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For a New Breed of Prosecutors, Justice Sometimes Entails a Second Chance

“I always thought there had to be some sweet spot between 15 months and forever.”

King County DA Dan Satterberg

For a New Breed of Prosecutors, Justice Sometimes Entails a Second Chance

“I always thought there had to be some sweet spot between 15 months and forever.”


In 2009, Washington Governor Chris Gregoire received an unusual request. Seattle District Attorney Dan Satterberg encouraged her to grant the clemency application of Gerald Hankerson, who had spent more than two decades in prison for aggravated murder.

“I thought he was overcharged,” said Satterberg. “He was an accomplice. He always said, ‘I didn’t plan on the death of [the victim]; I didn’t know he had a knife.’”

Pardons and clemency are two of the most powerful tools available to state or federal officials seeking to right an injustice. Yet successful petitions for either form of relief are almost as rare as the prosecutors who recommend them. Fourteen states grant “frequent and regular” pardons to more than 30 percent of applicants, according to the Restoration of Rights Project, while 19 states have granted few or no pardons in the last 20 years. (The clemency patterns of the remaining states are classified as “rare” or “infrequent/uneven.”)

Illinois offers one example. Republican Governor Bruce Rauner announced in December 2016 that he would prioritize clearing the state’s extensive backlog of clemency applications. He approved only three percent of the 2,333 petitions he reviewed. One of the 79 pardons applications he granted had been waiting for review since 2003. (His predecessor, Governor Pat Quinn, approved 36 percent of the petitions he reviewed while in office.) Clemency rates at the federal level are also notoriously low.

To date, Satterberg has advocated for clemency for 17 prisoners, most of whom were sentenced after Washington became the first state in the country to enact a “three strikes law” in 1993. Prior to the state legislature’s enactment of this law, a third felony conviction carried a minimum prison sentence of 15 to 20 months. After, a third conviction all but guaranteed a defendant would die in prison.

“I always thought there had to be some sweet spot between 15 months and forever,” Satterberg explained to The Appeal.

All 17 individuals whose release Satterberg recommended had their petitions granted — a strong reminder of the influence and power prosecutors wield.

“Any time a prosecutor endorses clemency, that’s a pretty persuasive argument for me,” former Governor Gregoire told The Appeal. “Prosecutors and defense counsel can grant you a whole lot more perspective on the case, the individual, and the circumstances [of their offense] than the record alone would tell you.”

Satterberg believes he can effectively assess an individual’s ability to safely return to society by looking beyond their conviction. Hankerson won Satterberg’s support because of his extraordinary record while incarcerated. After earning his GED in prison, he went on to lead the Black Prison Caucus and the Concerned Lifers Organization. Today, Hankerson is the President of the Seattle chapter of the NAACP.

Of the 17 petitioners whose release Satterberg supported, only one has reoffended — David Conyers, who was re-arrested and charged with multiple counts of second-degree robbery within two years. Satterberg calls Conyer’s case “a spectacular failure,” noting that many criticized his decision, demanding, “What are you doing? You had him for life.” But he doesn’t intend to back away from supporting meritorious clemency petitions.

“There’s always a risk when you go to bat for somebody, but the only way to avoid that is to always seek the maximum sentence every time — and that’s not really justice either,” says Satterberg. “We’re not holding back just because one guy didn’t take advantage of this extraordinary opportunity.”

Satterberg is not alone in envisioning his role as more expansive than just securing the most severe punishment possible against defendants. He is part of a small but growing number of prosecutors who are rethinking what it means to deliver justice to the communities they’re elected to serve.

“There’s a new breed of prosecutors that see their jobs very differently, and believe success isn’t defined by how many cases they indict, or how long sentences are, but whether they’ve made their community safer and healthier,” says Miriam Krinsky, a former federal prosecutor and founder of Fair and Just Prosecution, a nonprofit organization that supports and provides technical assistance to reform-focused DAs.

For example, Albany County DA David Soares’ “Clean Slate” initiative “aims to reverse engineer the flow of young adults away from traditional criminal justice system” by, among other things, addressing how hard it can be for them to re-enter society after serving a prison sentence. His initiative includes an expungement program that allows “non-violent or low-level offenders who have shown positive rehabilitation” to apply to have their criminal records sealed.

Wyandotte County, Kansas, District Attorney Mark Dupree is another member of this new cohort. Dupree, the state’s first black DA, was raised in a Kansas City neighborhood known for high crime rates.

“Growing up, I never saw a police officer unless they were arresting someone or a prosecutor unless they were in our church looking for a witness to help prosecute someone,” Dupree tells The Appeal.

Dupree, who was elected in 2016, plans to prioritize alternatives to prison programs, such as drug and mental health courts and probation. And Dupree emphasizes that prosecutors must assess each case individually, looking beyond a person’s crime to assess his or her life circumstances holistically. He also requires every prosecutor in his office to speak at local schools and to regularly hold community forums. Dupree hopes that bringing prosecutors and community members together in such forums will soften the views of both sides toward one another, and thus increase overall public safety.

“When you see the police on a consistent basis arresting people and destroying families, you become numb and annoyed with the justice system,” says Dupree. “I’m trying to give knowledge and understanding that the justice system is here to serve and protect you.”

Like Satterberg, Dupree conceives of his role as more expansive and complex than just slapping all defendants with the longest possible sentence.

“Everybody makes mistakes, and some mistakes are seen faster and heard louder than other people’s mistakes,” says Dupree. “But we should never allow ourselves to get caught up in the hype and forget the focus of justice. Sometimes justice requires a second chance.”

Cryptocurrency is the Next Frontier in the Quest to Abolish Cash Bail

A new app seeks to liberate people from more than “liberal malaise.”

Cryptocurrency is the Next Frontier in the Quest to Abolish Cash Bail

A new app seeks to liberate people from more than “liberal malaise.”


It sounds a little ridiculous at first: All you have to do is download an app, let it run on your computer, and it will generate money to bail people out of jail without contributing any of your own cash.

But that’s exactly what Bail Bloc, a project launched Wednesday by a collective of technologists, activists, and artists, aims to do. In partnership with The New Inquiry, the new program is available for anyone to download. Once a user installs the app on their computer, it automatically harnesses a small amount of unused processing power to mine for cryptocurrency. Each month, that currency will be exchanged for U.S. dollars and given to the Bronx Freedom Fund, which uses the cash to bail out New Yorkers who can’t afford their bail.

“If generating money out of thin air by using a computer program seems absurd, that’s because it is,” Grayson Earle, who dreamed up and co-leads the project, told In Justice Today. “What’s equally absurd is the money bail system, and that our entire justice system is premised on the assumption that most people won’t exercise their Constitutional right to trial and instead accept plea bargains to ease the burden on courts.”

Earle is referring to the the increasing rarity of criminal cases that actually go to trial. Plea bargaining, in which prosecutors offer a “deal” in exchange for a defendant’s guilty plea, has largely driven jury trials into obsolescence. Today, 94 percent of state-level felony convictions are the result of plea bargains. The same is true for roughly 97 percent of federal felony convictions. Even if a defendant held on cash bail is innocent, they are more likely to plead guilty than fight their case so they can get out of jail and get back to their homes, jobs, and families. This is particularly true for low-income people, who are less likely to be able to afford cash bail or the cost of going to trial.

Bail Bloc’s creators are not hoping to explicitly encourage people to go to trial — the core of their work is abolitionist in nature. Rather, Maya Binyam, co-creator of Bail Bloc and senior editor at The New Inquiry, says their “ultimate goal is that these cases be dismissed before anyone incurs the cost (financial or otherwise) of navigating the Byzantine ‘justice’ system.”

In New York City, more than 35,000 people are jailed each year because they can’t afford their bail, and the vast majority of those held on bail are people of color. The many pitfalls of the cash bail system are well-documented, and came into sharp relief when the story broke of Kalief Browder, a young man who took his own life after spending three years on Rikers Island for allegedly stealing a backpack at 16 years old. His family couldn’t afford to pay his $3,000 bail, and Browder spent much of his time on Rikers in solitary confinement. By keeping people out of jail in the first place, tragedies like Browder’s could be avoided.

Earle and his collaborators believe that if enough people download Bail Bloc, the funds generated by its widespread use could throw a wrench in the entire system. While it is estimated that each user’s computer will only generate roughly $3 per month, co-creator Binyam notes that bail funds are revolving and cumulative: When a person shows up for trial, the court returns the money, and it can then be used again to bail the next person out. (100 percent of the money generated by Bail Bloc goes to the fund.)

The creators estimate that if 5,000 people use this app for a year, 1,800 people with bail set at $1,000 or less could be bailed out with the funds it generates. Following the initial pilot phase of the program, the money raised by Bail Bloc will begin to be distributed nationally by the The Bail Project, a recently-launched initiative. The Bail Project is first focusing on posting bail in the Bronx; Tulsa, Oklahoma; and St. Louis, Missouri, and plans to move on to dozens of other locations over time.

At first glance, cryptocurrency and bail might seem like odd bedfellows, but Binyam says that dissonance is part of the point.

“Bail is a tool of coercion, predictive policing, and surveillance, but it is also a form of currency mining from low-income individuals and communities of color,” Binyam tells In Justice Today. “Bail Bloc allows you to offer your computer as the target for that mining in their stead.”

The project also represents an opportunity for “artists and activists to intervene on blockchain technology at this moment in time while we can have a real influence,” says Earle. Rather than using Bitcoin, Bail Bloc uses a newer form of cryptocurrency called Monero, which is secure and untraceable. The blockchain Earle refers to is essentially a ledger, or list of all the cryptocurrency transactions that take place, and mining is the process of verifying those transactions.

The incentive for cryptocurrency users to “mine” these transactions comes in the form of kickbacks — in Bail Bloc’s case, small amounts of Monero. That’s what each user is signing up to do when they download Bail Bloc to their computer. Earle sees using this mining process as a way to not just bail people out, but to harness a technology that is currently “mostly a white male libertarian space, assisting the wealthy in skirting regulations, and acting as a new portfolio chip.” Bail Bloc flips that paradigm on its head, creating a way for cryptocurrency technology to benefit some of the most marginalized people in our society, rather than wealthy elites.

For Binyam, too, the project represents what she believes should be a central goal for all technologists: To use technology and innovation “to meet the needs of individuals and communities who are in the unfortunate position of insisting that their right to life is real, and therefore urgent.”

“Tech companies have long insisted that their products provide liberation, but they mean this mostly as a figure of speech — if their products provide liberation from anything, it’s usually from liberal malaise,” says Binyam. “But for black people, brown people, low-income people, and especially women of color, the struggle for liberation is still very much literal.”

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Numerous Reports Confirm Stark Racial Disparities in Portland’s Criminal Justice System

Data from Portland Neighborhood DA, Aug. 2014- Sept. 2017

Numerous Reports Confirm Stark Racial Disparities in Portland’s Criminal Justice System


Last week the Portland Mercury published an article about attempts by Multnomah County, Oregon officials to censor data revealing stark racial disparities in Portland’s criminal justice system. Multnomah County research analyst Amanda Lamb used data from the courts, prosecutors’ offices and county jails to show that Blacks were 4.2 times more likely to be booked into jail than Whites. Once there, they stayed longer and were less likely to be released.

County officials challenged the data, insisting that the small numbers of cases in her study made any findings statistically insignificant. They promptly scrubbed the presentation from the Internet. Multnomah County District Attorney Rod Underhill complained, that Lamb “was not authorized to use that data . . . for public consumption.”

It’s strange that the District Attorney and county officials would try to hide this particular report. Numerous other studies have reached the same conclusion regarding racially disproportionate policing, arrest and incarceration rates in Portland. These include reports released by the Portland Police Bureau, the MacArthur Foundation, the Portland TribuneStreet Roots, and my own analysis of the DA’s data. All reveal that Black Portlanders are stopped, arrested, charged and detained at up to 6 times the rate of Whites in this progressive city run by left-leaning Democrats. Yet, in the face of all of this evidence, some going back several years, little has changed.

Charges

In a study I conducted of 11,651 cases brought between August 2014 and September 2017 by Portland’s Neighborhood District Attorneys, I found that Blacks were charged at 5 times the rate of Whites. The Neighborhood DAs are responsible for charging most of the quality-of-life crimes in the city, including such offenses as “offensive littering,” disorderly conduct, public urination, and prostitution.

Data from Portland Neighborhood DA, Aug. 2014- Sept. 2017.

Although politicians and representatives for the Portland Police Department publicly renounce broken windows policing, the large numbers of charges and arrests for low-level offenses indicate many still practice it. On average, Neighborhood DA’s have reviewed over 300 cases per month in the last three years. While that average did decline last year, close to 250 people continue to be channeled into the criminal justice system for these low-level offenses each month in a city with a population of around 600,000 adults.

Data from Portland Neighborhood DA, Aug. 2014- Sept. 2017.

When we drill down to specific offenses, the racial disproportionality becomes even more pronounced. For example, Blacks were 8 times as likely as Whites to be charged with Trespass II (ORS 164.255), a class C misdemeanor used to charge those found to be unlawfully in a car or on property.

Blacks are six times as likely, and Native Americans more than twice as likely, as Whites to be charged with Interfering with a Police/Probation or Parole officer (ORS 162.247)

Data from Portland Neighborhood DA, Aug. 2014- Sept. 2017.

Police are granted broad discretion over whether and when to charge someone with disorderly conduct. (ORS 166.025)According to the statute, disorderly conduct may mean engaging in a fight, making “unreasonable noise” or obstructing pedestrian or vehicular traffic. Blacks face disorderly conduct charges at five times the rate, and Native Americans at four times the rate, of Whites.

Racial disparities are found in even the most low-level offenses, particularly in the category of “offensive littering.” Anyone who “creates an objectionable stench or degrades the beauty or appearance of property or detracts from the natural cleanliness” can be charged with this class C misdemeanor. Blacks are charged with “offensive littering” (ORS 164.805) at four times the rate of Whites.

Traffic Stops

Portland Police Bureau, Stops Data, Q2 2007

Traffic stops represent another area where over-policing leads to over-representation of Blacks in the criminal legal system. A 2002 Report by the Portland Police Bureau found that Blacks were disproportionately stopped by police, mostly under the pretext of vehicle violations. In 2014, another PPB Report, based on 2011 data, found that little had changed during the intervening 12 years, and that Blacks continued to be stopped at disproportionate rates. The latest stops data from the second quarter of 2017shows that no progress has been made in reducing the racial disparity in traffic stops. In fact, in some instances the disparity appears to have grown. The most egregious example of discriminatory stops is perpetrated by the Police Department’s Gang Enforcement Team, , which stops Black people at 12 times the rate of White people.

Portland has made progress in cutting the total number of stops in half from 114,000 in 2001 to around 50,000 in 2015. However, the impact of these stops still continues to fall disproportionately on Black people in the city.

Jail

Safety and Justice Challenge Report

The MacArthur Foundation Safety and Justice Report released last year showed that racial disparities that begin with police stops are echoed in the disproportionate numbers of Blacks incarcerated in Multnomah County’s jail. Its study found that Blacks were six times more likely to be in jail on any given day than Whites in Portland.

Broken Windows Policing in an Era of Low Violent Crime

This data illuminates the extreme racial disparities that exist among those who are arrested each year in Portland for low-level offenses. Black Portlanders are targeted for these arrests at six to nine times the rate of Whites. The racial disproportionality can be found throughout the system, beginning with traffic stops, moving to arrests, to charges, and finally, to presence in the Multnomah County jail.

Given this data, one key question to ask Portland officials is why they are considering adding 85 new police officers even as violent crime in the city is at a thirty-year low? Recently, Columbia sportswear CEO Tim Boyle called for more policing in downtown because his employees faced harassment from people living on the street and some had laptops stolen from their cars. While such livability issues are real, one must balance the comfort of Boyle’s employees against the harm caused by over-policing of houseless people in downtown, including arrest records, fines, and jail-time. How many houseless people do we have to arrest to make Columbia sportswear employees feel safe?

If Portland hopes to reckon with its legacy of “systemic racism”, as Mayor Ted Wheeler has suggested, then it must do a better job of acknowledging the discriminatory policing rampant throughout the system. The Chief of Police and the Mayor should end broken windows policing and put into place policies designed to stop the over-criminalization of Black and Native American Portlanders, particularly for low-level, “quality of life” offenses.

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