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Prosecutors Forced to Redefine ‘Gang Member’

Prosecutors Forced to Redefine ‘Gang Member’


Two years ago, some longtime residents of Placentia, California, were disturbed when Orange County District Attorney Tony Rackauckas announced his plan to fight a problem they didn’t think they had: violent street gangs. “The residents in these neighborhoods that consist of families, children and the elderly have been in the crossfire of these rival gangs for too long. Injunctions are tools that we will keep using to make communities safe from criminal-street-gang activity,” Rackauckas wrote in a 2015 press release. But crime rates in the small bedroom community were the lowest they had been since the 1950s. In fact, that year a home security consultation company, SafeWise, ranked it among the 50 safest communities in California. And yet, the DA’s office proposed two gang injunctions against the Plas and La Jolla street gangs in the city’s two historic Mexican barrios restricting the activities of 51 suspected gang members.

For the past 25 years, law enforcement and prosecutors in California have touted injunctions as powerful tools to crack down on gang violence. They work like this: a prosecutor files an action, called an injunction, against a particular gang that puts a series of restrictions on alleged members while they are in a certain geographic area. For people included in the injunction, it is a crime to talk or otherwise engage with other alleged members (including family), drink alcohol, stay out past the 10 pm curfew, and wear gang colors or communicate through gang sign gestures.

But critics say injunctions constitute a restriction of civil liberties without due process, and prosecutorial overreach targeting black and brown residents. In short, opponents hold that prosecutors use thin evidence to include someone in an injunction and make it difficult to be removed. This argument made it to the 9th Circuit Court of Appeals in 2013 in a case called , Vasquez v. RackauckasThe Court handed down an opinion saying that given the “breadth” and “prophylactic character” of injunctions, there must be a meaningful process to determine who is a member of a gang.

In Placentia, Lawyers from the Urban Peace Institute, a non-profit legal aid organization, are using this ruling to argue that Rackauckas’ office needs to bring forward a higher standard of evidence that the individuals in the Plas and La Jolla case are an active threat to the community. So far, they’ve stalled the cases for two years, a significant delay on a process that has previously been swift and uncontested. This is the first time that lawyers have been involved in an injunction case from the beginning in Orange County post-Vasquez.

“There are ten pages of legal reasoning in Vasquez that I don’t think any judge would ignore, saying that you have to have an active hearing in a gang injunction,” said Sean Garcia-Leys, staff attorney at the Urban Peace Institute who has been representing Plas and La Jolla.

Yet, the opinion did not lay out exactly who can adequately determine a person’s gang involvement. In the Plas and La Jolla cases, Garcia-Leys and his colleagues have successfully argued that the former status-quo, a quick hearing — if any at all — using evidence such as papers signed by clients as part of past plea bargains admitting gang affiliation — does not meet due-process standards. In the spring of 2016, the judge on the case, Kim Dunning, laid out three criteria for people to be legitimately included under the injunctions, Garcia-Leys explained: First, they cannot be incarcerated because inmates cannot pose a threat to the community, and would be unable to be present at an active participation hearing. Second, they must not be under court supervision because if they are, the injunction is redundant and gang involvement becomes a criminal, not civil, matter. Finally, they must have open or recent charges that demonstrate their dangerousness.

Thus far, Rackauckas’ office has not brought forward a single eligible person. Garcia-Leys predicts that the injunction will be dismissed for undue delay when it hits the three-year mark a year from this November.

Rackauckas’s office contends that the injunctions are, “a response to pleas from the community regarding criminal street gangs and the crime they inflict upon the residents of Orange County,” spokesperson Michelle Van Der Linden wrote in an email. “Courts have long deemed gang injunctions a legal tool to combat gang violence and gang crimes. Injunctions work to prohibit gang members from hurting innocent citizens and acting like gang members,” she wrote.

But people living in those barrios say they felt the proposed injunctions were a response to gentrification, not an increase in crime or violence. “Some people in the community felt that the injunction was along the lines of political interest and or business interest because there had been such a decrease in gang activity over the years,” said resident Josh Correa. a local minister who has spoken on behalf of people named in the injunctions in court to argue that they are not a threat to the community.

“If it was the Bloods and Crips we may not have intervened,” Correa said, “But in our community, there is a longer history of racial oppression than there is of gang oppression.”

Correa points out that the injunction affects not only those named, but the entire community. “In our community, there are not many households that don’t have seven to 10 people living together,” he said. In effect, the injunction would force men to leave their families, or displace entire families to an area outside of the safe zone. “You’re not talking about affecting 50 people — you’re talking more like 500,” he said.

To be sure, youth from the La Jolla and Plas neighborhoods have been scuffling for decades. But the case that they are menacing the community is relatively weak. Individuals named in the injunctions who were convicted of recent, violent crimes are already incarcerated. The rest have only minor convictions, such as graffiti.

In other parts of the state, the once-popular injunctions seem to be somewhat going out of vogue as a tool to fight gangs. In 2014 a Santa Barbara judge struck down a proposed injunction, saying that the police failed to give adequate evidence that the alleged gangs posed a threat to the community. In Oakland, two active injunctions were dissolved in 2015. “The injunctions were intended to be temporary measures to disrupt criminal behavior of specific members of gangs within specific neighborhoods. They were not intended to last for the lifetime of the defendants,” City Attorney Barbara Parker wrote in a statement at the time. In April, the Ventura County DA’s office and the Oxnard Police Department recently sent letters to the thousand-plus enjoined individuals there telling them that they have the right to a court hearing to be removed, this is seen as a preemptive move as injunctions are receiving more scrutiny.

Riverside County did implement an injunction in June, but for the first time the court required the DA to re-establish that the enjoined individuals are gang members every five years. Meanwhile, in Los Angeles the ACLU filed a law suit against the LAPD alleging that they served injunctions to people without giving them the opportunity be removed. The city attorney’s office said it will propose a revised policy later this year.

In Placentia, Correa said that he wishes the city would funnel resources towards crime prevention such as education and employment training. “We’re not pro-gang, we’re pro-people,” he said.

These NFL stars say it’s time to end cash bail. Here’s why.

These NFL stars say it’s time to end cash bail. Here’s why.


Here’s more information on why bail reform is so important (by Jessica Pishko)

Kalief Browder, 16-years-old at the time of his arrest, was held on Rikers Island for three years because he could not afford to post bail. Browder was accused of stealing a backpack. When he refused to plead guilty, and instead continued to profess his innocence, the Bronx prosecutor requested a bail amount that he could not afford. So, Browder ended up in the notorious Rikers Island Correctional Center for three years where he was beaten, abused, and held in solitary confinement. [New Yorker / Jennifer Gonnerman]

Browder’s suicide, two years after his release from Rikers, illustrates the very real and lingering harm that jail time causes even for those who are never convicted of a crime. All this was because Browder — like many people — could not afford to post bail. [The Atlantic / Ta-Nehisi Coates]

More recently, the Bronx District Attorney’s Office fought to keep 18-year-old Pedro Hernandez detained at Rikers Island for two years because he could not pay the $250,000 bail amount imposed for highly questionable charges that were plainly contradicted by eyewitness accounts. [In Justice Today / Nick Malinowski] Hernandez was finally released pending trial through funds raised from a nonprofit. The charges were later dismissed. [Prince Shakur / Teen Vogue]

What Is Bail?

As many as 500,000 people are held around the country in local jails for the inability to pay bail, mostly for low-level offenses. People held on bail have been accused, but not yet convicted, of crimes. They often are locked up only for inability to pay the amount determined by a judge frequently in conjunction with a preset bail schedule, not because of an individual assessment based on risk or threat to public safety. If someone is unable to pay bail, she remains locked up until trial is over or until bail is paid. This can range from days to years.

  • More than 60% of jail inmates are jailed pretrial; over 30% cannot afford to post bail. Black and Hispanic defendants are much more likely to be held on bail than white defendants. [Criminal Justice Policy Program / Harvard Law School]
  • Frequently, those being held on bail have simply been accused of low-level offenses. 75% of pretrial detainees have been charged only with drug or property crimes. [Criminal Justice Policy Program / Harvard Law School]
  • Being jailed pretrial leads to people losing their jobs, not being able to care for their children, and losing contact with loved ones. Holding people in jail who do not pose a significant safety risk also exacerbates overcrowding, creates unsafe conditions, and places a huge financial burden on taxpayers. [The Price of Freedom / Human Rights Watch]
  • A study out of Kentucky found that people who are held because they cannot afford bail are 40% more likely to commit another low-level offense. In other words, jailing people who cannot pay bail is criminogenic. [The Hidden Costs of Pretrial Detention]
  • People are more likely to be acquitted if they pay bail. Being released before trial is one of the greatest indicators of a not-guilty verdict, suggesting that the system is not punishing the most guilty, but rather the people who cannot afford to pay for their release. [The Atlantic / Bouree Lam] [Pretrial Justice Institute] One study suggests that people are “over three times more likely to be sentenced to prison” and “over four time more likely to be sentenced to jail” than those who are not detained pretrial. [Criminal Justice Policy Program / Harvard Law School]
  • A study out of Columbia Law School found “significant evidence of a correlation between pretrial detention and both conviction and recidivism.” [The Heavy Costs of High Bail / Arpit Gupta et al.]
  • Incarcerating individuals awaiting trial costs taxpayers $13.6 billion each year. [Prison Policy Initiative] There are effective, low-cost ways of ensuring that defendants appear at trial, including a simple notification system that reminds people of their court dates. [Court Appearance Notification System: Evaluation Highlights / Multnomah County]

A Growing Consensus That America’s Bail System is Broken

A wide range of elected officials, cultural luminaries, criminal justice advocates, fiscal conservatives, and law enforcement organizations agree that the current bail system is broken. Bail reform is possible through legislative and judicial change, and also through policy changes that local prosecutors can make.

The Public wants to see change in the bail system.

  • In Arizona, a poll conducted by the state’s Supreme Court found that ⅔ of all asked did not think defendants who do not pose a safety risk and are likely to appear for future court dates should be held in jail for failure to pay bail. [Andrea Kelly / Arizona Public Media]
  • Eliminating cash bail has wide support among law enforcement, like Cook County Sheriff Tom Dart and victim’s groups like Marsy’s Law for Illinois. [Reuters / Fiona Ortiz]
  • Celebrities like Jay-Z are also advocating against money bail. [Shawn Carter / Time]
  • Two recent video clips, one from the John Oliver show, and the other one a mini-documentary from Brave New Films, discuss the problems with the cash bail system. [Last Week Tonight With John Oliver]

Debunking Common Bail Myths / Brave New Films

Courts are striking down existing bail systems as unconstitutional. Challenges to existing bail systems are pending in local court around the country, in both red and blue states. State Attorneys General and other members of law enforcement are also recognizing that cash bail hurts the poor.

Legislation to eliminate or reduce the use of cash bail are being implemented and debated in many states and in Congress.

  • New Jersey passed a law in August of 2014 that replaced the bail system with pretrial risk assessment methods, and its pretrial jail population has dropped 20% since implementation. [Reason / Scott Shackford]
  • In 2017, bail reform legislation also passed in Connecticut [Huffington Post / Nick Wing] and New Orleans. [The New Orleans Advocate / Jessica Williams]
  • Washington, D.C., has also largely eliminated cash bail, holding only those defendants deemed too dangerous to release. About 90% appear at for their court dates. The Washington Post’s Editorial Board explained that although revamping existing pretrial release systems overly reliant on cash bail made involve upfront costs, it is worthwhile and necessary investment. “In the longer term, however, bail reform will produce substantial savings by reducing incarcerated populations, cutting corrections staffing and eliminating the need to build more jails to house pretrial detainees. Even if the balance sheet tilts toward an additional burden for states and localities, bail reform needs to happen because it’s the right thing to do. It is a disgrace for a civilized society to lock people up for no reason other than they lack the means to go free.” [Editorial Board / Washington Post]
  • Other states are considering bills to reduce the use of cash bonds. These bills are heavily opposed by the bail bond industry. A major bail reform effort was thwarted in the California legislature is considering a similar bill that is being opposed by the bail bonds industry that would end the use of bail bond schedules and require pre-trial assessment instead.
  • In January 2017, New Mexico voters approved a constitutional amendment that limited the use of cash bail. While the language is limited, advocates are hopeful that it will provide guidance for judges making determinations on pre-trial detention. [Nick Wing / Huffington Post]
  • In July 2017, Senators Kamala Harris and Rand Paul introduced legislation to encourage states to reform cash bail systems. [Kamala Harris & Rand Paul / New York Times] [Text of Proposed Bill] [Larry Hannan / In Justice Today]
  • In August 2017, the policy making body of the American Bar Association approved a resolution that “[u]rges governments to adopt policies and procedures that favor release on personal recognizance bonds or unsecured bonds, that permit cash bonds or secured bonds only upon a determination by the court that such financial conditions and no other conditions will assure appearance, and that pretrial detention should never occur due solely to an inability to pay.” [American Bar Association]

Prosecutors have the ability to reduce the use of cash bail. While judges are the ultimate gatekeepers, prosecutors play an important role in the process and can advocate for bail reform, screen cases early and establish a presumption of recommending release. [Casey Tolan / Slate]

  • Fair and Just Prosecution (FJP), a group that brings together newly elected local prosecutors to promote “a justice system grounded in fairness, equity, compassion, and fiscal responsibility,” urges all prosecutors to “[p]ublicly support the elimination of money bail. DAs should use their bully pulpit to communicate the harms of the money bail system and the need for reform.” [Issues at a Glance: Bail Reform / Fair and Just Prosecution] Miriam Krinsky, Executive Director of FJP, says: “Common sense dictates that people should not be held in jail simply because they cannot afford a monetary payment.” [Miriam Krinsky / USA Today]
  • In June 2017, Kim Foxx, the lead prosecutor for Chicago, announced that her office will no longer seek money bail for defendants accused of low level offenses. According to Foxx, “Routinely detaining people accused of low level offenses who have not yet been convicted of anything, simply because they are poor is not only unjust — it undermines the public’s confidence in the fairness of the system.” [Chicago Tribune / Steve Schmadeke]
  • Harris County (TX) District Attorney Kim Ogg came down in favor of eliminating bail for people accused of misdemeanors, even writing a brief from her office supporting the use of pre-trial assessments for those accused of low level crimes. [Brief / Kim Ogg’s Office] Over 60 prosecutors from around the country, including Kim Foxx, George Gascon and Mark Gonzalez signed an amicus brief in support of the plaintiffs in the Harris County litigation. [Brief Amici]
  • The California Attorney General wrote a brief supporting the elimination of the cash bail system in California. [Brief]
  • Larry Krasner, the Democratic candidate for Philadelphia’s District Attorney, has said that he opposes the use of cash bail. [Larry Krasner]

Bail Funds, while not a long-term solution, provide a short-term method to alleviate the burden of excessive bail on the poor. They are non-profit organizations that front bond payments for those who cannot afford them. [Alysia Santo / The Marshall Project]

  • On Mother’s Day 2017, several organizations partnered to create a Mama’s Bail Out Day campaign to pay bail for women to see their children. [Human Rights Watch] [No More Money Bail]
  • The Bronx Freedom Fund grew out of the local public defender’s office and has bailed out more than 600 people charged with misdemeanors since 2007. Other similar funds have been established in major cities around the country. [Bronx Freedom Fund] [Chicago Community Fund]
  • Some places, like Memphis, Tennessee, automatically charge bail funds fines and fees, making bail fund efforts difficult to sustain. [Alysia Santo / The Marshall Project] The Massachusetts bail fund was struggling financially until activists recently pitched in to help revive it. [9.20.2017 Edition / In Justice Today Newsletter]

The Bail Industry Remains The Biggest Obstacle To Reform

In most states reforming bail, the biggest obstacle remains the bail bond industry. For-profit bail bonds are legal in almost every state.

  • Money bail has been taken over by private companies that make profits from those who cannot afford it. Many people spent years paying off their bail amounts to private insurers. [Report / Color of Change and ACLU]
  • There’s some evidence that the bail bonds industry is intentionally intimidating decision-makers to urge them against bail reform. Dog the Bounty Hunter of television fame has sat in the front row of some cases where judges have struck down monetary bail. [Jazmine Ullola / Lis Angeles Times]
  • Bail bond costs are often covered by family members, which puts an additional financial strain on the already-struggling children of the jailed. [Who Pays? / Ella Baker Center]

And, again, please watch and share this video from Malcolm Jenkins and Anquan Boldin.

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ICYMI: Yesterday’s can’t-miss justice system news

ICYMI: Yesterday’s can’t-miss justice system news


Note: This first appeared in our daily In Justice Today newsletter. To get stories like these in your inbox every day, you can sign up here.

In today’s news roundup, we bring you stories about questions surrounding the use of DNA evidence, misuse of labor by ICE detainees, the lawsuit challenging drivers license suspensions for failure to pay fines, and prosecutorial misconduct in Tennessee (yes, again), among other stories.

Forensics

  • Putting Crime Scene DNA Analysis on Trial. The National Institute of Standards and Technology (NIST) will be launching a study of certain types of DNA analysis used in criminal investigations by inviting all private and public forensic labs in the country to analyze the same set of DNA, and then comparing the results. In an interview with ProPublica, John Butler, a DNA expert who will be leading a team of NIST scientists for the study, discussed the importance of this first-of-its-kind study, which aims not to critique certain platforms, but to explore the different responses that various methods might produce when analyzing a complex DNA mixture. Butler emphasizes that “just because you have a big number doesn’t mean that you got the right person” when explaining why it is crucial for the jury, judge, prosecution and police to understand the range of possibilities that can follow from the result of a DNA analysis. According to Butler, without effective communication of the meaning of the results, testing is useless. Butler also puts the type of testing being done now in context: though DNA is heralded as the “gold standard” of forensic science, labs are usually not prepared for the complex intricacies involved in today’s analyses. The water is further muddied by the use of commercial software such as the Forensic Statistic Tool (FST); the need for commercial protection of proprietary information must coexist with the bedrock principle of transparency in science. [Lauren Kirchner / ProPublicaSee also We profiled ProPublica’s coverage of FST’s controversy in our 9/11and 9/27 issues.
  • No Backlog: Why the Epidemic of Untested Rape Kits Is Not a Symbol of Insufficient Police Budgets But Instead a Failure to Investigate Rape. The Memphis Police Department will keep Sex Crimes detective Ouita Knowlton on the force, despite the criminal investigation underway into her leaking of confidential files to the family of a rape suspect. Ouita supervised the DNA Unit, which was formed to investigate cases with untested rape kits. Memphis was not alone in this backlog; untested kits have plagued precincts across the country, from Detroit to Cleveland to Los Angeles. Though the police departments in question usually blame a lack of funding, the National Institute for Justice cites other reasons, among them victim-blaming beliefs by police, no written protocol for submitting kits to the lab for testing, high turnover in police leadership, and lack of community-based victim advocacy services. Further, Ohio Public Defender Tim Young points out that modern DNA testing methods have been around since the mid-1990s, and law enforcement’s reluctance to use them is simply a symptom of a police culture that fails to prioritize justice. Young’s assertion is supported by a 2015 Michigan State University study of police reports involving Detroit’s untested kits, which found most cases closed after minimal investigation, and a 2016 clearance rate of only 36% of rapes according to FBI statistics (a percentage that likely includes non-arrest clearances such as the victim ceasing to cooperate). [Meaghan Ybos / In Justice Today]

Punishing Poverty

  • Federal Judge Restores Drivers’ Licenses to Two With Unpaid Traffic Tickets; May Be First Ruling of its Kind. A federal judge reinstated the drivers’ licenses of two named plaintiffs in a class action suit challenging the practice of suspending licenses for failure to pay fines. The suit alleges that such suspensions violate constitutional guarantees of due process when individuals are not given an opportunity to be heard in court regarding their ability to pay. This exacerbates a cycle of poverty when people lose their jobs due to their inability to legally drive, which then makes it even more difficult to get out from underneath growing fines, fees, and court costs. The litigation is ongoing, and the order does not restore the licenses of other members of the class of litigants, but this interim step was based on the judge’s determination that the plaintiffs are likely to prevail when the case is resolved. [C.J. Ciaramella / ReasonSee also We first covered this lawsuit in our 9/25 newsletter.

Crimmigration

  • ICE’s Captive Immigrant Labor Force. So-called “voluntary work” programs at private-prison companies that house detained immigrants may actually look more like forced labor camps. Several complaints, lawsuits, and an ACLU investigation contain disturbing allegations of illegal exploitation of immigrant detainees. As ICE arrests rise dramatically with little increase in deportation rates, the swelling numbers of detainees—many of whom do not have criminal records—potentially provide a “captive workforce” for private prison companies, which operate with little oversight or reporting requirements. [Michelle Chen / The Nation]
  • Oakland Police Chief Made False Statements About ICE Raid. Oakland Police Chief Anne Kirkpatrick claimed repeatedly that an August ICE raid of an Oakland home was part of a criminal trafficking investigation. But the raid did not result in any criminal prosecutions, and some immigration advocates have alleged that Kirkpatrick “repeatedly supplied false information.” The case has raised a number of concerns, including whether ICE has expanded the definition of human trafficking to include assistance to juveniles who immigrate without their parents, as well as the blurring of the line between criminal and civil enforcement by federal immigration officials. [Darwin BondGraham / East Bay Express]

Bail Reform

  • Too poor to make bail: Alabama forced to reform ‘two-tiered’ jail system.In Alabama, four lawsuits have been filed challenging the money-bail system. In Randolph County, Alabama, the Southern Poverty Law Center, the ACLU, and Civil Rights Corps have filed a lawsuit on behalf of Kandace Edwards, challenging the county’s money bail system. Edwards, at the time seven-months pregnant, was accused of forging a $75 check and held on a $7,500 bond. She couldn’t afford the bail amount, and might have remained in jail for months, but for a judge ordering her release after the lawsuit was filed. Systemic change may be coming, however slowly and unevenly. In Jefferson County, judges ordered bail hearings between 48-72 hours after arrests for those who could not afford bail, prompted by the mere threat of an ACLU lawsuit. In Dolthan and Clanton counties, courts have issued standing bail orders so that some can be released without money bond if they cannot pay. [Anna Claire Vollers / AL.com]

Prosecutors

  • Meet the write-in candidate who wants to challenge Cy Vance. After coming in third place in the Democratic primary to become the next Brooklyn District Attorney, Marc Fliedner says he is now prepared to challenge Manhattan District Attorney Cy Vance as a write-in candidate in the borough’s upcoming November 7, 2018 election—an election in which, at present, Vance faces no challengers. Fliedner’s announcement comes close on the heels of reports that Vance’s office declined to prosecute Harvey Weinstein (reports that include allegations that Vance’s decision was affected by financial contributions and his relationship with Weinstein’s attorneys). Vance was also recently criticized by revelations that he declined to prosecute Ivanka Trump and Donald Trump, Jr., under circumstances that also raised the specter of unseemly financial influences. “Cy Vance, Eric Gonzalez, Harvey Weinstein, Donald Trump, seems it’s about power and money and the drive to hold on to both,” Fliedner told The New York Post. “Even when it’s at the expense of what is so obviously right under the law.” [Emily Saul / New York PostSee also We reported on other fierce criticisms of Vance’s policies, particularly those hurting the poor, in our 8/31 newsletter.
  • Shelby County District Attorney Has Another Conviction Overturned.The Court of Criminal Appeals of Tennessee granted a new trial to Joshua Bargery as a result of the trial court’s exclusion of expert testimony that supported Bargery’s contention that there were multiple attackers involved in the crime. The case also involved multiple allegations of prosecutorial misconduct. For example, Shelby County District Attorney General Amy Weirich called an expert witness for the defense, which the court said “substantially interfered with [the witness]’s prior determination to testify, in violation of the Defendant’s constitutional right to present his own witnesses to establish a defense.” Additionally, the court found that the trial prosecutor improperly accused Bagary’s defense lawyer, in front of the jury, of “coming up with the Defendant’s story.” Although the court found these actions to be improper, the court did not find that either provided a basis for granting a new trial. [Jeni Diprizio / Local Memphis]

Policing

  • US police killings undercounted by half, study using Guardian data finds.The call for better data collection of police killings continues after a Harvard study, comparing the data from the Guardian’s “The Counted” and the Nation Vital Statistics System (NVSS), revealed that the federal database “misclassified 55.2% of all police killings, with the errors occurring disproportionately in low-income jurisdictions.” Many deaths were categorized as “assault” rather than “legal intervention,” the term the NVSS uses for police killings. Unfortunately, this is not the first time federal databases have come under fire for the poor quality of their data. Just last year, the Bureau of Justice Statistics and the FBI had to rework their programs which had been previously undercounting officer-involved killings. Justin Feldman, the lead researcher in the study, argues that “[t]o effectively address the problem of law enforcement-related death, the public needs better data about who is being killed, where, and under what circumstances.” [Jamiles Lartey / Guardian]

Welcome home, Diane!

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