Category Archives: Criminal Law

How Police and Politics Sabotaged Progressive Prosecutors Trying to Reform the Justice System

Editorial note by Randall Hill

The month before Kim Gardner was sworn in, I published an article that made the following prediction: "Make no mistake, if Ms. Gardner proves to be a fair prosecutor, there will certainly be those that will attempt to distort her statements, vilify her actions and generally discredit her. There is a private prison system that stands to lose millions of dollars under a non-oppressive system." 

The oppression of African-Americans is big business. Police officers often earn six figures annually, judges, prison food service, prison guards, probation officers, tech companies that supply ankle monitoring systems, and a multitude of others make their living and profits because of the continuing oppression of others. Take away the oppression and their income is taken away. Oppression and racism are big business, and always have been!

Article by Jeremy Kohler

After the 2014 fatal police shooting of Michael Brown in Ferguson, Missouri, and the months of protests that followed, the city of St. Louis was forced to reckon with its Black residents’ longstanding distrust of its police and courts.

Kim Gardner emerged as a voice for change. A lifelong resident of St. Louis, she had diverse professional experiences, having worked as a funeral director, a nurse, a lawyer, and a state legislator. When campaigning for circuit attorney, the city’s top prosecutor, she focused on the disproportionate frequency of arrests and police officers using force against St. Louis’ Black community.

Kim Gardner in 2022, when she was the St. Louis circuit attorney

“We need to change decades of old practices that left many in our community distrustful of the criminal justice system as a whole,” she told The St. Louis American, the city’s Black newspaper, just days before her decisive primary victory in August 2016 that all but sealed her general election win.

In the last decade, prosecutors in other major American cities also campaigned on promises of systemic reform: Kim Foxx in Chicago, Larry Krasner in Philadelphia, and Chesa Boudin in San Francisco.

Yet, much like Gardner, these prosecutors have faced resistance from the police and the unions that represent rank-and-file officers. They’ve been accused of being soft on crime and have even been met with political maneuvers aimed at derailing their initiatives. Several have been targeted by efforts to remove them from office or pare away their powers.

Boudin lost a recall vote and was removed in June 2022. And Krasner, criticized for his reduced emphasis on prosecuting minor crimes, was impeached by the state legislature in November, although a state court threw out the result.

In Florida, Gov. Ron DeSantis has removed elected prosecutors in Tampa and Orlando. He suspended Hillsborough County State Attorney Andrew Warren over Warren’s refusal to prosecute offenses related to abortion and gender-related health care. He suspended the state attorney for Orange and Osceola counties, Monique Worrell, because he said she wasn’t tough enough on some serious offenses.

Monique Worrell speaks at a press conference after Florida Gov. Ron DeSantis suspended her from her job as a state attorney

Georgia recently became the first state to establish a commission with the authority to discipline and even remove local elected prosecutors. Republican Gov. Brian Kemp framed the law as a way to check “far-left prosecutors.”

Gardner, who was reelected in 2020, stepped down in May of 2023 while facing both a lawsuit from the state attorney general that sought her removal and a separate attempt by the Republican-led legislature to curtail her authority. Gardner’s mismanagement of her office played a significant role in her downfall. Reform-minded lawyers who she personally hired had departed. And while judges fumed about prosecutors failing to show up for court, Gardner was moonlighting as a nursing student.

Though other prosecutors faced various challenges, there are no widely known instances like that of retired detective Roger Murphey in St. Louis, who has refused to testify in at least nine murder cases and hasn’t received any departmental discipline.

“For every progressive prosecutor who’s managed to stick it out, there’s one who’s either been recalled or driven out,” said Lara Bazelon, a University of San Francisco law school professor who volunteered on Boudin’s campaign and serves as chair of the commission he created to review inmates’ claims of innocence. “So it’s a real mix of success and cautionary tales.”

She added: “If the police are against you, or literally out to get you, you’re probably not going to be able to last in that job.”

Foxx, elected in 2016 and reelected in 2020, announced in April that she will not seek a third term next year, though she said it was not because of resistance from the police. In an interview, Foxx said that even before she took office, the Chicago police union felt threatened by her assertion that Black lives matter and that the criminal justice system could be more fair, particularly to communities of color.

Cook County State’s Attorney Kim Foxx announces that she will not seek reelection.

It was a signal, she said, “that I was not one of them.”

“The reality is we were offering something very different to what was traditionally viewed as the law-and-order approach to prosecution,” Foxx said. “I think it was surprising to folks that prosecutors could be elected addressing these issues.”

R. Michael Cassidy, a law professor at Boston College and an expert in prosecutorial ethics, said the Ferguson unrest emphasized the need for change in how police and prosecutors work. He said some prosecutors have failed to manage their relationships with police; prosecutors depend on the officers to bring them cases and to testify in court, but they must conduct oversight of the police as well.

Foxx pushed back against any assertion that she didn’t manage her relationship with police. She pointed to a popular Chicago police blog that often refers to her as “Crimesha” — “a play on the word ‘crime’ and what I believe to be a racist insinuation about me being Black with the name ‘-esha.’” The blog has also sexualized her last name by adding a third X and has insinuated that members of her family are connected to gangs.

“From the moment we came into office, we reached out to our partners in law enforcement, and what we saw was there was a segment of them who were never going to be satisfied with me in this role because I said ‘Black lives matter,’ because I said ‘We need police accountability,’ because I said that we had a criminal justice system that overly relied on incarceration that targeted Black and brown communities,” she said.

She said that she, Gardner, and other prosecutors “have been faced with an unprecedented level of hate and vitriol” from the police.

“That,” she said, “is the story.”

Chicago Fraternal Order of Police President John Catanzara and other union officials did not respond to requests for comment. But Catanzara told the Chicago Sun-Times in 2020 that the union’s complaints about Foxx were based on her job performance. He said she was a “social activist in an elected law enforcement position” who was unwilling to “faithfully do her job.”

The local police union organized a protest calling for the removal of Cook County State’s Attorney Kim Foxx in Chicago in 2019.

Boudin was elected in 2019 on a reform platform. Soon after taking office, he eliminated cash bail for most misdemeanors and nonviolent felonies. He also brought criminal charges against nine city officers for misconduct and announced a plan to compensate victims of police violence.

But as property crime rates climbed in San Francisco, Boudin came under increased scrutiny.

Cassidy said Boudin and other like-minded prosecutors have been scapegoated for isolated incidents or temporary spikes in crime statistics, as if they alone are responsible. In some cities, that has swung public opinion against them.

Chesa Boudin, during his time as San Francisco’s district attorney

Boudin said the claims were unfair and largely the product of police resistance to his reforms.

“We’ve seen, on body-worn camera footage, police officers telling victims there’s nothing they can do and, ‘Don’t forget to vote in the upcoming recall election,’” Boudin said in an interview.

Boudin said he and other local prosecutors have found “there is absolutely zero accountability for these officers who engage in explicitly political acts of sabotage or dereliction of duty.”

A spokesperson for the San Francisco police union declined to comment.

Some prosecutors have held onto their positions despite challenges to their power. In November, veteran public defender Mary Moriarty was elected county attorney for the jurisdiction that includes Minneapolis in the first election since the death there of George Floyd. The same night, Dallas District Attorney John Creuzot was reelected by a nearly 20-point margin in spite of calls by a police union for his ouster over his plan not to prosecute certain low-level offenses.

In August 2022, Sarah George, the incumbent state’s attorney in Vermont’s Chittenden County, which includes Burlington, secured her seat with a 20-point victory in the Democratic primary over Ted Kenney, a challenger backed by the police.

George had introduced a variety of reforms, including eliminating cash bail and declining to prosecute cases where evidence was obtained during noncriminal traffic stops, like those for broken taillights. The Burlington police union called her actions “disastrous” and Kenney argued that the approach made streets less safe.

George, too, has seen police body camera video of officers blaming her for crime. In one video, which she provided to ProPublica, the Riverfront Times and NPR, an officer from a suburban police department tells a couple that officers can’t do anything about a crack house in their neighborhood. He then implores them to vote for Kenney because of George’s “super-progressive, soft-on-crime approach where we arrest the same people daily and they get out the same day.”

George said that, with some crime investigations, the police are “not really doing the work that we need to do on the case, and then blaming us for the case not being filed.”

The Burlington police union declined to comment. The chiefs of police in Burlington and Winooski, the suburb where the video was taken, did not respond to messages seeking comment.

Gardner, too, often faced criticism from police for her reluctance to prosecute cases based on arrests alone. In one notable instance in 2019, she dropped child-endangerment charges against two daycare workers who were captured on video as they appeared to encourage toddlers to box using toy Incredible Hulk fists.

The police union called for her ouster, writing on Facebook: “The first rule of toddler fight club is … that you prosecute the sadistic promoters of toddler fight club.”

In comments made before her resignation, Gardner noted that she had been careful not to file criminal charges in cases where she did not feel there was enough evidence. “What they want me to do is make it look like this job is easy,” she said. “We can’t make things fit and people don’t like that. That’s not what justice is about.”

Richard Rosenfeld, a professor emeritus of criminology at the University of Missouri, St. Louis, was one of several researchers who pooled data from 65 major cities and found “no evidence to support the claim that progressive prosecutors were responsible for the increase in homicide during the pandemic or before it.”

Indeed, Chicago’s murder rate fell during Foxx’s first years in office, rose during the first years of the pandemic and has been falling this year, city crime statistics show. Philadelphia’s murder rate was in steep decline this year after a precipitous rise that started in 2020. And most categories of crime were in retreat in St. Louis at the time Gardner resigned, while violent crime was up in San Francisco a year after Boudin’s exit, according to statistics.

Acknowledging that the St. Louis police commonly blamed Gardner for crime trends, Rosenfeld, a veteran observer of policing in St. Louis, said, “Case not proved, is what I would argue there.”


Republished with permission from Propublica under license.

Pandemic pushed defendants to plead guilty more often, including innocent people pleading to crimes they didn’t commit

Court.rchp.com editorial note by Randall Hill

Plea agreements are made without the full discovery of the facts and evidence and prosecutors often lack enough evidence to secure a conviction. Personally, I never want to experience the degrading experience of going to jail. I don't believe I would ever accept a plea deal. Regardless of how short a prison sentence is when someone is locked up with hardened criminals, there's no way to guarantee your safety. Even if you physically survive your prison sentence, but are forced into compromising situations, your mental health could be permanently damaged.


by Shi Yan, Arizona State University; David M. Zimmerman, Missouri State University; Kelly T. Sutherland, University of Massachusetts Lowell, and Miko M. Wilford, University of Massachusetts Lowell

Despite a constitutional right to a jury trial, more than 94% of criminal convictions in the United States result from guilty pleas, not jury verdicts. Even innocent people, those who did not commit the crimes of which they are accused, can plead guilty – and they do.

Given the lack of reliable data, it is extremely difficult to estimate what proportion of pleas are from innocent defendants. However, many researchers believe the proportion is significant. So far, the National Registry of Exonerations, a database that records all known exonerations of innocent defendants in the United States after 1989, has identified more than 580 cases in which innocent people chose to plead guilty.

When people are held in jail, they’re likely to accept quick release – even if it means admitting to something they didn’t do. Caspar Benson via Getty Images

 

Guilty pleas are a necessity because America simply lacks the attorneys, judges and courtrooms required to try every criminal case. So prosecutors and defense attorneys attempt to negotiate charges and sentences acceptable to both sides – though prosecutors often have much more bargaining power than defense attorneys.

Factors encouraging guilty pleas

Even though prosecutors largely base their charging and bargaining decisions on the assessed strength of available evidence, such assessments are not perfect. While guilty people are more receptive to plea offers, innocent defendants are not immune to the potentially coercive factors that make pleading guilty attractive such as pretrial detention and differences in duration of sentences.

Prosecutors often offer plea deals with dramatically lower sentences than those likely to be imposed if a jury finds the defendant guilty. In some cases, defendants who opted for a trial instead of pleading guilty have received tenfold sentence increases from the original plea offer, or even life sentences, upon conviction.

This possibility can make a plea offer very attractive, and even create what some have called a “trial penalty” for defendants who refuse to plead guilty.

Even innocent defendants may feel it would be too risky to go to trial. Studies have confirmed that the larger the sentence gap between the plea offer and the likely trial sentence, the higher the likelihood for defendants – both guilty and innocent – to plead guilty.

When defendants are held in jail before trial, they may be more likely to accept a plea deal as well – even if they are innocent. The promise of immediate release, usually through probation or a sentence for time already served behind bars, has been found to increase both true and false guilty plea rates.

With tools like these, the justice system was already skilled at encouraging defendants to plead guilty – even if they were innocent. Then, the coronavirus hit.

People clean and spray a room with picnic tables and seats.
Inmates at a Massachusetts jail clean a common room to prevent the spread of the coronavirus. David L. Ryan/The Boston Globe via Getty Images

Pleading during a pandemic

The COVID-19 pandemic changed the nation’s criminal justice system in two major ways.

First, prisons and jails, as places where diverse populations came into very close physical contact, became outbreak hot spots.

And then courts closed or limited their operations, seeking to follow workplace safety rules and social distancing guidelines. Many courts stopped hosting jury trials for months.

These facts further increased the risks of going to trial: Defendants had to wait longer for their day in court, and each day they spent in jail increased their risk of being exposed to the coronavirus. The research on pleas has clearly indicated that when the cost of going to trial increases, guilty pleas increase too.

Sure enough, a survey of 93 defense attorneys found that plea bargaining practices have indeed changed during the pandemic. More than 60% of the lawyers surveyed said they thought prosecutors were offering more lenient deals than they would have before the pandemic. At the same time, more than 30% of the attorneys had a client who claimed innocence but nevertheless accepted a plea offer because of concerns related to COVID-19.

To examine whether COVID-19 exacerbated the innocence problem in guilty pleas among a larger sample of potential defendants, we used a computerized simulation platform of legal procedures funded by the National Science Foundation and developed at the University of Massachusetts Lowell. More than 700 U.S. adults agreed to participate in our study, and we randomly assigned them to be either innocent or guilty of stealing a pair of sunglasses. In the simulation, all participants were detained before trial, then offered a plea deal to be immediately released.

Among both guilty and innocent conditions, we further randomly informed half of the participants about the complications related to COVID-19 – that the jail was currently having an outbreak of coronavirus and court dates had been pushed back because of the pandemic.

The results confirmed that both guilty and innocent participants were more likely to plead guilty when warned of the increased complications posed by COVID-19. Further, innocent participants ranked the pandemic as a more important factor in shaping their decision to plead than guilty participants.

As the pandemic wanes, courts and the legal system as a whole are resuming more normal operations. But the fundamental problems with the plea process – excessive trial penalties and pretrial detention – will remain.The Conversation


Republished with permission under license from The Conversation.

New York defines illegal firearms use as a ‘public nuisance’ in bid to pierce gun industry’s powerful liability shield

by Timothy D. Lytton, Georgia State University

Could calling the illegal use of firearms a “public nuisance” bring an end to the gun industry’s immunity from civil lawsuits?

New York will soon test that notion. State lawmakers recently amended New York’s public nuisance statute to specifically include marketing and sales practices that contribute to gun crimes. Gov. Andrew Cuomo signed the bill on July 6, 2021, after declaring gun violence a “disaster emergency.”

I’ve been researching lawsuits against the gun industry for over 20 years. While I believe New York’s law is certain to unleash a new round of lawsuits against gun-makers, my research suggests that these claims will face considerable legal hurdles. Even if this litigation succeeds – effectively ending the gun industry’s immunity from liability – the jury is still out on whether it will do much to curb gun violence.

Illegal gun use is now a public nuisance in New York. AP Photo/Bebeto Matthews

 

Defining illegal gun use as a public nuisance

States routinely rely on public nuisance laws to regulate conduct that unreasonably interferes with the health and safety of others. Common examples include polluting the air or water, obstructing roadways or making excessive noise.

New York’s amended statute holds gun manufacturers and sellers responsible for the public nuisance of illegal gun use if they fail to implement “reasonable controls” to prevent the unlawful sale, possession or use of firearms within the state. The law specifies that “reasonable controls” include implementing programs to secure inventory from theft and prevent illegal retail sales.

Under the law, both public officials and private citizens can file lawsuits seeking money damages and a court injunction to compel offending parties to stop the nuisance. For example, a gun manufacturer who sold weapons that were subsequently used in crimes could be held liable if it failed to take reasonable measures to ensure that retail dealers did not engage in illegal sales practices.

The gun industry’s immunity shield

Suing the firearms industry for gun violence under the theory of public nuisance is nothing new.

Individual gun violence victims, civic organizations such as the NAACP and big-city mayors started filing such lawsuits in the late 1990s. Congress put an end to this litigation in 2005 when it passed the Protection of Lawful Commerce in Arms Act, which granted gun sellers – including manufacturers – immunity from liability arising out of criminal misuse of the weapons they sold.

Immunity under the act is not absolute. Notably, a seller is not immune from liability if it “knowingly violated a state or federal statute applicable to the sale or marketing” of firearms. Consequently, following the passage of the act, plaintiffs argued that gun-makers’ marketing, distribution and sales practices constituted a public nuisance in violation of state statutes.

However, federal appellate courts in New York and California rejected this argument. Those courts held that public nuisance laws did not qualify for the exception to immunity because they were not specifically aimed at regulating firearms.

Challenges ahead for New York’s new law

New York responded by updating its statute.

The state is hoping to prompt civil litigation that will bring pressure on the industry to prevent the diversion of guns into the black market and the hands of illegal gun traffickers. Before the federal immunity bill, the industry faced a rising tide of litigation.

New lawsuits, however, will face multiple challenges, which I believe will likely reach all the way to the U.S. Supreme Court. I will consider two prominent ones.

First, gun industry defendants will argue that New York’s amended public nuisance statute is an attempt to subvert the purpose of 2005 law, which was passed specifically to halt these types of claims against gun sellers in the 1990s and early 2000s.

The opening section of the immunity law denounces this litigation as “an abuse of the legal system.” New York’s claim to utilize a narrow exception to gun industry immunity looks an awful lot like an attempt to eliminate immunity altogether.

At the same time, the letter of the law allows claims arising out of the violation of any statute that specifically applies to the sale of firearms, which is exactly what New York’s amended public nuisance law does.

For the Supreme Court, these contending views would pit the conservative majority’s strong allegiance to gun rights against its insistence on sticking to the letter of the law when reading statutes.

Second, gun industry defendants will argue that the Second Amendment limits any type of litigation likely to restrict access to the lawful purchase of firearms.

In a series of landmark cases, the Supreme Court said the Second Amendment protects the right of individuals to own firearms “in common use” for “lawful purposes like self-defense.” If public nuisance lawsuits were to drive some gun-makers into bankruptcy, courts might view them as a threat to Second Amendment rights.

However, the Second Amendment is silent on how to balance the constitutional right to keep and bear arms against the right Americans have to sue in civil court. How the Supreme Court might rule on this particular challenge is unclear.

Impact on reducing gun violence

But let’s assume for a moment that nuisance lawsuits survive a Supreme Court challenge, effectively ending the gun industry’s liability shield. Would this litigation then be able to reduce gun violence?

The main impact of these lawsuits is to put pressure on gun manufactures to do more to prevent inventory theft and illegal sales by retailers. Since 2000, the gun industry has operated a program to prevent illegal straw purchases, suggesting manufactures think they may be able to affect how retailers operate. Even still, little is known about whether this program has had any impact on gun violence rates. That’s why no one really knows if forcing gun manufacturers to more closely supervise retailers will work.

Part of the problem is a lack of government funding since the mid-1990s for public health research on alleged links between industry sales practices and gun crimes. Recent funding for this kind of research may clarify the value of regulating illegal gun sales as a public nuisance.

Until then, passing laws to prompt litigation against the gun industry is just a shot in the dark.


Republished with permission under license from The Conversation.

‘Landmark’ verdicts like Chauvin murder conviction make history – but court cases alone don’t transform society

by Jennifer Reynolds, University of Oregon

American courts in 2021 have already handed down several potentially historic rulings, from the Supreme Court’s recent decision restricting voting rights in Arizona and potentially nationwide to a Minnesota jury’s conviction of police officer Derek Chauvin for murdering George Floyd last year.

Cases like these are often called “landmark” cases, because they set forth ideas and ideals that may bring about significant changes in the political and legal landscape.

Many analysts considered the Chauvin trial, in particular, to be a landmark. In it, police officers actually testified against one of their own, which is rare, and the jury held a white police officer criminally accountable for killing a Black man. On June 25, 2021, the judge sentenced Chauvin to 22.5 years in prison for murdering Floyd after he attempted to use a counterfeit bill to buy cigarettes.

People all over the world have followed the Chauvin trial closely, as the culminating event after a year of global protests against police brutality and racism.

Landmark trials may go down in history, but as a law professor specializing in alternative dispute resolution, I know that they do not instantly transform the social order.

Courts are limited in the kinds of disputes they can hear and the sorts of relief they can provide. Moreover, major court cases and other moments of reform in American history often result in legislative backlash and a “recalibration,” as my colleague Stuart Chinn has argued. Those reactions may slow or even undermine the momentum for social change.

And even famously “just” verdicts haven’t necessarily pushed U.S. society in a linear direction toward its constitutional ideals.

Black woman in a face masks cries on a city street, with a hand over her mouth
A woman in New York weeps after the guilty verdict was announced in the Derek Chauvin murder trial on April 20, 2021. David Dee Delgado/Getty Images

Big verdicts, slow change

A well-known example is Brown v. Board of Education, in which the Supreme Court held unanimously that the doctrine of “separate but equal” in public schools violated the 14th Amendment.

The 1954 Brown decision, which ended legal segregation in the nation’s schools, inspired civil rights activists, drew broader attention to the struggle for racial equality and was instrumental in enforcing and encouraging racial desegregation.

But the main objectives of Brown – integrating public schools and leveling the educational playing field – have not been realized.

Many schools are still effectively segregated, in part because of ongoing legal and practical challenges associated with integration. In the 1974 case Milliken v. Bradley, for example, the Supreme Court limited the ability of federal courts to compel integration across school districts. That decision, handed down 20 years after Brown v. Board of Education, has made it difficult if not impossible to fulfill Brown’s promise of integration.

Black journalists read papers touting decision in Brown v. Board
Brown v. Board of Education made front-page headlines seven decades ago, but school segregation remains a problem nationwide. Bettmann / Contributor via Getty

Another instructive example from the same era is Gideon v. Wainwright. In the Gideon case, the Supreme Court held that under the Sixth Amendment, the state must provide attorneys to criminal defendants who could not otherwise afford them.

Following through on this constitutional mandate has proven difficult. Many parts of the country allocate grossly inadequate resources to the defense of indigent defendants. New Orleans’ 60 public defenders, for example, handle approximately 20,000 cases each year, according to a 2017 report.

Without timely access to legal counsel, many low-income defendants languish in jail for prolonged periods before their case gets to trial, while waiting to be assigned a public defender. Others are pressured into unwanted or unjust plea bargains by lawyers buried under crushing caseloads.

Necessary but not sufficient

Law students learn by the end of their grueling first year that trials alone are not effective mechanisms for addressing complex social and political problems.

Yet landmark trials are important. Legal proceedings are opportunities to articulate and reinforce American ideals around equality and justice and to expose bias and unfairness. They calibrate and restrain state power, test the merit of legal claims and create a public record.

Trials are an official public rendering of guilt or liability. Without them, the United States would lose much of the law’s ability to inspire and call attention to social change.

But as the Brown and Gideon cases show, legal decisions grounded in constitutional ideals of equality and justice do not automatically lead to an individual or collective moral reckoning.

Implementing the aspirational ideals set forth in landmark verdicts requires legislation, systems design, negotiation, collaboration, dialogue, activism and education.

Legal alternatives, too, such as restorative justice – which provides both perpetrators and victims with alternative routes to accountability and healing – increasingly are recognized as crucial tools for managing individual disputes and moving society toward greater justice.

Assessing the Chauvin trial

The legal proceedings around George Floyd’s murder aren’t actually over yet.

Still to come are the prosecution of the other Minneapolis officers present at Floyd’s killing and a federal civil rights case against Chauvin and his fellow officers. There will likely be an appeal process, too; legal verdicts can be overturned.

Ultimately, however, the meaning of the Chauvin murder trial within the larger context of the struggle for racial justice will depend, in part, on how people outside the courtroom respond to calls for reform.

A large crowd celebrates the Chauvin verdict outside Cup Foods in Minneapolis, where George Floyd was murdered
Minneapolis residents celebrate the Chauvin guilty verdict at the site of George Floyd’s murder. Nathan Howard/Getty Images

This explains why so many people reacted to the Chauvin verdict with relief and also something akin to dissatisfaction. They realized that one guilty verdict, standing on its own, is not enough to address persistent and systemic inequities in the United States.

Police departments and officers, city officials, activists, community members, business owners, state and federal actors – all of these people share collective responsibility for defining George Floyd’s legacy in modern American history.

Landmark cases are moments in time; legacies unfold over generations. If Americans want safer communities and more ethical policing, the work starts now.


Republished with permission under license from The Conversation.

Phylicia Rashad was right! There was a miscarriage of justice!

by Randall Hill, Court.rchp.com

When Phylicia Rashad tweeted, “A terrible wrong is being righted — a miscarriage of justice is corrected!”, she was absolutely correct! It's unfortunate she felt pressure to apologize for telling the truth! However, the terrible wrong can never truely be righted because Bill Cosby and his family can never regain his lost time spent in prison!

Because of assurances from Bruce L. Castor Jr. who was then the Montgomery County, Pa. district attorney, Dr. Bill Cosby sat for depositions in a lawsuit filed against him by Andrea Constand, which he paid her $3.38 million to settle in 2006.

The reason Court.rchp.com exist is to help educate black people about the law and to help them help themselves in a court of law by acting as their own attorney when no other option exist. This case illustrates how even a rich black man can become a victim of mass incarceration. Bill Cosby probably would never have served a single day in jail if he was a wealthy white man. For those that might want to compare Dr. Cosby's case to Harvey Weinstein's, the circumstances and weight of evidence were totally different. There was nothing in the Weinstein case to indicate that the charges should not have been filed.

Applying common sense, most likely at some point, Mr. Castor and Ms. Constand had a discussion where he explained there was not enough evidence to get a conviction and that he would be willing to waive prosecution so that her civil suit could move forward and she agreed. If so, Constand knowingly chose money over criminal prosecution. Kevin Steele, a subsequent district attorney reversed Mr. Castor’s decision and charged the entertainer with assaulting Ms. Constand.

If not but for the assurance not to prosecute, Dr. Cosby certainly would have exercised his fifth amendment right to not self incriminate. Cosby never admitted to sexual abuse, he simply admitted that he had at one time given women he wanted to have sex with quaaludes. Read the deposition for yourself, the topic of quaaludes begin on page eight of the pdf file (page 5 of the deposition).  Providing the quaaludes would probably have been illegal under the drug laws and therefore incriminating, which was mentioned in the deposition.

Here is a list of miscarriages of justice:

  • The prosecutor's promise was not honored.
  • Bill Cosby's deposition should never have been made public.
  • Bill Cosby should never have been charged.
  • The judge should have dismissed the case and a trial should never have taken place.
  • Andrea Constand should not have been allowed to violate her confidentiality agreement.
  • A second trial certainly shouldn't have taken place
  • Testimony by women excluded during the first trial should not have been allowed in the second trial.
  • Bill Cosby should not have been denied bail while his case was on appeal.
  • Bill Cosby should never have done one day in jail, because he was never legitimately found guilty of any crime.
  • Bill Cosby should have been released during the Covid-19 Pandemic.
  • Bill Cosby could have died or been killed while in prison before being exonerated.

Innocent Until Proven Guilty

The cornerstone of our criminal justice system is presumption of innocense until proven guilty. The state failed to legitimately prove Bill Cosby guilty, therefore he is innocent.

Judge Joe Brown explains why Bill Cosby is innocent:

The Pennsyvana Supreme Court stated the following in their decision concerning the Cosby case, “We hold that, when a prosecutor makes an unconditional promise of non-prosecution, and when the defendant relies upon that guarantee to the detriment of his constitutional right not to testify, the principle of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be enforced,”. The Supreme Court's decision restores Bill Cosby's innocent status under the law. 

Many of the points I made in a 2015 article concerning Bill Cosby are relevant. I don't know who is telling the truth, however, it's common knowledge that many women submitted to the casting couch to become actresses. It's hard to apply a current standard to the past. Today, the standard is for a woman to stand in her truth, however, a different standard existed years ago. It's not my intention to be insensitive to the accusors, but most of the accusors didn't come forward until after their statute of limitations had expired. The statute of limitations is the legal equivalent of "speak now or forever hold your peace," at least in a court of law. The statute of limitations for sexual offenses in 2015 ranged between 5-20 years, however, 16 states had no statute of limitations for rape. I guess we are to assume Cosby chose not to pursue any women from those 16 states.

I must also be mindful of the proverb, "hell has no furry like a woman's scorn," which may be sexist by today's standard, but still might be relevant. Some people are particulary attracted to celebrity. It's conceivable that some of the accusors willingly participated in exchange for the promise of a a career that never materialized or a continued relationship only to be slighted. Some accusors may have simply jumped on the bus for notoriety, social media fame or monetary gain. People do lie and sometimes there are misunderstandings about what happened; which is why allegations must be proven in court. 

Andrea Constand sold her right "speak now" in a court of law for $3.38 million when she signed that confidentiality agreement. That is a proven fact, however, the accusors have proven nothing! Regardless of what the court of public opinion has determined, Dr. Cosby is innocent under the law and by that standard, Phylicia Rashad's statement was true. 

Progressive prosecutors scored big wins in 2020 elections, boosting a nationwide trend

by Caren Morrison, Georgia State University

Despite the broad political polarization in the United States, the 2020 election confirmed a clear movement across both red and blue America: the gains made by reform-minded prosecutors.

Running on progressive platforms that include ending mass incarceration and addressing police misconduct, candidates defeated traditional “law-and-order” prosecutors across the country.

Elected prosecutors – often called state’s attorneys or district attorneys – represent the people of a particular county in their criminal cases. Their offices work with law enforcement to investigate and try cases, determine which crimes should be prioritized and decide how punitive to be.

After decades of incumbent prosecutors winning reelection based on their high conviction rates or the long sentences they achieved, advocates for criminal justice reform began making inroads into their territory a few years ago. They did so mainly by drawing attention to local races and funding progressive challengers.

Despite criticism during her first term, progressive prosecutor Kim Foxx won reelection as Cook County state’s attorney by a 14-point margin. Scott Olson/Getty Images

 

Birth of a movement

During her 2016 run for state’s attorney for Cook County, Illinois, Kim Foxx vowed to bring more accountability to police shootings and reduce prosecutions for nonviolent crimes.

She won, becoming the first Black woman to serve as state’s attorney in Chicago. It was also the first high-profile sign that this progressive prosecutorial approach was working.

Her victory was followed by the 2017 election of Larry Krasner as district attorney in Philadelphia. Krasner, a former civil rights attorney, had never prosecuted a case when he ran for office – a move that the city’s police union chief called “hilarious.”

But Krasner’s campaign platform – addressing mass incarceration and police misconduct – responded to a city saddled with the highest incarceration rate among large U.S. cities, nearly seven out of every 1,000 citizens. Krasner won with 75% of the vote.

As a criminal procedure professor and a former federal prosecutor, I have watched the desire for reform only grow since then.

Progressive candidates have pledged to transform a criminal justice system that has bloated prisons and disproportionately targeted people of color.

Black Lives Matter protests have also focused attention on how prosecutors make decisions – whom they prosecute and how severely, particularly in police violence cases.

Movement gains steam

Despite criticism of her first term – including her decision to drop the charges against actor Jussie Smollett for faking a hate crime – Foxx won reelection on Nov. 3 by a 14-point margin. It was a sign, according to the Chicago Sun-Times, that Cook County “doesn’t want to go backward on criminal justice reform.”

That sentiment is echoing across the country.

In Orlando, criminal justice reformer Monique Worrell beat a law-and-order “independent conservative” in the race for state attorney.

In Detroit, Karen McDonald won her race for Oakland County prosecutor by promising “common-sense criminal justice reform that utilizes treatment courts and diversion programs, addresses racial disparity, and creates a fair system for all people.”

And in Colorado, Democratic prosecutors flipped two large Colorado districts that had been held for decades by Republicans.

“I think people are starting to realize, ‘Why don’t I know who my DA is?‘” said Gordon McLaughlin, the new district attorney for Colorado’s Eighth Judicial District, who campaigned on alternatives to incarceration for nonviolent offenders. “It’s brought criminal justice into the main conversation.”

Police accountability

One prominent issue on voters’ minds is how prosecutors’ offices choose to handle police violence.

In Los Angeles, George Gascón, a former police officer, ousted Jackie Lacey. Lacey was the target of sustained criticism from BLM activists, who protested in front of her office every Wednesday for three years.

George Gascón, candidate for Los Angeles district attorney, speaks during a drive-in election night watch party at the LA Zoo parking lot on Tuesday, Nov. 3, 2020. Myung J. Chun/Los Angeles Times via Getty Images

They complained that, during her eight years in office, Lacey criminally prosecuted only one of the approximately 600 officer-involved shootings. They added that Lacey, a Black woman, sent 22 people of color to death row.

Gascón vowed to hold police accountable for officer-involved shootings. During the campaign, he pledged to reopen high-profile cases, including two where people were shot for not complying with an officer’s directions.

Mass incarceration and cash bail

Progressive prosecutors are likely to have the most impact by diverting people away from the criminal justice system in the first place.

Many have been motivated by what they see as “the criminalization of poverty” – a phenomenon in which the poor compile criminal records for minor offenses because they cannot afford bail or effective legal counsel.

Alonzo Payne, the new district attorney for San Luis Valley, Colorado, was outraged that poor people were forced to stay in jail because they couldn’t afford to post bond.

“I decided I wanted to bring some human compassion to the DA’s office,” he told the Denver Post.

Reforming the cash bail system and reducing mass incarceration is a goal shared by all of the newly elected prosecutors this election cycle, including Jose Garza, an immigrant rights attorney, in Austin, Texas.

Looking ahead

It seems that progressive policies are here to stay in some of the nation’s largest cities, but reformers didn’t enjoy success everywhere.

Candidates Zack Thomas in Johnson County, Kansas, and Julie Gunnigle in Maricopa County, Arizona, lost their races. And incumbents withstood reformist challengers in Cincinnati, Ohio, and Charleston, South Carolina.

Nonetheless, progressive prosecutors are increasingly winning races – and staying in power – by using the criminal justice system in more equitable ways.

Worrell, in Orlando, is a good example. She ran the Conviction Integrity Unit in the district attorney’s office, investigating innocence claims from convicted defendants.

Her reform message resonated a lot more with voters than the message of her opponent, Jose Torroella, who pledged to be “more old-fashioned” and more “strict.” Worrell won the race with nearly 66% of the votes.

“Criminal justice reform is not something people should be afraid of,” Worrell said. “It means we’re going to be smart on crime, rather than tough on crime.”The Conversation


Republished with permission under license from The Conversation.

Disaster work is often carried out by prisoners – who get paid as little as 14 cents an hour despite dangers

by J. Carlee Purdum, Texas A&M University

Efforts to beat back wildfires ravaging Western states in the U.S. have been hampered this year by depleted numbers of “orange angels” – incarcerated workers deployed as firefighters.

Their lower numbers coincide with the early release for eligible prisoners and the quarantining of others to combat the spread of COVID-19.

The potential impact that having fewer prisoners to draw upon highlights the crucial role that incarcerated workers play in disaster response. While many people are aware that prisoners work to help contain wildfires in California and elsewhere, less well known is the role incarcerated workers play as a labor source across a variety of disasters throughout the country.

As a social scientist, I study the impact of disasters on incarcerated populations. I recently co-authored a study on the role of incarcerated workers in state emergency operations plans – the primary emergency planning documents for state governments. We found that 30 out of the 47 states analyzed, including California, Texas and Florida, had explicit instructions to use prisoners for emergencies and disasters. Furthermore, we identified at least 34 disaster-related tasks that states assign to incarcerated workers. Delaware, New Jersey and Tennessee were not included in our analysis as their plans were not publicly available.

These include work that requires minimal training such as making sandbags, clearing debris, handling supplies and caring for pets for evacuees. But it also includes roles that require specialized training like fighting fires, collecting and disposing contaminated animal carcasses and cleaning up hazardous materials.

Some of these tasks put incarcerated workers at risk of injury or ill health.

Prisoners clearing vegetation to prevent the spread of a wildfire in Yucaipa, California. David McNew/AFP via Getty Images

14 cents an hour

Prison systems have long championed the work of incarcerated persons in emergencies and disasters as a demonstration of the value of prisons to local communities and the state.

State prison systems often have internal policies that guide the use of incarcerated persons to assist with disaster operations. For example, the Alabama Department of Corrections’ administrative regulations dictate that in the event of a disaster, “the major support of the [department] will be manpower” including the use of “inmate labor.”

In addition, state laws across the U.S. often specifically state that incarcerated workers may be assigned to work in disaster conditions.

For example, Georgia allows for incarcerated workers to be required to work in conditions that may jeopardize their health if an emergency threatens the lives of others or of public property. Meanwhile Colorado passed legislation in 1998 that created the Inmate Disaster Relief Program under which the state can “form a labor pool” to “fight forest fires, help with flood relief, and assist in the prevention of or clean up after other natural or man-made disasters.”

As with wildfire programs, incarcerated workers are looked to in times of disaster primarily because they are a low-cost substitution for civilian workers. Incarcerated workers are paid very low wages averaging between US$0.14 and $0.63 an hour. And some states, including Alabama, Arkansas, Florida, Georgia and Texas, don’t pay incarcerated workers at all.

The cost of inmate labor is offset through federal subsidies. FEMA’s public assistance program provides states with “funding for prisoner transportation to the worksite and extraordinary costs of security guards, food and lodging.” This provides a significant financial incentive to use incarcerated workers for disaster labor. After Hurricane Michael in 2018, FEMA awarded the Florida Department of Corrections $311,305 for debris removal.

Forced labor

Not all disaster work is voluntary for incarcerated persons. The 13th Amendment to the U.S. Constitution allows for incarcerated persons to be compelled to participate in labor without their consent as part of their punishment. That applies to disaster work too.

The Constitution’s Eighth Amendment “forbids knowingly compelling an inmate to perform labor that is beyond the inmate’s strength, dangerous to his or her life or health, or unduly painful.” However, in the context of disasters, it is challenging to know whether or not the situation or the environment is truly safe. And little is known about the training prisoners receive.

If incarcerated persons refuse to participate, they may face serious consequences, such as being sent to solitary confinement, the loss of earned time off their sentences or the loss of family visitation.

Deaths of incarcerated firefighters are reported alongside those of civilian firefighters, and there is no way to accurately track the number of prisoners who have died or been injured during disaster-related work. However, there are known examples of fatalities. In 2003, the South Dakota Department of Corrections “Emergency Response Inmate Work Program” was scrutinized after a 22-year-old man, Neil Ambrose, was electrocuted by a downed power line while cleaning up debris after a storm.

Ambrose reportedly expressed prior concerns about the hazardous work but was told he would be charged with “disrupting a work zone” and would be sent to solitary confinement if he did not participate. Later, the correctional officer in charge of Ambrose and those on the work crew was found responsible for his death in that he knew the downed power line was a safety threat. It was also later shown that the only training Ambrose had received was a short video on safely operating chainsaws.

Exploitation and harm

Some advocates for prisoners’ rights have begun drawing attention to the vulnerability of incarcerated workers in disasters. After Hurricane Harvey in 2017, the NAACP Environmental and Climate Justice program published a guidebook called “In the Eye of the Storm” to help communities make disaster response and recovery processes more equitable. The guidebook includes suggestions for how to advocate specifically for worker protections for incarcerated persons. Community members are encouraged to ask about whether the incarcerated workers have received relevant training and adequate protective equipment and if their participation in the work is voluntary.

Incarcerated workers are deeply embedded throughout emergency management in the United States. Yet so much attention remains focused on the most visible and well-known programs, their role – and the potential for exploitation and harm – in many other disasters remains overlooked.The Conversation


Republished with permission under license from The Conversation.

Prosecutors are increasingly – and misleadingly – using rap lyrics as evidence in court

by Erik Nielson, University of Richmond

Rapper Darrell Caldwell, better known to fans as Drakeo the Ruler, was on his way to stardom. Hailed as one of the most original rappers to emerge from Los Angeles in a generation, he had garnered hundreds of thousands of followers on Instagram, tens of millions of views on YouTube and the attention of media outlets like SPIN, The Washington Post and The Los Angeles Times.

Now he’s on trial for his life, and prosecutors are planning to do what they’ve done to hundreds of other accused hip-hop artists: Use his own lyrics as evidence against him.

You wouldn’t think Bob Marley ‘shot the sheriff,’ but rappers are held to a double standard.

 

Because my research centers on African American literary and musical traditions – with a particular emphasis on hip-hop culture – I was asked by the defense to testify as an expert witness in Drakeo’s first trial.

This is work I’m called to do quite regularly. My best guess is that I’ve consulted on over 60 cases in which prosecutors have used rap lyrics or videos as evidence of guilt. In addition, my research with University of Georgia law professor Andrea Dennis has uncovered more than 500 instances in which prosecutors have used this strategy, a number we’re certain is just the tip of the iceberg.

As an expert witness, my job is to correct the prosecutors’ characterizations of rap music. They routinely ignore the fact that rap is a form of artistic expression – with stage names, an emphasis on figurative language and hyperbolic rhetoric – and instead present rap as autobiographical.

In effect, they ask jurors to suspend the distinction between author and narrator, reality and fiction, and to read rap lyrics as literal confessions of guilt.

No other art form is exploited like this in court. And yet it’s an effective strategy precisely because it taps into stereotypes about rap music and the young men of color who are its primary creators.

Lyrics on trial

To recap Drakeo’s legal drama: Last year, he was charged and tried in connection with a shooting at a party that resulted in the death of a 24-year-old man named Davion Gregory.

According to prosecutors, the shooting was botched. Drakeo, they claimed, had ordered the shooter to kill a different person – a musical rival who raps as RJ.

Their evidence was flimsy. RJ wasn’t even at the party, and there’s no evidence he and Drakeo ever had violent confrontations. In fact, RJ has repeatedly said that he doesn’t believe he was ever targeted by Drakeo. One of the district attorney’s own witnesses also said Drakeo didn’t know the shooting was going to happen.

So to bolster their case, prosecutors focused on Drakeo’s music. At one point, for example, they cited a line from his song “Flex Freestyle,” in which he raps, “I’m ridin’ round town with a Tommy gun and a Jag / And you can disregard the yelling, RJ tied up in the back.”

The line was fictional; nobody claims that RJ was ever tied up in the back of Drakeo’s car. Nevertheless, prosecutors wanted the jury to believe that the lyrics were actual reflections of Caldwell’s desire to harm an industry rival.

Despite the prosecution’s efforts to use Drakeo’s music against him, it didn’t work: In July 2019, the jury acquitted Drakeo of most counts, including the multiple counts of murder.

Nonetheless, prosecutors are taking the unusual step of retrying Drakeo on a charge on which the jury deadlocked the first time around: criminal gang conspiracy.

If convicted, he faces life in prison.

He didn’t Doo it

For years, police departments across the country have surveilled and harassed rap artists; even today, they routinely deny these artists access to performance venues, arguing they’re a threat to public safety.

Meanwhile, the use of rap lyrics as evidence has exploded.

In 2014, for instance, San Diego prosecutors charged Brandon Duncan, who raps as Tiny Doo, with criminal gang conspiracy in connection with a series of shootings that took place in San Diego in 2013 and 2014. Nobody argued that Duncan participated in or even knew about the shootings. Nor was he in a gang.

But citing the same law now being used against Drakeo, prosecutors said his violent rap lyrics promoted gang violence – and that Duncan benefited from that violence in the form of enhanced “street cred.” So for crimes that everyone agrees Duncan didn’t commit or know about, prosecutors sought to put him away for 25 years to life. He sat in jail for more than seven months before a judge finally threw out the charges against him. Duncan later filed a lawsuit for wrongful arrest in the case, and just last month he settled with the city of San Diego for over US$700,000.

Duncan was far more fortunate than most young men who have their lyrics weaponized against them in court. The vast majority of the cases we’ve found end in conviction, often with lengthy sentences.

To highlight just a few of the recent cases I’ve testified in: There was Victor Hernandez, sentenced to life in prison for murder in Arizona; Christopher Bassett, sentenced to life plus 35 years for murder in Tennessee; and Ronnie Fuston, sentenced to death for murder in Oklahoma.

The question is not whether these young men committed the crimes they were convicted of. The question is whether they received a fair trial from an unbiased jury. When rap lyrics are introduced as evidence, that becomes highly dubious.

There’s a rhyme and a reason

Introducing rap lyrics can be highly effective for prosecutors because it allows them to draw on stereotypes about young black and Latino men as violent, hypersexual and dangerous. In front of a jury, that can foment prejudice.

Not only have I seen this firsthand, but there is also empirical evidence that reveals just how prejudicial rap lyrics can be. For example, in the late 1990s, psychologist Stuart Fischoff conducted a study to measure the effect of explicit rap lyrics on juries.

Participants were given basic biographical information about a hypothetical 18-year-old black male, but only some were shown a set of his violent, sexually explicit rap lyrics. Those who read the lyrics were significantly more likely to believe the man was capable of committing a murder than those who did not.

In a study conducted by social psychologist Carrie Fried, participants were given a set of violent lyrics without any indication of the artist or musical genre. In reality they were from the 1960 song “Bad Man’s Blunder” by the folk group Kingston Trio. Researchers told one group of participants that the lyrics were from a country song, and told the other group that they came from a rap song. In the end, participants who believed the lyrics came from a rap song were significantly more likely to view them as dangerous, offensive and in need of regulation. It’s worth noting that Fried’s study was replicated in 2016, with similar findings.

These studies – and others – highlight the enduring racial stereotypes that inform people’s perceptions of rap music. They also help explain an obvious double standard at work, one that the Supreme Court of New Jersey laid bare in a 2014 opinion that denounced the use of rap lyrics as evidence:

“One would not presume that Bob Marley, who wrote the well-known song ‘I Shot the Sheriff,’ actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story ‘The Tell–Tale Heart,’ simply because of their respective artistic endeavors on those subjects. Defendant’s lyrics should receive no different treatment.”

Unfortunately, however, they do receive different treatment, even as rap has emerged as one of the world’s most popular and influential genres.

It has also grown into a multi-billion-dollar industry, one that offers a chance at upward mobility, particularly in communities where such opportunities are desperately hard to come by.

Criminalizing it is cruel, unjust and silences some of the people most in need of a voice.


Republished with permission under license from The Conversation.

Felons Must Carry a Special ID or Go to Jail

Alabama is the only state where people with multiple felony convictions are required to register with law enforcement and carry special ID cards, legal experts say. When felons are caught without them, they can be arrested and fined or jailed.

by Connor Sheets

When a sheriff’s deputy pulled Emmanuel Pullom over on a suburban street near Birmingham, Alabama, the night of Dec. 1, 2018, he suspected that Pullom had stolen the black Ford pickup he was driving.

The deputy handcuffed Pullom, searched the truck and then took him to the Jefferson County Jail in downtown Birmingham, according to the incident report.

But Pullom wasn’t charged with stealing the truck, which he says he had recently purchased from a friend. Instead, he was charged with failing to possess a piece of laminated paper that identified him as a felon.

“The cop said, ‘Where’s your felon card?’” Pullom recalled in an interview last month. “I said, ‘What kind of card?’ He said, ‘If you’ve got three felonies, you’ve got to get a felon card.’”

More than 300 people in Alabama have been charged since 2014 under a little-known, but long-standing state law requiring people with more than two felony convictions to register with their local sheriff’s offices and carry cards identifying them as repeat felons, according to arrest data analyzed by AL.com and ProPublica.

Violations carry the threat of jail time and fines. A man in north Alabama served a one-year sentence for failing to register as a felon and obtain a felon registration card.

While some other states have felon registration requirements, criminal law professors said they believe Alabama is the only one with a law requiring registration cards.

Legal experts say the law is likely unconstitutional and reminiscent of slavery-era restrictions that required black people in many parts of the South to present identification to white people on demand.

“The card is reminiscent of the cards Jews were forced to carry in the ghettos,” John H. Blume, a criminal law professor at Cornell Law School, said via email.

“It will also give police the ability to stop people they know are felons to see if they have their cards and … to avoid things like reasonable suspicion and probable cause.”

The Jefferson County Sheriff’s Office, which arrested Pullom, did not respond to requests for comment.

Mobile County Sheriff Sam Cochran, the top law enforcement official in Alabama’s second-largest county, defended the requirement. He said the charge “gives you a good stepping stone” for jailing someone suspected of other crimes, when there otherwise isn’t enough evidence to make an arrest.

“This guy’s a five-time felon or something,” Cochran said in an interview. “And you say, ‘Hey, where’s your convicted felon thing?’ And he says, ‘Well, I don’t have one.’ You say, ‘Well, hey, bud, I [didn’t] have nothing to arrest you on, but now I do.’”

“‘So now I’m gonna arrest you, now I’m gonna inventory your car and tow it in. And if I found 5 pounds of pot in your car, then you’re gonna be arrested for trafficking marijuana.’”

Fullom’s felon ID card, with certain identifying information blurred out.

Repeat felon Derrick Rhodes has a different take. In 2016, he was arrested in Henry County and charged with failing to possess a felon ID card. Rhodes, 41, pleaded guilty and was sentenced to 10 days of suspended confinement and two years of probation and ordered to pay hundreds of dollars of fees, fines and court costs. He has since obtained a felon registration card that he carries everywhere he goes

“What’s the use of having a card on you when you’re a free man?” he said. “I’m not their prisoner no more.”

“It Shall Be the Duty”

Beginning in the 1930s, jurisdictions across the U.S. instituted so-called criminal registration laws in response to rising concerns about organized crime and other illegal activity.

In 1935, Birmingham became an early adopter of such restrictions when it passed a city ordinance requiring that felons register with law enforcement “upon their arrival in the city,” The New York Times reported at the time.

“Police officials hope that the law will give them an accurate check upon the criminal element. … It also is expected that it will result in an exodus of a great many known criminals.”

Many such laws and ordinances have since been invalidated or repealed, but the federal government and individual states have instituted a series of increasingly restrictive sex offender registry laws since the 1980s. And many states and localities across the U.S. have approved narrower registration laws that apply to people convicted of specific crimes, such as arson, serious drug crimes and gun violence.

Florida, Mississippi and Nevada have felon registration requirements, but they do not require felons to have or carry registration cards, sometimes referred to as “ex-felon cards.” In fact, Nevada law specifically bars such requirements: “The sheriff of a county or the chief of police of a city shall not require a convicted person to carry a registration card.”

In 1966, a special session of the Alabama Legislature approved the Alabama Felon Registration Act, which instituted the statewide felon registration requirements that remain in place today.

Lawmakers passed the legislation “to aid the law enforcement agencies in detecting and preventing and reducing recidivistic behavior,” according to an article about the law published in the 1966-67 edition of the Alabama Law Review.

The law requires that anyone who “resides” in Alabama and “has been convicted more than twice of a felony” anywhere in the U.S. must “register within 24 hours after his arrival in the county” and obtain a registration card from the sheriff’s office.

“It shall be the duty of such person to carry the card with him at all times while he is within the county and to exhibit the same to any officer of a municipality, a county or the state upon request.”

The maximum penalty for failing to obey the felon registration law is 30 days in jail and a $50 fine per day spent in violation, which can add up to lengthy and expensive sentences over time.

From 2014 to 2018, there have been 235 arrests in Alabama on state charges of not having a felon ID card and 53 arrests for the separate charge of failure to register with the local sheriff. Police also made nine arrests of felons who failed to notify the local sheriff of a change of address. Individual law enforcement agencies across the state have reported dozens more arrests on the charges in 2019 and this year.

Of those arrested on the charges between 2014 and 2018, about 61% were white and 38% were black, according to the state data. As of July 2019, the U.S. Census estimated that 69% of Alabama residents were white and 27% were black.

Such arrests are made in large urban counties like Jefferson, Montgomery and Baldwin, as well as in more rural counties like Franklin in Alabama’s northwest corner and Henry in the southeast.

Public records show that some local jurisdictions in Alabama have additional requirements. Arrest reports show that people have been charged in recent years in Alabama towns including Gadsden and Dothan with violating local ordinances requiring felon registration and identification.

A limited number of places outside Alabama, such as Zanesville, Ohio, and the Borough of Berlin, New Jersey, also have felon identification laws or ordinances on their books.

One-Year Sentence

Sometimes people serve serious time for failing to carry their felon IDs.

Quincy Tisdale says that at the time of his arrest in August 2014, he was “the only black man living on Sand Mountain,” a low ridge in north Alabama. “So I stuck out like a sore thumb.” He was also dating a white woman, a fact that he says drew the ire of some white residents of the largely rural area, which has a long history of racial tension.

So the 38-year-old father of three says he was regularly pulled over and searched by Marshall County sheriff’s deputies and local police officers, but they never had cause to arrest him.

One morning a Marshall County sheriff’s deputy stopped Tisdale in his silver Kia sedan as he drove through the small town of Grant and informed him that he had found a reason to lock him up.

“When he pulled me over, he said, ‘Didn’t I tell you I was gonna get your black ass one day?’” Tisdale recalled during a January interview in the living room of the friend’s home in Scottsboro, where he is currently staying.

“He said: ‘I know you don’t got your felon ID card. Come on, get out of the car.’ … When they arrested me that day, that’s the first I heard I had to have a felony card or I’d go to jail.”

Tisdale, who had previous felony convictions for crimes including burglary, theft and assault, was arrested and booked into the Marshall County Jail and charged with failure to register with the sheriff’s office and failure to possess an ex-felon card. It is the only time Tisdale has been arrested in the county, according to state court records. His bond was set at $1,500, court records show.

Tisdale pleaded guilty to the charges in October 2014 and was sentenced to 365 days in the Marshall County Community Corrections work release program — a residential jail alternative in which inmates earn money to pay down fines, fees and restitution by working for contracted companies. Tisdale says that while he was at the work release, he worked long hours deboning and loading chickens at a poultry processing plant.

Quincy Tisdale pleaded guilty to not registering with the sheriff’s office and not carrying a felon ID card. He was sentenced to 365 days in the Marshall County Community Corrections work release program.

In February 2015, after breaking the rules of the community corrections facility and getting into an argument with an employee, Tisdale was moved to the Marshall County Jail, where he served out the remainder of his sentence, court records show. He says that the punishment upended his life.

“When you take me away from my family, and I’m supporting my family, you’re pushing them out onto the streets,” he said.

Marshall County Sheriff Phil Sims, who became sheriff in January 2019, said his office does not “actively” seek out people violating the state’s felon registration and identification law.

“It’s not one of those things where we’re going out banging on doors or I’ve got someone assigned to look for people who haven’t registered,” he said. “It would generally be a secondary charge where there’s some other type of law enforcement contact like a domestic violence call or something.”

But he said that the law serves a valuable purpose, “kind of like the sex offender registry,” and that he would enforce it if his office were notified that someone in Marshall County had failed to register as a felon or obtain a registration card. Neither Sims’ predecessor, J. Scott Walls, who was sheriff at the time of Tisdale’s arrest, nor Walls’ attorney responded to requests for comment.

Tisdale says it’s an indignity to be forced to carry a felon ID card for the rest of his life: “It reminds me I’m a criminal, day in and day out.”

Scarlet Letter

Like each of the criminal law professors interviewed for this story, Pullom said he never knew that Alabama required people with more than two felony convictions to carry registration cards.

He said that he only found out about the requirement when he was arrested for violating it, and that he believes the charge was little more than a pretense to apprehend him.

“Did I have drugs on me? Did I do anything wrong? No,” said Pullom, who has been convicted of several felonies including shooting a gun into an occupied building, drug possession and theft. “They were just trying to come up with something to arrest me for.”

In fact, the arresting deputy wrote in the incident report that the felon ID card charge would allow the sheriff’s office to hold Pullom in jail and “follow up with a property crimes detective … on any other charges.” The felon ID charge was dismissed two months after his arrest and no additional charges were filed.

Lynneice Washington, district attorney for Jefferson County’s Bessemer Division, said that “you’re marking a person” by requiring them to carry a felon registration card. She added that she does not recall having ever heard of felon registration or ID charges being brought in her division, which is a subsection of the county that does not include Adamsville, where Pullom was arrested.

“Just to stop a person because you know them and know their history and to ask them if they have a felon identification card and that’s an automatic charge if they don’t have it, I don’t agree with that,” she said.

In the 1957 case Lambert v. California, the U.S. Supreme Court weighed in on the issue of felon registration. A woman named Virginia Lambert had been found guilty of violating a Los Angeles municipal law that made it “unlawful for ‘any convicted person’ to be or remain in Los Angeles for a period of more than five days without registering.” The conviction was upheld on appeal.

But the U.S. Supreme Court reversed the California ruling. The majority wrote that Lambert’s constitutional right to due process had been violated because she most likely had no “actual knowledge” that not registering as a felon was a crime.

“So the question would be whether Alabama has done a better job giving notice to someone that they need to register and/or get the ID card,” Rachel E. Barkow, a law professor and faculty director of the Center on the Administration of Criminal Law at New York University School of Law, said via email.

The piecemeal enforcement of Alabama’s felon registration and identification law also raises concerns, according to Alvin Bragg, a visiting law professor at New York Law School and co-director of the school’s Racial Justice Project.

Two-thirds of the state’s 67 counties saw no such charges brought between 2014 and 2018.

“Ultimately every law has got to be rational and not arbitrary and that’s the standard of review,” Bragg said. “I think this comes perilously close to being irrational and excessively arbitrary.”

Michele Deitch, senior lecturer at the University of Texas at Austin’s School of Law and Lyndon B. Johnson School of Public Affairs, said it would be difficult to argue that a year in jail is not a disproportionately harsh punishment for failing to carry a felon ID card.

“It would be challenged as an 8th Amendment violation,” she said. “It’s disproportionate to the underlying offense. And cruel and unusual — is there another locality that would sentence you to a year for that? Probably not. So that’s pretty unusual.”

Moving Violation

Sometimes simply failing to change an address can land a person behind bars.

That’s what happened to Michael Kelsay, who has been on law enforcement’s radar in Baldwin County for years. The father of three says that he sold his pickup this winter because he was tired of being pulled over nearly every time he left his trailer park.

A self-described former drug addict and petty criminal, he has a rap sheet spanning two decades, during which time he has been convicted of crimes including drug possession, negotiating a worthless instrument and receiving stolen property. The 39-year-old has also been arrested on two separate occasions for crimes related to felon registration.

Michael Kelsay was twice arrested and charged with failing to register a change of address on his felon registration card. At the time of the first arrest, he was temporarily living at his mother’s house, 3 miles away from the address on his card.

The first arrest took place one morning in August 2014, when Baldwin County sheriff’s deputies banged on the door at Kelsay’s mother’s house looking for him. When he came to the door, he says they informed him they had heard he was the last person seen with a criminal suspect they were trying to find.

After searching the area and determining the suspect was not there, Kelsay says one of the deputies ran his name through an electronic system, saw he was a repeat felon and asked him for his felon identification card.

“I show it to him. I’m like, ‘Boom, got it.’ They’re just grasping at straws, I feel like. Like, I’m good now,” Kelsay said during an interview in his kitchen last month.

“And then he hit me with, ‘Well, you don’t live at this address anymore,’ because I told him I was staying at my mom’s. I didn’t see the trap coming.”

Kelsay was arrested and charged with failing “to register, within 24 hours, his/her change of address or place of residence with the sheriff of Baldwin County,” according to court records. He says he was temporarily living at his mother’s house, 3 miles down the same road in Bay Minette from the address listed on his felon ID card.

Kelsay posted $5,000 bond and was released from jail three days after the arrest.

He was arrested a second time a month later and charged with failing to possess a felon registration card — he said the sheriff’s office had seized his card at the time of the first arrest because the address was incorrect and he had not replaced it — and again failing to notify the sheriff’s office that he had changed addresses. He pleaded guilty to the three charges that resulted from the two arrests and was sentenced to concurrent sentences of 30 days in jail and ordered to pay three $50 fines.

Anthony Lowery, chief deputy of the Baldwin County Sheriff’s Office, defended the arrests.

“He was knowingly, willingly violating the law,” he said. “Obviously anytime you have a known convicted felon — like in this case Mr. Kelsay has been convicted multiple times of different crimes — [felon registration] does help. It’s a tool to protect the public.”

Lowery added that the Baldwin County Sheriff’s Office pursues people who break the state’s felon registration law:

“If you’re asking if we’re just going out searching for these people, on occasion yes. … We’re charged with enforcing the law and if you’re a felon and you’re required to register and you’re violating the law then we’re going to enforce that.”

What sticks with Kelsay to this day is the idea that he was arrested because the law forever puts him in a separate category.

“I was flabbergasted by it. I couldn’t believe they took me to jail for that,” he said. “That’s what really bothers me about it is I feel like they charged me with that because they wanted me to go to jail.”


Republished with permission under license from Propublica.

 

 

Librarians could be jailed and fined under a proposed Missouri censorship law

Nicole Cooke, University of South Carolina

A bill pending in Missouri’s legislature takes aim at libraries and librarians who are making “age-inappropriate sexual material” available to children.

The measure, championed by Ben Baker, a Republican lawmaker, calls for establishing review boards who would determine whether materials in libraries contain or promote “nudity, sexuality, sexual conduct, sexual excitement, or sadomasochistic abuse.” In addition, the boards, which would be comprised of parents, would root out materials lacking “serious literary, artistic, political, or scientific value.”

Librarians who defy the review boards by buying and lending such materials would be subject to misdemeanor charges, fines upward of US$500, and a potential jail sentence up to one year.

As a librarian, and now as an educator who teaches aspiring librarians, I see this bill as the latest chapter in a long history of books being banned from public and school libraries.

A sign of the times. 

Censorship and book banning

Often, efforts to censor and muzzle libraries originate with members of the public rather than public officials or school leaders.

Censoring and banning library materials and programs is nothing new. Many classic books have been challenged and banned, including classroom favorites like “1984” by George Orwell, “The Catcher in the Rye” by J. D. Salinger, “To Kill a Mockingbird” by Harper Lee, “The Color Purple” by Alice Walker, and “I Know Why the Caged Bird Sings” by Maya Angelou.

The children’s book “And Tango Makes Three,” by Justin Richardson and Peter Parnell and illustrated by Henry Cole, was challenged and banned from libraries around the country for many years after its publication in 2005. The picture book is based on a true story of two male penguins in New York City’s Central Park Zoo who adopt and care for an egg and then keep caring for their daughter, Tango, after she hatched.

J.K. Rowling’s Harry Potter series is also regularly challenged and banned.

Separately, opponents of the storytime program known as “Drag Queen Story Hour” at libraries and other community venues, have held protests to ban and condemn such events aimed at children. The objections voiced by protesters stem from their belief that drag performers are evil and amoral and that exposure to drag queens will, in their view, cause children to become gay.

The Missouri bill is not the first of its kind. State lawmakers in Colorado and Maine both tried to pass similar legislation in 2019. Both efforts failed.

The drag queens who read to kids in libraries are attracting protesters. 

A profession

American Library Association’s Office of Intellectual Freedom, the Missouri Library Association, and PEN America – a nonprofit that defends free expression – are among the literary and library groups that have voiced their objections.

Many of the drag queens who read to kids are planning a protest against the measure on March 7. Baker has said his concerns about these readings were a factor in inspiring him to draft the bill.

Librarians are professionals. Librarians working in K-12 school libraries also earn certification as school library media specialists. Librarians have expertise in children’s literature, collection development, child development, psychology, readers’ advisory, reference services and other specialized skills needed to serve children and young adults in a variety of settings.

In short, librarians are more than capable of selecting and purchasing quality books and other materials for people of all ages.

To imply otherwise, as I believe the proposed Missouri measure would, is to insult these skilled educators. If it should be enacted, I would consider it a potential threat to information access, intellectual freedom and the freedom to read.


Republished with permission under license from The Conversation.