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.
Perhaps the most irrefutable statement that can be made about modern day America is this: we have a penchant for putting people in cages. More than any other nation on the planet, we rely on incarceration as the fix for our social ills.
America’s unprecedented prison boom spawned advocates who work tirelessly to put the police state toothpaste back into the tube. As a result, despite a steady media diet of cops and robbers police procedurals, the rhetoric on crime policy has begun to shift. The country appears to be approaching something akin to apostasy. We have begun to lose our faith in imprisonment as an effective response to problems like drug addiction. For the first time since the data was tracked, state and federal prison populations declined in 2014, albeit slightly, from historic highs.
Yet amidst this wave of reform, one group of people continue to languish in the collective “harsher is better” mindset: sex offenders.
The American journalist H.L. Mencken once said that
The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.
Mencken was right: if you’re interested in defending human freedom, get ready to spend a great deal of time defending people you might not like. The guns of oppression are aimed at the friendless before they swing to the connected and moneyed.
And no one is more friendless than those on the sex offender registry.
Reformers urgently need to draw public attention to the cruel and unnecessarily harsh treatment afforded to sex offenders within the justice system. Sex offender registries are rapidly proliferating and becoming an increasingly popular back-end tool for feeding people into the carceral state.
In understanding the reasons why sex offenders ought to be a higher priority for mainstream justice reform advocates, a grasp of the evolution and operation of the sex offender registry is critical.
The forebears for modern sex offender registries and so-called “sexual psychopath laws” first appeared in late 1930s California, and largely targeted LGBTQ individuals. What began as relatively simple lists of individuals convicted of crimes grew in the wake of two high profile murders of children in 1937, which spawned a moral-sexual panic: simultaneously horrifying and captivating the nation.
Operating on the premise that the American public had a right to know about the sordid pasts of those it deemed miscreants, registries began to spread from state to state, city to city, arguably arriving in modern form in the wake of the grisly rape and murder of Megan Kanka in New Jersey in 1994 — the namesake for Megan’s Law (the colloquial term by which sex offender registries are most commonly known).
Perhaps owing to our puritan roots, it has been said that everyone in America lies about sex, because everyone lies about the designs that they have on their neighbors’ bodies.
Our institutions may not be terribly different.
In 2003, in a case titled Smith v. Doe, the United States Supreme Court was asked to consider whether the Alaskan sex offender registry was so punitive as to be constrained by the ex post facto clause of the United States Constitution, which is meant to stop punishments from being increased after the fact. In asserting — falsely, as has been conclusively demonstrated — that the risk of re-offense posed by sex offenders was “frightening and high,” the Court green-lit a cross-country, decade-long race to the bottom in denying those on the registry essential and time-honored legal protections.
Despite having been given two recent high-profile opportunities to revisit its holding and erroneous factual assertions, the Supreme Court has so far chosen not to do so. Worse, in the concurring opinion in 2017’s Packingham v. North Carolina, the conservative wing of the Courtreaffirmed Smith’s central fallacy, which laid the foundation for present-day sex offender registries. Justice Anthony Kennedy, who authored the majority opinion in both Smithand Packingham, remained silent on the elephant in the room that was given life by his authorship in Smith: the erroneous assertion on re-offense rates.
A tenuous relationship with facts notwithstanding, registries are wildly popular: a whopping 94% of Americans support their existence and increasingly harsh treatment of those required to register (though most people report that they never actually check the registry). Even as the public appears to be finally questioning the wisdom of putting so many people in cages, the same cannot be said for its seeming willingness to put so many in virtual cages out of fear of what they “might” do.
Because of its popularity, public officials who depend on votes for their livelihood — like lawmakers and judges — are loathe to tinker with the registry, other than to devise ever-more severe punishments for its inhabitants.
As a piece of criminal justice machinery brought to bear on people, the registry can best be thought of as a two-headed beast: a 1–2 punch of distinct effects.
The first head is the direct impact on the lives of those on the registry itself. With no Due Process or Ex Post Facto brakes to slow down the juggernaut, it has become weaponized. A far cry from its origins as a simple list of purported perverts, it has morphed into a web of prison-without-bars that would make Franz Kafka blush. The oppressiveness, breadth, and lack of due process inherent in these modern day sex offender registries led a federal court in Colorado to label it a cruel and unusual punishment; a legal conclusion virtually unheard of outside of the cloistered world of death penalty litigation.
If America has a civil death penalty, putting people on the sex offender registry is it. In a recent experiment, when individuals were given the choice between being labeled a child molester or dying, most chose death.
The numbers of those currently on the registry are staggering, and continue to increase each year. Absent seismic shifts in criminal justice policy, the trend will likely continue. In a nod to Mencken’s admonition, the model popularized with sex offender registries is quietly being exported to other classes of crime — including white collar crimes, meth, guns, and animal abuse — despite little evidence that such registries accomplish much beyond branding its inhabitants irredeemable.
In order to sell policies to the public, our political leaders have often created boogeymen. During the heyday of the drug war, the boogeymen pressed into service were so-called superpredators, a heavily racialized term describing young people with “no respect for human life and no sense of the future.”Ostensibly toting Glocks and selling death to our communities, they ended up selling the belief in prison-as-protection, government-as-protector: a profoundly punitive turn in our legislation and discourse.
Even as we find ourselves in a new era marked by bipartisan acknowledgement of the need for criminal justice reform, in some areas we continue to be influenced by this same appeal to boogeymen, even if their shape and form changes. Instead of “super” predators, we’re now faced with “sexually violent” ones.
As with witches, the modern-day sex offender is largely a creature of our own creation, acting as a sort of repository for many of our collective moral anxieties around sex. While a baked-in ick factor often turns many erstwhile warriors into silent observers, awareness and informed response is badly needed from those within the criminal justice community.
“Victory,” the Baltimore State’s Attorney’s Office tweeted in October after Keith Davis Jr. was found guilty of second-degree murder.
Keith’s wife Kelly and members of the activist group Baltimore Bloc who have been advocating for Davis for years called attention to the language: the SAO, headed by celebrated, purportedly progressive prosecutor Marilyn Mosby, best known for indicting the six officers charged in the death of Freddie Gray, declared “Victory” instead of invoking “Justice.”
It was evidence that, in Kelly Davis’ words, Mosby and the SAO have “a vendetta” against her husband.
Keith Davis Jr.’s story begins on June 7, 2015, when he was shot by the Baltimore Police three times near the Park Heights neighborhood in West Baltimore. The police claimed he robbed an illegal cab driver or “hack,” then ran away. Police took off in pursuit and shot at him a total of 44 times. Kelly Davis was on the phone with her then-fiancee as police first fired the dozens of shots. “Baby,” he told her, “I’m gonna die.”
Eventually, Davis was chased into a nearby garage, where police say he hid and refused to surrender. Police continued their gunfire and said that when they finally approached Davis, he lay shot, barely conscious, and holding a handgun.
Davis survived but was hit with 15 charges by the SAO, including assault on police officers and armed robbery. In December 2015, the SAO added firearm possession with a felony conviction. When Davis went to trial in February 2016, he had been in jail for more than 200 days, far longer than Maryland law requires as part of the right to a speedy trial (180 days). Davis was then found guilty on that possession charge only, likely because the hack cab driver testified that Davis did not resemble the man who robbed him.
Not long after the trial, on March 2, 2016, Davis was charged with the murder of Kevin Jones, a man shot hours before Davis was shot by police. The state said ballistics evidence proved the weapon Davis was found guilty of possessing when he was shot was related to Jones’ murder. There were, however, no eyewitnesses to the Jones murder and there was no personal connection between Davis and Jones.
At the murder trial in May 2017, Davis’ defense attorney Latoya Francis-Williams claimed that the gun was planted and that Davis’ fingerprints (really, a partial palm print) were put there while he was unconscious in the garage. Davis’ attorneys also said that the state violated Brady v. Maryland when it failed to disclose DNA evidence that contradicted the state’s narrative at his trial on armed robbery and firearm possession charges.
Kelly Davis and Baltimore activists suggested that the police covered up what was the first police shooting after Freddie Gray’s death by planting the gun. Accusations of such high levels of police misconduct have become particularly compelling given the massive scandal surrounding the Baltimore Police Department Gun Trace Task Force, which was federally indicted this year for, among other things, stealing money and stealing, dealing, and even plantingdrugs.
Unsurprisingly, given the weak and circumstantial evidence, Davis’ trial ended with a hung jury.
On Oct. 17, Davis was found guilty of second-degree murder.
But on Dec. 4, the Circuit Court for Baltimore City granted Davis a new trial — mostly due to Gutierrez’s specious testimony. At the motion for a new trialhearing, Davis’ lawyers presented Gutierrez’s cellmate, Itisham Butt, who testified that he did not sell liquor (he is a devout Sunni Muslim) and that he had never even met Davis in jail at the time Gutierrez claimed. Davis’ lawyers also argued that, whereas the SAO had presented Gutierrez as just a drug dealer, he had actually been more involved in a RICO case tied to a Texas drug cartel, and had committed violent crimes such as disposing of a dead body by burning it. Francis-Williams, Davis’ attorney, characterized Gutierrez as an “enforcer” who is now “parading around the country testifying in homicide cases in order to gain leniency for his gruesome crimes.”
In September, a superior court judge in Orange County, California ruled that mass shooter Scott Dekraai could not be sentenced to death because the local sheriff’s department failed to disclose information about its use of what has been described as a network of jailhouse informants.
The Circuit Court in Baltimore did not go so far as to say there was “misconduct” by the SAO, but it granted Davis a new trial anyway—due to what Judge Mays referred to as the state presenting a “sanitized” version of Gutierrez’s criminal record to the jury.
“If you recall in October the State’s Attorney for Baltimore City sent a tweet to the world, ‘victory’,” Davis’ attorney Francis-Williams said in a statement released after Davis was granted a new trial. “Well, we just snatched victory from the jaws of defeat. Our message to the world is that this is what Justice looks like and we will not stop fighting until Mr. Davis’ name is cleared. The State will rue the day she decided to use Mr. Davis’ case as a political football.”
Undeterred, the SAO announced they would try Davis once more.
It will be the third time he faces murder charges. Kelly Davis, meanwhile, maintains the only thing her husband has ever been guilty of is surviving a police shooting.