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Rethinking prosecutors’ ‘second bite at the apple’ during parole proceedings


What you’ll read today

  • Spotlight: Rethinking prosecutors’ ‘second bite at the apple’ during parole proceedings

  • Solitary confinement, jail deaths rock race for sheriff in California

  • Louisiana judge threatens to appoint every eligible lawyer to death penalty case

  • Cooperation with ICE is on the ballot for the elections

  • Former guards allege abuse and mismanagement at a North Carolina jail

  • Edmund Zagorski’s attorney must have access to a phone before execution proceeds

  • Money is pouring in on both sides of marijuana ballot initiatives

In the Spotlight

Rethinking prosecutors’ ‘second bite at the apple’ during parole proceedings

This year, Debbie Sims Africa became the first member of the ‘MOVE Nine’ released on parole. Last week, her husband Michael Africa Sr. became the second. [Samantha Melamed / Philadelphia Inquirer] The couple, along with the five other surviving members of the group, was serving 30- to 100-year sentences for the death of a police officer who was fatally shot during a 1978 standoff in Powelton Village in Philadelphia. All nine maintained their innocence. (The 1978 incident was followed seven years later by the police department’s bombing of the MOVE compound that killed five children and six adults.) The couple was reunited with their son, born in Sims Africa’s jail cell, after 40 years.

In Sims Africa’s case, Martin Horn, a former corrections commissioner provided written testimony to the parole board about her “record of growing maturity, improved judgment and the assumption of personal responsibility,” and said he did “not believe that Debbie Sims is today a threat to the community.” [Ed Pilkington / The Guardian] In Michael Africa Sr.’s case, a retired guard told his attorney that “he had a spare room, and he would open up his home to Mike if needed, because of how much he trusted and respected him.” Africa had been denied nine times before his release. [Samantha Melamed / Philadelphia Inquirer]

The dispositive factor in the parole board’s change of heart may have been the support from District Attorney Larry Krasner’s office. In a letter supporting Sims Africa’s release, the first assistant district attorney wrote: “While Ms. Sims Africa’s crimes were very serious, her continued incarceration does not make our city safer. I am confident that she will not pose a threat to the Philadelphia community to which she wishes to return.” The parole board cited that letter in its decision. Two MOVE members who were also up for release at the same time were denied, and their denial letters cited the “opposition of the prosecuting attorney.” (The DA’s office said it had sent letters in support of their release as well. The parole board refused to provide clarification to media outlets, leaving it unclear whether it considered the DA’s recommendation or overlooked it and relied on old letters from the DA’s office opposing release.) [Sam Newhouse / Metro] Michael Africa Sr.’s lawyers said his parole was won thanks to a host of factors, including parole recommendations from the Philadelphia district attorney’s office. [Sam Newhouse / Metro]

Several Black Panthers and members of Black political movements remain in prison, serving decades-long sentences that began in the 1970s and 1980s. A few people have been released in the last year, despite virulent opposition from police unions and even elected officials. In Philadelphia, where Krasner has set out to make his office the “best progressive D.A.’s office in the country,” as Jennifer Gonnerman put it in her New Yorker profile, the office’s support for the couple’s release is consistent with that vision. But it is the rare exception among prosecutors who, even in an era when lengthy sentences are attracting new scrutiny, often oppose release on parole almost reflexively.

“What we see in New York State and across the country is prosecutors intervening in the parole release process in punitive ways,” Laura Whitehorn, a community organizer with the Release Aging People in Prison Campaign, told the Daily Appeal. “Having pursued the heaviest possible level of conviction and punishment during the trial and sentencing—the front-end of the legal process—prosecutors often get a second bite at the apple by recommending that incarcerated people be denied parole.

“This is even true in cases where there were plea deals,” Whitehorn continued. “The prosecutor negotiates a conviction and sentence that doesn’t carry the maximize prison time, but then years—often decades—later, they push to maximize prison time through parole denials. If the new wave of so-called progressive prosecutors really want to help end mass incarceration, they should seriously change the ways in which they intervene in the parole release process.

“Shockingly, this also happens in what’s called ‘compassionate release,’” said Whitehorn. “Across the country, elderly and ill people are denied release—even when they are within months of death—because the final decision rests with prosecutors and police, who continue to seek more punishment.”

In an article forthcoming in the Ohio State Journal of Criminal Law, professor Michael Cassidy calls for prosecutors to play little to no role in parole proceedings. He asks: “What is the ‘truth’ that a parole board is attempting to ascertain at a release hearing, and does the prosecutor play any legitimate role in that inquiry?” Cassidy believes that a prosecutor’s input at a parole hearing must typically be of “limited value,” given that much of what they can share will already be contained in the parole file. This question is of increased pertinence now for two reasons: First, the Supreme Court’s decisions in Graham v. Florida and Miller v. Alabama that have given people once sentenced to life without parole as young people the possibility of release. Second, the reckoning with the human and financial costs of mass incarceration that has led some states to reintroduce parole and others to consider it. [Michael Cassidy / Ohio State Journal of Criminal Law]

In Cassidy’s view, once outside the trial process, prosecutors must “eschew adversarialism and behave as ‘ministers of justice.’” Instead, he notes, there are numerous examples of prosecutors putting their “thumbs on the scale” of parole decisions, sometimes “offering a prediction of future behavior that as a professional matter [the prosecutor] is simply unqualified to make.” He advocates a two-part solution: action by state legislatures to limit the role of prosecutors in parole hearings and restraint on the part of prosecutors. Cassidy writes: “Each of the 38 states now providing some form of discretionary parole for adult prisoners allows prosecutors to give input in some fashion to the parole board. Unless prosecutors in those jurisdictions possess highly relevant, post-conviction information unavailable from documentary materials or the testimony of victims, I urge prosecutors to stay home and keep quiet.” [Michael Cassidy / Ohio State Journal of Criminal Law]

Stories From The Appeal

Santa Clara County Sheriff Laurie Smith and challenger John Hirokawa.
[Photo illustration by Anagraph/Photo via County of Santa Clara Office of the Sheriff/ Photo via John Hirokawa]

Solitary Confinement, Jail Deaths Rock Race for Sheriff in California. In Santa Clara County, incarcerated people, and a former undersheriff challenging six-term sheriff Laurie Smith, have turned conditions of confinement into a potent electoral issue. [Victoria Law]

Louisiana Judge Threatens to Appoint Every Eligible Lawyer to Death Penalty Case. After the state cut funds for capital defense, there’s a growing wait list of people in jail without a lawyer. [Emma Whitford]

Stories From Around the Country

Cooperation with ICE is on the ballot: In major counties nationwide, voters will decide next Tuesday the extent to which their local law enforcement agencies will cooperate with federal immigration authorities. ICE partners with local jurisdictions through different sorts of contracts, agreements, and grants. While the 287(g) program, which “allows local deputies to act as federal immigration agents,” is the most visible, some other types of agreement are more subtle and less transparently tied to immigration enforcement. In New Mexico’s Doña Ana County, for instance, the sheriff denies playing an immigration role despite the county’s participation in Operation Stonegarden, “a program through which the federal government provides localities with a grant in exchange for their assistance in border activities.” The Appeal: Political Report explores 10 counties—including Hennepin in Minnesota (Hennepin),  Wake in North Carolina (Raleigh), and Anne Arundel in Maryland (Annapolis)—where cooperation with ICE is on the ballot because of challengers who have pledged to reform it. [Daniel Nichanian / The Appeal: Political Report]

Former guards allege abuse and mismanagement at a North Carolina jail: Two former sheriff’s deputies at the Cherokee County Detention Center allege a culture of using some incarcerated people as “enforcers” to beat up others held at the jail. They also described a culture of mismanagement at the jail under the current sheriff, elected in 2014. There are two state investigations into violence at the jail underway, one involving a death in July of a man booked for marijuana possession and resisting officers. In June, Carolina Public Press published a report on allegations of excessive force by two guards. Since then, multiple community residents, former sheriff’s office employees, and people formerly held at the jail have contacted the publication regarding conditions at the jail. [Jordan Wilkie and Frank Taylor / Carolina Public Press]

Edmund Zagorski’s attorney must have access to a phone before execution proceeds: A federal judge has issued a temporary restraining order, ruling that Tennessee cannot proceed with Edmund Zagorski’s execution on Thursday unless his attorney is allowed access to a phone leading up to and during the execution. Prison officials can either comply with the order or appeal it to the Sixth Circuit Court of Appeals. The ruling came in response to a motion filed by Zagorski’s federal defender Friday in which she argued that it was necessary to have access to a phone during the execution to alert a judge in case anything went wrong. [Adam Tamburin / The Tennessean] See also If the state kills him on Thursday, Zagorski will be the first person executed by electric chair in Tennessee in 11 years.

Money is pouring in on both sides of marijuana ballot initiatives: An analysis by Marijuana Moment of the latest campaign finance data shows large contributions to political action committees that support or oppose marijuana ballot initiatives in Michigan and Missouri. In Michigan, the largest committee opposed to the legalization initiative has received over a million dollars from a national prohibition organization as well as $100,000 from Dow Chemical Corporation. Both the pro- and anti-legalization committees saw donations in the last nine days equal to a third of everything raised in the previous two months. [Polly Washburn / Marijuana Moment]

Thanks for reading. We’ll see you tomorrow.

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