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In leaked audio, prosecutor admits locking people up is not about public safety

What you’ll read today

  • Spotlight: In leaked audio, prosecutor admits locking people up is not about public safety

  • California court destroys files in historic police corruption case

  • A proposed solution to the facial recognition controversy

  • Michigan raises age of criminal responsibility to 18

In the Spotlight

In leaked audio, prosecutor admits locking people up is not about public safety

“Hundreds of registered sex offenders will gather on Halloween to spend several hours under supervision in an effort to make the community feel safer,” reports Taylor Pettaway for the San Antonio Express-News. For the last decade, the probation department in San Antonio, Texas, has been holding what they call “Project S.A.F.E. Halloween,” requiring sex offenders from across Bexar County to meet for about four hours on Halloween. Shannon Jones, a supervising officer, said this helps the community feel safer while children are out trick-or-treating. “It is a win-win situation,” Jones said. “The community gets that extra level of protection. The sex offenders are no more dangerous on Halloween than they are on Nov. 1, but it makes the community feel better to have that extra layer of protection.”

Halloween is spooky for kids, maybe, but it’s downright terrifying for parents who take all the fearmongering to heart. Fearmongering has been defined as “the spreading of frightening and exaggerated rumors of an impending danger” or “purposely and needlessly arousing public fear about an issue.” This tactic is on display every year at Halloween, a day when the risk of sex crimes to children is no higher than it is any other day of the year, which is something you wouldn’t know if you listened to law enforcement talk about it.

Last year Elizabeth Weill-Greenberg reported for The Appeal that in California, Operation Boo  “mandates that registrants who are on parole must remain indoors from 5 to 10 p.m. during which time they can open the door only to respond to law enforcement. They must turn off all exterior lights, and ‘no offering of Halloween candy and no Halloween decorations are allowed.’ Homeless parolees are required to spend the curfew hours in transient sex-offender curfew centers.” In New York, Weill-Greenberg described a similar program that requires that parolees convicted of sex crimes remain indoors at home on Halloween, from the afternoon until 6 the next morning. Parolees are not allowed to have Halloween candy in their possession. Why? Because, as a spokesperson for the New York Department of Corrections and Community Supervision told Weill-Greenberg, “Parents should feel comfortable allowing their children to participate in Halloween festivities without worrying about their safety.”

Children are no less safe on Halloween, which many of these officials know, but these punitive measures help parents “feel” safe by first making them feel afraid.

Fearmongering is not limited to Halloween. It is an integral part of the way law enforcement justifies itself. In Austin, Texas, government agencies are preparing to clear out homeless encampments under highways under the auspices of public safety. “Governor Abbott has been clear that unless the City of Austin demonstrated improvements to protect public health and safety, the state of Texas would step in to address this crisis,” said John Wittman, press secretary for Greg Abbott. But crime statistics have shown that crime is up primarily when it comes to crimes committed against homeless people, not crimes committed by the homeless.

I, for one, have seen no law enforcement complaints about the public safety risk inherent in allowing Harvey Weinstein, accused of multiple instances of sexual abuse, and Aaron Dean, the former Texas police officer accused of murdering Atatiana Jefferson, to walk the streets while out on bail.

In New York, where criminal justice reform laws are poised to take effect in the coming months, fearmongering is everywhere. The new laws limit bail, expand pretrial discovery, and encourage speedy trials. One area of reform is pretrial detention, which will be curtailed, though generally not when it comes to those facing violent felony charges. Another area is discovery, where New York has some of the most severely lopsided practices favoring prosecutors, significantly trailing other states, including Texas.

Some district attorneys, as the famously sensationalist New York Post editorial board wrote yesterday, have been sounding the alarm. “The reforms, as drafted, are not practical,” complained Rensselaer County DA Mary Pat Donnelly. She criticized lawmakers for “playing roulette with public safety.” What with all the fairer trials and more pretrial release coming our way, the Post warns: “New Yorkers should brace for a major public safety disaster.”

But we know that plenty of punitive prosecutors are not punitive out of a genuine fear for public safety. For example, one of the concerns New York prosecutors regularly raise in opposing the new laws is that handing over evidence to the defense in advance of trial will “greatly increase the chances for witness intimidation—since lawyers for the accused will know far sooner the names of those prosecutors might call to testify.” That hasn’t happened in all the other places that have implemented such rules, so there’s no reason to fear New York will be a wild exception. The real reason prosecutors oppose these reforms is that it gives defendants a fairer shot at trial, and means prosecutors will have to work harder to prove that someone is guilty beyond a reasonable doubt, as they are required to do.

And now we have proof that at least in some cases, prosecutors’ opposition to this law has absolutely nothing to do with public safety. Jed Painter, an assistant district attorney from Nassau County, New York, has been giving presentations to prosecutors and legislators about New York’s new reform laws. Leaked audio indicates that Painter’s presentation helps prosecutors find legal loopholes to essentially subvert those laws, holding more defendants on bail and delaying trials. To give one example of Painter’s tips, under the law going into effect on Jan. 1, defendants can be held pretrial if they miss a court appearance and don’t appear for 30 days. In the course of one presentation, Painter gives what he called a “practice pointer you can tell your police”: If a defendant doesn’t show up to court, “don’t pick them up right away … You’re not going to get bail on them for that violation. Wait the 30 days.” Painter made clear that this tactic does not apply where safety is a concern. “If public safety is an issue, you don’t want to wait the 30 days.” Which means that for every single case where prosecutors will employ this trick to hold someone in a cage, it is explicitly not to protect anyone from harm.

Stories From The Appeal

The Alameda County Courthouse in Oakland, California. [Photo illustration by Kat Wawrykow. Photo from Getty Images]

California Court Destroys Files in Historic Police Corruption Case. Criminal case files from Oakland’s seminal Riders scandal were among documents shredded by the Alameda County Superior Court in 2015. [Ali Winston and Darwin BondGraham]

Stories From Around the Country

A proposed solution to the facial recognition controversy: In the New York Times, law professors Barry Friedman and Andrew Guthrie Ferguson propose a way forward on facial recognition technology, which has been embraced in some places and banned in others. “The solution is to distinguish between two very different uses of facial recognition technology,” they write. “We should ban ‘face surveillance,’ the use of facial recognition (in real time or from stored footage) to track people as they pass by public or private surveillance cameras,” but “we should allow ‘face identification’…  so the police can use facial recognition technology to identify a criminal suspect caught on camera.” They would impose requirements on face identification, however, including that it not be deployed at all until it can recognize the faces of all races and genders equally effectively. It should also be available to law enforcement only for the most serious of crimes, like murder, rape, robbery, and aggravated assault. No more sniffing through motor vehicle department databases for unlawful immigrants, as ICE has done. Face identification should not be allowed without a judicial warrant, they add, and there should be penalties for its misuse. [Barry Friedman and Andrew Guthrie Ferguson / New York Times]

Michigan raises age of criminal responsibility to 18: “After years of work on bills to raise the age of people charged with crimes as adults have failed, Governor Gretchen Whitmer signed a plan Thursday to automatically try people 18-years-old and younger as juveniles,” reports WWMT. “The plan, known as ‘Raise the Age,’ changes the current state law that automatically charges 17-year-old offenders as adults. Michigan is one of four states to still do so.”  Prosecutors will still be able to “waive” young people accused of serious crimes into the adult system. [Mikenzie Frost / WWMT]

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