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Massachusetts and New York Prosecutors’ Bail ‘Reforms’ Permit Business as Usual

Middlesex DA Marian Ryan

Massachusetts and New York Prosecutors’ Bail ‘Reforms’ Permit Business as Usual

On January 11, Marian Ryan, the District Attorney of Middlesex County, Massachusetts, proudly announced that her office would stop requesting cash bail in “non-violent, low-level” cases. “Recognizing that even a short period of incarceration can cause tremendous upheaval in one’s life, including loss of employment and housing,” Ryan proclaimed, “this practice seeks to prevent incarceration solely due to a lack of financial resources.”

The next day, however, a man charged in Middlesex County with drug possession and larceny, both of which are presumably “non-violent” and “low-level” under DA Ryan’s definition — her office did not respond to a request to confirm — asked the Massachusetts Bail Fund to pay $500 because he could not afford his bail. But it was DA Ryan’s sweeping announcement that made the news that day, not the bail request that immediately undercut her lofty promises.

A similar scene unfolded that very same week in New York, where newly re-elected Manhattan DA Cyrus Vance announced that his office would no longer seek bail in certain misdemeanor cases. “A systemic reliance on bail for low-level offenses is out of step with a reformed, 21st-century justice system,” he told his constituents. This announcement spread across the news, with papers praising Vance and claiming his plan would “end cash bail for most low-level offenses.” In April, Brooklyn DA Eric Gonzalez made a similar pledge.

But advocates in Massachusetts and New York fear that the courtroom reality will be very different from the reforms these DAs so forcefully promise.

“I’m skeptical that the proposed reforms will benefit all New Yorkers who are harmed by the bail system,” Brooklyn Community Bail Fund Director of Operations Terrence Bogans, also a former public defender, told The Appeal. “I’ve seen these District Attorneys ‘decriminalize’ offenses such as marijuana possession and jumping the turnstile, only to continue seeing low-income people of color prosecuted and have bail set for those very charges.”

Sure enough, this past week, the Fund — which, like several similar funds run by non-profits in cities around the country, pays for poor defendants to get out of jail — reported paying nine misdemeanor bails.

In counties that use money bail, a prosecutor asks the judge to set a bail amount that a person accused but not convicted of a crime must pay to get out of jail before their trial. If that person has the money, he or she gets out. If not, he or she sits in jail.

Cash bail proponents — including, incidentally, the bail bondsmen who make a killing off of poor defendants’ failure to pay — claim this system is necessary to ensure court appearances, but studies show this is misleading. In Washington, D.C., where there is no cash bail, 90 percent of people appear for their court dates. Meanwhile, indiscriminately caging all people who face criminal charges results in lost jobs, personal instability, and decreased public safety. This system of wealth-based detention is now under assault, with attacks coming from legislatorscelebrities, and grassroots powerhouses like Color of Change and Just Leadership.

But while Ryan and Vance are latching onto the rhetoric of criminal justice reformers, their bail “reforms” permit business as usual. Prosecutors in their counties can still ask judges to set bail amounts that poor people cannot pay, as just occurred in the Middlesex courthouse as Ryan announced her new policy. The DA’s office did not respond to a request for comment on that bail request.

Vance’s policy, too, is riddled with exceptions that contradict the no-bail rule and rubber-stamp DAs punishing the unconvicted. If police arrest someone for a misdemeanor who has other misdemeanor charges pending — even as minor as possession of marijuana or drug paraphernalia — the DA can ask for cash bail. This exception has little to do with the likelihood of returning to court; Vance is simply allowing his prosecutors to ask for jail time to punish poor people with multiple arrests. In New York, where police disproportionately target people of color, this will mean poor black and brown people disproportionately caged pre-trial.

“Creating a loophole that permits the use of monetary bail simply because someone has multiple open misdemeanor cases ensures that the over-policed communities will be the least likely to benefit” from Vance’s policy, says Josh Norkin, coordinator of the Legal Aid Society’s Decarceration Project.

New York DAs can also ask for cash bail if someone charged with a misdemeanor was convicted in the past of certain felonies, like third-degree robbery, or a misdemeanor sex crime, or is on probation or parole, even if he or she has never missed a court date in the past. This too has little to do with his likelihood of returning to court, but it does ensure more people of color will remain locked up — because they have been over-policed and disproportionately saddled with criminal records. And while some of these named felonies, like third-degree robbery, may seem serious at a glance or like a threat to public safety, their labels can be misleading. Third-degree robbery is forcibly stealing property and can include crimes like taking a cell phone.

Perhaps the broadest loophole that appears in both of the new policies is the one that permits prosecutors to seek bail whenever they believe they could, after conviction, obtain more than a 30-day sentence in New York, or any jail sentence in Middlesex. But at such an early stage of the case, when the defendant seeks release pending trial, prosecutors have done little investigation into the case’s facts, the defendant’s prior record, or mitigating evidence. Any sentence within the maximum range is possible, and even the smallest case, like turnstile jumping, will allow for more than a 30-day sentence.

Ryan has otherwise provided few guidelines to attorneys, stating only that prosecutors should not request bail for “low-level, non-violent” offenses. These terms have no legal meaning; their definitions appear nowhere in the state statute. If a person is found with a knife in his or her pocket or grabs a cell phone from someone’s hand, is it a violent offense? Atara Rich-Shea, the Massachusetts Bail Fund’s director of operations and a former public defender, believes Ryan has kept the policy vague to allow prosecutors to continue along as before. “[DAs know] the definition of ‘nonviolent’ or ‘low level’ is a murky one,” she says, “that they can make up as they go along.”

Critically, neither Ryan nor Vance nor Gonzalez has publicly announced oversight mechanisms to ensure that line prosecutors follow the new policies. None of them has publicly promised to track prosecutors’ bail requests or provide data to the public. It will be up to those in the courtroom — defense attorneys or bail fund representatives — to alert the public when District Attorneys deviate from their plans.

Experiences described by advocates in Brooklyn show how easy it is for prosecutors to seek cash bail. Bogans from the Brooklyn Community Bail Fund reports that the fund regularly posts bail in misdemeanors where people are too poor to pay. Since April, Bogans told The Appeal, when Brooklyn DA Gonzalez announced his reforms, “our cases aren’t down, we haven’t changed our procedures, and we are still paying the same amount of bail every day.”

But the biggest flaw with the DAs’ policies is the premise that cash bail is necessary at all. Notwithstanding their sweeping pronouncements about the harm of wealth-based detention, Vance, Ryan, and Gonzalez are still comfortable incarcerating people who haven’t been convicted of crimes simply because they cannot afford bail, while releasing people who can. The DAs may also be susceptible to pressure from the bail industry; Gonzalez received $7,500 in campaign contributions from one bail bond company, though he later reportedly returned the donations.

These DAs are hiding behind popular reform rhetoric, but they are miles behind the real reform work being demanded by groups like the Decarceration Project in New York and Color of Change, who advocate for the elimination of the cash bail system.

Just last week, the New York City comptroller issued a report demanding an end to commercial bail, calling it a way of “further putting poor families into poverty.” New York Governor Andrew Cuomo, hardly known as a criminal justice reformer, is pushing a bill mandating the release of nearly all those accused of misdemeanors or non-violent felonies, allowing holds only for those who pose a flight or safety risk after they receive due process. Bogans of the Brooklyn Community Bail Fund puts it succinctly: “What advocates are demanding is an end to this unjust practice.”

Perhaps these newly announced policies will lead to meaningful improvements in the bail system. But unless backed by real action and transparency from DAs like Vance, Ryan, and Gonzalez, these soaring promises of reform lure the public into a false sense that the criminal justice system is improving. Meanwhile, as always, people are caged simply because they are poor. Fortunately, there are on-the-ground advocates like Rich-Shea of the Massachusetts Bail Fund to hold prosecutors accountable. “DAs,” she says, “work for us.”

Thanks to Burke Butler.

Philadelphia to Make History with Nation’s First Supervised Injection Facility

A cross in the backyard of a shelter in Philadelphia’s Kensington neighborhood
Spencer Platt / Staff

Philadelphia to Make History with Nation’s First Supervised Injection Facility

For decades, Philadelphia held the dubious honor of hosting America’s largest open-air heroin market in a tangle of pockmarked streets on the city’s north side, known as the “Badlands.”

On Tuesday, less than two weeks after Pennsylvania Governor Tom Wolf declared the overdose crisis a public health emergency, city officials, including District Attorney Larry Krasner and Police Commissioner Richard Ross, announced they’re ready to put Philadelphia on the map as the first municipality in America to open a supervised injection facility (commonly referred to as a SIF), where IV drug users can shoot up using sterile equipment under the watchful eye of trained medical personnel. The goal, they say, is to save lives and improve communities impacted by public drug use through a concept known as harm reduction.

At an afternoon press conference packed with media, community stakeholders, and representatives of Philadelphia’s harm reduction community, policy advisors to Democratic Mayor Jim Kenney explained the administration’s rationale.

“These are unprecedented times and we are taking unprecedented steps,” said Philadelphia Managing Director Michael DiBerardinis, explaining that the city will encourage the private sector to launch “one or more Comprehensive User Engagement Sites,” or CUES — a term the city chose over SIF to emphasize the additional mission of offering clients recovery options like rehab and social services.

“We don’t see these sites as solely for supervised injection,” said DiBerardinis’s first deputy, Brian Abernathy. “They will serve as pathways to get people into treatment.”

In its push to be first, Philadelphia joins a growing list of cities and states — including Seattle, New York and Vermont — where policymakers have proposed supervised drug use as a means of tackling runaway overdose fatalities.

Some municipalities, like Ithaca, NY, are looking to their state legislatures to pass SIF-friendly bills. Others, like King County, WA, have chosen to act alone, even in the face of staunch opposition. But even in cities where supervised injection has been approved by local governments, like San Francisco, the process of siting and funding a working SIF has been slow.

Philadelphia is taking a different approach by leaving it up to private organizations to make the first move on supervised injection. This not only skirts bureaucratic hurdles associated with approving city funding, but avoids the risk of contentious public hearings, such as those held in Boston last June.

Without direct city involvement, a dedicated team of activists could raise its own money and conceivably set up shop tomorrow, with the imprimatur of both the mayor and District Attorney, who has vowed not to prosecute SIF workers. A local harm reduction group, SOL Collective, has already announced its intention to engage the city in talks about opening a site.

This represents a shift for the city, which last summer shut down a secluded camp situated beside a stretch of railroad tracks in North Philadelphia known as “El Campamento.” Hundreds of IV drug users found temporary sanctuary at the camp, which was supplied with a steady stream of clean syringes and doses of the overdose-reversal drug naloxone by harm reduction groups from as far away as New York. The camp, which had evolved organically and was being maintained exclusively by drug users, experienced just 17 overdosesover a 12-month period, according to the medical examiner’s office, compared to more than 900 citywide.

But that is not the story Dr. Oz chose to tell when he visited El Campamento in April 2017. Instead, his bleak portrait became a source of embarrassment for the Kenney administration, which then forced the property’s owner, Conrail, to fence it off. The displacement of El Campamento angered some Philadelphia residents, as drug users began moving into more populated areas. As of Tuesday’s announcement, several hundred users remained camped out along three major thoroughfares on the edge of the Badlands, encroaching on newly gentrified neighborhoods to the south and east.

When told of the city’s decision, most drug users approached by The Appeal said they would gladly use a CUES facility, as long as it was close to where they buy their drugs. This issue is lost on some critics of CUES, such as Councilwoman Maria Quiñones Sánchez, who supports supervised injection in principle but objects to CUES because it would allow facilities to be located in her district, which includes the Badlands.

But users say that’s exactly where they should be. “Some people won’t even walk two blocks before they drop down for a shot, especially if they’re sick,” explains Mike, a homeless heroin user.

City officials evolved on the SIF issue after a November trip to North America’s first supervised injection facility, InSite, in Vancouver, Canada. Research shows that the introduction of supervised injection there in 2003 led to a 35% decrease in overdose fatalities in the city. It also improved overall health outcomes for IV drug users, and led to an increase in addicts entering treatment.

A Philadelphia study commissioned by the Kenney administration released this week found that CUES could save the city up to $100 million a year in healthcare costs and fatalities.

But opponents wasted little time attacking the idea.

On Wednesday, Pennsylvania Speaker of the House Mike Turzai (R-Allegheny) — who is challenging Wolf for the governorship in November — issued a statement condemning the plan. “Philadelphia’s supervised drug addiction-enabling plan is misguided and a violation of state and federal law,” he said. “I urge Gov. Tom Wolf and federal authorities to enforce the law.”

Pennsylvania’s Attorney General, Josh Shapiro, had already gone on record against SIFs in November, saying, “There is no safe way to inject heroin, fentanyl or carfentanil into your system.”

In fact, fentanyl is one of the three most common opioid analgesics used to treat postoperative pain and is employed safely every day in hospitals across the U.S. And studies show that medically prescribed heroin is not only a safe alternative to other opioid maintenance drugs, it is also more cost-effective and leads to better treatment outcomes.

Meanwhile, the city’s paper of record, the Philadelphia Inquirer, provided cover for officials like Turzai and Shapiro opposed to CUES by suggesting that CUES could be seen as “a dangerous liberal experiment that threatens law and order, in a similar way that so-called sanctuary cities have fueled the immigration debate.”

One official who was conspicuously absent from Tuesday’s announcement was Mayor Kenney himself, who, rather than join his administration in making harm reduction history, was across the street at City Hall, flanked by life-sized replicas of WWE wrestlers for a photo op declaring “Royal Rumble Week 2018.” The Mayor said he wasn’t aware of the press conference, while an aide blamed a scheduling conflict. While he may have intentionally avoided the spotlight, the mayor did issue a statement of support.

“Philadelphia’s fatal overdose rate is the worst in the nation among large cities, and incidents of overdose have steadily increased to an alarming degree,” the mayor said. “I applaud the work of the Task Force and city leadership in taking this bold action to help save lives.”

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California Ruling Could Give Accused Gang Members a Chance to Clear Their Names

Orange County DA Tony Rackauckas.
Kevork Djansezian / Getty

California Ruling Could Give Accused Gang Members a Chance to Clear Their Names

On January 31, 2013, a California Highway Patrol officer pulled over Carlos David Sanchez for playing his car stereo too loud. During the stop, the officer asked Sanchez, then 19, if he was on probation or parole. He was not, Sanchez said, but he was under a gang injunction, as was his younger brother, also in the car.

The injunction — a court order used by prosecutors to address gang violence — was first issued in 2009 by a Stanislaus County Superior Court judge, against the Deep South Side Norteños (DSSN), also known as Deep South Side Modesto, a local organization allegedly associated with the much larger the Norteños gang. The injunction named alleged members, and prohibits them from engaging in certain actions together, such as walking, driving or gathering, within a designated “safety zone,” or suspected gang turf.

So for Sanchez and his younger brother, who had both been served with the injunction, the simple act of driving down the street together was prosecuted as a misdemeanor offense. The officer arrested both men. Sanchez was taken to jail and his brother, a minor, to juvenile hall. Sanchez stayed in jail until he could be bailed out. His car was impounded — racking up a $300 per night fee, according to Sanchez’s lawyer.

This was not the first time Sanchez had been arrested for violating the gang injunction. In fact, it was his eighth arrest, according to court documents, since he first learned he’d been added to the injunction in 2010, despite having no prior criminal or arrest record. He was never told why he was added in the first place. Like most of the estimated tens of thousands of Californians under similar orders, he was never given the opportunity to contest his affiliation before the government prior to being placed under the injunction.

But that practice could soon change, thanks in part to what happened next.

A court-appointed gang expert filed a report on Sanchez’s behalf. “Carlos David Sanchez is not a gang member,” he wrote in his report, “and furthermore, I believe he has never been a member of the [Deep South Side Modesto] gang, or any other gang.”

The court didn’t say Sanchez was not a gang member, but that he had been deprived due process to argue that he wasn’t when he was originally served the injunction. So, its enforcement against him was unconstitutional, and the charge for violating its rules should be dismissed.

The DA appealed that decision, but last month, the state’s Fifth District Court of Appeal, which covers nine counties in central California, affirmed the decision of the local court. This decision sets precedent that lawyers across the state can use to battle similar injunctions, according to some legal experts.

“Sanchez had no notice or opportunity to be heard before he was subjected to an injunction with profound consequences for daily life,” Judge M. Bruce Smith wrote on December 19, “including family relationships, freedom of movement, and civic participation in the neighborhood in which he lives. The appearance-of-fairness factor under the California Constitution supports our conclusion that applying the injunction against Sanchez violated procedural due process.”

Sean Garcia-Leys, staff attorney at the Urban Peace Institute, heralded the decision. “It’s a little early to tell how prosecutors are going to react,” he says, “but by my reading, it just took as many 25,000 people off of gang injunctions statewide.”

California gang injunctions are notorious for the opaque police intelligenceoften used to identify gang members, and the uphill battle defendants fight to get off the list. “The DA in this case refuses to tell us how many young men were served,” says Mary Lynn Belsher, Sanchez’s court-appointed lawyer. “They refused to tell us what they use to designate these young men as gang members.”

Most often, gang members are not given an opportunity to contest their injunctions. San Francisco and Oakland are notable exceptions: there, as recently as 2013 alleged members are provided some form of pre-deprivation process. And Garcia-Leys says Orange County is granting what are known as active participation hearings more often now, too.

The Fifth District’s decision builds on precedent set in a 2013 federal court ruling. In Vasquez v. Rackauckas, the Ninth Circuit Court of Appeals ruled that those not named in an original injunction but later added were entitled to an “adequate opportunity to contest whether they are active gang members before they are subjected to the injunction.”

In that case, Orange County District Attorney Tony Rackauckas had filed an injunction against the Orange Varrio Cypress gang and 115 people his office alleged were part of it. Thirty-two of those people challenged the allegations in court to fight the allegations. So, Rackauckas’s office asked the court to dismiss a majority of defendants named in the injunction, including all those who defended themselves in court, only to request a permanent injunction against the gang as an entity and its broadly defined “members” — and direct the police to enforce it against the very people it had earlier dismissed.

Defense attorneys hoped the court’s ruling against Rackauckas would turn the tide on gang injunctions, but some prosecutors have argued that it’s not widely applicable since it pertained to a particularly egregious case, says Garcia-Leys of the Urban Peace Institute. He thinks the Sanchez case, which he says reflects a more common situation, could have a broader impact. “Prosecutors at some point are going to say, ‘Ok, look, we can’t win anymore,’” he says. “‘We can’t convict people without active participation hearings, so we’re going to have to start doing those. Or stop enforcing gang injunctions.’”

A case similar to Sanchez’s is playing out in federal court. The Youth Justice Coalition, which includes the ACLU of Southern California and the Urban Peace Institute, filed a class action lawsuit against the city of Los Angeles on behalf of thousands of alleged gang members there who, like Sanchez, were not given a chance to contest their label.

In Modesto, the “safety zone” outlined by the injunction covers neighborhoods in South Modesto, where Sanchez’s family has lived for decades. The injunction prohibits potentially unlawful conduct, such as harassing or assaulting anyone who is thought to be a witness to gang-related activity, as well as otherwise legal behavior like being seen in public with another gang member, staying out past 10 p.m., and wearing red, the color associated with DSSN. According to his lawyer, in 2013 Sanchez was arrested in part for having in the car a winter coat with a red-trimmed lining his grandmother bought him for Christmas.

Since both Sanchez and his brother were under the injunction, their family home came under local law enforcement scrutiny, Belsher says. The family’s yard is visible from the street, so if they wanted to have a barbecue, for instance, only one of them could attend. Belcher says the gang injunction led to frequent police raids on her client’s house.

The Stanislaus County DA’s office did not respond to a query from The Appeal on whether it will change how it handles gang injunctions post-Sanchez. But the appellate court’s opinion noted that, during the appeal, the SCDA lawyer indicated that it had “independently modified, on its own initiative, its procedures related to enforcement of the injunction, evidently to alleviate procedural due process concerns.”

Last August, during the appeal, Sanchez’s lawyer says he was notified by the DA that he is no longer subject to the injunction, so he is now free to walk down the street with his brother, stay out past 10 p.m., and wear red clothing. But Belsher wants to have his entire criminal record cleared. This spring, she’s prepared to go back to court to see that it is. Until it is, he’ll face hurdles with employment, loans, or other applications that require a criminal background check.

“I want an order from the courts to destroy every piece of paper in the District Attorney’s office that has his name on it,” she says. “He shouldn’t have a rap sheet.”

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