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In Allegheny County, People Arrested With Cell Phones Can Be Charged With ‘Possessing Instruments of Crime’

Advocates say these charges endanger sex workers and urge the police to stop using them.

Credit: Shutterstock/antstang

In Allegheny County, People Arrested With Cell Phones Can Be Charged With ‘Possessing Instruments of Crime’

Advocates say these charges endanger sex workers and urge the police to stop using them.

In Allegheny County, Pennsylvania, prostitution arrests often begin and end with a phone call. Officers may call the number in an alleged prostitution ad, set up an appointment, and then seize the cell phone that matches the number from a nightstand or from a dresser, as a county vice officer did at a Red Roof Inn in May 2017, according to a police report. Sometimes officers search for phones, as Moon Township police did, according to a July 2017 arrest report that said they seized two phones from a woman at the Sheraton. In dozens of prostitution cases in the county that year, police used a woman’s phone against her as evidence of a crime.

That’s dangerous, says Gabrielle Monroe, an organizer with the Sex Workers Outreach Project (SWOP) Pittsburgh who notes that phones actually help keep sex workers safe by allowing them to get help in an emergency.

“The message to me they are sending to sex workers is they don’t care about their well-being and their safety,” she told The Appeal.

Monroe has visited the county’s special prostitution court regularly since July. A month earlier, the Pittsburgh Tribune-Review had reported that sex workers were being charged with “possessing instruments of crime” if they were carrying condoms when police arrested them.

The Appeal reviewed Allegheny County police records from 2016 and 2017 and found 260 prostitution cases, about 52 percent, where police also charged someone with possessing an instrument of crime. Other offenses can carry an instrument-of-crime charge as well, but that happens far less frequently; about 5 percent of burglary cases in 2016 and 2017 carried the added charge, as did just over 1 percent of simple drug possession cases.

After an uproar from advocates—led by SWOP Pittsburgh, and joined by the Women’s Law Project, Planned Parenthood of Western Pennsylvania, the ACLU of Pennsylvania, and the Pittsburgh Democratic Socialists of America—over the public health implications of discouraging condom use, Allegheny County police said in June they will no longer use the “instrument” charge against those with condoms. (Police in much of Pennsylvania are able to file criminal charges and even resolve low-level offenses before a case gets to a district attorney.) Other jurisdictions, like New York City and the state of California, have also stopped using condoms as evidence in at least some prostitution cases.

But the Allegheny County Police Department’s new policy hasn’t been communicated to sex workers themselves, said Susan Frietsche, senior staff attorney at the Women’s Law Project. “There has not been any public outreach, as far as I know, to reassure sex workers and others that possession of condoms is no longer chargeable as a crime.” (In Washington, D.C., for example, after police stopped using condoms as evidence in prostitution cases, they handed out cards while on patrol that explained this to sex workers.) The Allegheny County police did not respond when asked if they were planning outreach.

Even if police say they aren’t charging condoms as instruments of crime, advocates say, cell phones are still fair game. According to a Women’s Law Project analysis of 2017 cases where both prostitution and instrument of crime were charged, at least 84 percent involved cell phones charged as an instrument of crime. And the police have not guaranteed they won’t use condoms as evidence in prostitution cases. “This means that it still isn’t safe for sex workers to possess condoms or cell phones,” said Frietsche.

If sex workers face steeper criminal charges for having cell phones, they told The Appeal, they will be less likely to carry their phones while working. This means they won’t be able to call for help if faced with dangerous customers, for instance, or when encountering law enforcement. Jessie Sage, co-founder of Sex Workers Outreach Project Pittsburgh, said her group’s community members use their phones not just for emergencies, but to take photos of a customer’s identification or license plate. They may also place their phone in view of customers just to let them know they could call help.

Monroe, the court watcher with SWOP Pittsburgh, is also a sex worker and was arrested in a 2004 sting in nearby Westmoreland County, charged with prostitution and with “possessing a device for intercepting communications”—a cell phone. The cell phone charge was dismissed, but she pleaded guilty to the prostitution charge. At the time, they took her cell phone, she said, and recalls only getting it back after completing probation years later. Now, she said, sex workers “are going into working situations without cell phones, so that way they’re not catching the worse charge.”

Allegheny County DA Stephen Zappala has said instrument-of-crime charges are “usually withdrawn” by his office “when brought to our attention.” The office declined to comment further for this story. The Allegheny County Police Department did not respond to questions by publication time.

But police continue to use the charge against sex workers, said Dena Stanley, founder and director of TransYOUniting in Pittsburgh, an advocacy group, and prosecutors continue to make use of those charges. “The more charges they have, the easier it is for them to give you a plea deal,” Stanley explained. “With trans women, I don’t know about everybody else, when we get arrested, they search for your phone, immediately.”

SWOP Pittsburgh is now demanding that Allegheny County police and prosecutors stop using instrument-of-crime charges for cell phones and commit to ending the use of both phones and condoms as evidence so that sex workers can protect their health and safety. Even if prosecutors say they often drop instrument-of-crime charges, said Sage, such charges still discourage safer work practices. “That’s true with the condoms and it’s true with the cell phones.”

Additional research by Joshua Vaughn.

A Trump Favorite For His Hardline Anti-Immigration Stance, Maryland Sheriff Now Faces Re-Election

Frederick County Sheriff Chuck Jenkins seeks a fourth term as critics blast him for a record that includes poor jail conditions, in-custody suicides, and the deaths of two young people at the hands of his deputies.

Frederick County Sheriff Chuck Jenkins
Photo illustration by Anagraph/Photo by Mark Wilson/Getty

A Trump Favorite For His Hardline Anti-Immigration Stance, Maryland Sheriff Now Faces Re-Election

Frederick County Sheriff Chuck Jenkins seeks a fourth term as critics blast him for a record that includes poor jail conditions, in-custody suicides, and the deaths of two young people at the hands of his deputies.

The Appeal is spotlighting sheriffs across the country who are seeking re-election on Nov. 6. The rest of the series is available here.

On Oct. 7, 2008, Roxana Orellana Santos sat down on the curb to eat lunch outside her workplace in Frederick, Maryland, when she was approached by two Frederick County sheriff’s deputies. When they learned that Santos, who is from El Salvador, had an outstanding ICE warrant, she was arrested and transported to the Frederick County Adult Detention Center and then turned over to ICE; she remained in the agency’s custody for a little more than one month.

About one year later, Santos filed a federal civil rights lawsuit against the sheriff, the Frederick County Board of Commissioners, and several individuals with ICE and the Department of Homeland Security. She claimed that her Fourth Amendment rights—the right to be free from unreasonable seizure—were violated and that she was targeted because of her national origin, a violation of the Fourteenth Amendment. According to the lawsuit, the incident caused Santos “to suffer humiliation, emotional distress, physical pain and monetary damages” as well as fear that deputies would unlawfully arrest her or her family in the future.

The lawsuit also accused Frederick County Sheriff Chuck Jenkins of devoting “an increasingly greater share of [the county’s] resources to the enforcement of federal immigration laws,” specifically through its participation in the 287(g) program that allows deputies to carry out functions of federal immigration officers. Jenkins, the lawsuit alleged, created “a climate of fear among immigrants, Latinos, and those perceived to be of either or both groups.” In August 2013, the U.S. Court Court of Appeals for the Fourth Circuit ruled in Santos’s favor. Last month, a judge ruled that Jenkins and Frederick County are liable for damages in Santos’s arrest and detention.

Jenkins’s hardline anti-immigrant stance has helped him become a national figure in his 12 years as Frederick County sheriff. In 2014, after returning from a trip to the U.S.-Mexico border funded by the Federation for American Immigration Reform (labeled a hate group with white supremacist links by the Southern Poverty Law Center), Jenkins called for military deployment on the border. He’s now a go-to guest on Fox News to blast critics of ICE, and the conservative network included him in a 2011 list of “America’s Top 10 ‘Toughest’ Immigration Sheriffs,” second only to Joe Arpaio of Maricopa County, Arizona. In September, Jenkins was part of a group of sheriffs who President Trump feted at the White House. It was Jenkins’s second visit this year: In February, he joined Trump to discuss immigration policy and the Salvadoran gang MS-13.

But Jenkins faces re-election on Nov. 6. Under his leadership, Frederick County, home to about 200,000 people of whom 10 percent are Black and 9.5 percent are Latinx, was the first in Maryland to join 287(g). Jenkins’s record also includes poor jail conditions, multiple in-custody suicides as well the deaths of two young people at the hands of his deputies. In 2013, deputies sporting SWAT gear and night-vision goggles killed 19-year-old Daniel Vail while raiding the home he lived in with his mother. The same week, three off-duty deputies working a security detail wrestled Robert E. Saylor, a 26-year-old man with Down syndrome, to the ground after he wouldn’t leave a movie theater. Saylor died after he was handcuffed and forced from the theater.

Jenkins’s challenger is Karl Bickel, a veteran of both the Department of Justice’s Community Oriented Policing Services and the Frederick County Sheriff’s Office. Bickel has blasted Jenkins for what he says is the sheriff’s inattentiveness to the opioid crisis, but he has not come out definitively against 287(g); instead, he has simply called for an audit of the program.

Organizers with groups such as the ACLU of Maryland, Safe Haven Frederick, and the RISE Coalition of Western Maryland, meanwhile, have called for the shutdown of 287(g) in Frederick County. Safe Haven Frederick told The Appeal that immigrants traveling through the area know that they have to be careful, and that they are more likely to be asked of their immigration status or potentially arrested for something that they might not be arrested for elsewhere.  

A recent affidavit filed in Santos’s lawsuit shows that her experience of profiling by Jenkins’s deputies was not an anomaly. In July, Sara Medrano said that while driving home with her daughter, deputies stopped her and said she had a broken tail light. After the deputies inquired about Medrano’s citizenship, they attempted to call immigration officials to detain her but eventually let her go after officials did not answer the call.

Jenkins’s cooperation with ICE is not limited to 287(g); his office also has an agreement with ICE to house the agency’s detainees in Frederick County Detention Center, which has been criticized for its unconstitutional conditions. And in August, Maryland Public Defender Paul DeWolfe said the adult jail has been holding children under 18 in isolation for 23 hours per day while they await transfers to the juvenile detention center. Numerous studies have found that the trauma of solitary is particularly acute in young people because their brains are still developing.

Suicide has also been prevalent in the detention center. In 2013, two families sued Jenkins based on the treatment their loved ones received in Frederick County jails before they committed suicide. In October 2010, Valerie Miller, who had bipolar disorder and opioid use disorder, killed herself after being incarcerated for two days while experiencing withdrawal. The sheriff’s office refuses to provide drugs like Methadone and Suboxone that help those with opioid use disorders manage their addiction and alleviate withdrawal symptoms. Three months earlier, William John Hanlin died by suicide in the jail while being held in a solitary confinement unit. Hanlin also experienced severe withdrawal symptoms and his family’s lawsuit argued that the jail failed to provide him with proper treatment for his mental health issues or his substance use disorder.

When contacted by The Appeal, Sheriff Jenkins declined to comment on his office’s participation in the 287(g) program, Santos’ lawsuit, or the deaths in his jail.

Bickel, however, told The Appeal that people with substance use disorders should receive treatment, instead of jail time and a criminal record. For Bickel, Jenkins’s anti-immigrant stance is a distraction from serious issues plaguing Frederick County like fatal opioid overdoses.

“His focus on the immigration issue is for political reasons—trying to garner some votes from certain segments of the population by fearmongering,” Bickel said.

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Rethinking prosecutors’ ‘second bite at the apple’ during parole proceedings

Rethinking prosecutors’ ‘second bite at the apple’ during parole proceedings

What you’ll read today

  • Spotlight: Rethinking prosecutors’ ‘second bite at the apple’ during parole proceedings

  • Solitary confinement, jail deaths rock race for sheriff in California

  • Louisiana judge threatens to appoint every eligible lawyer to death penalty case

  • Cooperation with ICE is on the ballot for the elections

  • Former guards allege abuse and mismanagement at a North Carolina jail

  • Edmund Zagorski’s attorney must have access to a phone before execution proceeds

  • Money is pouring in on both sides of marijuana ballot initiatives

In the Spotlight

Rethinking prosecutors’ ‘second bite at the apple’ during parole proceedings

This year, Debbie Sims Africa became the first member of the ‘MOVE Nine’ released on parole. Last week, her husband Michael Africa Sr. became the second. [Samantha Melamed / Philadelphia Inquirer] The couple, along with the five other surviving members of the group, was serving 30- to 100-year sentences for the death of a police officer who was fatally shot during a 1978 standoff in Powelton Village in Philadelphia. All nine maintained their innocence. (The 1978 incident was followed seven years later by the police department’s bombing of the MOVE compound that killed five children and six adults.) The couple was reunited with their son, born in Sims Africa’s jail cell, after 40 years.

In Sims Africa’s case, Martin Horn, a former corrections commissioner provided written testimony to the parole board about her “record of growing maturity, improved judgment and the assumption of personal responsibility,” and said he did “not believe that Debbie Sims is today a threat to the community.” [Ed Pilkington / The Guardian] In Michael Africa Sr.’s case, a retired guard told his attorney that “he had a spare room, and he would open up his home to Mike if needed, because of how much he trusted and respected him.” Africa had been denied nine times before his release. [Samantha Melamed / Philadelphia Inquirer]

The dispositive factor in the parole board’s change of heart may have been the support from District Attorney Larry Krasner’s office. In a letter supporting Sims Africa’s release, the first assistant district attorney wrote: “While Ms. Sims Africa’s crimes were very serious, her continued incarceration does not make our city safer. I am confident that she will not pose a threat to the Philadelphia community to which she wishes to return.” The parole board cited that letter in its decision. Two MOVE members who were also up for release at the same time were denied, and their denial letters cited the “opposition of the prosecuting attorney.” (The DA’s office said it had sent letters in support of their release as well. The parole board refused to provide clarification to media outlets, leaving it unclear whether it considered the DA’s recommendation or overlooked it and relied on old letters from the DA’s office opposing release.) [Sam Newhouse / Metro] Michael Africa Sr.’s lawyers said his parole was won thanks to a host of factors, including parole recommendations from the Philadelphia district attorney’s office. [Sam Newhouse / Metro]

Several Black Panthers and members of Black political movements remain in prison, serving decades-long sentences that began in the 1970s and 1980s. A few people have been released in the last year, despite virulent opposition from police unions and even elected officials. In Philadelphia, where Krasner has set out to make his office the “best progressive D.A.’s office in the country,” as Jennifer Gonnerman put it in her New Yorker profile, the office’s support for the couple’s release is consistent with that vision. But it is the rare exception among prosecutors who, even in an era when lengthy sentences are attracting new scrutiny, often oppose release on parole almost reflexively.

“What we see in New York State and across the country is prosecutors intervening in the parole release process in punitive ways,” Laura Whitehorn, a community organizer with the Release Aging People in Prison Campaign, told the Daily Appeal. “Having pursued the heaviest possible level of conviction and punishment during the trial and sentencing—the front-end of the legal process—prosecutors often get a second bite at the apple by recommending that incarcerated people be denied parole.

“This is even true in cases where there were plea deals,” Whitehorn continued. “The prosecutor negotiates a conviction and sentence that doesn’t carry the maximize prison time, but then years—often decades—later, they push to maximize prison time through parole denials. If the new wave of so-called progressive prosecutors really want to help end mass incarceration, they should seriously change the ways in which they intervene in the parole release process.

“Shockingly, this also happens in what’s called ‘compassionate release,’” said Whitehorn. “Across the country, elderly and ill people are denied release—even when they are within months of death—because the final decision rests with prosecutors and police, who continue to seek more punishment.”

In an article forthcoming in the Ohio State Journal of Criminal Law, professor Michael Cassidy calls for prosecutors to play little to no role in parole proceedings. He asks: “What is the ‘truth’ that a parole board is attempting to ascertain at a release hearing, and does the prosecutor play any legitimate role in that inquiry?” Cassidy believes that a prosecutor’s input at a parole hearing must typically be of “limited value,” given that much of what they can share will already be contained in the parole file. This question is of increased pertinence now for two reasons: First, the Supreme Court’s decisions in Graham v. Florida and Miller v. Alabama that have given people once sentenced to life without parole as young people the possibility of release. Second, the reckoning with the human and financial costs of mass incarceration that has led some states to reintroduce parole and others to consider it. [Michael Cassidy / Ohio State Journal of Criminal Law]

In Cassidy’s view, once outside the trial process, prosecutors must “eschew adversarialism and behave as ‘ministers of justice.’” Instead, he notes, there are numerous examples of prosecutors putting their “thumbs on the scale” of parole decisions, sometimes “offering a prediction of future behavior that as a professional matter [the prosecutor] is simply unqualified to make.” He advocates a two-part solution: action by state legislatures to limit the role of prosecutors in parole hearings and restraint on the part of prosecutors. Cassidy writes: “Each of the 38 states now providing some form of discretionary parole for adult prisoners allows prosecutors to give input in some fashion to the parole board. Unless prosecutors in those jurisdictions possess highly relevant, post-conviction information unavailable from documentary materials or the testimony of victims, I urge prosecutors to stay home and keep quiet.” [Michael Cassidy / Ohio State Journal of Criminal Law]

Stories From The Appeal

Santa Clara County Sheriff Laurie Smith and challenger John Hirokawa.
[Photo illustration by Anagraph/Photo via County of Santa Clara Office of the Sheriff/ Photo via John Hirokawa]

Solitary Confinement, Jail Deaths Rock Race for Sheriff in California. In Santa Clara County, incarcerated people, and a former undersheriff challenging six-term sheriff Laurie Smith, have turned conditions of confinement into a potent electoral issue. [Victoria Law]

Louisiana Judge Threatens to Appoint Every Eligible Lawyer to Death Penalty Case. After the state cut funds for capital defense, there’s a growing wait list of people in jail without a lawyer. [Emma Whitford]

Stories From Around the Country

Cooperation with ICE is on the ballot: In major counties nationwide, voters will decide next Tuesday the extent to which their local law enforcement agencies will cooperate with federal immigration authorities. ICE partners with local jurisdictions through different sorts of contracts, agreements, and grants. While the 287(g) program, which “allows local deputies to act as federal immigration agents,” is the most visible, some other types of agreement are more subtle and less transparently tied to immigration enforcement. In New Mexico’s Doña Ana County, for instance, the sheriff denies playing an immigration role despite the county’s participation in Operation Stonegarden, “a program through which the federal government provides localities with a grant in exchange for their assistance in border activities.” The Appeal: Political Report explores 10 counties—including Hennepin in Minnesota (Hennepin),  Wake in North Carolina (Raleigh), and Anne Arundel in Maryland (Annapolis)—where cooperation with ICE is on the ballot because of challengers who have pledged to reform it. [Daniel Nichanian / The Appeal: Political Report]

Former guards allege abuse and mismanagement at a North Carolina jail: Two former sheriff’s deputies at the Cherokee County Detention Center allege a culture of using some incarcerated people as “enforcers” to beat up others held at the jail. They also described a culture of mismanagement at the jail under the current sheriff, elected in 2014. There are two state investigations into violence at the jail underway, one involving a death in July of a man booked for marijuana possession and resisting officers. In June, Carolina Public Press published a report on allegations of excessive force by two guards. Since then, multiple community residents, former sheriff’s office employees, and people formerly held at the jail have contacted the publication regarding conditions at the jail. [Jordan Wilkie and Frank Taylor / Carolina Public Press]

Edmund Zagorski’s attorney must have access to a phone before execution proceeds: A federal judge has issued a temporary restraining order, ruling that Tennessee cannot proceed with Edmund Zagorski’s execution on Thursday unless his attorney is allowed access to a phone leading up to and during the execution. Prison officials can either comply with the order or appeal it to the Sixth Circuit Court of Appeals. The ruling came in response to a motion filed by Zagorski’s federal defender Friday in which she argued that it was necessary to have access to a phone during the execution to alert a judge in case anything went wrong. [Adam Tamburin / The Tennessean] See also If the state kills him on Thursday, Zagorski will be the first person executed by electric chair in Tennessee in 11 years.

Money is pouring in on both sides of marijuana ballot initiatives: An analysis by Marijuana Moment of the latest campaign finance data shows large contributions to political action committees that support or oppose marijuana ballot initiatives in Michigan and Missouri. In Michigan, the largest committee opposed to the legalization initiative has received over a million dollars from a national prohibition organization as well as $100,000 from Dow Chemical Corporation. Both the pro- and anti-legalization committees saw donations in the last nine days equal to a third of everything raised in the previous two months. [Polly Washburn / Marijuana Moment]

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