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Prosecutors and Judges in Pennsylvania County Hammer Defendants in Low-Level Drug Cases

In overdose-wracked Franklin County, Pennsylvania, a small-time dealer is denied bail, while the number of drug induced homicide cases has skyrocketed.

A heroin camp in Pennsylvania is visited by police
Bastiaan Slabbers/Getty

Prosecutors and Judges in Pennsylvania County Hammer Defendants in Low-Level Drug Cases

In overdose-wracked Franklin County, Pennsylvania, a small-time dealer is denied bail, while the number of drug induced homicide cases has skyrocketed.

Angel Fortich was at worst a small-time drug dealer, but he faced consequences befitting a major trafficker or even a murderer: denial of bail and pretrial detention for six months. In 2017, Fortich, a 21-year-old resident of Chambersburg, Pennsylvania, was charged by prosecutors with selling roughly three stamp bags of heroin and possessing an eighth of a pound of marijuana in Franklin County, a small county of approximately 150,000 residents along the Mason-Dixon Line in central Pennsylvania.

The judge’s sole rationale for the bail denial was that Fortich faced “multiple drug charges,” according to court records. But bail is not supposed to be used as punishment. “We do not want to administer punishment before the defendant has been adjudicated guilty,” wrote Harris County District Attorney Kim Ogg in a brief supporting a lawsuit over the county’s cash bail system.

Cherise Fanno Burdeen of the Pretrial Justice Institute in Rockville, Maryland, says judges often do just that, reasoning, “‘I don’t know what’s going to happen to cases down the road, but I can get punishment now by setting a bond amount that someone can’t meet.’”

Fortich was arrested by Pennsylvania State Trooper Antwjuan Cox. A review by The Appeal  of Cox’s affidavits documenting three alleged heroin sales by Fortich between January and March 2017 reveals that the trooper wrote nearly identical affidavits in each case.  Fortich was contacted by an unnamed individual, either by phone or on Facebook, requesting the purchase of a “sum of heroin,” and then Fortich allegedly delivered drugs to the individual in view of the police. Cox did not quantify the “sum” of heroin sold by Fortich. However, in a sentencing report for the one case in which Fortich negotiated a guilty plea, it appears that the amount of heroin he dealt was 0.01 gram, the equivalent of one stamp bag.

In April 2017, Cox filed criminal charges against Fortich and requested a warrant for all three drug sales, and Chambersburg Police arrested him. Roughly an hour later, Officer Cole Baker—who noted in an affidavit of probable cause that Fortich smelled of marijuana—said his patrol vehicle still smelled of the drug. When he searched the vehicle, Baker said he found 18 baggies of marijuana in his patrol vehicle where Fortich had been seated. Baker concluded that that the drugs belonged to Fortich and charged him with felony possession with intent to deliver. Based on these charges, Magisterial District Judge Kelly Rock denied bail.

Pennsylvania law allows bail denial only in the most serious cases, like murder, or when “no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great.” But Burdeen says that far too often “we use the criminal justice process as punishment.”  

Indeed, as Pennsylvania confronts an overdose crisis which has seen the annual number of deaths surge from 10 in 2013 to 40 in 2016 in Franklin County, magisterial district judges appear to be using bail as a means to punish defendants charged with drug dealing. The Appeal reviewed all criminal cases filed in Franklin County between 2012 and 2017 and found that the median bail for people charged with possession with intent to deliver has quadrupled from $25,000 to $100,000. Reliance on cash bail has also increased in Franklin County. In 2012, cash bail was imposed in roughly half of all drug delivery cases; in 2016 and 2017, cash bail was imposed in 70 percent of such cases, The Appeal found. In Franklin County, median cash bail for possession with intent to deliver cases is now higher than bail for violent crimes such as felony aggravated assault, according to The Appeal’s review.

Drug-induced homicide cases—where people are charged with homicides if they share or sell drugs to someone who later overdoses and dies—have also risen sharply in Franklin County, from two in 2016 to 17 in 2017, according to the Administrative Office of Pennsylvania Courts.

After Fortich spent nearly six months incarcerated pretrial, charges in two of his heroin delivery cases were dropped. Fortich pleaded guilty to possession with intent to deliver in the third heroin case; in the marijuana case and he was sentenced to five years’ “intermediate punishment” which involves an initial jail sentence followed by community supervision. He was also ordered to serve two additional years of probation and pay roughly $5,000 in fines and fees. Franklin County is “probably trying hard to figure out how to manage some of these social issues” says Burdeen, but “the problem is the tools we’re using, like jail, backfire. Whatever risk label you want to give Angel, nothing about his life situation gets better by being incarcerated.”


This Red State Governor Is Giving Hope To People Sentenced To Die In Prison

But after a spree of commutations, the governor recently put down his clemency pen amid tough-on-crime fear mongering.

Louisiana Governor John Bel Edwards
Joshua Lott/Getty Images

This Red State Governor Is Giving Hope To People Sentenced To Die In Prison

But after a spree of commutations, the governor recently put down his clemency pen amid tough-on-crime fear mongering.

In 2016, after serving nearly 27 years in prison, 61-year-old Kerry Myers experienced something he didn’t know would ever happen: Christmas at home with his family.

At the time of his sentencing for second-degree murder in 1990, Louisiana was enforcing decades-old “life means life” laws that meant that unless Myers could prove his innocence, he would die in prison. Louisiana is one of two states that mandates life without parole for second-degree murder, and almost 5,000 people are currently serving sentences with no chance of parole or probation.

But Myers wasn’t ready to accept his life sentence. He kept fighting to prove his innocence and applied for clemency from the governor. For a long time, the chances of either proving successful were low. Then Governor John Bel Edwards, a Democrat, took office in 2016.

After campaigning in the deep red state on a promise to reduce its prison population, Edwards set his sights on changing Louisiana’s reputation as the incarceration capital of the nation. One of his first actions was to give relief to people like Myers serving long sentences for violent crimes. In his first six months in office, Edwards commuted 22 sentences out of 56 sent to him with positive recommendation from the state’s Board of Pardons. Sixteen of the offenders whose applications he granted were serving life without parole.

Just a few days days before Christmas, the warden told Myers that Edwards had signed his application and had granted him immediate release. Four days later, he was home near Baton Rouge, celebrating Christmas with his mother, brother, daughter, grandchildren, and extended family.

“It was amazing,” he said. “It was a fantastic reunion.”

Edwards’s commutation spree stood in stark contrast to how his predecessors used their power. Neither Governor Mike Foster, a Republican, nor Kathleen Blanco, a Democrat, signed any commutations in their first year. (Foster waited almost three years to start signing pardons and commutations, but focused on nonviolent offenders.) Blanco commuted 129 sentences in four years, and Foster commuted 52 in eight years, but the majority came during their last few years in office.

Governor Bobby Jindal, who served most recently, approved one clemency application in his first year but only three during his eight years in office. While the Pardon Board sent many applications with positive recommendations to his desk, Jindal, a Republican, ignored the vast majority. That included Myers’s, which the Pardon Board recommended in 2013.

How often Democratic governors grant commutations appears to have more to do with the governor than the political makeup of their state. In solidly Democratic New York, Governor Andrew Cuomo granted only seven commutations in December 2016 and just two since then. But in California, Governor Jerry Brown, a Democrat, commuted 49 sentences in the final two years of most recent his term.

Criminal justice reform advocates credit Edwards for bringing long-needed change to Louisiana’s justice system—not just through his clemency push but also by spearheading a legislation package that lowered mandatory minimum sentences, expanded alternatives to prison, and made it easier for nonviolent offenders to get out of prison early. Thousands of people have since been released, and last year Louisiana lost its title as the state with the highest incarceration rate in the nation. Edwards’s renewed use of the clemency power made many of the lifers at the Louisiana State Penitentiary at Angola, the largest maximum-security prison in the United States, hopeful for the first time in decades.

“I can tell you most certainly there was renewed hope,” said Andrew Hundley, the executive director of the Louisiana Parole Project. “For so long, there wasn’t hope. … There’s about 6,000 people at Angola and about 5,000 of them have life sentences or sentences akin to life sentences, so the majority of people who go to Angola won’t leave Angola.”

Hundley was himself sentenced to life without parole as a juvenile, but was also released from Angola in 2016 thanks to Edwards’s bill that prohibited that sentence for young people. He said that Edwards’s use of his clemency power had positive effects across Angola. Many offenders who previously assumed they would die inside prison suddenly started trying to improve their behavior, as a favorable recommendation from the pardon board requires an applicant to be free from disciplinary reports for 24 months. Inmates also began applying for educational opportunities and prison organizations to boost their applications. “Edwards may not realize this but he’s the warden’s best friend,” Hundley said.

But then the commutations stopped.

In the last year and a half, since the end of 2016, Edwards has not signed a single commutation. The pardon board has issued at least 70 positive recommendations to people seeking commutations since December 2016, when Edwards signed his last commutation, according to an analysis by The Appeal. Representatives with his office did not respond to questions about why the commutations stopped.

Advocates like Norris Henderson, who leads the civil rights nonprofit Voice of the Experienced, say they understand why Edwards has put down his clemency pen. The governor is up for re-election next year, and they say it would be dangerous for him to do anything that could jeopardize his chances of serving another term.  

“I think he’s just being cautious,” Henderson said, pointing out that as the lone elected Democrat in Louisiana, Edwards has a long list of opponents who would capitalize on any misstep. “Some of these folks are trying to use any excuse possible to throw a brick at you.”

“He’s doing his due diligence,” Myers agreed. “The political fallout could wreck someone who has an opportunity to do good. … You have to be there to do good.”

While his efforts have garnered praise outside the state, Henderson said it’s common knowledge in Louisiana that supporting criminal justice reform can be a politically dangerous position. Edwards is already facing pushback from the state’s district attorneys, who have said they need more time to consider each application. (E. Pete Adams, the executive director of the Louisiana District Attorneys Association, said the DAs respect the governor’s commutation authority, as long as victims and their representatives are given notice and the opportunity to be heard.)

Two Republicans, U.S. Senator John Kennedy  and state Attorney General Jeff Landry—both considered potential opponents for Edwards in next year’s election—have already gone after the governor for being too lenient on crime, with Kennedy calling Edwards’s package of reforms an “unqualified disaster.”

If just one of individuals whose sentence Edwards commuted or who have been released were to violate their parole or get sent back to prison, Edwards’s ability to use his clemency power could be over.

“People are looking for a Willie Horton,” Henderson said, referring to the man who was convicted of a rape and other crimes committed while on a Massachusetts weekend furlough program and may have cost the state’s governor at the time, Michael Dukakis, the 1988 presidential election.

The pause in commutations is also easier for advocates and offenders in Louisiana prisons to understand because of the widespread belief that it’s just that—a pause and not an end. “I don’t think he’s going to shut down the process,” Henderson said. “I trust that once things start shaking themselves off around the budget and the governor’s office gets a handle of where we are fiscally, then I think we’ll go back to things as normal.”

Many believe they will have to wait to see if Edwards wins a second term in 2019. In the scheme of things, Henderson said another few years is nothing compared to the decades many have been waiting. “Folks will understand,” he said.

They also understand that if he wins re-election—which polls last winter showed would be difficult but possible—Edwards would not have to worry about the potential pushback that granting mass clemencies would bring. “The prison population wants to see him become a second-term governor because of pardons and the assumption that he would do more criminal justice reform in his second term,” Hundley, of the Louisiana Parole Project, said. “There’s an understanding—don’t expect any more pardons before the election.”

But advocates are also thinking about how to keep the commutations coming if Edwards were to lose. Voice of the Experienced is advocating a bill that would relieve a governor of some responsibility by making it possible for a recommendation that sits on the governor’s desk for 90 days to be considered signed. That change would also relieve some of the stress on the prisoners, Henderson said. “It’s very disheartening for a person who gets a recommendation and then is sitting there five years, six years, seven years,” he added.   

Myers, who said he feels lucky to have had his application considered in Edwards’s first group in 2016, said he will do his part to make him a second-term governor who can continue signing clemency applications.

“I talked to him and I said, ‘You know I do get to vote in the next election now,’” Myers said, remembering when he got to meet and thank Edwards last year. “I said, ‘You can probably count on my vote.’”

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Immigrants and activists flood San Diego to protest ‘Operation Streamline’

Defense attorneys say they’ll have only minutes to meet with their clients before the immigrants are convicted en masse.

Credit: Max Rivlin-Nadler

Immigrants and activists flood San Diego to protest ‘Operation Streamline’

Defense attorneys say they’ll have only minutes to meet with their clients before the immigrants are convicted en masse.

Starting Monday, immigrants arrested at the California border will be driven to a converted garage in the basement of the Edward J. Schwartz Federal Office Building in downtown San Diego, according to a plan devised by prosecutors and shared with defense attorneys. The immigrants will meet quickly with their attorneys before being taken across the plaza to the federal courthouse. Up to a dozen of them will appear together in the courtroom, most likely in chains, wearing headsets from which they will hear a translation of the proceedings. They will be charged individually with illegal entry, most likely plead guilty, and be sentenced, all within just a few minutes.

This fast-track prosecution process is being unrolled as part of the expansion to the Southern District of California of “Operation Streamline,” a George W. Bush-era program created to speed up prosecutions that is expanding as courts buckle under the growing caseload of the Trump administration’s “zero tolerance” policy.

According to the prosecutors’ plan, the immigrants’ brief meeting with their lawyers will take place in “a room where other lawyers will be meeting with their clients at the same time and where there will be marshals and agents sitting in the back of the room who could potentially hear our conversation,” explained Jami Ferrara, head of the Criminal Justice Act Panel, which assigns lawyers to provide defense for poor people charged with federal crimes, and who was part of a commission assembled by the district’s chief judge to deal with the increase in prosecutions. “It is not a good system,” she said.

Operation Streamline has already been implemented in federal courthouses in Arizona, New Mexico, and Texas, where reporters have witnessed groups of immigrants pleading guilty and getting sentenced in less than a minute per defendant. Ferrara believes that by not allowing immigrants the chance to mount an adequate defense, and with prosectuors generally offering them time served if they plead guilty, the court is compelling thousands of immigrants to plead guilty to federal crimes. That could be a mistake, defense attorneys argue, since some would be better off fighting their charges. Eight out of the nine misdemeanor illegal entry cases represented by Federal Defenders of San Diego that have gone to trial since May have ended in dismissal or a “not guilty” verdict, according to the organization. And there are consequences for pleading guilty: Immigrants who do so could face felony charges if they are re-arrested for the same offense, which carries a potential sentence of years in federal prison.

Federal defenders and magistrate judges have long resisted efforts to expand Operation Streamline to the Southern District of California. But with the surge in prosecutions, the courts system, as well as the federal jail system, have been unable to keep up. Operation Streamline allows U.S. Marshals to avoid jailing defendants, instead taking them directly to federal court from the Border Patrol or ICE stations where they are held in the hours after an arrest. Assuming they plead guilty, they are then handed over to ICE custody, where they face civil immigration proceedings, including determinations regarding asylum claims and possible removal.

Right now, pleading guilty to illegal re-entry does not affect a defendant’s future immigration status. However, according to new draft regulations proposed by the Department of Justice and obtained by Vox, anyone convicted of entering the U.S. illegally would become ineligible for asylum—meaning that mass prosecutions for border crossing without authorization could potentially make countless asylum-seekers unable to ever gain legal status.

Protesters outside the Edward J. Schwartz Federal Office Building on July 2, 2018
Credit: Max Rivlin-Nadler

Federal public defenders in San Diego have been fighting against the expansion of Operation Streamline since prosecutors began pushing for it in May. In a series of letters written to the chief judge of the district, both Ferrara and Ruben Cahn, the head of the Federal Defenders of San Diego, have brought up serious due process concerns regarding the fast-track prosecutions.

On June 22, Cahn wrote an email to Chief Judge Barry Moskowitz, pointing out how Operation Streamline is part of America’s long legacy of “separate and unequal” tribunals.

“It is worth reflecting on just what the proposed court would look like,” Cahn wrote. “Though charged only with misdemeanors, all defendants in this courtroom will be in custody. … These defendants will not be treated as individuals. Their cases will be heard en masse. For most, there will be no ‘initial appearance’ and no consideration of bond. These defendants will face a choice between pleading guilty in hopes of immediate release or waiting two, three, or four weeks for a trial to challenge the government’s case against them. The faces of defendants will all be brown. All will be aliens, a class of people historically subject to discrimination.”

Cahn compares this to how the court regularly adjudicates federal misdemeanors in the Southern District: “Defendants [in those cases] will walk into the courtroom through the same door as the public, as free men and women. They will not be chained. They will be treated as individuals, their cases heard separately. No coercive influence will urge them to resolve their cases and plead guilty to obtain their freedom. The faces of defendants in this special courtroom will be of every color. They will not be marked as aliens.”

Moskowitz did not respond to a request for comment from The Appeal. In the order that he filed in May to form the committee that led to the expansion of Operation Streamline, he wrote that the increase in prosecutions “has and will cause strains, issues and problems for the court and its personnel.”

In response to The Appeal’s request for more details about the rollout of Operation Streamline, the Department of Justice wrote: “Beginning on July 9, the district court will be placing an additional magistrate judge on rotation to handle misdemeanor immigration cases. We look forward to our continued work with this committee to effectively implement this program in a manner that protects the constitutional rights of these defendants.”

Ferrara contests the notion that the plan for Operation Streamline was the result of input from all members of the committee. “We are not creating this court. We are responding to their demands. The court is responding to their demands,” Ferrara told The Appeal. “This is not collaborative. It’s reactive.”

A banner hung by activists across from the federal courthouse and jail
Credit: Max Rivlin-Nadler

This week, hundreds of people marched through downtown San Diego to the federal courthouse in opposition to Operation Streamline and the practice of separating families at the border, as part of a series of civil disobedience actions organized by the Latinx-led organization Mijente.

“We already live in a highly militarized area, we don’t need more border patrol or more prosecutions” said San Diego resident Itzel Guillen, 24, a DACA recipient who works with the community organization Alliance San Diego. Guillen spoke at a rally in San Diego’s Chicano Park shortly before the march to the federal courthouse began. “Our border communities are among the safest in the nation. It doesn’t make sense to invest in that instead of infrastructure and education.”

As part of the civil disobedience actions, protesters disrupted arraignments of immigrants in federal court before they were removed by U.S. Marshals. As the estimated 600-person march reached the federal courthouse in downtown San Diego, activists rappelling down the side of a nearby hotel unfurled a banner that read “Free Our Families Now! #stopstreamline.” Clergy members formed a human barricade in front of the federal office building, where protesters demanded the end of Operation Streamline as well as the abolition of ICE.

Elizabeth Estrada, a member of Mijente, came to San Diego from the Bronx for the march. “I’m an immigrant from Mexico and I didn’t want to just stay home. I wanted to come out in direct opposition to deportation and streamline policies to deport people without any type of representation or a trial,” Estrada told The Appeal. “We do not need to expand Operation Streamline. We need to end it.”

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