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Commentary: Ripping Off Cy Vance’s Mask

The “reformer” still prosecutes farebeaters

Commentary: Ripping Off Cy Vance’s Mask

The “reformer” still prosecutes farebeaters

On October 19th, a few dozen public defenders and grassroots activists showed up outside the Manhattan District Attorney’s Office to rip the reformer mask off of one of America’s most well-known prosecutors. While Cyrus Vance is deservedly being raked over the coals for his non-prosecution of Harvey Weinstein, the most disastrous legacy of prosecutors like him is that they haveprosecuted poor, everyday people for low-level, nonviolent offenses while enjoying reputations as reformers.

As speakers from groups like VOCAL-NY and Why Accountability broke down Vance’s role in the meatgrinder of New York City’s criminal justice system, a long line continued to grow outside criminal court, which was across the street. Everyone on the line, as usual, was Black or Latino and you’d be hard pressed to find anyone on that line who thought the justice system was anything but a conveyor belt of punishment.

So as reporters, hungry for quips about Vance or Weinstein, crowded around our rally, it occurred to me that Vance wouldn’t have been able to pass himself off as a reformer without their help. Take, for example, Vance’s announcement this past summer that he’d stop prosecuting people arrested for fare-beating in Manhattan, the classic Broken Windows policing arrest. Local media outlets, of course, drank in the tale of the merciful, progressive prosecutor.

“Manhattan DA will end criminal prosecution of fare beaters this fall,” read a Gothamist headlineThe Atlantic said Vance “would stop prosecuting fare beating, offering alternatives like community service instead of criminal charges.” NPR’s Marketplace headline even went so far as to proclaim that “New York won’t arrest you for stealing a subway ride anymore,” which is a strange take considering it’s police, not prosecutors, who do the arresting in New York City.

But months after the headlines, you can still get arrested for jumping the turnstile in Manhattan and, in many cases, you’ll still get prosecuted. Indeed, looking closer at Vance’s proposal, you can see that the Manhattan DA’s mercy will be extended for cases “unless there is a demonstrated public safety reason to do so.” This means that Vance’s prosecutors, with strong influence from arrest-obsessed NYPD, can, and will, make exceptions.

While the press marveled at the notion of a prosecutor vowing to not prosecute, most public defenders I spoke with pointed out the problems with Vance’s announcement from the very beginning. For starters, transit recidivists (i.e. people who’ve had multiple transit arrests, like, say, someone who’s been arrested for fare-beating twice), will more than likely not benefit from Vance’s proposal. And there are, of course, other key questions.

What about people who are on parole or probation? Will those with felony convictions avoid prosecution? And what will happen to those who didn’t want to do community service or diversion programs? There is also the bigger picture question as to whether having to perform community service or being mandated to attend a diversion program is a fair way to deal with someone who is too poor to afford the fare (hint: it’s not).

The ballyhooed announcement raised concerns and questions and we (The Coalition to End Broken Windows) criticized it shortly thereafter in July. Still, Vance, with fawning approval from the media, successfully stuck another reform feather in his cap — at least until the Weinstein scandal broke.

So it came as little surprise that stories eventually would start to roll in about Vance, you know, prosecuting farebeating cases. Volunteers with Police Reform Organizing Project’s court monitoring program saw at least two farebeating prosecutions during their most recent visit to Manhattan criminal court two weeks ago. A public defender also tweetedthat week that 12 people had been prosecuted for fare-evasion by Vance in one 8-hour stretch alone. If this sounds familiar it’s because this dynamic also played out in 2014 when the Brooklyn DA’s Office, under the late Ken Thompson, announced they kinda, sorta wouldn’t prosecute low-level marijuana possession cases — except when they would.

So yea, Weinstein’s non-prosecution exposes a criminal justice system that favors the rich and influential but let’s not lose sight of the prosecutors and re-faux-mers who have their hands on the levers of power and continue to hurt people on a daily basis despite attempts to brand the criminal justice system as kinder and gentler.

Josmar Trujillo is writer and activist based in East Harlem. He organizes with the Coalition to End Broken Windows, a coalition of grassroots groups based in New York. The views and opinions expressed in this article are his and do not necessarily reflect the views of the Fair Punishment Project.

Can a Prosecutor-Led Program Tackle Recidivism?

Community members are cautiously optimistic, but wary of the program’s emergence during election season.

Can a Prosecutor-Led Program Tackle Recidivism?

Community members are cautiously optimistic, but wary of the program’s emergence during election season.

District Attorney Nancy O’Malley is conducting an unusual experiment in Alameda County, California. Starting the week of September 24th, a small group of 18 to 24-year-olds with certain felony charges and convictions entered an intensive case management program designed to ensure that they won’t return to the D.A.’s office. Partnering with multiple community-based organizations, the new “Justice Restoration Project” is funded by a mix of federal, state, county, and private donors. The Harvard Kennedy School Government Performance Lab has been working with O’Malley since 2015 to develop the program.

“Rather than placing people on probation and taking a bit of a ‘wait and see’ attitude, we’re trying to turn that paradigm on its head and say, ‘We’re going to actively participate with your life now,’” says Teresa Drenick, a spokesperson and Deputy District Attorney in O’Malley’s office.

Young men and women in the program — who participate voluntarily after consulting with their lawyer — are paired with community service providers who tailor an intensive case management program “to meet each individual where they are,” says Drenick. Participants are then supervised for 18 months. One of those community partners is La Familia Counseling Service, a mental health and community services organization serving Contra Costa and Alameda counties.

Eric von Geldern, the deputy district attorney whose full-time job is managing the Justice Restoration Project, notes that La Familia will meet with each individual and their family to best assess what services they need and help them navigate the bureaucracy of post-incarceration life, or life on probation. The D.A. determines eligibility for the program before participants meet with La Familia, and has the final say on who can take part in the program.

The project is open only to people who already have a criminal record in addition to their current felony case, in hopes of specifically serving people who repeatedly come into contact with the criminal justice system. Ineligible felony charges and convictions include “anything involving guns, sexual assault, elderly crime, or any injuries,” according to von Geldern. The list of eligible offenses does include some felonies classified by the state as violent, such as certain robberies.

“We’re trying to include those persons even though on paper it’s a very serious crime, and let those people have another chance,” says von Geldern.

While many of the program’s facets sound great in theory, intense monitoring and supervision from government and community entities could easily be a turn-off to some potential participants. In the absence of a program like this, probation alone can already be an overwhelming experience with a litany of court-ordered rules and conditions. Drenick acknowledged this possibility, noting that when she previously worked in the D.A.’s drug court, she regularly encountered “low-level drug offenders who would say ‘I’d rather sit in jail than work with your drug counselors for a year.’”

In spite of that potential pitfall, von Geldern says that while the program is in its very early beta phase, “it has been extremely well-received” by all who have reviewed it, including defense attorneys. (The Alameda Public Defender declined to comment.)

Still, some are wary. Prince White, deputy director of the Oakland-based youth leadership organization Urban Peace Movement, told In Justice Todaythat he is “a little bit suspect, but cautiously optimistic.” White directs a program specifically geared toward 16 to 24-year-old black men who are formerly incarcerated or have been impacted by violence, trauma, or the justice system. Participants in White’s program join voluntarily, meet weekly for support, and organize around social justice issues in their community.

White has a close eye on O’Malley’s program because he has been working closely with one of its participants for months: 17-year-old Dajon Ford. Ford spent nearly four years in Santa Rita County Jail awaiting trial while facing robbery and attempted robbery charges and being held on $1.8 million bail. White took an interest in his case after learning Ford would be tried as an adult and offered a “deal” of 14 years in prison by the D.A.’s office, and organized a rally that took place in late June. He gathered signatures of support and campaigned to pressure O’Malley’s office to offer a lighter sentence and to transfer Ford to juvenile court before his mid-August court date.

At the beginning of September, Ford was given informal probation and agreed to four felony charges that can be reduced to misdemeanors within two years and ultimately expunged. (Ford is now represented by White’s wife, Claire White.) White picked Ford up from jail after his release, bought him clothes, and hired him to work at his organization. O’Malley’s program was announced Sept. 24, within a month of Ford’s release. “There’s been a rash of petty thefts and robberies with guns that are very serious,” says White. “But we can’t throw these kids’ lives away, or spend another $75,000 to put them in prison for 10 years.”

White thinks that the DA’s program has the potential to help young people like Ford, but he is worried about follow-through. The program was designed with high hopes of reducing recidivism in Alameda County, but it remains to be seen if the project will be fully implemented and funded over time. O’Malley’s program emerged during election season; she is actively campaigning for reelection next June. White points out that the D.A.’s office must continue to dedicate the resources (such as a full-time Deputy D.A.) necessary to see it succeed. “She’s telling us she wants this to be very serious,” White says, “But do her actions match?”

Seemingly progressive programs and policy initiatives introduced by D.A.s in counties across the country have similarly carried promise, but ultimately fallen through or been little more than window dressing. In Brooklyn, New York, for example, former D.A. Ken Thompson made waves in 2010 when he vowed to stop prosecuting low-level marijuana cases. After his death, his replacement and current D.A. Eric Gonzalez continued the policy. But in practice, low-level marijuana prosecutions fell only from 90 percent to 82 percent between 2010 and 2014, according to a WNYC investigation.

Conviction review units, too, have fallen flat in some jurisdictions. Created with the promise of reevaluating old, questionable cases with the goal of overturning wrongful convictions and freeing innocent people, those efforts have been abandoned or defunded in places like New Orleans. And in Mecklenburg County, North Carolina, a “deferred prosecution program” that would relieve nonviolent offenders of their criminal records has ultimately proven unaffordable for many of its intended participants.

Still, Deputy D.A. von Geldern’s enthusiasm and optimism is palpable. As of October 24, the program had eight participants, and 12 more who “have been identified as candidates” and will be able to participate after they are released from jail. The pilot phase, which goes through the end of 2017, will be open to a total of 29 people. In January, the program aims to serve 150 participants. Of those who sign up, some will be randomly selected to receive the full service, while others will be placed in a control group that will enable funders to measure the project’s efficacy, which will be measured by examining recidivism among participants.

“Eventually this will become a program for everybody, but we need to show in terms of the grant that there’s success,” says von Geldern. “We’re doing this with the idea that this will be a successful way to transform our justice system.”

White of Urban Peace Movement is supportive of the concept of intensive case management, but says he isn’t yet sure how that will actually play out for participants like Ford, and is wary of the possibility that the program will echo traditional probation programs, which are adversarial in nature.

“I want it to be good, and I want it to work for our people,” he says. “We really want to have something that’s culturally competent, and community based.”

Thanks to Burke Butler.

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When “Ambiguity” Can Mean Life in Prison

A Louisiana man’s request for a “lawyer dog” was deemed unclear by the state’s Supreme Court.

When “Ambiguity” Can Mean Life in Prison

A Louisiana man’s request for a “lawyer dog” was deemed unclear by the state’s Supreme Court.

Leaf through the pages of any lawsuit and you’ll likely find an argument of ambiguity. Vagueness and overbreadth are so often at the core of contentious legal disputes, it’s easy to forget that these concepts aren’t just a highfalutin thought experiment for lawyers — claims of ambiguity can and do cost defendants their shot at freedom and constitutional guarantee of fairness.

Such was the case for 24-year-old Warren Demesme of New Orleans, who has been held in pretrial detention since his arrest two years ago. Demesme’s lawyers argue that his constitutional rights were violated when, after his arrest, police ignored his request for a lawyer:

“If y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog, cause this is not what’s up,” Demesme told the police during his interrogation.

On Friday, the Louisiana Supreme Court denied Demesme’s request that the court review a lower court’s finding that this phrase is only an “ambiguous” reference to asking for counsel, and that his rights were not violated. Concurring in the denial of review, Justice Scott Crichton writes that “the defendant’s ambiguous and equivocal reference to a ‘lawyer dog’ does not constitute an invocation of counsel that warrants termination of the interview.”

Demesme is facing charges of first-degree rape and indecent behavior with a juvenile under 13; if convicted at trial of the rape charge, he faces a mandatory life sentence.

Along with a brief flurry of dogs-in-suits memes, the court’s decision unsurprisingly attracted derision from the legal community. David Carroll at the Sixth Amendment Center tells In Justice Today that the decision “shocked” him. Even though Louisiana has a well-documented history of trampling the rights of defendants, particularly poor, black defendants, the court’s claim of alleged ambiguity in the face of a well-known vernacular word — dog — comes across as far-fetched and baldly discriminatory.

As Elie Mystal at Above the Law points out, courts, “even in Louisiana,” are rarely “so obvious about their racial animus.” And any shred of ambiguity in the phrase “just give me a lawyer dog” was introduced by the court’s own dubious omission of a comma between “lawyer” and “dog” in the transcript, Reason’s Ed Krayewski reminds readers.

In spite of the shock, Demesme’s case is a potent reminder that many lower courts tend to err on the side of law enforcement when it comes to claims of ambiguity. In a 2010 dissent in a case examining what constitutes a criminal suspect’s ceding of the Fifth Amendment Miranda right to have counsel present during an interrogation, U.S. Supreme Court Justice Sonia Sotomayor points out this phenomenon.

Numerous lower courts have “erroneously … rejected as ambiguous an array of statements whose meaning might otherwise be thought plain,” writes Sotomayor. In a footnote, she chronicles an array of phrases that lower courts have classified as “ambiguous” when it comes to a suspect invoking the right to have counsel present during an interrogation, ranging from “I don’t even want to, you know what I’m saying, discuss no more about it, man,” to “… if you’re implying that I’ve done it, I wish to not say any more.”

This gray area of legal ambiguity when it comes to arrests and interrogations should come as no surprise. There are many examples of how this process bewilders and criminal suspects; consider the many instances in which defendants have falsely confessed to a crime after hours of interrogation. The vast majority of Americans don’t possess the legal prowess to deftly navigate their arrest and interrogation in a way that protects their rights.

In their attempt to protect themselves while undergoing the stress of being detained by the police, it makes sense that equivocal phrases such as, “I think I need a lawyer,” or “Maybe I should talk to a lawyer,” arise so often. If the Louisiana Supreme Court’s decision is any indication, the courts aren’t eager to make room for defendants when it comes to their confusion — even when as in Demesme’s case, the request for counsel was crystal clear.

Thanks to Josie Duffy Rice.

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