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Jail Policies Restrict Legal Representation in North Carolina

Public defenders in Charlotte say restrictions on communication hinder their ability to help jailed clients.

John Moore / Getty

Jail Policies Restrict Legal Representation in North Carolina

Public defenders in Charlotte say restrictions on communication hinder their ability to help jailed clients.

Public defenders in North Carolina’s most populous county say recent jail reforms have serious effects on legal representation. They say formal policy changes to phone calls and in-person visitation have rendered communication with incarcerated clients — the majority of whom have not been convicted of a crime — more difficult, and impeded relatives and attorneys’ ability to build the strongest cases possible.

The trend began unexpectedly in October 2016, when the Mecklenburg County Sheriff’s Office put heavy restrictions on who could enter the two jails it oversees. While attorneys were exempt from the change, the office banned jail visitation for family members and friends, replacing in-person family meetings with video conferencing facilitated by Global Tel-Link. The visitation policy was spun as a way for defendants to experience life outside jail walls while unburdening staff. But several public defenders who spoke to In Justice Today say the policy hurts case-building as well.

According to Chief Public Defender Kevin Tully, attorneys with multiple clients are unable to meet with the same client every day, so relatives often filled that void. In the past, family members could pass messages between defendants and lawyers, walk through the facts of a case, and strategize about pending charges — all of which helped defendants to feel more comfortable with their cases and confident in their legal representation. Video visitation has undermined some defendants’ ability to speak “safely” and “confidentially” with family members about their cases, says Tully. Some people behind bars feel as though they have less privacy when talking to a screen in a room full of people. This new form of communicating makes it hard for clients to be forthcoming with information, he says.

To make matters worse, a $12.50-per-chat price tag has made video visitation cost-prohibitive for poor detainees. If people in jail can’t afford a video call, they can’t afford to have critical conversations about their cases with their loved ones. The technology is also shoddy and unreliable, a former detainee reported to local news site Creative Loafing Charlotte. If equipment doesn’t work or a connection is lost, relatives can’t be a lifeline. (A community organizer, who’s allowed to enter the jail in her capacity as a volunteer, also told In Justice Today that the videos don’t always work, calling the ban on in-person visits “cruel and unusual.”)

Attorneys have trouble establishing trust with their clients without the assistance of relatives to pass messages back and forth. “It has a real impact on clients’ relationship with us,” said Catherine Hoffman, public defender who works on misdemeanor cases in the county. “It makes [defendants] feel that much more isolated and frustrated.”

Thanks to a recent policy shift, attorneys’ direct access to defendants has been limited as well. In late August, local public defenders were informed that they can no longer call defendants at the jail housing women and juveniles. Now, they can only talk to clients who call them. The freedom to call defendants served as a convenient form of communication for attorneys. The facility, Jail North, is approximately 25 miles away from the public defender office, and attorneys often have to wait more than half an hour for jail officials to bring out clients, says Hoffman. Visiting hours also coincide with court hours, which makes it even more difficult to meet in person.

Phone calls allowed for a fast, consistent way for attorneys to provide case updates, check in regularly, and establish trust with clients. All they had to do was schedule a phone call through the sheriff’s department, and the client would be available at the designated time. With the option for incoming calls off the table, it’s harder to relay critical information and ensure consistent communication, says Hoffman.

Another public defender, Christine Nelson, quickly learned how damaging the new phone call policy could be — especially for young people. Both the video visitation and phone policies apply to 16 and 17-year-olds who are automatically charged as adults under state law. (North Carolina will stop charging people under 18 as adults in December 2019.) Before scheduled attorney calls were eliminated, Nelson developed a strong rapport with a defendant who has been detained on several felony charges since April and celebrated his 17th birthday behind bars. Although the teenager has some contact with family members, he was homeless and under the custody of the Department of Social Services at the time of arrest. His lawyer was the only person he had regular contact with. With this in mind, Nelson had been scheduling weekly check-ins, even when there were no case updates. She wanted the teenager to know she was invested in his well-being.

Then, the phone policy changed and Nelson was unable to call the teenager as scheduled. After she missed their appointment, the defendant tried to call her for a week, leaving multiple voicemail messages each day. But Nelson was never able to answer those calls. She was also busy, due to her packed court schedule. A week passed before she had enough time to drive to the jail to explain the new phone policy. She had to assure the teenager that she had not abandoned him — that she wanted to talk to him and wasn’t ignoring his calls. Since then, Nelson has visited a handful of times, but the two don’t talk nearly as much as they used to.

Last week, after months of waiting, the teenager accepted a plea deal. He’s preparing to be transferred to a state prison, where he’ll be detained until March. The silver lining: He will now be able to see his family in person. “[He] lit up when he learned he may have the chance to touch his dad,” Nelson said.

Beyond the formal changes to visitation and phone call policies, some public defenders say they have also been turned away from the jails for random, seemingly-innocuous reasons. Despite her frequent jail visits, Hoffman says she was prevented from entering Jail North because a photo on one of her ID cards was faded. The photo was still visible, and she was carrying her bar card and public defender ID, but jail staff wouldn’t budge. Hoffman has subsequently begun to compile stories about colleagues who were turned away in similar fashion. Some colleagues have allegedly been turned away for wearing black jeans on the weekend — accused of wearing leggings, a banned item of clothing. Nelson also says attorneys have been instructed to leave before visiting hours are officially over.

The sheriff’s office did not provide comment by the time of publication.

Mecklenburg is far from the only county establishing jail communication policies that complicate the process of building a case. According to David Fathi, director of the ACLU’s National Prison Project, some barriers to communication between incarcerated clients and attorneys are to be expected due to the nature of detention. Nevertheless, jails around the country have implemented policies that make it all but impossible for lawyers to offer the effective representation guaranteed by the Constitution.

Jail officials have recorded phone calls and shared the recordings with law enforcement officers, who then used information shared during those calls against defendants. Attorneys have been prohibited from sending mail to their clients. In-person visitation can also be less than ideal, because defendants and visitors are often separated by Plexiglas barriers and forced to talk over the phone. But the phones don’t always work, and it is difficult for lawyers to share and explain legal documents when the glass is in the way, Fathi says.

“Our entire legal system is based on the right to legal representation for people who are charged with crime,” Fathi said. “There’s really no benefit to anyone to making it more difficult, more onerous, more expensive for lawyers to represent their clients.”

Nevertheless, lawyers in Mecklenburg County are struggling for these very reasons — and defendants are paying the price.

“People who are in jail obviously shouldn’t have less communication from their attorneys than people who are out of jail,” Hoffman said. “But I think in a lot of cases, that’s what they get.”

Thanks to Burke Butler.

To End the Opioid Crisis, Skip the Handcuffs and Rethink Health Insurance, Report Says

A new report from The Sentencing Project offers a blueprint for putting an end to a deadly epidemic.

Spencer Platt / Getty Images

To End the Opioid Crisis, Skip the Handcuffs and Rethink Health Insurance, Report Says

A new report from The Sentencing Project offers a blueprint for putting an end to a deadly epidemic.

On Tuesday, Louisiana Attorney General Jeff Landry gathered with law enforcement officials from across the state and country to train police and prosecutors how to crack down on the opioid epidemic in his state. Louisiana is one of more than 30 states that has requested this training from the National Attorneys General Training and Research Institute (NAGTRI), the Associated Press reported. Louisiana sheriffs, chiefs of police, and District Attorneys in attendance discussed tactics and tools for investigating and prosecuting cases related to overdose deaths.

“We’re trying to fight this fight collectively,” Joanne Thomka of NAGTRI told the AP.

As in many places across the country, Louisianans have watched opioid-related overdose death rates rise in their communities, and they are eager for a solution. But according to a report released today from The Sentencing Project, a D.C.-based nonprofit research and advocacy organization, Landry’s approach won’t solve this crisis. Opioids: Treating an Illness, Ending a Warposits that not only will a criminal justice response to drug addiction fail to stem the use of opioids, but that the current state of American healthcare is slowing down an effective response to the epidemic.

“Any serious discussion about ending the opioid crisis must prioritize addressing the limitations of the U.S. healthcare system,” Nazgol Ghandnoosh, the report’s coauthor, told In Justice Today by email.

The report documents how the crisis has grown, and situates the opioid emergency within the broader context of past and current health and criminal justice policies, particularly the war on drugs. It points a finger squarely at healthcare insurers that restrict coverage of mental health care, addiction treatment, and “less addictive, non-opioid medications and non-drug treatments, such as physical therapy.”

Insurers place lower-risk pain relief medications in a coverage tier that makes them more expensive than opioids, which are widely understood to pose a higher risk of dependence. Similar roadblocks to less-addictive painkillers exist in Medicare and Medicaid programs. These restrictions contributed to the increase in overdose deaths involving prescription opioids, according to the report. Such deaths have increased from 1.3 per 100,000 people in 1999 to 4.9 deaths per 100,000 people in 2015.

Some advocates and lawmakers argue that limiting opioid prescriptions will increase overdose-related deaths by pushing people with opioid use disorder toward heroin or other synthetic, unregulated drugs. While the report does recommend curbing opioid prescriptions, it notes that state and federal efforts to do so have only achieved “modest” success in stemming the growth of overdose deaths.

Ghandnoosh says focusing on overprescription “misses the big picture … and fails to diagnose that it’s a lack of access to drug treatment that makes limiting [prescriptions] harmful.” While insurance companies make non-opioid painkillers less accessible, those without insurance often lack access to medication-assisted treatment. The lack of access hits low-income Americans the hardest, according to Richard Frank, Professor of Health Economics at Harvard Medical School. Frank’s analysis of the 2015 National Survey on Drug Use and Health found that, among U.S. residents aged 18 to 64, those with incomes below the federal poverty level were 47% more likely to have an opioid use disorder than those with incomes above 200%. This same demographic is less likely to have health insurance coverage.

The “treatment gap” described by the report is also a growing concern in prisons and jails. The rate of drug use among incarcerated people is 10 times that of the general population, according to the Bureau of Justice Statistics. As a growing number of opioid users wind up behind bars, opioid detox-related deaths are increasing. A recent investigation by Oregon-based KOIN 6 reporters notes a rise in heroin-related detox deaths in county jails, sparking numerous lawsuits. To make matters worse, incarcerated people suffering from substance use disorders are often unable to access effective treatment programs. The Sentencing Project observes that the U.S. Bureau of Prisons doesn’t currently have an established medication-assisted treatment program in its prisons.

“Jails and prisons are not the place to deliver drug treatment, but if we’re going to lock up people with substance use disorder, then we better be sure to provide them with effective forms of drug treatment,” says Ghandnoosh.

So, what can be done about this complex crisis? For one, Ghandnoosh and coauthor Casey Anderson recommend abandoning the drug war. They point out that the “aggressive law enforcement” approach to crack and heroin use of the past 30 years offers a clear blueprint for what not to do. Not only did these policies fail to curb the drugs’ use, the report argues, they contributed to the current massive prison population that states are now struggling to reduce.

Unfortunately, state and county lawmakers and prosecutors do not seem inclined to learn from past mistakes. Many are increasing criminal penalties in an attempt to drive down opioid use and overdose deaths. The report documents opioid-related legislation that has emerged over the last three years in Florida, Maryland, Massachusetts, Kentucky, and Louisiana. In each of these states, bills that increase sentences or permit prosecutors to charge people who sell opioids to someone who dies from an overdose with homicide have passed or are pending.

The report’s authors also suggest curbing opioid prescriptions and increasing access to treatment in and out of prisons and jails. Reducing the number of drug-related arrests and introducing drug sentencing reforms, they say, is key to stemming the tide of opioid-use disorders and overdose deaths. Finally, they recommend expanding access to, and training for, harm reduction tools, such as naloxone, to “individuals with substance use disorder and those around them, first responders, police officers, and pharmacies.”

Thanks to Burke Butler.

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Kentucky’s Heroin Bill Was Meant to Ease the State’s Opioids Crisis; Instead It’s Increasing the State’s Prison Population

Kentucky State Senator Chris McDaniel

Kentucky’s Heroin Bill Was Meant to Ease the State’s Opioids Crisis; Instead It’s Increasing the State’s Prison Population

In 2013, Kentucky closed the last of its private prisons partly because of a 2011 State House Bill that moved low-level drug offenders into treatment instead of prison, through a deferred prosecution program. Fueled by the bill’s success, Kentucky’s prison population went down to 20,300 by the end of 2013, down from 21,466 in 2012. The 5.3% drop was tied for the third highest decrease in the United States. In 2015, new legislation was enacted to increase funding for substance abuse programs, expand access to the overdose reversal drug naloxone and allow local health departments to set up syringe exchanges. “We’re coming to help you,” then-Governor Steve Beshear said, addressing folks caught up in the opioid epidemic plaguing Kentucky and the rest of Appalachia. “Work with us. Help us to help you to get on the road to recovery, and to becoming a productive member of society.”

Two years later, however, the state’s prison population has reached an all-time high of 24,600 and Kentucky is getting back into the private prison business.

What happened? The Kentucky legislature passed a law responding to the state’s opioid epidemic; the legislation was credited for taking a public health approach to opioids, but the law was also highly punitive. While the bill did provide money for treatment programs, establish some needle exchanges, and increase access to the heroin overdose drug naloxone, the 2015 law also increased the penalty for drug trafficking, which had previously been one to five years. Selling between 2 and 100 grams of heroin remained a Class C felony, but because of the bill, individuals convicted of that offense had to serve at least half of their sentences. Two new levels of offenses were also introduced for high-volume traffickers and a new crime of “Importing Heroin” was created. Selling less than two grams of heroin remained a Class D felony, but dealers charged with two “indicators of trafficking” (like having baggies on them or large sums of cash) had to serve at least half of their prison sentence.

In 2012, 881 people were admitted to Kentucky jails for Class D felonies. In 2016, the number was 1,821.

“We believe that we need to trust our prosecutors locally to make these decisions,” said GOP state Senator Chris McDaniel, as he pitched the public on the stricter sentencing in the 2015 bill, “and we trust our prosecutors.”

Prosecutorial discretion is, however, one of the major reasons that Kentucky’s attempts to reduce their prison population have been such glaring failures. Take rural Carroll County: Under the 2011 legislation’s “deferred prosecution” program, first and second-time drug possession offenders can avoid conviction by seeking treatment. But in 2016, Jim Crawford, the commonwealth’s attorney for the 18th Judicial Circuit, told the Courier Journal that he doesn’t believe in deferring prosecution because, “I lose control over the defendant and can’t keep track of what they are doing.” In 2014, Carroll County sent people to prison at a higher rate than any other US county with a population of more than 10,000 for which data is available.

The prison population in Kentucky is likely to increase again thanks to House Bill 333, signed into law in July by GOP Governor Matt Bevin. The law increases penalties for trafficking illicitly manufactured fentanyl and lengthens the sentence for those dealing or even sharing any amount of heroin, even if the defendant is struggling with addiction. Incredibly, Assistant District Attorney turned State Senator Whitney Westerfield urged passage of the bill by citing law enforcement’s sensitivity “to the need for substance abuse care.”

But this new legislation’s carceral approach simply picks up where the 2015 bill left off: Kentucky’s prison population is projected to increase by another 19% over the next decade, at a cost of $600 million to taxpayers. Despite these efforts, many parts of the state are still ravaged by heroin addiction. In 2016, overdose deaths in the state hit a record high, with 1,404 people dead. If the state’s reform strategies continue to be pushed alongside repackaged “War on Drugs” policies, we can expect things to get even worse very soon.

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