By Kathy Roberts Forde, Associate Professor, Journalism Department, University of Massachusetts Amherst
The press is an essential guardrail of democracy. As The Washington Post tells its readers, “Democracy Dies in Darkness.”
But the press has not always been a champion of democracy.
In the late 19th century, Henry W. Grady, one of the South’s most prominent editors, worked closely with powerful political and business interests to build a white supremacist political economy and social order across Georgia – and the entire South – that lasted well into the 20th century. One of his primary tools was his newspaper, The Atlanta Constitution – which merged with The Atlanta Journal in 2001 to become The Atlanta Journal-Constitution.
My research, a collaboration with Ethan Bakuli and Natalie DiDomenico, undergraduate research partners in the Journalism Department at the University of Massachusetts Amherst, uncovers this history.
The ‘New South’ and racial terror
Grady enraptured white Americans with his speeches and columns about the “New South,” a narrative meant to attract Northern investment in the South’s emerging industrial economy.
“The relations of the Southern people with the negro are close and cordial,” Grady proclaimed in the 1886 New York speech that made him famous.
It was a brazen lie. Many white Americans believed it, or pretended they did, but black editors, journalists and leaders challenged it at every turn.
Grady promoted the New South’s reconciliation with the North, its industrial development and the availability of cheap Southern labor. What’s more, he insisted the “race problem” must be left to the South to resolve.
He meant, of course, the white South.
T. Thomas Fortune, a militant black newspaper editor in New York, would have none of it.
“Mr. Grady appeals to the North to leave the race question to ‘us’ and ‘we’ will settle it,” he wrote. “So we will; but the we Mr. Grady had ‘in his mind’s eye’ will not be permitted to settle it alone. Not by any means, Mr. Grady. Not only the White we, but the Colored we as well, will demand a share in that settlement.”
Grady didn’t listen. Instead, he explained to adoring white crowds why the South was committed to one-party rule: to deprive black men of electoral power.
In 1889, the year he died unexpectedly at 39, Grady told a crowd at the Texas State Fair, “The supremacy of the white race of the South must be maintained forever, and the domination of the negro race resisted at all points and at all hazards – because the white race is the superior race.”
The pioneering black journalist Ida B. Wells understood his meaning. In “Southern Horrors,” a pamphlet that documented lynching and the all-too-frequent collaboration of the white Southern press, Wells drew a straight line from Henry Grady’s New South ideology to the white South’s practice of racial terror:
“Henry W. Grady in his well-remembered speeches in New England and New York pictured the Afro-American as incapable of self-government. Through him … the cry of the South to the country has been ‘Hands off! Leave us to solve our problem.’ To the Afro-American the South says, ‘the white man must and will rule.’ There is little difference between the Antebellum South and the New South.”
Under Grady’s editorial guidance, the Constitution wrote about lynching with disturbing levity, condoning and even encouraging it. One headline read “The Triple Trapeze: Three Negroes Hung to a Limb of a Tree.” Another rhymed “Two Minutes to Pray Before a Rope Dislocated Their Vertebrae.”
Yet another headline read: “Lynching Too Good For the Black Miscreant Who Assaulted Mrs. Bush: He Will Be Lynched.” And appallingly, the man was lynched. Today, his name – Reuben Hudson – appears on the National Memorial for Peace and Justice, a monument in Montgomery, Alabama, for victims of “racial terror lynchings.”
Some historians have called Grady a racial moderate for his time and place, but his own words suggest he was comfortable with racial violence.
Well before he became managing editor and part owner of the Constitution, Grady addressed an editorial in the Rome Commercial, a Georgia newspaper he edited early in his career, to his “friends” and “brothers” in the “Ku Klux Klan.”
“The strength and power of any secret organization rests in the attribute of mystery and hidden force,” he wrote. Its members “can be called together by a tiny signal, and when the work is done, can melt away into shadowy nothing.”
Convict labor in the ‘New South’
Lynching was not the only white tool of racial terror and control in the South. Another was the convict lease, which, along with lynching, Wells termed the “twin infamies” of the region.
Grady’s New South promise of cheap labor for industrialists was fulfilled in part by convict leasing – a penal system targeting black men, women and even children, who were routinely arrested for vagrancy, minor offenses and trumped up charges. Once convicted, victims were leased to private companies to serve their sentences working in coal mines, laying railroad tracks and making bricks.
Horrors awaited in these private labor camps: shackles, chains, rancid food, disease, filthy bedding, work from sunup to sundown and tortures like the “sweat box,” flogging, hanging by the thumbs, a water treatment akin to waterboarding and rape. Convicts were killed during escape attempts, in mine explosions and railroad accidents and by sadistic camp bosses.
Grady knew the convict lease system well. His newspaper reported on it frequently, as I discovered by reading material in his personal archive at Emory University and contemporaneous issues of the Constitution.
What’s more, from 1880 to his death in 1889, Grady served as kingmaker for a group of white supremacist Democrats – variously termed the “Atlanta Ring” and the “Bourbon Triumvirate” – who enriched themselves by leasing convicts from the state to work in their private businesses.
In an era of machine politics and a press aligned with political parties, Grady proved a master of both.
Using the Constitution as a tool of public influence, Grady helped appoint or elect Joseph E. Brown to the U.S. Senate (1880-1890), Alfred H. Colquitt to the governorship (1880-1882) and U.S. Senate (1883-1894), and John B. Gordon to the governorship (1886-1890).
Brown made a fortune working convicts at his Dade Coal Mines, where Colquitt was a major investor. Gordon worked convicts on his plantation and subleased others to companies and farmers.
In 1886, Grady sent a Constitution reporter to cover a rebellion at Brown’s coal mines. The prisoners were “ready to die, and would as soon be dead as to live in torture,” one convict said. The governor ordered the convicts starved into submission, and Grady’s reporter witnessed the flogging that followed their surrender. He called it “a special matinee” in his news report.
Black Georgians protested their powerful white neighbors profiteering off forced black labor. William White, editor of the black newspaper the Georgia Baptist, put it plainly: “The fortunes of many a prominent white Georgia family [are] red with the blood and sweat of Black men.”
Grady may have been a pioneering journalist, but his journalism served profoundly anti-democratic purposes.
The University of Georgia’s journalism school is named for Grady – a fitting namesake, it was recently said, because of Grady’s “work in uniting the country, not dividing the country.”
Grady may have united Southern and Northern whites, but he did not unite the country. Rather, he excluded black Americans from the union of North and South and the national democratic project that union represented.
The Grady College motto is “We Are Grady.” Thomas Fortune might well have asked Grady who he would include in that “we.”
Before the law was passed, California had no minimum age for sending children to juvenile court – and that’s still true of most states. That means that in many places, children as young as six, for example, can be arrested and detained.
In Texas, Mississippi, Kansas, Colorado and other states, the minimum age is 10. Many California state legislators believe that setting a higher standard, 12 years old, will protect younger children from the dangers that come with juvenile detention. And, given that California’s juvenile justice system houses the largest number of youth in the United States and even the world, their stance may influence how other states set their standards for criminal responsibility.
I am a doctoral student studying neuroscience at UCLA. In my lab, we are examining how time spent confined in juvenile facilities affects brain development and behavior. To do so, we study a range of experiences kids encounter when confined, from the good – increased daily structure – to the terrible – assault by other youth and staff. Our study is just beginning, but previous research has shown that the majority of youth experience abuse while confined and show structural brain changes similar to individuals who have experienced lifetime trauma exposure.
What happens in juvenile detention?
Juvenile facilities function as prisons for youth. The key difference between adult prisons and juvenile facilities is that the latter advocate for rehabilitation.
That’s because young people, usually until their mid- to late 20’s, have brains that are still developing and so have the capacity for change – what scientists often refer to as “plasticity.”
Every year, over 1.3 million youth in the U.S. are arrested and 60 percent face confinement for offenses neither violent or sexual in nature, such as probation violation, status offense, drug offense or property crime.
Rehabilitative efforts can include behavior management, writing classes, religious services and even training on how to manage finances.
Despite these efforts, the experience of being detained appears to have overwhelmingly negative consequences for young people.
Research shows that the more youth are involved with the juvenile justice system – from arrest to detainment to transfer to an adult court – the higher their chances are of early death, specifically a violent one. Going to juvenile detention also increases risk for poorer life outcomes in terms of educational attainment, relationships and gainful employment. At this point, these relationships are only correlational, but have been demonstrated across many large studies.
The physical environment inside juvenile detention facilities has an industrial feel, with limited natural light. They are surrounded by chain-linked fences topped with barbed wire.
Once inside, youth are rarely in contact with their support systems, whether that be family, friends or other individuals. While some youth may have been removed from abusive situations at home, the high-threat environment of secure juvenile facilities is far from a rehabilitation-oriented setting.
Maltreatment has been documented in youth detention facilities in most states. According to one survey, about 42 percent of youth in detention are afraid of being physically attacked, 45 percent report unneeded use of force by staff and 30 percent state that staff use isolation as discipline. Isolation, particularly during development, comes with a range of negative physiological and psychological reactions and is associated with the development of mood disorders, like depression and anxiety, and psychosis.
Under such stressful conditions, even young brains would have a difficult time learning or growing. To make matters worse, most youth in the juvenile justice system have experienced early life trauma like abuse and neglect, which can compound the negative effects of these already detrimental experiences.
No ‘magic number’
The clinicians and academics who wrote a policy brief on the California bill cite developmental research, court decisions on youth sentencing and international standards on juvenile justice as the reasons to adopt the age of 12 as the minimum age at which children can be sent to juvenile detention.
However, there is no strong evidence that setting 12 as the lowest age for sending children to detention will provide major benefits. Among these sources cited by the clinicians and academics, the only specific reference to the age of 12 is from international standards set forth by the United Nations Committee on the Rights of the Child.
In 2007, the committee announced 12 as the absolute minimum age of criminal responsibility, but at the same time strongly advocated for higher ages, like 14 or 16. At the time, research investigating brain development in youth was still emerging. Now, more than 10 years later, we know that experiences during all of adolescence tremendously impact brain development and behavior into adulthood.
While a systemic overhaul would be needed to address the current conditions of juvenile confinement, existing diversion programs are an avenue to affect youth of all ages. One such program is the Juvenile Detention Alternatives Initiative, founded by the Annie E. Casey Foundation more than 25 years ago.
The initiative monitors the treatment of youth in secure detention facilities and diverts youth or limits time spent confined. The initiative is implemented in over 300 counties nationwide.
Instead of placing young people in detention facilities, these initiatives promote confining them in their homes, in shelters and reporting centers. This approach has been shown to lower the number of times the youth commit crimes again – a large feat given that 70 to 80 percent of youth involved in the juvenile justice system traditionally face rearrest within three years of their release.
Rather than focusing on a specific age for juvenile detention, I believe a greater impact would come from ensuring that confinement is truly rehabilitative and developmentally appropriate for all youth.
As a formerly incarcerated person who now is now an endocrinologist and professor at two world-renowned medical institutions – Johns Hopkins Medicine and Howard University College of Medicine – I believe this move is a positive one. People’s prior convictions should not be held against them in their pursuit of higher learning.
While I am enthusiastic about the decision to remove the criminal history question from the Common Application, I also believe more must be done to remove the various barriers that exist between formerly incarcerated individuals such as myself and higher education.
I make this argument not only as a formerly incarcerated person who now teaches aspiring medical doctors, but also as an advocate for people with criminal convictions. The organization I lead – From Prison Cells to PhD – helped push for the change on the Common Application.
My own story stands as a testament to the fact that today’s incarcerated person could become tomorrow’s professor. A person who once sold illegal drugs on the street could become tomorrow’s medical doctor. But this can only happen if such a person, and the many others in similar situations, are given the chance.
There was a time not so long ago when some in the legal system believed I did not deserve a chance. With three felony convictions, I was sentenced to 10 years in prison for drug trafficking as a prior and persistent career criminal. My prosecuting attorney once stated that I had no hope for change.
Today, I am Dr. Stanley Andrisse. As a professor at Johns Hopkins and Howard University, I now help train students who want to be doctors. I’d say that I have changed. Education was transformative.
US incarceration rates the highest
The United States needs to have more of this transformative power of education. The country incarcerates more people and at a higher rate than any other nation in the world. The U.S. accounts for less than 5 percent of the world population but nearly 25 percent of the incarcerated population around the globe.
Roughly 2.2 million people in the United States are essentially locked away in cages. About 1 in 5 of those people are locked up for drug offenses.
I was one of those people in prison not so long ago.
Early life of crime
Growing up in the Ferguson, North St. Louis area, I started selling drugs and getting involved with other crimes at a very young age. I was arrested for the first time at age 14. By age 17, I was moving substantial amounts of drugs across the state of Missouri and the country. By my early 20s, I found myself sitting in front of a judge and facing 20 years to life for drug trafficking charges. The judge sentenced me to 10 years in state prison.
When I stood in front of that judge, school was not really my thing.
Although I was a successful student athlete and received a near full scholarship to play football for Lindenwood University, a Division II college football program, I found it difficult to get out of the drug business. Suffice it to say, there were people in the drug world who wanted me to keep moving drugs. And they made it clear that they would be extremely disappointed if I were to suddenly stop. So I continued. For this reason, I didn’t view my undergraduate college experience the way I view education now.
A 2013 analysis of several studies found that obtaining higher education reduced recidivism – the rate of returning to prison – by 43 percent and was four to five times less costly than re-incarcerating that person. The bottom line is education increases personal income and reduces crime.
Despite these facts, education is woefully lacking among those being held in America’s jails and prisons. Nearly 30 percent of America’s incarcerated – about 690,000 people – are released each year and only 60 percent of those individuals have a GED or high school diploma, compared to 90 percent of the overall of U.S. population over age 25. And less than 3 percent of the people released from incarceration each year have a college degree, compared to 40 percent of the U.S. population.
Rejected by colleges
I had a bachelor’s degree by the time I went to prison but never got the chance to put it to use. Then something tragic happened while I was serving time that prompted me to see the need to further my education. Due to complications of diabetes, my father had his legs amputated. He fell into a coma and lost his battle with Type 2 diabetes. I was devastated. This experience made me want to learn more about how to fight this disease.
While incarcerated, I applied to six biomedical graduate programs. I was rejected from all but one – Saint Louis University. Notably, I had a mentor from Saint Louis University who served on the admission committee. Without that personal connection, I’m not sure I would have ever gotten a second chance.
I finished near the top of my graduate school class, suggesting that I was likely qualified for the programs that rejected me.
Restore Pell grants to incarcerated people
Based on the difficulty I experienced in going from prison to becoming a college professor, I believe there are things that should be done to remove barriers for incarcerated or formerly incarcerated people who wish to pursue higher education.
One of those barriers is cost. When the government removed Pell funding from prisons by issuing the "tough on crime” Law Enforcement Act of 1994, the vast majority of colleges offering courses in prison stopped. Due to the federal ban on receiving Pell grants while incarcerated, most of those serving time are not able to afford to take college courses while in prison. The Obama administration took a step toward trying to restore Pell grants for those in prison with the Second Chance Pell pilot. The program has given over 12,000 incarcerated individuals across the nation the chance to use Pell grants toward college courses in prison.
Through the program, 67 colleges and universities are working with over 100 prisons to provide college courses to the incarcerated.
Under the Trump administration, this program is at-risk of being discontinued at the end of 2018. Historically, some have argued that allowing Pell dollars to be used by those in prison takes precious Pell dollars from people who did not violate the law. However, the current Second Chance Pell pilot funding being directed to prisons, $30 million, accounts for 0.1 percent of the total $28 billion of Pell funding. Even if the program were expanded, based on historical levels, it would still amount to one-half of 1 percent of all Pell funding. This is justified by the impact that Pell dollars would have in prison in terms of reducing recidivism.
Remove questions about drug crimes from federal aid forms
Federal policymakers could increase opportunities by removing Question 23 on the federal student aid form that asks if applicants have been convicted of drug crimes. A 2015 study found that nearly 66 percent of would-be undergraduates who disclosed a conviction on their college application did not finish their application.
Federal student aid applicants likely feel the same discouragement. I felt discouraged myself when I was applying to graduate programs when I came across the question about whether I had ever been convicted of a crime. It made me feel like I was nothing more than a criminal in the eyes of the college gatekeepers.
By Kimberly R. Kras, University of Massachusetts Lowell
A fundamental right of U.S. citizenship is having your voice heard by voting to elect representatives. However, at least 6 million U.S. citizens cannot vote in the United States because they have been convicted of a felony.
Losing the right to vote is among numerous other consequences of being convicted of a crime. This so-called “civil death” suggests that person is considered dead to society. The larger political consequence is a lack of representation in government of a large group of citizens who are largely poor and people of color.
I study the impact of being convicted on individuals and communities. States have a variety of rules and regulations when it comes to voting rights and felony convictions. In some states, when a person is convicted they are barred from voting until they successfully complete prison, probation or parole. But in 12 states, people convicted of felonies are barred from voting for life.
In response to growing concern that these laws disenfranchise large segments of America’s citizens, several states have recently made substantial, yet controversial, changes to voting rights of ex-felons. This may be a growing movement.
In July, the Florida Supreme Court heard arguments in a case about whether laws excluding felons from the right to vote are constitutional. In November, the state will vote on a ballot measure to restore ex-felon’s voting rights automatically upon completion of their sentence.
These decisions will impact a large segment of Florida’s voting-age population and continue to build a strong precedent for other states.
Florida has historically played an important role in American elections. Yet roughly 10 percent of Floridians can’t vote because they have been convicted of felonies. Research suggests that had these Americans been able to cast their vote for president in the 2000 election, Florida would have been a blue state. Studies show that ex-felons largely vote Democrat, and in this case would have made an impact in a presidential election.
That may be true, but research shows that for many ex-felons it’s because they don’t know they can. This means fewer people have input in electing representatives who generally support causes important to them such as rehabilitation for offenders and criminal justice reform.
Crime and the social contract
Some pundits and legal scholars argue that felons should not be eligible to vote because when people commit crime they violate the “social contract.” The social contract is the agreement among citizens to abide by rules and laws for the good of society. This reasoning says that those who break it, say by committing a crime, are no longer entitled to the benefits of the contract, such as political representation.
People who study criminal behavior often say the opposite is true. They argue that restoring voting rights may in fact reinstate the social contract and improve factors that led the individual to commit crime in the first place.
In research I conducted, and headed by professors Beth Huebner and Timothy Bynum, we spoke with people returning from prison about how their felony conviction impacted their life after release. One participant whose name is protected under a confidentiality agreement, stated: “Not being able to vote restricts our voice.”
Another participant stated how his inability to vote about things important to him, like justice reform, meant that other voters might reinforce laws and restrictions that affect him: “Those are usually the people who want to put harsher rules and penalties and categorize everybody the same. I feel that they allow more and more of those laws to be piled on us because we’re not allowed to speak our minds.”
Restoring voting rights signals to all citizens that those who have served their time for a past crime can participate in a key mechanism of civic engagement: voting. Participating in civic life is associated with reductions in recidivism, so an inclusive approach to democracy can only strengthen the political process. That’s because the interests of more Americans, especially those historically silenced, will be heard through their vote.
Ex-felons as citizens
Moreover, research has shown that denying voting rights impacts not just individuals, but also families and entire communities, especially those typically underrepresented in political arenas like people of color and those in poverty. For example, partners of ex-felons are less likely to vote.
Restricting ex-felons from voting really says that, if you have committed a crime in the U.S., you can never be a full citizen again, even after serving punishment. That message suggests that they are always second- or third-class citizens.
But studies have shown that when people are reintegrated meaningfully in our society, the chances that they return to prison are reduced and the public is safer. Without the right to vote, ex-felons have less of a benefit or an interest in contributing positively to our communities. Being fully engaged in your community and having a voice in what happens to you are vital connections to others in the community – connections that can act to reduce crime. Voting rights represent the epitome of what it means to be a U.S. citizen.
New evidence pointed to innocence in the cases of these four Baltimore men, yet prosecutors would only let them go if they agreed to controversial plea deals.
by Megan Rose
Despite new evidence undermining the convictions of at least eight men for violent crimes in both Baltimore City and County over the last two decades, none were exonerated. Instead, they left prison only after agreeing to plea deals with state prosecutors. In each case, the men took either Alford pleas, in which defendants can maintain their innocence for the record, or were given time-served arrangements. With these deals, the defendants were granted their freedom, but gave up the right to clear their names. (Two additional men took similar deals but years later were fully exonerated after more exculpatory evidence was found in the police files.)
ProPublica’s examination of these cases reveals a troubling pattern — one that legal experts say plays out across the country. Persuasive innocence claims were met with refusals by the state’s attorney’s office to reexamine the cases, sometimes despite — or perhaps because of — discoveries of official misconduct. Prosecutors often fought for years to prevent the consideration of any new evidence or the testing of old evidence for DNA. Or they accommodated contrary new facts by stretching their theories of crimes. If the DNA in a rape case, for example, didn’t match the defendant, prosecutors would assert that another unknown assailant was involved, too. When judges ordered new trials or granted writs of innocence, prosecutors started bargaining for plea deals that would maintain the convictions.
Over time, prosecutors have defended their decision to seek deals, claiming in each case that they still believed in the defendants’ guilt. They also argued that given the amount of time passed, the cases would be difficult to retry.
But Michele Nethercott, the head of the Innocence Project Clinic at the University of Baltimore School of Law, said with these cases, “often, the truth doesn’t seem to matter much.”
The white victim identified him 10 weeks after the crime. The victim’s ID of Seward, an 18-year-old black man who had a moustache and goatee at the time of the murder, conflicted with her contemporaneous description after the attack of a clean-shaven assailant. Neither the fingerprints nor biological evidence from the crime matched Seward.
New Evidence Later Discovered
Seward’s employment records as a part-time dog washer, which were discovered 12 years after the trial, showed he’d been at work the day of the shooting. His boss also testified she kept the shop locked and it would have been “impossible” for him to have left.
Fought for the next 19 years, arguing, in turn, that the records weren’t admissible as new evidence and shouldn’t be given any consideration; that they didn’t provide an alibi because no hours were specified; and that they bolstered the case against Seward because the shop was near the victim’s house. One of the prosecutors on the case, John Cox, also told ProPublica that the records’ discovery so long after the trial meant they couldn’t be trusted.
Baltimore County State’s Attorney Scott Shellenberger said recently that because the victim saw her attacker up close, he wasn’t concerned that the case rested on a cross-racial identification. (That type of ID has been shown to be less reliable because people are generally bad at distinguishing facial features of people who aren’t their own race. Of the 351 people exonerated by DNA evidence since 1989, the national Innocence Project found that 41 percent had been convicted on mistaken cross-racial identification.)
How the Deal Happened
Judge said the employment records “thoroughly exculpate[d]” Seward and granted a writ of innocence. The state appealed and eventually lost. “The state’s immediate reaction was to offer a plea,” said Shawn Armbrust, of the Mid-Atlantic Innocence Project and one of Seward’s lawyers.
Shellenberger said that he’d been confident about the case and wanted to go to trial, but the victim didn’t want to testify again. “Keeping something on the record was extremely important to us.”
Why Defendant Agreed to Deal
Seward first turned prosecutors down, but then, as he awaited a new trial, a close friend was stabbed in prison. Seward had nine months before the trial began, so he reconsidered.
Type of Deal: Time served
The Original Case
Based solely on Barnes’ confession made after 31 hours in custody. A largely illiterate 17-year-old with a low IQ and no prior record, Barnes’ police-typed statement conflicted with the evidence in the case in major ways, such as how and where the 15-year-old female victim was killed. And he had an alibi for the time of the murder. (Barnes’ confession also incriminated two others, but no one else was charged.)
New Evidence Later Discovered
In 2009, 37 years after Barnes’ conviction, DNA evidence collected from the victim’s body was tested and excluded him from any sexual assault, further undermining his confession, which had described a violent gang rape that included Barnes and another man ejaculating. The DNA, which only came from one male, also excluded one of the other teenagers implicated in Barnes’ statement.
Prosecutor Sharon Holback said at the time that the state “vehemently and firmly believes that [Barnes] was fairly and properly convicted.” She argued that his confession was sound and that the third person implicated in it must have been the source for the DNA. That man couldn’t be found for comparison testing. (Holback was also the prosecutor who handled the post-conviction hearings in the case of James Thompson, whose rape and murder conviction was undermined by DNA testing, but was offered an Alford plea.)
How the Deal Happened
Judge Yvette Bryant went many months without issuing a ruling on the case, so Barnes’ lawyer took the innocence claims directly to Gregg Bernstein, who recently had been elected as Baltimore City state’s attorney on a reform agenda and had started a conviction integrity unit. The fighting over Barnes’ post-conviction motions had happened under Bernstein’s predecessor, so he had not publicly committed to any position. He was also free of one common concern prosecutors face when dealing with potentially wrong convictions: angry relatives of the victim who don’t want the case to unravel. With Barnes, the victim’s family so believed in his innocence that they had hired a lawyer to defend him.
Bernstein, who said recently that he didn’t recall the case, would concede only that Barnes didn’t deserve to be in prison anymore, seizing on a mistake in sentencing. The judge who had sentenced Barnes had thought wrongly that his only option was life.
Why Defendant Agreed to Deal
Barnes was 57 years old, had been in prison for more than 40 years and was in failing health. “I had to say to him ‘I’m confident in the end we will vindicate you, but it might be 1, 2 years or even 4 to 5 years, and there’s no guarantee,’” said Barnes’ pro bono lawyer, Michael Imbroscio, noting it was “the most difficult conversation I’ve ever had in my 22-year legal career.”
Type of Deal: Time served
The Original Case
A neighbor testified that she saw Griffin before and after the murder with a gun, and a second neighbor, who was 150 feet away, said she heard Griffin make threatening remarks the night of the murder. A set of keys found about 90 feet from the crime scene was connected to Griffin, who lived in the neighborhood.
New Evidence Later Discovered
In 2011, significant evidence was found in the police’s files that had never been given to the defense: three photo lineups in which eyewitnesses failed to identify Griffin and eight witness statements that either incriminated another suspect or contradicted the testimony used to prosecute Griffin.
One eyewitness pointed to Griffin’s picture in the lineup and said that he looked like the suspect, “but it’s not him.” Griffin’s picture was nine years old, so detectives went back to that witness and showed her another array with a current picture. She still did not identify him. Nonetheless, detectives used her description of the suspect to get a search warrant for Griffin’s home — never mentioning that she’d twice failed to pick him out of a photo array. The warrant also cited a neighbor who saw a man with a gun, but left out that he said the man wasn’t Griffin.
“There was pretty powerful evidence of innocence that was buried by the state,” Steve Mercer, Griffin’s attorney, said.
Baltimore City prosecutor Michael Leedy denied that the evidence represented a Constitutional violation. (In 1963, the U.S. Supreme Court declared that the state must turn over all favorable information to the defense in order for a trial to be fair, which has come to be known as the “Brady” requirement.) Leedy wouldn’t agree to a new trial.
How the Deal Happened
When a judge, who called the evidence “earth shattering,” indicated she’d be ordering a new trial, Leedy shifted, saying that although he didn’t believe “there were, in fact, any Brady violations” the allegations were “plausible enough” that he’d “concede to a resentencing on this matter.” This was the “best course,” Leedy said, to “ensure that Mr. Griffin will for the rest of his life remain convicted for the murder of James Wise.”
Leedy also wanted it on record that by accepting the deal Griffin gave up the right to an actual innocence ruling.
Why Defendant Agreed to Deal
Griffin was 61, knew his best years were gone and he might “die in here.” Having spent nearly 31 years in prison, he didn’t have it in him, he said recently, to wait another year-and-a-half for a new trial. But he is now trying to withdraw his deal, so he can clear his name and sue over the Brady violations. Marilyn Mosby, the current state’s attorney who ran in part on a platform of police accountability, is fighting his motion. (Her spokeswoman didn’t respond to multiple requests for comment.) A hearing is set for November.
Type of Deal: Alford plea (exonerated in 2000)
Pettiford, 23 and with a record, was identified as one of two shooters by two eyewitnesses and was tied to the murder weapon by a suspect in a related crime. But at trial, the witnesses said they’d been mistaken and the suspect said he’d lied about the weapon. Late in the trial, prosecutors produced a new witness who identified Pettiford. Pettiford had an alibi and no motive.
According to The Baltimore Sun, before the judge sentenced Pettiford to life plus 20 years, he said: “I don't care if every witness that appeared in the trial — including the detectives — come back here and say it was all a farce and it was all false and it was all wrong. I think justice was done.”
New Evidence Later Discovered
A year later, a separate federal drug investigation led to a different suspect in the murder, who pleaded guilty in federal court and told investigators that Pettiford had nothing to do with the crime.
There was also evidence that had never been given to the defense: a three-page statement from a friend of the victim that said he was the intended target and pointed to the same suspect prosecuted by the feds; a police bulletin that named that same suspect in connection to the murder; a statement from an eyewitness who identified the second shooter as someone the federal prosecutors thought was involved; and a police report naming that second person as a suspect.
Baltimore City prosecutor Nancy Pollack, who had handled the trial, didn’t act on the information federal prosecutors gave her suggesting Pettiford was innocent. Michelle Martz, Pettiford’s lawyer, said she went repeatedly “to beg and plead for [prosecutors at the time] to do something. I was floored the state wouldn’t be more concerned that they might have the wrong guy.”
How the Deal Happened
At the end of a post-conviction hearing, at which a detective revealed the existence of the three-page statement implicating someone else, the judge ordered Pollack to turn over everything in her files. Pollack agreed to a new trial and offered the plea.
Why Defendant Agreed to Deal
Pettiford, scared of what the prosecutors might do during a second round, had only one question: “Do I have to go back to prison if I take it?” He accepted the Alford plea, walked down the courthouse steps and into his family’s waiting car.
How He Was Later Exonerated
A year after the Alford plea, The Baltimore Sun newspaper exposed that the state had suppressed even more evidence and that a detective had misled the defense. In response, the judge vacated the Alford plea, saying it had been “a miscarriage of justice,” and the state declined to prosecute again. Pollack, who declined to comment, had already resigned, but the Baltimore Police Department found that the detective did nothing wrong. That detective was also named in a lawsuit filed by Sabein Burgess, who was wrongfully convicted in 1995 and exonerated in 2014.
A case in Baltimore — in which two men were convicted of the same murder and cleared by DNA 20 years later — shows how far prosecutors will go to preserve a conviction.
by Megan Rose
On Oct. 15, 2008, James Owens shuffled, head high despite his shackles, into a Baltimore courtroom, eager for his new trial to begin. Two decades into a life sentence, he would finally have his chance to prove what he’d been saying all along: The state had the wrong man.
Owens had been convicted of murdering a 24-year-old college student, who was found raped and stabbed in her home. Then he’d been shunted off to state prison until DNA testing — the scientific marvel that he’d watched for years free other men — finally caught up with his case in 2006. The semen that had been found inside the victim wasn’t his. A Maryland court tossed his conviction and granted Owens a rare do-over trial.
State prosecutors balked, insisting they still had enough evidence to keep Owens locked away and vowed to retry him. But they had also offered him an unusual deal. He could guarantee his immediate release from prison with no retrial and no danger of a new conviction — if he’d agree to plead guilty. The deal, known as an Alford plea, came with what seemed like an additional carrot: Despite pleading guilty, the Alford plea would allow Owens to say on the record that he was innocent. The Alford plea was an enticing chance for Owens, by then 43, to move on as a free man. But he’d give up a chance at exoneration. To the world, and legally, he’d still be a killer.
Owens refused the deal. He told his lawyer he wanted to clear his name, and he was willing to take his chances in court and wait in prison however long it took for a new trial to begin. It was a startling choice for an incarcerated defendant — even those with persuasive stories of innocence typically don’t trust the system enough to roll the dice again with 12 jurors or an appellate court. Most defendants, lawyers say, instinctively and rationally, grab any deal they can to win their freedom back.
The decision cost Owens 16 more months behind bars. Then, on that fall day in 2008, when the trial was set to begin, the prosecutor stood and, without a glance at Owens, told the judge, “The state declines to prosecute.”
In a legal gamble in which the prosecution typically holds the winning cards, Owens had called the state’s bluff. He walked out that day exonerated — and with the right to sue the state for the 21 years he spent wrongly imprisoned.
It seemed the ultimate victory in a city like Baltimore, with its deeply rooted and often justified mistrust of police and prosecutors. But Owens wasn’t the only man convicted of murdering that 24-year-old college student. Another white Baltimore man, James Thompson, had also been put away for life. Tests showed that his DNA didn’t match the semen either, but the state’s attorney’s office refused to drop the charges. Instead, as it had with Owens, it offered Thompson an Alford plea. Thompson grabbed the deal and walked out of prison a convicted murderer.
Same crime. Same evidence. Very different endings.
Ever since DNA ushered in a new era in criminal justice, even the toughest law-and-order advocates have come to acknowledge a hard truth: Sometimes innocent people are locked away for crimes they didn’t commit. Less widely understood is just how reluctant the system is to righting those wrongs.
Courts only assess guilt or innocence before a conviction. After that, appellate courts focus solely on fairness. Did everyone follow the rules and live up to their duties? Getting a re-hearing of the facts is a monumental, often decades-long quest through a legal thicket. Most defendants never get to start the process, let alone win. Even newly discovered evidence is not enough in many cases to prompt a review. And, for the tiny percentage of defendants who get one, the prosecutors still have the advantage: They have final discretion about whether to press charges and how severe they’ll be. Powerful influence over the pace of a case, the sentence and bail. And, compared with an incarcerated defendant, vast resources.
No one tracks how often the wrongly convicted are pressured to accept plea deals in lieu of exonerations. But in Baltimore City and County alone — two separate jurisdictions with their own state’s attorneys — ProPublica identified at least 10 cases in the last 19 years in which defendants with viable innocence claims ended up signing Alford pleas or time-served deals. In each case, exculpatory evidence was uncovered, persuasive enough to garner new trials, evidentiary hearings or writs of actual innocence. Prosecutors defend the original convictions, arguing, then and now, that the deals were made for valid reasons — such as the death of a key witness or a victim’s unwillingness to weather a retrial. The current state’s attorney in Baltimore County, Scott Schellenberger, said that “prosecutors take their oath to get it right very seriously” and wouldn’t stand in the way of exoneration if the facts called for it.
The menace of such deals, though, is clear: At worst, innocent people are stigmatized and unable to sue the state for false imprisonment, prosecutors keep unearned wins on their case records and those of the department, and no one re-investigates the crime — the real suspect is never brought to justice.
The plea deals ProPublica examined in Baltimore City involved two prior state’s attorneys. A spokeswoman for Marilyn Mosby, the current chief, didn’t respond to numerous requests for comment or for interviews with prosecutors in those cases.
The pleas in two of these Baltimore cases were later overturned after misconduct was uncovered in the original convictions, and the men won full exonerations. One, Walter Lomax, a black man convicted by an all-white jury shortly after the 1968 race riots in the city, served 38 years of a life sentence before taking a time-served deal in 2006. The state didn’t concede he was innocent until 2014.
Wrongful convictions are bad enough, Lomax said, but they’re even more “horrible when it becomes obvious the person is innocent and the state won’t at the very least acknowledge that.”
Some legal and cognitive science experts suggest that once detectives and prosecutors commit to a suspect and a theory of the crime, it changes how they evaluate evidence, and then the system itself exacerbates that focus at every step. Prosecutors are rewarded for proving and defending their theories, leaving little incentive to acknowledge weaknesses in cases, particularly in high-stakes crimes such as rape and murder. This mind-set is bolstered by one of the great positives of the system, one which legal experts, even those dedicated to exposing wrongful convictions, acknowledge: Prosecutors generally get it right.
Psychologists have a myriad of terms for the powerful, largely subconscious biases at play, but most people would call the collective phenomenon “tunnel vision.”
Wrongful convictions involving violent crimes typically involve poor, often minority defendants, sometimes with limited education or IQs, who are convicted on scant evidence or flawed forensics. The cases are fueled by an early theory of the crime that relentlessly drives the investigation and prosecution — even, in some cases, to official misconduct.
“At some point psychologically, you go from figuring out what happened to figuring out how to prove it happened the way you said it did,” Barbara O’Brien, a law professor involved with the National Registry of Exonerations at the University of Michigan, said. “It’s very difficult to take a step back from that.”
Marty Stroud, a former Louisiana prosecutor, made national headlines in 2015 when he penned a rare public apology for putting an innocent man on death row for 31 years. He told me recently that the system comes down hardest on those without the means to defend themselves. “It’s easy to prosecute those people and put them away and not think twice about it because no one is speaking for them,” he said.
The certitude of detectives and prosecutors hardens when their theory is validated by a judge or jury, and later, by an appellate court. Time, instead of allowing for fresh eyes, often makes biases worse. When a defendant like Owens gets a new hearing, the district or state’s attorney’s office — long committed to his guilt — has to re-justify that decision.
If they admit they got it wrong, prosecutors have to accept that a person was robbed of years of his life, the real perpetrator was never found, the victim’s family was let down, and, to top it off, they now have a cold case that’s unlikely to be solved. With the Alford plea, not only is the real perpetrator not caught but the case is officially closed on the books. It also dings their won-loss record on typically high-profile cases. The idea of a wrongful conviction, Stroud said, assaults a prosecutor’s sense of identity that “we’re the good guys. We have the white hats and are putting the bad guys in jail.”
Exonerations are also like a Pandora’s box in two important and unsettling ways. First, looking closely at why wrongful convictions happen — even in cases when everyone worked in good faith — could force a reckoning about deeply held beliefs on what is required to solve and punish crimes. False confessions, for example, often are a result of time-honored, and perfectly legal, tactics to soften up a suspect, such as lying or conducting questioning in the dead of night, said Steven Drizin, the former director of Northwestern University’s Center on Wrongful Convictions. When wrongful convictions are a result of misconduct, there could be a string of other bad convictions connected to that prosecutor or detective.
It’s no coincidence, many defense lawyers across the country say, that when misconduct comes up, prosecutors are quicker to propose an Alford plea or similar deal, effectively quashing any further inquiry into the behavior. One ACLU attorney told me about a galling Alabama case in which prosecutors insisted they would re-seek the death penalty, and it was “only because we were continuing to expose prosecutorial misconduct that they finally agreed to settle the case.”
On a muggy August evening in 1987, police officers swarmed a block of squat brick rowhouses in a mostly white, working-class neighborhood in southeast Baltimore. A young woman had been raped, strangled with a sock and stabbed to death in her second-floor bedroom. Detective Thomas Pellegrini, who’d been assigned to homicide only the year before and, who, by his own admission, was green enough not to sweat the details, caught the case as lead detective. He was assisted by Detective Gary Dunnigan and the squad’s boss, Sgt. Jay Landsman. The trio would become famous a few years later when David Simon heralded them in his book “Homicide: A Year on the Killing Streets” and on the subsequent prime-time TV show it inspired.
The next morning, the neighborhood reverberated with the choppy drone of police helicopters circling overhead. Thompson, a gas station attendant who’d suffered a brain injury in childhood, lived down the street with his wife and their two young boys. He’d heard detectives were looking for a knife and offering a $1,000 reward. It seemed a prime opportunity for a quick buck. The short, stocky 27-year-old wandered over to the yellow police tape and handed Pellegrini a large switchblade. Thompson said he’d found the bloody weapon in the grass the night before, pocketed it, and cleaned it at home — somehow unaware of the massive overnight police presence. At Pellegrini’s urging, he fetched a pair of cut-off jeans he said he’d been wearing at the time, which had a small bloodstain on the back right pocket.
Forensics showed a possible presence of blood or other unknown substance on a small area of the knife and no evidence to suggest it was used in a violent struggle, such as a broken tip from hitting bone. The detectives moved forward on the assumption it was the murder weapon.
Two days later, rather than being thanked and handed the reward money, Thompson found himself under suspicion. In a panic, he fingered Owens. The two had been casual friends, but they’d had a falling out over accusations of theft when they’d briefly worked together at the gas station. In a thoughtless burst of vengeance, Thompson gave an official statement at the police station; he said the knife was actually his but claimed Owens had stolen it and then told him where to find it the day after the murder. Thompson noticed the detectives ate up everything and realized they had nothing else to go on. At the time, there seemed to be no risk in just making it up as he went along. After he retrieved the knife, Thompson told detectives, Owens washed it in the kitchen sink. Thompson didn’t give the police any details about the murder, but he said Owens had told him he’d had sex with the victim.
Owens, 22 at the time, was arrested and charged with burglary, rape and first-degree murder. In just 72 hours, the detectives had closed the case. There was no forensic evidence, motive or eyewitnesses linking Owens to the crime. Landsman and Pellegrini would later say they had believed at the time that without Thompson, Owens would walk. Even the prosecutor, Marvin “Sam” Brave, said he viewed Thompson’s story as “implausible” and didn’t think he had the truth, but he nevertheless pressed charges.
Brave recently told me that “if you think you’ve got the right guy, but not that you can necessarily prove it beyond reasonable doubt, it doesn’t mean you don’t go forward.”
When Owens’ trial began in February 1988, Thompson was the star witness. He’d considered coming clean several times but was afraid he’d be sent to jail. He’d lied to the cops during a previous encounter and had been arrested for making a false police report. Despite that history, the detectives in this case had made him feel like a hero. Pellegrini didn’t think Thompson was “the sharpest pencil in the box,” but at that point in his career, he said in a recent deposition, he thought only suspects would lie to him. Brave also was unconcerned. “If the part that you think he is telling the truth [about] contributes to your case, you use it,” he said. “He doesn’t have to be telling the truth about everything.” The rest of the case relied mainly on minor scratches Owens, a factory worker, had on his arm and a spot of possible blood that had been swabbed from his hand. Two jailhouse snitches who’d been Owens’ cellmates while he awaited trial claimed he had separately confessed to them, though the story Owens purportedly told them contradicted the version Thompson had given police.
In his opening statement, Brave told the jury that any notion that police had “bungled the investigation” and the defendant was innocent was from the fantastical realm of television. But Brave was concerned enough about Thompson’s story that he took him aside the morning of his testimony and warned he was going to “look silly” and it was time he “told us the truth about how that knife really got back into his possession,” according to testimony Brave later gave about the conversation. He even assured Thompson he wouldn’t be prosecuted for making a false statement.
When Thompson took the stand, he told the jury he’d had a “heart to heart” with the prosecutor and was “ready to tell the truth.” In this new version of events — which Brave described later as “sellable” to a jury — Thompson said that around 8 a.m. the morning after the murder, Owens had come by his house and given him the bloody knife. Except this story, too, was a lie. As one of the detectives noted to Brave afterward, Owens’ boss had told police he’d been at work by that point in the morning. “The more I tried to fix things to go in my favor, the bigger hole I dug for myself,” Thompson told me recently.
That Friday Brave went home “really worried about the case,” and stewed over the weekend that he was on “a sinking ship.” Late Sunday evening, he met with Pellegrini and told him to take blood and hair samples from Thompson for testing to exclude him as a suspect and bolster his credibility as a witness. Brave already knew the pubic hairs found on the victim didn’t match Owens. Neither did saliva on a cigarette found at the scene.
During a lunch break at trial the next day, Brave and the three detectives met with the city’s forensics expert who, they said, told them the hair was a match to Thompson. Detectives brought Thompson in, read him his rights, and told him “he was in a lot of trouble” and might be charged. His hair, Landsman told him, had been found in the victim’s house. Thompson later contended he knew this couldn’t possibly be true — he hadn’t been there at all. But at the time, he said, he was scared and thought if he just said what pleased the detectives and got Owens convicted, he’d be alright.
Like an actor doing take after take to accommodate the wishes of a director, Thompson went through several more versions about what supposedly happened, adjusting his story to reflect additional pieces of evidence the detectives told him about. Thompson first said he broke into the house but didn’t go upstairs. After the detectives told him his hair had been found on the second floor, Thompson then said he did go upstairs but hid in the bathroom while Owens attacked the victim after she unexpectedly came home. Detectives then told him his pubic hair had been found on the victim’s buttocks, suggesting his pants must have been down. After several hours of this back and forth, Landsman went to the courtroom and handed Brave a note, saying Thompson had admitted to burglarizing the house with Owens.
Thompson was taken directly from the interrogation room to the witness stand to testify a second time. Now, speaking so softly at first that the judge twice had to tell him to raise his voice, Thompson said he and Owens had broken into the apartment to steal jewelry, and Owens attacked the victim when she came home unexpectedly. Then, while Owens raped her, Thompson testified that he masturbated over her back — his newly concocted explanation for how the pubic hair the state claimed was his had ended up on the victim. Owens, Thompson said, then stabbed her and threw the knife on the ground, which Thompson picked up on the way out.
This was, unbeknownst to Owens or his lawyer, Thompson’s eighth version of events — the one that satisfied the officers that they had enough “to get James Owens,” as one detective later put it.
Even on the stand implicating himself in the crime, with both Brave and Owens’ lawyer stressing charges he might face, Thompson said the full ramifications of his lies didn’t dawn on him. He thought he’d be fine once the trial was over.
“I never hurt anyone. I never touched that young lady,” Thompson said again and again on the stand, adding at one point that he’d take a polygraph to “prove my innocence on that particular behalf.”
Owens was convicted of the burglary and the murder but found not guilty of the rape. Thompson’s changing stories had cast enough doubt that Brave acknowledged in his closing argument that either man could have committed the rape. Thompson, who had been arrested right after testifying and immediately recanted his confession, was later convicted of burglary, rape and murder. Thompson’s multiple different stories of the crime had been accepted as truth, but his multiple attempts to protest his innocence were taken as lies.
Both men were sentenced to life without parole. Owens was the first in Maryland to receive such a punishment.
Owens never resigned himself to his fate. A few years into his sentence, he read about DNA in a magazine and implored everyone he could think of to test the evidence in his case. He eagerly conferred over coffee with Kirk Bloodsworth, the inmate across the hall, then cheered Bloodsworth’s exoneration by DNA in 1993, the first of its kind in the nation involving a death sentence. Shaking Bloodsworth’s hand when he left prison, Owens thought, “Man, one day I’ll be out there.” Then the O.J. Simpson trial introduced him to Barry Scheck, the founder of the Innocence Project, and Owens sent his office a letter. Shunned by his family and cut off from the way most convicts got cash, he traded chicken sandwiches from his kitchen job for stamps to mail it. Still, no one took up the cause. The semen found in the victim and the blood on Thompson’s shorts sat undisturbed in the Baltimore medical examiner’s office for 19 years.
Finally, after a special division within the Maryland public defender’s office became interested, he got a new lawyer and a hearing. A judge ordered DNA testing in 2006 — over the objections of prosecutors — and the results dismantled the state’s theory of the crime. At both trials, the state had argued that the break-in, the rape and the murder were inextricably linked. At Owens’s trial, the prosecutor told the jury Owens had leered at the victim as she sunbathed and “decided that he wanted her.” He broke into her house, laid in wait for her to return, raped her, strangled her and “for good measure … mutilate[d] her with multiple stab wounds.” The prosecution doubled down on this narrative at Thompson’s trial, telling the jury he and Owens “had to humiliate [the victim] by taking turns raping her.” And the blood on the back pocket of Thompson’s shorts, the prosecutor said, was definitively the victim’s.
DNA proved most of those arguments false. The semen found in the victim didn’t come from Owens or Thompson, and the blood on the shorts wasn’t even from a woman. It was Thompson’s own. When Owens heard the news at Jessup Correctional Institution, just southwest of Baltimore, he sat on the floor of his cell and cried.
The Baltimore City State’s Attorney’s Office was unmoved. Prosecutors fought both Thompson and Owens as the two separately sought to have their convictions overturned.
Owens’ case moved faster through the courts. His new attorney was Stephen Mercer, a Maryland defense attorney with an earnestness that had survived more than 20 years in the trenches. Mercer knew the state, with its evidence decimated, was going to push for a deal. He fumed that prosecutors were using psychological warfare to do it — opposing bail and slowing the case, so Owens would spend more time on the inside thinking about being on the outside. Owens’ evidentiary hearing was moved from January to March to May. Only then, nine months after the DNA showed Owens wasn’t the rapist, did the state agree to a new trial while insisting that Owens was still guilty of murder.
The state’s attorney’s office, run at the time by Patricia Jessamy, argued that the rape was immaterial to the murder, and, a spokeswoman said, the DNA evidence was “trivial.” Mark Cohen, the new prosecutor, told Mercer that other evidence in the case, including Thompson’s confession and the testimony of jailhouse informants, was still persuasive. (Jessamy didn’t respond to several phone messages requesting comment and Cohen has since died.)
Mercer said the prosecutor’s stance was “very cynical. It really seemed that the desire to keep the conviction was for reasons that had nothing to do with the evidence.” The state’s guiding star, Mercer knew, was a rigid belief that what was long ago decided by a jury, and upheld by an appellate court, shouldn’t be continually second-guessed.
In Owens’ case, it wasn’t just the semen and the blood that didn’t hold up 20 years later. The type of hair analysis done on the pubic hair had subsequently been dismissed as junk science. The hair, along with the knife, had been destroyed. But the state’s own expert, who’d inspected the hair at the time of the original trials, said at a hearing that the scientific community no longer does a visual hair comparison to “draw the conclusions we drew back in 1988 with a microscope.” Now analysts use DNA analysis.
Not long after Owens was granted a new trial in May 2007, Cohen proposed a deal. It wasn’t surprising. The plea bargain is the lifeblood of the overburdened criminal-justice system. About 95 percent of cases never go before a jury. Instead, most defendants agree to plead guilty in exchange for lesser sentences. In cases like Owens’, in which new evidence undermines old, legal advocates question whether incarcerated defendants should even be offered a plea. In every case, prosecutors “need to really inspect their own motivations,” Thiru Vignarajah, a former federal and Baltimore City prosecutor who later served as deputy attorney general of Maryland, said. “Are they offering a plea or time served because that’s in the best interest of the case, or are they allowing some institutional interest of preserving the conviction to trump a prosecutor’s duty to seek justice?”
A year before Owens’ retrial, Jessamy’s office had convinced another defendant to take an Alford plea. Locked up for 20 years, that defendant had at first refused a deal after he, too, was granted a new trial because of DNA evidence. As the trial was set to begin, the prosecution requested a postponement. When the state again delayed the subsequent trial date, the defendant broke down. He accepted the plea.
Afterward, Jessamy’s spokeswoman scoffed at the defendant in a news story, saying it was “inconceivable” that after 20 years the defendant couldn’t wait a little longer, and “if he truly believes he is innocent, he should have gone to trial to see that justice is served.”
As Owens’ trial got closer, Cohen kept sweetening the deal, knocking down the charge and requiring less probation. Finally, they offered Owens an Alford plea for second-degree murder, time served and no probation. Mercer lost sleep over whether Owens should take it. A trial was risky and a chance at guaranteed freedom was rare for any defendant. Owens repeatedly asked himself: “Why are they doing this to me? Why should I have to plead guilty to something I didn’t do?” Now mostly bald and with a moustache, he’d grown up in the foster care system. He’d been viciously attacked while in prison. He didn’t have much to hold onto except his resolute insistence from day one that he was innocent. He wasn’t about to “admit there was sufficient evidence to convict him while playing this wink-and-nod game that he was claiming his innocence,” Mercer said. So the Alford plea, like all the others Mercer had passed to Owens through the Plexiglass, was flatly rejected: “Mr. Mercer, there is no way. I am going to trial.”
Cohen, suspicious that the deal hadn’t been properly relayed, had Owens and Mercer join him for a bench conference, so that the Alford plea could be offered in front of the judge. “I’m not taking nothing, dude,” Owens recalled saying. “I will die in the penitentiary if I have to.”
In October 2008, Owens was vindicated. Cohen was forced to tell the court he didn’t have the goods for a retrial. Owens stepped out of prison free for the first time in 21 years, telling gathered reporters, “You can’t give me that time back.”
Thompson, meanwhile, was fighting the same battles while incarcerated about 75 miles away at Roxbury Correctional Institution in Hagerstown, Maryland. But in his case, prosecutors were employing a perplexing logic. They’d agreed that the DNA evidence from the semen warranted a new trial for Owens, who had not been convicted of rape, but they refused a new trial for Thompson, who had been.
Thompson, by now gray-haired and hard of hearing, was dismayed. He’d saved the newspaper clipping about the DNA findings, and when he read that Owens had gone free, he was certain he’d be next. He couldn’t understand why the DNA could clear Owens of all charges while it did nothing for him, even though the DNA excluded him as well. But Mercer, who’d picked up Thompson’s case after freeing Owens, did. Thompson had confessed, and that was prosecutorial gold. In Simon’s book about the Baltimore detectives who’d secured Thompson’s confession, he detailed the interrogation tactics they had commonly employed. To get confessions, he wrote, the detective became a “huckster … thieving and silver-tongued,” and without the “chance for a detective to manipulate a suspect’s mind, a lot of bad people would simply go free.”
Poorly understood at the time is that such manipulation can also compel innocent people to agree to whatever the police want. As the U.S. Supreme Court noted in 2009, “a frighteningly high percentage of people … confess to crimes they never committed.” According to the Innocence Project, 28 percent of defendants later exonerated by DNA had falsely confessed.
During the initial trials in 1988, prosecutors had argued that the pubic hair and the blood on the jeans proved Thompson was telling the truth, but in 2009 the Maryland Court of Appeals wrote that the DNA finding “usurps the State’s arguments all together.” In essence this meant none of Thompson’s statements to police or prosecutors throughout the case were corroborated by evidence.
Despite the statistics, convincing a jury that someone would falsely confess to a crime — particularly to something as heinous as a murder or a rape — is incredibly hard. Juries want to believe that people are rational actors, like themselves, with an almost primal instinct toward self-protection. It wouldn’t matter that the state no longer had the evidence to prove it, Mercer knew, a jury would most likely myopically focus on the confession.
Thompson told me he’d been happy for Owens when he was released — he’d always wished he could apologize to him for what he did — but that feeling had faded into self-pity as the calendar went from 2008 to 2009 to 2010 and his case stalled in the courts. Now he was mostly anxious. He just wanted relief, whatever it might be, so when Sharon Holback, the new prosecutor on the case, eventually offered him an Alford plea — 23 years after he’d first fatefully approached police — his excitement overwhelmed his sense of injustice.
Mercer worked to make it the best deal he could. If Thompson took the plea, it meant the state would let him go, but the deal had some risky strings attached. Any charge that carried a life sentence had to come off the table, because in Maryland, a probation violation — even something as relatively minor as a DUI — sends the defendant back to prison to serve the remainder of his sentence. The two sides agreed to second-degree murder, which carries a maximum of 30 years. That way if Thompson violated probation, he’d only have seven and a half years over his head, since he had served more than 22.
Gregg Bernstein, Baltimore City state’s attorney from 2011 to 2015, oversaw at least two similar deals. He couldn’t remember the details but said he’d thought a lot about whether it was okay for an innocent man to take an Alford plea. In the end, he said, most cases lack black-and-white certainty, regardless of evidence suggesting innocence. “It’s not that simple to say yay or nay,” he said. “Pleas are a way to resolve them.”
Former prosecutor Vignarajah, though, told me he wonders if that kind of resolution only looks like a win for everyone on paper. “In reality everyone lost,” he said. “The victim sees no justice. The defendant is walking away with a conviction. And the prosecution didn’t get anyone to take responsibility [for the crime].”
On July 29, 2010, when Thompson left prison under the Alford plea, Holback got the last word: Thompson “is in no way exonerated.”
Since their releases, Thompson and Owens have led dramatically different lives.
Thompson thought he could go back to the person he was almost 23 years earlier, before the murder rap, but society didn’t look at him that way. When he applied for a job, he put a question mark where the form asked if he’d been convicted of a felony.
“I tried to explain I was wrongfully convicted, but people don’t want to hear that,” Thompson said. “There’s no reasoning with somebody. ‘Innocent people do not go to prison’ is just the motto.”
Thompson held onto his freedom for only a little over a year. In October 2011 he was arrested after his ex-girlfriend claimed that he had molested her young daughter. Thompson, who’d recently kicked the girlfriend out of his apartment, denied the charge, saying he’d spanked the girl’s bare butt to discipline her. The state reduced the charges to a misdemeanor for touching the girl’s buttocks and gave him time served for the five months he’d been in jail.
It didn’t end there, though. Because the misdemeanor violated his probation attached to his Alford plea, Thompson went from a local jail to a state prison to serve the remaining seven and a half years.
Mercer said he believes the Alford plea made it very difficult for Thompson to defend himself. “It was a question of credibility,” Mercer said. “Who’s going to believe him? He was stuck having to do damage control.”
Owens has fared better. He has been embraced by what little family he had. He has moved into a cousin’s house and has begun working with him cleaning gutters and doing landscaping. And he has grown close to his nieces and nephews, a bittersweet feeling for someone who’d had no chance to build a family of his own. Owens told me he has tried not to let the anger sink him, but he struggles. His exoneration came without compensation or even an apology. “What’s striking in these cases is a total lack of accountability,” said Michele Nethercott, of the Innocence Project in Baltimore. “Nothing ever really happens” to the police and prosecutors whose actions led to wrongful convictions.
Owens wonders today if his prosecution became all about keeping the win. “Instead of focusing on me and getting me to take a deal for something I didn’t do, they need to focus on the victim. Her murder has never been solved,” he said. “I think they should go back and look and do something for this girl.”
In 2011, Owens found a lawyer, Charles Curlett, to sue Baltimore. Curlett determined that there were several issues of misconduct involved in Owens’ conviction. First, his lawyer had been told nothing of the changing stories Thompson gave the detectives. The information could have been used to undermine Thompson’s credibility and failing to share it was likely a violation of Owens’ due-process rights. Such failures are known as Brady violations, after a 1963 Supreme Court case in which the justices determined that withholding favorable information from the defense is unconstitutional. Also, one of the jailhouse snitches who testified that Owens had confessed had been a police informant for years and said he recruited the other snitch. This, too, wasn’t revealed to the defense, nor were the informant’s letters asking for favors in exchange for his testimony.
Brady violations had become so prevalent in Baltimore’s courts that the Fourth Circuit Court of Appeals recently admonished the city’s prosecutors to remember their legal obligations: “Only this practice ensures the fair trial that our justice system aspires to provide” and makes it so “no one has to worry after the fact whether the jury convicted the wrong person.”
The city furiously fought Owens. Dodging such suits, many defense lawyers contend, is part of what drives these plea offers. “If not expressly that, it’s implicit in a lot of decisions made in this setting,” said Michael Imbroscio, an attorney who had a client in Baltimore City take a time-served deal. The city won dismissal of Owens’ suit against the state’s attorney’s office and Brave, who the court ruled had immunity, and the Baltimore Police Department. But the case is going to trial in federal court, likely early next year, against detectives Pellegrini, Landsman and Dunnigan as individuals. There’s millions in compensation at stake for Owens and a public airing of misdeeds for the city.
Civil litigation is “so important,” Mercer said. “Often, that’s the only time there’s scrutiny into what wrongs were done.”
The type of misconduct alleged in Owens’ case is echoed in nine more of the 14 exonerations out of Baltimore City and County since 2002, according to the National Registry of Exonerations. The 2014 exoneration of Sabein Burgess, for example, came after it emerged that Baltimore detectives never revealed a key detail to the defense: that a young witness had told them he saw the murder suspect and it wasn’t Burgess. The detectives even submitted a report falsely stating that the witness had been asleep during the crime. Like Owens, Burgess is suing, claiming that detectives “cut corners and rushed to judgment.” His trial is set for this fall and names a different group of detectives.
Misconduct can also be found in the cases of some of the remaining exonerated defendants who, like Thompson, aren’t officially considered exonerated at all but who were released under Alford pleas or time-served deals after questions were raised about their initial convictions. Curlett is representing one such man, Wendell Griffin, who was convicted of murder in Baltimore in 1982. Decades later, it came to light that three detectives — two also featured in Simon’s book and a third who is Landsman’s brother — had buried photo lineups and witness statements pointing to Griffin’s innocence. He was let out on a time-served deal in 2012.
The detectives named in the Owens and Burgess lawsuits have denied allegations of misconduct. Michael Marshall, who represents the detectives in Owens’ and Griffin’s suits, declined to comment, referring questions to the chief of legal affairs for the Baltimore City Police Department, who didn’t return several calls.
Thompson, whose parents died while he was in prison, has been abandoned by the rest of his family. He was released early for good behavior in February after serving a little more than five of his remaining seven and a half years, and as much as he blames himself for his mistakes, he now thinks his plea was a “bum deal.” He wishes there was a way to prove to his loved ones that “although I served 30 years … I didn’t commit the crime.”
The strain of the Alford plea proved too much for one of Baltimore’s wrongly convicted. Chris Conover left prison under the plea in 2003 after DNA called into question his murder conviction in Baltimore County. On the outside, he suffered from severe panic attacks and depression, but his wife told the local newspaper that he couldn’t face in-patient treatment, which meant being back behind locked doors. His petition for a pardon from Maryland’s governor was turned down in 2012. Three years later, Conover killed himself.
“Having been convicted really defines who you are — it becomes itself a prison,” Mercer said. “Once out, with a conviction still on your shoulders, having maintained your innocence in a Alford plea is of little comfort and of very little practical benefit.
'When we remove the economic motive and grease of our forced labor from the U.S. prison system, the entire structure…must shift to accommodate us as humans'
Prisoners across the United States are launching a massive strike on Friday, on the 45th anniversary of the Attica prison uprising, to protest what they call modern-day slavery.
Organizers say the strike will take place in at least 24 states to protest inhumane living and working conditions, forced labor, and the cycle of the criminal justice system itself. In California alone, 800 people are expected to take part in the work stoppage. It is slated to be one of the largest strikes in history.
"Slavery is alive and well in the prison system, but by the end of this year, it won't be anymore," reads the call to action from groups including Support Prisoner Resistance, the Free Alabama Movement, and the Incarcerated Workers Organizing Committee (IWOC). "This is a call to end slavery in America."
Our protest against prison slavery is a protest against the school to prison pipeline, a protest against police terror, a protest against post-release controls. When we abolish slavery, they'll lose much of their incentive to lock up our children, they'll stop building traps to pull back those who they've released. When we remove the economic motive and grease of our forced labor from the US prison system, the entire structure of courts and police, of control and slave-catching must shift to accommodate us as humans, rather than slaves.
As the organizers explain in their call to action, "Certain Americans live every day under not only the threat of extra-judicial execution—as protests surrounding the deaths of Mike Brown, Tamir Rice, Sandra Bland, and so many others have drawn long overdue attention to—but also under the threat of capture, of being thrown into these plantations, shackled and forced to work."
"Work is good for anyone," Melvin Ray, an inmate at the W.E. Donaldson Correctional Facility in Bessemer, Alabama, and Free Alabama Movement organizer, toldMother Joneson Friday. "The problem is that our work is producing services that we're being charged for, that we don't get any compensation from."
Prison wages, which range from a few cents to $1.15 an hour, are determined on a state-by-state basis; in many states, such as Texas, Arkansas, and Georgia, inmates are not paid at all. Meanwhile, items in the prison commissary are often hiked up from their market value, making them increasingly inaccessible to the inmates themselves. And as Prison Legal Newseditor Paul Wright explained to Mother Jones, those who refuse to work are subject to retaliation, including having their sentences lengthened or being held in solitary confinement.
The jobs themselves can vary from farming and manufacturing to doing call work for private phone companies such as AT&T and Verizon, as well as work that keeps the prison itself running, such as laundry or kitchen service.
Azzurra Crispino, media co-chair of the IWOC, toldShadowproof that the conditions are often dangerous. "We've had reports of people being asked to operate heavy machinery with standing water on the ground," she said. "In Texas, no air-conditioning, in a lot of the units. Last year, the heat in Texas was 116 degrees. You can imagine what it's like working in a kitchen, in a unit with no air conditioning."
The strike is only the first step in a sustained plan of resistance, the organizers said. The actions are scheduled to continue to "[build] the networks of solidarity and [show] that we're serious and what we're capable of."
To that end, the organizers are calling on supporters on the outside to take part in events around the country, including demonstrations, fundraising benefits, marches, discussions and film screenings, teach-ins and phone banking, and other efforts.
"Prison impacts everyone, when we stand up and refuse on September 9th, 2016, we need to know our friends, families, and allies on the outside will have our backs," the call to action reads. "Step up, stand up, and join us. Against prison slavery. For liberation of all."
The Ferguson Protest brought national attention to predatory court systems in the St. Louis Area. However, St. Louis wasn't the only local predatory system. The civil rights being demanded by groups such as Black Lives Matter ultimate help protect the rights and privileges of all American. Court.rchp.com exist to help teach Black people and others about the law and their rights and how to envoke them so they can better protect themselves from predatory situations.
We continue our look at what the ACLU calls an illegal debtors’ prison in Arkansas by speaking with a former resident who wrote a check for $1.07 for a loaf of bread. She describes how after her check bounced, her debt ballooned with fees and fines to nearly $400, and police officers twice came to her job to arrest her. Since then, she has been caught up in Sherwood’s Hot Checks Department. We are also joined by lawyer Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, who says the woman’s experience is common.
Is an Arkansas Town Operating a "Hot Check" Court as an Illegal Debtors' Prison?
A woman in Sherwood, Arkansas, just spent 35 days in a county jail after she accidentally bounced a $29 check five years ago. Nikki Petree was sentenced to jail last month by a judge accused of running a debtors’ prison. She had already been arrested at least seven times over the bounced check and paid at least $600 in court fines. Her release comes as the Lawyers’ Committee for Civil Rights Under Law, the ACLU and an international law firm have filed a lawsuit to challenge the modern-day debtors’ prison in Sherwood. We speak with Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, who says Sherwood jails people in violation of a long-standing law that forbids the incarceration of people for their failure to pay debts.
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: We’re also joined by Janice, who is a native of Little Rock, Arkansas, who’s been caught up in Sherwood’s Hot Checks Department for decades. One check she wrote for $1.07 for a loaf of bread bounced. The debt ballooned after fees and fines to nearly $400. She currently has a warrant in Sherwood’s Hot Checks Department and wishes to remain anonymous for fear of arrest.
So, Janice, you’re in profile; you don’t want to be seen. But explain what happened to you.
JANICE: On several occasions, I have been arrested by Sherwood Police Department for bounced checks, insufficient funds checks. I’ve even been arrested on my job—two different jobs, as a matter of fact, one—with two different hospitals. My checks has totaled, I would say, less than $1,000 worth of checks. And they’re little, small checks. I was a bad manager. I didn’t keep a good register, so, therefore, I had bounced checks. Some were $20. Hundred dollar may have been the highest number of checks that I wrote. But I have had accumulated fees up to thousands of dollars in fees and costs, on roughly less than $1,000 worth of checks.
JUAN GONZÁLEZ: And when you go into the—before the judge on these cases, what’s the process? What happens there?
JANICE: He just bring you before him, and, like they say, you sign a waiver. You go up before the judge, and he assesses your fees and court costs, and give you a monthly payment amount, until you have to pay this monthly payment by such, such date. You have a 10-day grace period. If it’s not paid, then there’s another failure-to-pay warrant issued and additional costs and fines assessed to the amount you already have.
AMY GOODMAN: Now, part of your struggle is you have MS—is that right, Janice? And you’re trying to deal with medical costs, as well?
AMY GOODMAN: And is this Judge Hale that you’re going before, who Kristen Clarke just described?
JANICE: Yes, it is.
AMY GOODMAN: Are you allowed to bring in a friend, a family member, a lawyer at your side?
JANICE: Now, if you do retain an attorney, an attorney can be there, but family members and friends are not allowed in.
AMY GOODMAN: So what is your situation right now?
JANICE: Right now, I have not been there since somewhere around 2008. And I have an active warrant, because I could not afford to pay the monthly payment that he had assessed of $200, because I feel as if I have paid, you know, restitution on the checks that I’ve previously wrote, but these are all accumulated fines and court costs that has been assessed.
JUAN GONZÁLEZ: And they’ve come on several occasions to arrest you on your job? I find this hard—this is a civil issue. Why they would be coming to arrest you on your job?
JANICE: Because that’s what they do. Even though they know your address, your home address, they will come out to your job, opposed to your home. And this has caused me to lose two jobs because of that.
JUAN GONZÁLEZ: Kristen Clarke, what about that, this issue of—I mean, normally, if somebody writes a check that they don’t have funds for, the bank will send them and issue, you know, a charge, but having law enforcement come in and arrest you for this, especially on your job, is this—is this illegal?
KRISTEN CLARKE: This abusive debt collection practice is part of the scheme. The clients that we represent in this case have had the cops show up at their doorstep and insist that they pay money now, or they are threatened with arrest. I am heartbroken to hear the story of the woman who just spoke. But again, we know that these are not isolated cases. This is a systemic pattern that exists across Sherwood and across Pulaski County. This is a court that has made big business out of preying on the backs of poor people. And they have made the focus on the most marginalized people in this community the focus of this court. People who have written small checks that are returned for insufficient funds, that is the focus of this court. And I can’t tell you how many people we’ve talked to who have stories like the woman who just spoke. We represent a cancer patient in this case. You know, he was hospitalized and receiving chemotherapy. And two—you know, a few checks bounced for very small amounts, and this man has been jailed and remains indebted in thousands of dollars to a court. Every time someone appears before Judge Hale, he imposes more court costs, more fines, more fees. And there is no way out for the people who are entrapped in this system.
AMY GOODMAN: So where does the lawsuit go from here, Kristen?
KRISTEN CLARKE: Well, we filed a federal class-action lawsuit. The woman who just spoke may indeed be somebody who is a member of this class. We will fight. We believe that Sherwood is a poster child, if you will. This is a classic example of a debtors’ prison. And we believe we’ll be successful at the end of the day in securing relief for the poor people of Sherwood. We believe that when somebody faces criminal charges, that they should have a lawyer by their side. They should have a judge who warns them about their rights and who counsels them about their rights and respects their due process rights. We will—we will fight on.
And then we’re going to look elsewhere around the country, because we know that this is a nationwide problem that we face. All around the country, we’ve seen the resurgence of debtors’ prisons. We’ve seen the criminalization of poverty. So, we are going to fight until we end this practice and bring our courts in line with that 1983 ruling from the Supreme Court that says you cannot lock poor people up merely because of their inability to pay a fine or fee.
AMY GOODMAN: Well, I want to thank you, Kristen Clarke, with the Lawyers’ Committee for Civil Rights Under Law. And, Janice, thank you for being with us—not her real name. She is in shadow, but that’s because of what she faces as a poor person who is a victim of Sherwood’s Hot Checks Department in Arkansas.
– END –
35 Days in Jail, For $29 Bounced Check
This is a rush transcript. Copy may not be in its final form.
JUAN GONZÁLEZ: We turn now to Arkansas to look at the case of a mother who just spent 35 days in a county jail after she accidentally bounced a $29 check five years ago. Nikki Petree was sentenced to jail just last month by a judge accused of running a debtors’ prison. Petree had already been arrested at least seven times over the bounced check, and paid at least $600 in court fines—more than 20 times the original debt. Petree said, quote, "Every time I go to jail, they’d let me out immediately for $100. They’d turn around and add $600 or $700 more to my bond. I couldn’t afford to pay. They cornered me, and there was no way out from underneath it. I felt overwhelmed and hopeless," she said.
AMY GOODMAN: Nikki Petree’s release comes as the Lawyers’ Committee for Civil Rights Under Law, the ACLU and the international law firm Morrison & Foerster have filed a class-action civil rights lawsuit challenging the modern-day debtors’ prison in Sherwood, Arkansas. The lawsuit was filed in the United States District Court for the Eastern District of Arkansas against the city of Sherwood, Arkansas; Pulaski County, Arkansas; and Judge Milas Hale. Petree is one of four named plaintiffs in the suit who allege their constitutional rights were violated by the Hot Check Division of the Sherwood District Court when they were jailed for their inability to pay court fines and fees. The lawsuit alleges that Sherwood, Pulaski County, engages in a policy and custom of jailing poor people who owe court fines, fees and costs stemming from misdemeanor bad check convictions. It also says they jail people in violation of a long-standing law that forbids the incarceration of people for their failure to pay debts.
For more, we’re going to Washington, D.C., to Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, one of the groups that filed this lawsuit.
Welcome to Democracy Now! Can you explain exactly what happened to Nikki Petree? She ends up in jail for a $28-and-change check, that she didn’t realize had bounced because her last paycheck hadn’t put in, and she ends up in jail five years later?
KRISTEN CLARKE: Yeah, Nikki Petree is not alone. This is a debtors’ court system that’s been in place in Sherwood that preys on the backs of poor people. Nikki Petree is one woman who exemplifies what happens if you’re poor in Sherwood. She wrote a check that was returned for insufficient funds about five years ago. That check amounted to about $28. And since that time, she’s spent more than 25 days in jail and has paid more than $600 in fines to the local court system. That is money that she did not have. She lives below the poverty line. She remains indebted by more than $2,500 to the local court system. And she was jailed at the time that we filed this suit last week. And there are so many people like her in Sherwood. We filed this lawsuit to bring an end to a court system that we believe preys on the backs of poor people.
JUAN GONZÁLEZ: Well, Kristen Clarke, in that lawsuit, you raise the issue of why this is happening. You say that local courts and municipalities throughout Arkansas have used the threat and the reality of incarceration to trap their poorest citizens in a never-ending spiral of repetitive court proceedings and ever-increasing debt. But you say also that faced with opposition to increased taxes, municipalities have turned to creating a system of debtors’ prisons to fuel the demand for increased public revenue. How extensive is this in Arkansas that municipalities are using this as a new revenue source?
KRISTEN CLARKE: It’s not only the case in Arkansas, but all over the country we’re seeing the resurgence of debtors’ prisons. In Sherwood, this is a court that’s generated more than $12 million over the course of five years by imposing fines and fees over and over again on poor people who wrote checks to local merchants that were returned for insufficient funds. In Ferguson, Missouri, we saw a local court system that was built on this concept of entangling people in the court system for transit, for traffic offenses. That court generated $20 million off the backs of poor people in Ferguson. But we know that these are not isolated practices.
What’s happened is that in 1983 the Supreme Court made clear that this is unconstitutional, that you can’t lock people up merely because they are poor. But what we’ve seen is the resurgence of debtors’ prison, because there hasn’t been enough enforcement to put a check on court systems like the one in place in Sherwood. So we filed this lawsuit to bring an end to an era that’s been marked by a court system in which one judge presides, Judge Butch Hale, where he has disregarded the due process rights of poor people at every turn.
What happens in Sherwood is that people get on line outside his courtroom. They are forced to sign a waiver of their right to counsel. Nobody is allowed in that courtroom but the defendants. If you come with a family member, an advocate or friend, you’re not allowed in. There are no tapes or recordings of the proceedings, no transcripts of the proceedings. People appear without counsel by their side. No one explains their rights to them. And every time they stand up before Judge Butch Hale, he imposes fine, fee after fine and fee, and court costs on them, subjecting these people to a spiraling cycle of debt.
AMY GOODMAN: I mean, it is an astounding story about Nikki Petree. Didn’t she end up owing something like $2,600 on this $28-and-change check?
KRISTEN CLARKE: That’s exactly right. She remains indebted by more than $2,500, $2,600. She spent more than 25 days in jail. She’s already come out of pocket more than $600. And that’s money that she doesn’t have, because she, like everybody who appears before this court, are poor people. This is a court that preys on the most vulnerable people in Sherwood. And they make a profit off of this.
The "War on Black People" which was disguised as a "War on Drugs" has resulted in unintended mass casualties of white people. A report from the US Centers for Disease Control and Prevention in January revealed that drug-overdose deaths reached a new high in 2014, totaling 47,055 people. Opioids were involved in 60% of those deaths, 90% of heroin users are white.
"You want to know what this was really all about? The Nixon campaign in 1968, and the Nixon White House after that, had two enemies, the anti-war left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did."
Until the late 19th century drugs were used legally in the United States with much public indifference and very little government interference. Taxes on psychoactive substances provided a significant part of government revenue for most modern nations prior to the advent of income taxation.
Prior to 1800, opium was widely available in the United States, and throughout the world, as an ingredient in numerous products and “multidrug prescriptions. Morphine, a derivative of opium, was first discovered in 1804. Heroin, an opiate derived from morphine, was “discovered” in 1874 and marketed in 1898 by Bayer Pharmaceuticals as “The Sedative for Coughs.”
States were the first to enact drug prohibition laws. In 1875 San Francisco passed an antiopium law that is widely considered the first of its kind, targeting only the smoking of opium, which was common among Chinese immigrants, and not affecting the myriad other forms of opium use favored by most Americans. The states of California and Nevada passed similar laws and the federal government soon followed. In 1883 Congress raised the import tariff on smoking opium, leaving opium imported for other purposes unaffected
There’s Never Been a Drug Law That Wasn’t Tied to Race
Concern about drug use in America began with associating opium with the Chinese, cocaine with “Negroes,” alcohol with urban Catholic immigrants, heroin with urban immigrants, and marijuana with Mexicans.
Associating Chinese opium use with corruption of American values and female chastity was an easily alluring explanation for social problems. Smoking opium, like the "Chinamen" who introduced the habit, became a despicable practice.
Changing perceptions of cocaine at the turn of the 20th century were also linked to race. Plantation owners and other employers soon found great value in cocaine as a means of improving productivity and controlling workers, and some even began supplying it to their black crews.
In the late 1800s poor black laborers in the South developed the habit of snorting cocaine to help them endure strenuous conditions. Sniffing was the quickest and cheapest way to ingest cocaine. Although, cocaine sniffing was more popular with whites and was especially associated with the criminal cultures of prostitutes, pimps, gamblers and other white “urban hoodlums,” poor blacks and cocaine became firmly linked in the public mind. People from the upper and professional class preferred injecting cocaine with a needle.
Racial tensions in the South soon transformed the image of black cocaine use into a source of white fear. Propaganda about “cocainized” blacks leaving plantations and construction sites on sexual rampages having their way with white women stirred panic. Medical publications supported this myth with stories of how cocaine could transform law-abiding Negroes into menacing predators with increased and perverted sexual desire. Newspapers reported that there was "little doubt that every Jew peddler in the South carries the stuff."
Other popular legends attributed cocaine giving blacks superhuman strength and that southern police departments switched from .32 caliber to .38 caliber revolvers because cocaine made crazed blacks impervious to the smaller rounds.
In the 1920s the Du Pont Company had developed and patented numerous petroleum-based products, including fuel additives, chemical processes for the manufacture of paper from wood pulp and numerous synthetic products such as nylon, cellophane and other plastics.
By 1935 raw cellulose from hemp (cannabis) had become a viable option for fuel, fabric and plastics and paper – a cheaper, cleaner and renewable raw material compared to petroleum. Faced with this competition, Lammont DuPont lobbied the U.S. Treasury Department to seek the prohibition of hemp
Business interests of William Randolph Hearst, the newspaper magnate, were also threatened by hemp, as his timber holdings and his joint enterprises with DuPont for wood-based pulp papermaking would have been rendered uncompetitive. Hearst used his chain of newspapers to aggravate racial tensions, portraying Mexicans in particular as lazy, degenerate and violent and as job stealers and smokers of “marihuana” – a word brought into the common parlance due in part to frequent mentions in Hearst’s publications. The aggressive efforts to demonize cannabis were effective, as the sheer number of newspapers, tabloids, magazines and film reels under Hearst’s control enabled him to inundate American media with propaganda. Americans readily accepted the stories of crazed crimes incited by marijuana use, and official accounts of the “evils” of marijuana continue to color popular opinion of the drug today.
President Nixon embarked on a new era of drug control. Shortly after assuming office in 1969, Nixon announced a global campaign to stamp out drugs and drug traffickers. He launched “Operation Intercept” and ordered the closure of 2,500 miles of the Mexican border and searches of hundreds of thousands of people and vehicles. In 1970 Nixon created the National Commission on Marijuana and Drug Abuse and in 1971 he declared drugs to be “public enemy number one.” These actions marked the initiation of the national and international “War on Drugs.” Thanks to Erlickman, we now know the real motivation behind the "War on Drugs" was to target blacks and other political enemies. However, African-Americans have now become the primary targets. See related post, "40 Reasons Our Jails and Prisons Are Full of Black and Poor People".
There was no wave of compassion when addicts were hooked on crack
The ultimate tragedy is not the oppression and cruelty by the bad people but the silence over that by the good people. Overdose deaths in white communities have reached epidemic proportions because society in general was so indifferent to drug addiction when it was a consider a black problem. As was stated in "First They Came", It’s just a matter of time before the injustices people remain silent about, visits them.
It's time to stop denying racism exist and is a major problem.
"The problem is that white people see racism as conscious hate, when racism is bigger than that. Racism is a complex system of social and political levers and pulleys set up generations ago to continue working on the behalf of whites at other people’s expense, whether whites know/like it or not. Racism is an insidious cultural disease. It is so insidious that it doesn’t care if you are a white person who likes black people; it’s still going to find a way to infect how you deal with people who don’t look like you. Yes, racism looks like hate, but hate is just one manifestation. Privilege is another. Access is another. Ignorance is another. Apathy is another. And so on. So while I agree with people who say no one is born racist, it remains a powerful system that we’re immediately born into. It’s like being born into air: you take it in as soon as you breathe. It’s not a cold that you can get over. There is no anti-racist certification class. It’s a set of socioeconomic traps and cultural values that are fired up every time we interact with the world. It is a thing you have to keep scooping out of the boat of your life to keep from drowning in it. I know it’s hard work, but it’s the price you pay for owning everything." – Scott Woods
Last July, President Obama visited a federal prison to put a spotlight on mass incarceration and excessive drug sentencing laws. We applaud Obama's acknowledgment and efforts.
However, as we have mentioned before, it seems as if it took white kids becoming addicted to drugs, especially heroin, in epidemic proportions before any real policy change began to happen.
The following is republished with permission from ProPublica.
Two years ago, President Obama unveiled an initiative to give early release to potentially thousands of federal prisoners serving long sentences for low-level drug crimes. The initiative has barely made a dent, and a resignation letter from the president’s recently departed Pardon Attorney lays out, at least, one reason why.
“The position in which my office has been placed, asking us to address the petitions of nearly 10,000 individuals with so few attorneys and support staff, means that the requests of thousands of petitioners seeking justice will lie unheard,” wrote Deborah Leff, who resigned in January.Leff also wrote that her office was denied “all access to the Office of White House Counsel,” which reviews prisoners’ applications before the president gets them.
Leff also wrote that her office was denied “all access to the Office of White House Counsel,” which reviews prisoners’ applications before the president gets them.
Since his announcement two years ago, the president has granted early release to just 187 prisoners.
Leff’s resignation letter was obtained by USA Today.
Dysfunction in the Office of the Pardon Attorney is nothing new: ProPublica reported on problems in the office that stretch back to 2001. Take the case of Clarence Aaron, a black man sentenced to three life terms for a cocaine deal, even though he wasn’t the buyer, seller, or supplier.
Aaron’s appeal for clemency was denied by then-President George W. Bush, even though the prosecutor’s office and sentencing judge supported clemency. Why? Here’s ProPublica's original story:
Records show that Ronald Rodgers, the current pardon attorney, left out critical information in recommending that the White House deny Aaron’s application. In a confidential note to a White House lawyer, Rodgers failed to accurately convey the views of the prosecutor and judge and did not disclose that they had advocated for Aaron’s immediate commutation.
Rodgers was removed in 2014 and replaced by Leff. Obama ultimately ordered Aaron’s release in April 2014.
A statistical analysis of nearly 500 pardon applicants during the Bush administration suggests that advocacy makes a difference. Applicants with a member of Congress in their corner were three times as likely to win a pardon as those without such backing. Interviews and documents show a lawmaker’s support can speed up a stalled application, counter negative information and ratchet up pressure for an approval.
Reacting to stories published by ProPublica, the Department of Justice announced in August 2012 that it would commission a study testing racial disparities in presidential pardons. Nothing further has been publicly disclosed about that effort and it’s unclear whether the study was ever completed. ProPublica has contacted the department to ask them the status of both that and for further comment on Leff’s resignation. They’ll update as soon as they hear back.