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Transportation rules in Dayton, Ohio are setting people up for jail time

Transportation rules in Dayton, Ohio are setting people up for jail time


On January 16, Markcus Brown was on his way to a job interview when he was approached by a police officer at one of the Regional Transit Authority (RTA) hubs in Dayton, Ohio. Standing next to friends wearing baggy pants and sweatshirts, Brown was asked to show his identification. After declining the request, he was issued a trespass warning that prevented him from returning to the transit center and riding RTA buses for two years. But Brown, who was 20 years old at the time, explained during a recent phone call that he didn’t know he was banned. His signature was also missing from the RTA form that people must sign when they’ve been issued a trespass warning and banned from the premises, according to documents obtained by the Fair Punishment Project.

Allegedly unaware of his status, the 20-year-old went back to the hub in May. Brown was again approached by an officer because “his pants were sagging,” according to an incident report. Once Brown’s name was run through the system, his status was flagged and he was arrested for trespassing.

Brown was locked up in Montgomery County’s jail, where he remained for nine days because he couldn’t pay bail set at $150 (and later increased to $200). With no other option, Brown waited for his mother to scrape together the funds. He told the Fair Punishment Project that during his incarceration, he didn’t get enough food or sleep, shivering in a shared cell each night. Eventually, Brown’s mother was forced to take out a loan to pay for her son’s release.

Not only is Brown’s story a common one, it showcases a wide range of criminal justice issues in Montgomery County: racial profiling by police officers, the perils of privatizing public services, the harsh economic realities of cash bail, and poor jail conditions.

Daniel Durocher, a Montgomery County public defender who represented Brown, says the RTA’s “Rules of the Road” often result in racial profiling that can then lead to an arrest. Although Dayton RTA is the city’s main public transportation system and says it wants to be “a premier public transportation provider that connects people and communities,” it is run by a private corporation that dictates how people should look (“hoodies must be removed upon boarding the bus”) and conduct themselves (“maintain personal hygiene so as not to offend fellow patrons”).

Dayton RTA hires officers from the city police department to patrol its property and enforce its policies. And while people aren’t arrested for violations like wearing baggy pants, swearing, littering, or waiting for the bus for too long (often classified as “loitering”), suspicion of breaking any one of RTA’s rules empowers police to approach them.

“[Officers] start asking questions,” Durocher said. “They use the RTA rules as a means to come into contact with somebody, and once they’re in contact with the person, they’re doing investigative work.” In some instances, police will ask to pat a person down; sometimes they will do so without permission. In effect, law enforcement can use the RTA rules as pretext for their own stop-and-frisk program.

Moreover, during the questioning by police, the wrong answer — or, as in Brown’s case, the unwillingness to answer — can easily set in motion a process that starts with a ban and quickly leads to an arrest for trespassing.

In another case, Durocher recalled, a man was arrested and hauled to jail because the police mistook him for his much younger son. Norman Ferguson, born in 1966, was at the RTA hub when police approached his friend. Ferguson asked the officers why they were talking to her, and the officers ran his name through RTA’s tracking system, Durocher said. Ferguson was flagged as someone who had previously received a trespass warning and been instructed by the company not to come back.

Ferguson remained in jail for 12 days. He ultimately met his court-appointed attorney on the day of his scheduled trial. His lawyer informed the prosecutor that Ferguson’s son, born in 1991, was the one with a trespass warning — not the jailed client.

According to RTA Chief Executive Mark Donaghy, people labeled “trespassers” aren’t detained for long. He also says criminal activity has declined since 2009, when the Rules of the Road were implemented. But according to Durocher, the Ferguson and Brown cases highlight a glaring problem in Montgomery County: trespassing and other types of misdemeanors are contributing to the jail’s overcrowding problem. Judges are setting cash bonds for these minor charges and people like Ferguson and Brown remain in jail because they can’t afford to pay.

“There are so many people being held in jail on nonviolent misdemeanor offenses at any given time,” says Durocher. “That’s a bad use of public resources.”

As a result, those who pose no threat to public safety are languishing in an overpopulated facility riddled with alleged abuses, including racial segregation and the excessive use of force by corrections officials. One video shows a restrained woman pepper-sprayed in the face. In May, a man who did time in 2015 filed a lawsuit that claims he was punched repeatedly and left with a bleeding scalp. He was the ninth person to sue the jail.

Brown was convicted for trespassing in June and sentenced to unsupervised probation. Despite his financial troubles, he was also forced to pay more than $150 in court fees. He’s indefinitely “trespassed,” unable to use public buses for the foreseeable future — a punishment that severely restricts his movement and access to job opportunities. But returning to the hub could mean another three weeks in jail. After taking out a loan and shelling out bail money, his mom is also struggling to get by.

“It really hurt me to know I can’t be able to pay her back without a job,” he told local reporters. “It’s hard.”


Thanks to Jake Sussman.

Bar complaint filed against former MA Assistant Attorneys General in lab scandal

Bar complaint filed against former MA Assistant Attorneys General in lab scandal


Recently, a Massachusetts judge took two former prosecutors to task for attempting to cover-up the extent of a massive lab scandal that called into question thousands of drug convictions in the state.

Today, a lawyer from the Innocence Project and a Northeastern Law Professor took the rare step of filing bar complaints against those lawyers — Kris Foster and Anne Kaczmarek — previously from the Massachusetts Attorney General’s office. They have asked the State Bar to conduct a meaningful investigation into the breadth of the prosecutors’ misconduct, and to sanction them accordingly.

The trouble began in 2013, when law enforcement discovered that Amherst lab chemist Sonja Farak had used drugs daily while at work — drugs she stole from the lab. According to pleadings, she also “mishandled, contaminated, or fraudulently reported” results in lab paperwork. She pleaded guilty in 2014 to ten criminal counts, including illegal possession, tampering, and theft of narcotics from the lab.

At the time, defense attorneys believed that Farak’s misconduct only dated back to July of 2012 — about four months before her arrest.

That was false. Farak’s malfeasance dated back eight years and affected upwards of 8,000 cases. Foster and Kaczmarek, however, fought to keep the defense lawyers from uncovering this fact. Kaczmarek knew Farak’s misconduct began earlier, but decided not to turn over that exculpatory material to defense lawyers. And although the extent of Farak’s misconduct was apparent in police files, Foster didn’t review them. She did, however,repeatedly tell the court she had done so. Moreover, encouraged by Kaczmarek, she represented that nothing in those files was relevant to any of the defendants’ claims. This false statement meant defense lawyers remained unaware that their clients might have valid claims for new trials. Foster also accused the defense lawyers of engaging in a “fishing expedition.”

It was not until a year later that defense counsel learned that their clients had meritorious claims and should have their drug convictions vacated.

In June of this year, Superior Court Judge Carey lambasted the prosecutors in a written opinion. As described in a previous blog post, Carey ruled that the AG’s office engaged in “intentional, repeated, prolonged and deceptive withholding of evidence from defendants,” behavior that was “egregious and harmful to the administration of justice.” And because the two misrepresented facts to the court, Judge Carey accused them of committing a “fraud upon the Court.” He dismissed six of the indictments before him with prejudice — meaning the Commonwealth could not proceed with prosecutions in those cases.

But little else has happened to the prosecutors. Foster is currently the General Counsel for the Alcoholic Beverages Control Commission, where she has considerable responsibility. Kaczmarek is the Assistant Clerk Magistrate for the Suffolk Superior Criminal Clerk’s Office.

Nina Morrison from the Innocence Project and Daniel Medwed from Northeastern Law School hope that will change. They have asked the state bar to investigate their misconduct, alleging that they violated their duty of candor towards the court, fairness towards the opposing party, their obligation to disclose exculpatory evidence as prosecutors, and their obligation to be truthful in statements to others. The two prosecutors “denied justice and due process to thousands of potentially impacts defendants,” Morrison and Medwed allege, “many of whom remain[] incarcerated.”

Morrison and Medwed point out that prosecutors are rarely held responsible for their inappropriate behavior, even where, as here, a court specifically makes a misconduct finding: “[T]he Massachusetts Board of Bar Overseers has a chance to do what most other disciplinary agencies have largely failed to do: hold a government lawyer accountable for egregious misconduct.”

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Baltimore lawmakers are eyeing potentially disastrous mandatory minimum sentences

Baltimore lawmakers are eyeing potentially disastrous mandatory minimum sentences


In response to an increase in violent crime, lawmakers, law enforcement, and various community members in Baltimore, Maryland are considering a plan that has proven ineffective at reducing crime for decades: mandatory minimum sentencing. Under a proposal announced last Friday, people caught in possession of an illegal firearm within 100 yards of a public space— including houses of worship, parks, and schools— would be imprisoned for no less than one year. Parole opportunities would automatically be off the table for offenders, as would sentence suspensions.

The murder rate in the city reached a record high early this year, and police Commissioner Kevin Davis attributes this to people in the streets carrying illegal firearms with the intent to kill. But there is no evidence that mandatory minimums have a meaningful impact.

Going as far back as the 1970s, states that have implemented such penalties have been unable to substantiate that punishment reduces violent crime. New York City is one of the only large U.S. cities with its own mandatory minimum sentencing law for illegal gun possession, but the city’s drastic decline in gun-related homicides beginning in 1990 occurred long before the penalty was implemented.

What mandatory minimums have done, instead of their intended effect, is ravage communities of color. Theoretically, these sentences are race-neutral, because imposing a uniform standard presumably eliminates room for bias during sentencing. And yet black and Latino defendants are hit with charges warranting mandatory minimum sentencing far more often than their white counterparts, who are charged differently or more likely to be diverted to rehabilitative programs.

Greg Newburn, director of state policy for Families Against Mandatory Minimums, a nonpartisan organization that advocates smart sentencing policy, says some studies have shown that gun crimes have dropped slightly when mandatory minimum sentencing goes into effect. But other types of crime will increase. When looking at the big picture of gun violence across the country, there is no one-size fits all solution to the problem.

“Each individual city has its own culture, its own people, history, structure, the relationships between the police and a community,” Newburn told the Fair Punishment Project. “We don’t know why crime has gone up in a lot of these cities, and why it’s gone down in others. To say in the abstract that [mandatory minimums are] the better solution is a fool’s errand.”

Even city council members know what impact Baltimore’s new proposal will have: additional imprisonment for black people in a city with rampant racial profiling by police.

“We know mandatory minimums have been specifically shown to overwhelmingly impact poor black people, and in Baltimore we know that we have an unfortunate abundance of poor black people, particularly poor black men who have already been impacted by mandatory minimums,” said Councilman and Public Safety Committee chairperson Brandon Scott. “We have to figure out how to make sure that those violent repeat offenders who feel comfortable carrying guns are being punished, but at the same time we cannot have things that are going to make things worse when you’re talking about the grand scheme of young poor black people in our city.”

But according to Baltimore criminal defense attorney Jason Downs, “legislators are voting to take an easy way out,” relying on incarceration instead of zooming in on the underlying cause of illegal gun ownership. “Creating different punishments doesn’t solve crime,” he said. That notion is backed by Baltimore public defender Todd Oppenheim, who recently pennedan op-ed slamming the proposal in the Baltimore Sun.

City leaders are already taking new precautions to tackle gun violence. In May, at the request of Mayor Catherine Pugh, federal authorities agreed to donate resources and manpower to the fight. Last September, State’s Attorney Marilyn Mosby created a special team of prosecutors and detectives to focus solely on prosecuting gun crimes to ensure cases don’t fall through the cracks and build more robust cases against offenders. All of these efforts signal that cracking down on repeat gun offenders is a priority.

Adding mandatory minimums to the mix isn’t the answer.

“We should be focused on solving the problem of how do these guns get into the street in the first place,” said Downs. “How are they getting into our city and who is flooding the city with [them]? That’s how you nip a problem in the bud.”

UPDATE: As a crowd of activists protested the bill inside and outside the Baltimore City Council building on Tuesday, a committee unanimously agreed to limit the scope of the legislation. Under the latest version, a mandatory minimum sentence would only be imposed if a defendant was convicted of being in possession of a gun “in connection” with another crime, or was determined to be a second-time offender. Despite the fact that her office created a special team of prosecutors and detectives to focus solely on prosecuting gun crimes, State’s Attorney Marilyn Mosby was absent from the committee hearing and did not provide written testimony on the subject.


Thanks to Josie Duffy Rice.

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