North of the New Mexico border sits Alamosa Municipal Court. An unassuming brick building with a terra cotta roof, the local court looks like a sleepy place you might duck into to pay a traffic ticket. Yet the mostly poor Alamosa residents who appear before Judge Daniel Powell are routinely denied counsel, face jail because of their poverty, and are forced to plead guilty without the advice of a lawyer, a new ACLU of Colorado report finds.
The report, Justice Derailed, documents the alarmingly frequent constitutional and statutory violations taking place in municipal courts across the state, and is the product of a multi-year investigation. Powell’s courtroom — run “like a fiefdom” — stood out to the report’s authors as one of the worst offenders in the state.
“Judge Powell is operating a two-tiered system in which defendants are punished for their poverty,” said Becca Curry, the report’s co-author in a statement. “Those with means might only appear once in court and pay their debt, while those who lack financial resources face a cruel form of injustice.”
A series of case studies illustrate what the report calls Powell’s “shocking and egregious” behavior, which falls the hardest on indigent defendants — most of whom are in court for minor, non-violent offenses.
Ashley Medina experienced Powell’s harsh rule firsthand when she landed in his court for three petty theft convictions. The theft of items such as laundry detergent and makeup, which took place when she was unemployed and struggling with substance abuse, left her almost $800 in debt to the court. Though she managed to pay $259 over the course of her cases, she didn’t have the means to pay the entire fine, particularly while struggling to treat her addiction with treatment programs that weren’t covered by Medicaid. Medina’s family repeatedly sent letters to Powell explaining her situation.
Powell responded to the family’s pleas by having Medina arrested three times for her inability to pay. In total, Medina spent 36 days in jail over the course of her cases because she couldn’t afford the $1,000 bond set by Powell. Her incarceration, the report notes, cost the city $2,287.
While stories like Medina’s may sound like egregious outliers, defendants in many municipal and misdemeanor courts across the country face similar situations largely because of their economic status. These courts — of which there are thousands in the U.S. — handle millions of cases each year, with little regulation or oversight. The most prominent example in recent years came out of St. Louis County, Missouri, after the fatal shooting of Michael Brown by a police officer in 2014.
Brown’s death cast a spotlight on the many inequities of Ferguson, Missouri’s local criminal justice system, including its municipal court. The cash-strapped city, the U.S. Department of Justice found, increased municipal fines as a source of alternate income, “exhort[ing] police and court staff to deliver those revenue increases.” The result was a police and court system that targeted black residents, charging inflated fines and fees for minor crimes. Those who couldn’t pay, as in Powell’s courtroom, were locked up.
In addition to exorbitant fines, defendants in municipal and misdemeanor courtrooms across the U.S. are routinely not assigned or are flatly denied counsel in cases where jail time is a possible outcome. This blatant Sixth Amendment violation often leads to plea bargains, in which prosecutors woo defendants with freedom from jail in exchange for a guilty plea. In 2015, Sen. Chuck Grassley chaired a Senate Judiciary Committee hearing on the Sixth Amendment right to counsel for misdemeanor defendants.
“No Supreme Court decisions in our history have been violated so widely, so frequently, and for so long,” Grassley told the Committee.
Still, as the ACLU of Colorado demonstrates, it keeps happening.
When federal monitors return to Memphis this week to continue their reform efforts at Shelby County Juvenile Court, they’ll be facing off with a judge who doesn’t want them there.
It’s the monitors’ first visit since June, when Shelby County’s top three elected officials, including Juvenile Court Judge Dan Michael, sent a letter to the U.S. Department of Justice. The letter asked Attorney General Jeff Sessions to end the court’s 2012 agreement to overhaul its practices, even though the court is not in full compliance with more than a third of the agreement’s 94 provisions. Sessions has yet to respond to the letter, and the agreement is just that — voluntary and not enforceable by a federal judge.
But Michael, who is sometimes pictured wearing a bolo tie and a cowboy hat, has made no secret of his disdain for federal intervention, not unlike his Southern politician predecessors who stood in schoolhouse doors rather than integrate public schools.
During a TV interview in September, Michael lit into two of the three monitors and accused the DOJ of creating a racial “firestorm” because of repeated findings that the court treats black children more harshly than similarly accused white children.
“When the mayor signed off on that letter, I felt like I was standing alone,” said Powell, who has worked more closely than anyone with federal monitors who’ve visited the court at least twice a year since 2013. “It took the legs out from under me.
“Everybody down there at Juvenile Court has their boss on record saying, ‘We have done enough, this should be terminated,’ ” Powell said. “They’re not feeling that urgency, and they’re going to feel like this stuff is trumped up — pardon the expression. The DOJ has been completely emasculated.”
And although the number of children detained by Juvenile Court has fallen sharply in recent years, mirroring the national trend identified by the Sentencing Project, the pattern of racial disparity hasn’t budged.
“Kids who are in the same circumstances are having different outcomes and the only factor for this difference is race,” Powell said.
In a county that is majority African-American, the disparity spells disaster for children of color, threatening to trap them in an unjust system in a state that birthed the for-profit prison industry. Corrections Corporation of America, which has since renamed itself CoreCivic, started in Tennessee in the early 1980s; the first center it managed was Tall Trees, a juvenile facility in Shelby County. CoreCivic’s stock prices have nearly doubled since the election of Donald Trump.
“Most of the criminal justice practitioners or researchers will tell you the further a child progresses into the system, the more harm is done and the more likely they are to become recidivists later on,” Powell said.
How Juvenile Court got here
Resistance to reform by the Juvenile Court of Memphis and Shelby County dates back to December 2012 when a DOJ investigation found the court violated children’s constitutional rights in three areas.
1. Protection from harm, which included subjecting children to inappropriate and painful pressure point tactics to force children to comply
2. Due process, including providing children with legal representation and giving their defense attorneys access to discovery.
3. Equal protection, where investigators found that at every stage of the process, the court treats black children more harshly than white children, even when the children have the same record and are charged with the same offenses.
At that time, Juvenile Court Judge Curtis Person saw the DOJ’s findings as an accusation that court employees were intentionally mistreating black children — a misinterpretation that Judge Michael, elected in 2014, inherited, Powell said.
Powell, who like Person and Michael is white, had successfully guided a criminal justice institution through reform: He oversaw court-ordered reform at Shelby County Jail after a federal court found the jail had a “20-year history of abysmal leadership, mismanagement, nepotism,” according to a 2005 federal court document.
In that document, an expert hired by Shelby County noted Powell “has provided leadership and professionalism of the highest caliber, and his quiet interventions to stop personality conflicts or overcome interagency disputes have been invaluable.”
But while a federal judge ordered the jail to shape up via a consent decree, the DOJ’s agreement with Juvenile Court was voluntary and thus wasn’t under a judge’s oversight.
“The court was pushing back the whole time I was involved in this,” Powell said. “Even so, we were making progress.”
Each of the three problem areas has its own independent monitor, who visits at least twice a year to observe court operations. The monitors’ progress reports fill an entire section of Juvenile Court’s website.
The changes in protection from harm are the most dramatic. In this area, the court complied with 33 out of 41 provisions.
Perhaps not surprisingly, the harm protection monitor didn’t warrant a mention in Michael’s September interview on WKNO’s “Behind The Headlines.”
But monitors over the two areas where the court still falls short? The judge blasted them, accusing equal protection monitor Michael Leiber of being motivated by profits and due process monitor Sandra Simpkins of being easily swayed.
Leiber will “tell you he’s paid his house off on the money he’s made working as an independent monitor for the Department of Justice,” Michael said on the show, putting the word “independent” in air quotes.
“Sandra Simpkins, who’s a law professor at Rutgers… [it’s her] first time as a monitor. I will tell you, her reports mimic what’s she’s told by the Department of Justice lawyers. Neither are independent.”
Listen to Juvenile Court Judge Dan Michael’s criticism of two independent monitors charged with overseeing the court’s reform efforts.
Michael’s defense is no defense, Powell contends
Confronted on the show with proof that black children are still treated more harshly than white children, Michael offered this defense: He doesn’t have any control over who police bring to the court, and almost all of the children police bring in are black.
Two weeks after Michael’s TV appearance, Powell went on the same show.
Longtime county employee Bill Powell rebutted much of what Juvenile Court Judge Dan Michael said on the local news show two weeks earlier.
Powell acknowledged the racial demographics evoked by the judge, but as he told MLK50, “that doesn’t excuse the differences in outcome at later stages that are all controlled by the court.”
When compared with a white child, a black child is less likely to get probation, more likely to be transferred to adult court and more likely to be locked up — even when the severity of the crime and the child’s criminal record are the same.
Part of the problem, Powell said, is the court didn’t use objective tools to decide what to do with a child, “so they were going by their gut.”
Powell said he didn’t see any court employee engaged in blatant racial discrimination, but in the absence of formal processes designed to weed out implicit bias, the situation is ripe for bias.
Children have a right to an attorney, too
In the due process problem area, the court is in substantial compliance with 14 of 21 provisions but hasn’t met the goal of providing all children with independent counsel.
Today public defenders represent 60 percent of children who come to Juvenile Court, but private attorneys, chosen from a list maintained by Juvenile Court, represent the other 40 percent.
That creates a conflict of interest, Powell said.
“Those lawyers are beholden to the judge because that’s how they’re getting paid. That’s how they’re making their living,” he said.
Attorneys who are deemed aggressive in their defense of their young clients risk being cut from the panel or worse.
“There have been a number of defense of attorneys who have told me there’s a pattern of the court in filing board complaints against defense attorneys,” Powell said. “Many will see that as an intimidation attempt.”
Those board complaints aren’t public record, and most of what Juvenile Court does occurs behind a veil, unobservable by the general public or the media.
The opaqueness is ostensibly to protect the privacy of children and their ability to move on without the stigma of a Google-able criminal record. But the privacy also cloaks children who are affected in anonymity.
There are no campaigns featuring wrongly accused children, and the absence of a sympathetic character could make it difficult to mobilize the public around the issue.
“Maybe it is faceless,” Powell conceded, “but it’s not colorless, and that’s the problem.
“It’s a system problem, not an individual case problem and you’ve got the court saying, ‘You can’t come in here and tell me how to handle this one case.’ ”
“Nobody’s telling him that!” Powell said. “They are saying, ‘Look at the system.’”
The way forward
Weeks after the county’s top three elected officials sent their letter to the DOJ, the DOJ received another letter.
The oversight “should not be terminated because JCMSC has not met its obligations,” the letter read.
Demetria Frank, a law professor at the University of Memphis law school and the executive director of Project MI (Mass Incarceration), was one of the signatories.
“We do know that courts like the Shelby County Juvenile Court tend to be more paternalistic with black kids, and we know that black children are treated more like adults,” Frank said, referring to recent research.
Her question is simple: “If we’re going to replace the DOJ monitoring, what are we going to replace it with?” she asked.
The answer isn’t clear: The Department of Justice did not respond to emails, and Luttrell’s office has directed all questions to Michael, whose office has not replied to several emails over more than four months.
Interestingly, a way out was suggested on WKNO by Michael, who is in year-two of an eight-year term. Those who want him out, he said, could “file a complaint with the board of the judiciary that I’m not doing my job properly and have the board remove me.”
Another option, said Powell: “You could have the county commission take a more hands-on view. They control the budget of juvenile court.”
Frank agrees this option would be “more practical and realistic, but it’s going to take some pressure on the court to look at that particular issue closely.”
A far less likely option: Since Juvenile Court hasn’t met the terms of the voluntary agreement, the DOJ could sue the court.
If Juvenile Court didn’t meet the terms of the legally enforceable consent decree, Michael could be found in contempt of court and in theory, jailed.
However Attorney General Sessions — a Republican like Michael, Oldham and Luttrell — has made it clear his distaste for consent decrees, particularly when used to sanction police departments with patterns of mistreatment and abuse of African-Americans.
“That’s why it’s so important that the DOJ people stay there because that’s the only independent voice you have,” Powell said.
Where do we go from here?
Read. Here’s what it takes to file a complaint against a judge in Tennessee.
Sign the petition started by education advocate Kenya Bradshaw in response to MLK50’s reporting about Juvenile Court.
Learn about decades-long mismanagement and sexual abuse at the Shelby County Jail from this 2005 court case.
Study racial disparities in youth incarceration with The Sentencing Project’s latest report.
Before the campaign and election of Donald Trump, incidents of police brutality and police misconduct were regularly top news stories throughout the country. The Black Lives Matter Movement forced the nation to know the names and faces and stories of victims. When I speak on college campuses from coast to coast, I can quickly say the names Eric Garner, Mike Brown, Tamir Rice, Sandra Bland, Freddie Gray, or Philando Castile and it seems every person in the room will know who I’m talking about.
That is history. 2017 is substantively different. Don’t get me wrong — police brutality and misconduct roar ahead, but gone are the days of everyday Americans knowing the stories. Gone are the days of every single person in an auditorium internalizing the injustice and taking stories in far away towns so personally that they march and protest in their own cities because of it.
2017 is on pace to be one of the deadliest years ever measured for police brutality in America. As of this writing, at least 907 people have been killed by police so far this year, but it’s a struggle now to find people in the crowd who can name even one of those 907 people. That’s a staggering shift in the wrong direction. To hold local officials accountable for overzealous and inequitable policing, we must name these injustices and specifically hold to account the police chiefs, mayors, and elected prosecutors who refuse to reign-in unruly officers.
Here’s the thing, though: It isn’t just police brutality that deserves our attention. Jail and prison guards routinely brutalize people who are imprisoned; and yet, wardens, sheriffs, and prosecutors frequently fail to hold these guards accountable. My colleague, Carimah Townes, recently wroteabout Terrill Thomas, who died in a Milwaukee jail under Sheriff David Clarke’s watch from “profound dehydration” after guards threw him into a solitary confinement cell and turned off the water in the cell’s sink. Back in May, Milwaukee’s prosecutor, John Chisholm, said he had not decided whether his office would pursue charges in the case. It appears that decision is still pending.
Prosecutors, too, do unconscionable things every day to our poorest and more vulnerable neighbors — recommending bail amounts that ensure people stay locked-up for months or years without a conviction even for people who pose no significant safety risk; charging poor people an entrance fee into diversion programs they can’t afford; and failing to turn over evidence that points to a person’s innocence, to name a few.
To do my part, I’m starting this (at least once) weekly column — Injustice Roundup — to tell these stories and promote the work of other journalists and advocates who are doing the same. A few years ago many of these local stories would and should’ve gone viral, but everything about 2017 is peculiar.
Here’s my request to you: if you read these stories, and they move you, please share them over and over again. It is a simple act, but a massively important one: we all can do our part to increase the salience of brutality and discrimination in the justice system and to force the public and public officials to wrestle with its consequences.
Today, I’ll cover a prison assault on an elderly man; a spate of racist comments from police officers on social media; a Louisiana sheriff who is bullying kids into not kneeling to protest police brutality; and a North Carolina prosecutor who refused a man entrance into a deferred prosecution program because he could not afford to pay an $800 fee.
The Prison Assault of 69 Year Old Herman Bell
Herman Bell has spent virtually his entire adult life in prison. Convicted over 40 years ago for the murder of two NYPD officers, Bell, a former member of the Black Panther Party, was arrested all the way back in 1973. Widely seen as a peaceful man and model citizen in prison, Bell, now a senior citizen, was brutally assaulted by at least six prison guards last month, and continues to suffer as a result. The assault shocked the activist community because Bell is widely known to have had an impeccable record during his entire time in prison. According to Democracy Now, “the guards reportedly broke two of his ribs, bloodied his face, and damaged his left eye by spraying mace directly into his eyes.” In personal interviews with friends of Herman Bell, I was told that he continues to suffer concussion like symptoms as a result of the beating.
Police Officers Across the Country Under Fire for Racist Posts Online
Perhaps because the President of the United States seems to be able to post anything he wants on social media and get away with it, police officers across the country are following suit.
Officers in Orlando are being investigated for racist posts they’ve made on social media. According to local activist T.J. Cole, “Officer Robert Schellhorn called the Black Lives Matter Movement “useless savages.” He referred to Heather Heyer, the woman killed by a white supremacist in Charlottesville as an “asshole.” Schellhorn called professional athletes like Colin Kaepernick “overpaid thugs.” He also stated “2017 is the year that everything was racist and everyone was offended by everything. We live in a society of pussies.”
A Chicago Police Officer, John Catanzara, is now being investigated for his social media posts as well. Local activists have complained for over a year about his consistently racist messages on Facebook and have provided numerous screenshots to the Fair Punishment Project where he not only advocates killing people, but again calls people “savages,” which seems to be a new term of choice to dehumanize people.
These cases come after the Director of the Michigan State Police offered a half-hearted apology for her own offensive Facebook messages calling NFL protestors “degenerates” and “ingrates.”
Bossier Parish Sheriff’s Office Posts on Social Media Discouraging Students from Taking a Knee During the National Anthem
Public school students have the legal right to stand or sit during the Pledge of Allegiance or National Anthem. This was decided in the courts generations ago, but the Bossier Parish school system is encouraging their principals and coaches to punish students who take a knee or seat during the anthem. To further discourage the students, the local sheriff’s office posted a lengthy message on Facebook doubling down on how they support the school system’s decision. Considering students are taking a knee to protest police brutality and injustice in America, the post from the local sheriff only serves as more intimidation for students to stand — even if they don’t want to. Read the post for yourself below.
Charlotte, NC District Attorney’s Office Effectively Excludes The Poor From Its Deferred Prosecution Program.
Rahman Bethea is charged with embezzling video equipment from a hotel in Charlotte where he worked. This was his first arrest. Andrew Murray, Charlotte’s elected district attorney, has a “deferred prosecution” program that would allow Bethea to avoid prosecution if he is able to meet certain conditions, including paying restitution. The problem, though, is entrance into the program would require $899 and Bethea only had $100. As the Charlotte Observer’s Michael Gordon wrote, Bethea “says his first-ever arrest cost him his job, his home, his car and his son, who had to join his mother in Pennsylvania because Bethea says he could no longer afford to take care of him. Bethea was homeless for more than a year.” So, to recap, for Bethea, the difference between a felony charge and a complete dismissal was $800 he couldn’t afford. That’s not justice. Fortunately, readers of the Charlotte Observer were moved by Bethea’s story and offered to provide him with the $800. One of those good Samaritans, Paul Byrd, a disabled Vietnam veteran, wrote: “If we live in a society where the lack of $800 can destroy your life, then we’re not much of a society. You can take that Statue of Liberty, throw it out in the Atlantic Ocean and let the Navy use it for target practice. This is not right.”