it seemed as though his financial loss would be like other defendants: The courts stalled for months, but finally returned the $750 this week, several days after an inquiry by this reporter. The First Judicial District of Pennsylvania declined to comment on the delay.

“We simply don’t believe that there should be a charge for your freedom,” said Mark Houldin, policy director at the Defender Association of Philadelphia. “Usually it takes a lot for our clients to get enough money together. Keeping a percent of that results in a tax on people in poverty.”

The bail fee is just one small part of a larger financial scheme that generates revenue from the pockets of people caught up in the criminal justice system. Any conviction in Philadelphia includes a bill with items such as “Commonwealth Cost,” “County Court Cost,” and the “Judicial Computer Project.” Typical tallies range from $200 to over $1000 according to a recent analysis by Harvard Law School’s National Criminal Justice Debt Initiative. When a bill lingers for longer than two years, it is handed off to a private collection agency that adds a 25 percent surcharge, according to a contract obtained by The Appeal through a public records request.

“Because jurisdictions are so cash strapped, anything that can be passed along to the defendant is passed along,” said Cherise Burdeen, CEO of the Pretrial Justice Institute, a nonprofit based in Rockville, Maryland. “Essentially, you’re paying for access to justice.”

The bills handed out by Philadelphia criminal courts in 2016, the most recent data available, added up to about $34 million. This total includes victim restitution, but those payments only accounted for a quarter of the total. The largest portion, 69 percent, came from court fees, according to the Administrative Office of Pennsylvania Courts.

This pot of money helps pad a few different budgets. In 2017, 29 percent went to the commonwealth and 62 percent went to the city. The judicial district’s projected budget for next year depends on about $31 million from court fines and fees, nearly one-third of the total $110 million it will take to run the civil and criminal courts.

Philadelphia is “not the worst of the worst” said Mitali Nagrecha, Director of Harvard Law School’s National Criminal Justice Debt Initiative. The city’s judges don’t jail people for getting behind in payments, she noted, a practice that is a problem in other jurisdictions across the country, including other parts of Pennsylvania. However, “[w]e’ve also learned that in Philly court costs are typically imposed without regard to financial circumstances,” she said. “This is surprising as jurisdictions across the country are reforming, including by enacting laws to require consideration of ability to pay up front.”

While court debt doesn’t lead to jail time in Philadelphia, it does prevent record expungement. So, people who can’t pay continue to be followed by their past convictions in the eyes of landlords or employers who run background checks.

The city is leaning toward nixing the bail fee, which delivered more than $2.9 million to its general fund in fiscal 2018. The 2019 budget, which passed in early June, accounts for loss of this revenue, but to date people are still being charged. Mike Dunn, a spokesman for the mayor, wrote in a statement that administration officials and the judicial district are having “positive conversations” about eliminating the fee, “though a number of procedural matters need to take place before any change can occur.”

Keeping a slice of a bail deposit is not unique to Philadelphia courts. It’s relatively common, though the amount varies. For comparison, in New York City the courts keep the same percentage as Philly, 3 percent of the bond set—but only when the defendant is found guilty.

New Orleans is perhaps the most notorious jurisdiction for relying on “user-funded” revenue, meaning money drawn from people caught up in the justice system. Last year, a federal judge ruled that this created a conflict of interest for the judges. “It is the unfortunate result of the financing structure, established by governing law, that forces the Judges to generate revenue from the criminal defendants they sentence. Of course, the Judges would not be in this predicament if the state and city adequately funded [the criminal court],” Judge Sarah Vance of the Eastern District of Louisiana wrote.

Unlike the bail deposit fee, most of the charges assessed in Philadelphia are not in the purview of the city, but are mandated by state law. However, Andrew Christy, a legal fellow at the ACLU of Pennsylvania who has been investigating court debt, took a close look at that statute and said he was surprised to find that judges are by law allowed to assess fees and reduce them according to a person’s ability to pay. “To the extent to whether there was any doubt before, the legislature changed that in 2010 to make it clear that courts can change costs,” Christy said. “But it isn’t done in practice.”

A Pennsylvania state bill would require judges to consider a person’s ability to pay when levying court costs and fines—not including bail. The measure would allow judges to consider nonmonetary penalties such as community service, or to entirely waive debt. The bill is backed by four Republicans and five Democrats.  

Since the pernicious effects of criminal justice debt were scrutinized in the Department of Justice’s scathing 2015 report on Ferguson, Missouri, jurisdictions across the country have been giving their systems a closer look. Some are starting or revamping procedures for judges to assess whether a person is able to pay a fine or fee. Christy is working with the Philadelphia public defender’s office to train lawyers in how to argue for reduced costs in motions. These efforts have shown promising results. Public defender Alison Lipsky was the first to take up the cause: In two cases the judge waived all of her clients’ fees, and a third is in appeals. She estimates that about 40 percent of her clients would be eligible.

“For those individuals that have significant mental health or disability [challenges], the court costs absolutely should be waived,” Lipsky said.  “They’re never going to be able to make those payments.”

Styles is happy that his bail deposit saga is finished, and that his friend was fully repaid. But he’s still dealing with the aftermath of his wrongful arrest: Even though he wasn’t convicted, his arrest still appears on his publicly available criminal record. “With this on my record, it doesn’t look good,” he said. “People don’t know the whole story.”

This article is a co-publication with Philadelphia Weekly, and is part of Broke in Philly, a collaborative reporting project among 19 news organizations, focused on Philadelphia’s push toward economic justice. 

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