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.
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.
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.”
“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.”
One prominent issue on voters’ minds is how prosecutors’ offices choose to handle police violence.
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.
It seems that progressive policies are here to stay in some of the nation’s largest cities, but reformers didn’t enjoy success everywhere.
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 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.
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.
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.
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.
Caring for these elderly prisoners suffering from physical and mental frailty will create significant challenges for prisons.
As an expert in human rights law and a former commissioner on Pennsylvania’s Sentencing Commission, I am concerned about the burden this places on already overstretched prisons, but also the cost to human dignity. Furthermore, my research suggests that indefinitely detaining someone who does not understand why may violate the United States Constitution’s prohibition on cruel and unusual punishment.
Dying behind bars
America’s large aging U.S. prison population is the direct result of the “tough on crime” policies of the 1980s and 1990s, when three-strike laws and mandatory life sentences without the possibility of parole condemned many to die behind bars.
Part of what is driving this cost is the expense of caring for those with serious medical conditions, especially those with dementia. Last year, the federal government opened its first unit dedicated solely to caring for prisoners with dementia. The unit is staffed by nurses, correctional officers and other prisoners who receive special training to help them care for those with Alzheimer’s disease and dementia.
Finances are not the only concern regarding this elderly incarcerated population. There is also the cost to human dignity.
The Eighth Amendment of the U.S. Constitution upholds this principle by outlawing cruel and unusual punishment. To justify punishment, the Eighth Amendment requires that there be some penological purpose, such as retribution, rehabilitation or deterrence.
Recent U.S. Supreme Court cases suggest there is no such justification for indefinitely incarcerating those with dementia. In February 2019, the court in Madison v. Alabama – which centered around a prisoner who developed severe dementia after a series of strokes – held that it is unconstitutional to execute someone who cannot rationally understand their death sentence because it serves has no retributive purpose.
The reasoning behind this ruling is centuries old. Dating back to the United States’ founding, those with limited mental capacity were entitled to special protections in the criminal context.
Sir William Blackstone, a renowned 18th-century English jurist whose commentaries on English common law deeply influenced the Founding Fathers of the United States, believed it was cruel and unusual to execute someone who lacked mental capacity.
As the U.S. Supreme Court would later echo, Blackstone reasoned that “furiosus solo furore punitur” – madness is its own punishment. Living with dementia can also feel like a punishment. People with dementia suffer gradual, irreversible loss of memory, judgment, daily functioning and health.
The effects of the disease are compounded by incarceration. Because of their profound impairments, people with dementia are sometimes unable to understand that they are in a prison, much less why. Elderly prisoners with dementia are also at an increased risk of victimization, sexual assault and bullying from other prisoners.
Additionally, because they struggle to understand and follow prison rules, they are also more likely to be subjected to harsh punishment while incarcerated. Some are punished with solitary confinement, which further degrades their physical and mental health.
Life and death
While Madison vs. Alabama addressed death sentences, a 2012 U.S. Supreme Court case provides precedent for the conclusion that the justices’ holding could be extended to life without the possibility of parole. In Miller v. Alabama, the court compared a life sentence to a death sentence, as it “forswears altogether the rehabilitative ideal.”
In other words, both sentences result in the condemned person having no ability to redeem themselves. While the court had suggested in previously cases that the death penalty is in a category all its own, in Miller it suggested that life sentences “share some characteristics with death sentences that are shared by no other sentences.”
Furthermore, when it comes to prisoners with dementia, life sentences cannot be justified as a deterrence. Simply put, how can someone adjust their behavior to avoid punishment, if they do not understand that the punishment is a consequence of their own bad acts?
Forcing those who cannot understand their punishment to live the remainder of their days behind bars appears to be exactly the type of excessive and cruel punishment that the Eighth Amendment was meant to protect against. As the elderly prison population balloons, society may need to reconsider the real world consequences of life without parole sentences.
In my view, the cost, both to taxpayers and to our basic human dignity, is too high.
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.’”
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.
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.
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.”
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.”
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.
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.
A study of bail judges in the Miami and Philadelphia areas suggests that both black and white judges show bias against black defendants.
The study, in The Quarterly Journal of Economics, finds that black defendants are 2.4 percentage points more likely than white defendants to be detained while they await their court hearings. The average bail for black defendants is $7,281 higher than for white defendants.
It appears that bail judges rely on racial stereotypes to predict which defendants will commit another crime if released, the researchers explain. In reality, some white defendants are much more likely than black defendants to get arrested again after their release, the team’s analysis suggests.
“We find suggestive evidence that this racial bias is driven by bail judges relying on inaccurate stereotypes that exaggerate the relative danger of releasing black defendants,” write the authors of the paper, David Arnold and Will Dobbie of Princeton University and Crystal S. Yang of Harvard Law School.
Generally speaking, after an arrest, defendants who seem less risky are released on their own recognizance, meaning they are free to go after promising to appear in court for upcoming proceedings, or they are released if they meet certain conditions such as paying a bail amount or posting a bail bond to guarantee their presence in court. Some defendants are not released because they cannot meet bail.
For the study, researchers examined 162,836 court cases representing 93,914 defendants in Philadelphia County from 2010 to 2014 as well as 93,417 cases from 65,944 defendants in Miami-Dade County between 2006 and 2014.
The findings are consistent with another study published in 2018 that uses machine learning techniques to show that bail judges make mistakes in predicting what a defendant would do if released. That study indicates judges make significant prediction errors for defendants of all races.
Some other key findings of this study include:
Racial bias is higher among bail judges in Miami-Dade than in Philadelphia.
Racial bias is higher among inexperienced judges and part-time bail judges. Experienced judges are better at predicting defendant behavior. The scholars find that judges in Miami who are considered to be experienced have 9.5 years of experience working in the bail system, on average. Miami judges considered to be inexperienced have an average of 2.5 years of experience.
“If racially biased prediction errors among inexperienced judges are an important driver of black-white disparities in pretrial detention, providing judges with increased opportunities for training or on-the-job feedback could play an important role in decreasing racial disparities in the criminal justice system,” the researchers write. “Our findings also suggest that providing judges with data-based risk assessments may also help decrease unwarranted racial disparities.”
Obama Sends Letter to Prisoner He Freed Who Turned Her Life Around
President Obama let Danielle Metz out of prison. Then she enrolled in college and made the dean's list. Obama heard about Metz's success and sent a letter telling her how proud he is of her for turning her life around and graduating college.
“I am so proud of you, and am confident that your example will have a positive impact for others who are looking for a second chance, Tell your children I say hello, and know that I’m rooting for all of you.”
Danielle Metz's full story about her journey from jail to college is below.
From prison to dean’s list: How Danielle Metz got an education after incarceration
by CASEY PARKS
NEW ORLEANS – The sun glowed gold, and a second line parade was tuning its horns just a few streets away. But Danielle Metz had missed half her life already, and she couldn’t spare the afternoon, even one as unseasonably warm as this mid-February Sunday.
She climbed the stairs to the shotgun house her mom had bought in uptown New Orleans more than half a century ago. Metz slipped through the screen door, then shut it tight enough to keep out the sun. Inside, she dug through a box next to her bed and pulled out the clothbound journal that a woman had given her in 1996, when they were both incarcerated in the Federal Correctional Institute in Dublin, California. Metz hadn’t kept much from the 23 years she spent in prison, but the journal had been too special to leave behind. She opened it and read the dedication as a reminder of what she hoped to accomplish now that she was out.
“To Danielle — There’s so many things we can’t get in here, but knowledge and education can’t be kept out by walls.”
Growing up, Metz had believed that college was for white kids and for “Huxtables” — black people she named after the upper-middle-class family in “The Cosby Show.” She knew, as she looked at the laptop screen, how improbable people might think earning a degree would be for her now. She’d dropped out of high school her junior year. At 26, a judge had sentenced Metz to three life sentences plus another 20 years for her role in her husband’s cocaine distribution. She’d thought she’d never see New Orleans again, let alone visit a university.
Even after President Barack Obama granted her clemency in 2016, Metz believed she couldn’t go to college. Nationwide, less than 4 percent of formerly incarcerated people have a bachelor’s degree, according to a report released last year. The chances seemed especially low in Metz’s home state. Louisiana had long held twin records, the world’s highest incarceration rate, and the country’s lowest rate of black college graduates. Put together, this meant tens of thousands of residents lacked a viable pathway to middle-class security.
But lawmakers had come to believe that a change was imperative for the state’s future. In 2017, Louisiana became the first state in the nation to “ban the box” on public college and university applications, prohibiting school officials from asking whether an applicant has a criminal record. Metz knew that people across the country were working to help people like her go to college after prison. Though Illinois and New York failed to pass “ban the box” measures for university applications, several other states are trying to follow Louisiana’s lead. And federal lawmakers from both parties are pushing to allow incarcerated people to access Pell Grants, financial aid that they’ve been barred from using since Metz first went to prison.
Metz was grateful for the legal shifts, but political momentum alone would not carry her through school. As the parade began its march through Uptown, she scrolled through the university’s website and hovered over the tab marked “current students.” She had no idea how long it would take or how much it might cost, but Metz didn’t care. She was going to college.
Metz grew up the youngest of nine children in a city barreling toward chaos. As a kid, she considered herself lucky. Both of her parents worked — her father as a cement finisher, her mother in a bakery — and together they earned enough to buy a home three miles away from the St. Thomas Projects, a public housing development where many other black families lived. St. Thomas was so poor and violent when Metz was young that Sister Helen Prejean described the neighborhood in the opening of her book “Dead Man Walking” as “not death row exactly, but close."
Even as a little girl, Metz knew people who’d gone to jail, but her neighborhood was quiet, and her parents were dreamers. For years, her father urged her to become a nurse. Metz knew the job required a college degree, but she didn’t know anyone who’d earned one. In 1980, the year Metz enrolled at Walter L. Cohen High School, more than half the city’s black adults didn’t have even a high school diploma, let alone a university credential.
Instead, Metz longed to become a hairstylist. She’d practiced since she was a little girl on her mom, whose locks grew in so straight that people speculated she must have white ancestors. But even that goal felt unreachable after Metz became pregnant in 1985, her junior year of high school. She dropped out and assumed she wouldn’t have a career. She’d be a mother instead.
Six months after Metz gave birth to her son, Carl, his father was murdered.
Metz became a single mother just as the state’s economy was collapsing. Louisiana had long been dependent on oil — profits from the natural resource accounted for nearly half of the state’s budget then. But the price per barrel began falling in 1981, and by the mid-1980s, one in eight Louisiana workers was unemployed, the highest rate in the nation. New Orleans lost nearly 10,000 jobs, leaving few openings for a teenage mother with no credentials or documentable skills.
Metz didn’t take time to grieve. Most black people in New Orleans knew someone who’d been killed, she said. Instead, she started looking for someone to help raise her child.
Glenn Metz had money. He’d grown up poor in the Calliope housing projects, one of the most violent neighborhoods in New Orleans, but he owned two tow-truck companies by the time Metz met him. At age 30, he possessed the kind of quiet maturity that Metz, then 18, thought would make him a good substitute father for Carl. Glenn Metz wore such nice clothes and jewelry the night Metz met him that she suspected he at least dabbled in drug-dealing, but she told herself his business had nothing to do with her.
According to federal prosecutors, Glenn Metz formed a drug ring just before he met the girl who would become his wife. Between 1985 and 1992, Glenn Metz and his crew came to dominate St. Thomas and Calliope, prosecutors said, distributing more than 1,000 kilos of cocaine and killing 23 rivals. Glenn Metz sat atop an organization manned by more than half a dozen enforcers, two of whom, prosecutors said, drove through town in an armor-plated pickup with the word “homicide” spelled out on the hood in gold letters.
Metz spent most of those years at home. “The Cosby Show” debuted the year she should have graduated high school, and she watched it and its college-based spin-off “A Different World” every week, dreaming of the life she wished she had. She took a few beauty school classes and occasionally cut hair in someone’s home, but Glenn Metz didn’t like when she left the house, she said. They married in 1989, and Metz soon gave birth to their daughter, Gleneisha. Metz didn’t have a social security number or any way to make money on her own. When Glenn Metz told her to ride with her aunt to deliver a few packages to Houston, Metz said, she did it.
Crack cocaine was spreading through black neighborhoods across the country then, and lawmakers blamed the drug for an increase in inner-city violence. New Orleans was especially hard hit. In 1990, the city topped 300 murders for the first time. Nearly every edition of The Times-Picayune that year carried news of cocaine busts. Police arrested scores of black men, including Metz’s older brother, Perry Bernard, for possession. As the city’s murder rate rose to the nation’s highest, investigators worked to take down Glenn Metz. His was the biggest and most violent drug ring in the city, prosecutors said. They indicted him and eight others, including Metz, in the summer of 1992.
Metz, who’d been temporarily living in Las Vegas with her husband before the indictment, fled to Jackson, Mississippi. She rented an apartment near Jackson State University and planned to enroll after the investigation concluded. When police arrested her there in January 1993, Metz figured she’d just get probation. Most people she knew went to jail “seasonally.” Her older brother had drifted in and out before a 1989 arrest netted him 13 years in a state prison.
After crack cocaine became popular, Congress adopted the Anti-Drug Abuse Act of 1986, establishing for the first time mandatory minimum sentences triggered by specific quantities of cocaine. The penalties were worse for defendants charged with possession or distribution of crack cocaine, favored by African-Americans, than for those accused of possessing or distributing the powder cocaine primarily used by white people.
But Metz, 25 then, had never had so much as a traffic ticket. She believed her involvement in her husband’s narcotics sales was minimal enough that prosecutors would let her go with a warning. Police did not find any drugs with her, and she was never implicated in any violence.
Instead, federal authorities charged Metz and her co-defendants under the Racketeer Influenced and Corrupt Organizations Act. Lawmakers created RICO in the 1970s under President Richard Nixon as a tool to combat the Mafia, but prosecutors increasingly used it in the 1980s to fight drug rings. The charges under RICO carried automatic sentences of life in prison without parole.
The U.S. attorneys who prosecuted her case presented witnesses who were major narcotics suppliers or small-time drug dealers. They testified that Metz had driven packages to Houston for her husband and, on occasion, accepted cash payments and wired money to suppliers. The jury decided she was guilty.
Four months later, in mid-December, U.S. District Judge A.J. McNamara sentenced Metz to three life sentences plus another 20 years in federal prison.
Ankle bracelets are promoted as a humane alternative to jail. But private companies charge defendants hundreds of dollars a month to wear the surveillance devices. If people can’t pay, they may end up behind bars.
by Ava Kofman
On Oct. 12, 2018, Daehaun White walked free, or so he thought. A guard handed him shoelaces and the $19 that had been in his pocket at the time of his booking, along with a letter from his public defender. The lanky 19-year-old had been sitting for almost a month in St. Louis’ Medium Security Institution, a city jail known as the Workhouse, after being pulled over for driving some friends around in a stolen Chevy Cavalier. When the police charged him with tampering with a motor vehicle — driving a car without its owner’s consent — and held him overnight, he assumed he would be released by morning. He told the police that he hadn’t known that the Chevy, which a friend had lent him a few hours earlier, was stolen. He had no previous convictions. But the $1,500 he needed for the bond was far beyond what he or his family could afford. It wasn’t until his public defender, Erika Wurst, persuaded the judge to lower the amount to $500 cash, and a nonprofit fund, the Bail Project, paid it for him, that he was able to leave the notoriously grim jail. “Once they said I was getting released, I was so excited I stopped listening,” he told me recently. He would no longer have to drink water blackened with mold or share a cell with rats, mice and cockroaches. He did a round of victory pushups and gave away all of the snack cakes he had been saving from the cafeteria.
When he finally read Wurst’s letter, however, he realized there was a catch. Even though Wurst had argued against it, the judge, Nicole Colbert-Botchway, had ordered him to wear an ankle monitor that would track his location at every moment using GPS. For as long as he would wear it, he would be required to pay $10 a day to a private company, Eastern Missouri Alternative Sentencing Services, or EMASS. Just to get the monitor attached, he would have to report to EMASS and pay $300 up front — enough to cover the first 25 days, plus a $50 installation fee.
White didn’t know how to find that kind of money. Before his arrest, he was earning minimum wage as a temp, wrapping up boxes of shampoo. His father was largely absent, and his mother, Lakisha Thompson, had recently lost her job as the housekeeping manager at a Holiday Inn. Raising Daehaun and his four siblings, she had struggled to keep up with the bills. The family bounced between houses and apartments in northern St. Louis County, where, as a result of Jim Crow redlining, most of the area’s black population lives. In 2014, they were living on Canfield Drive in Ferguson when Michael Brown was shot and killed there by a police officer. During the ensuing turmoil, Thompson moved the family to Green Bay, Wisconsin. White felt out of place. He was looked down on for his sagging pants, called the N-word when riding his bike. After six months, he moved back to St. Louis County on his own to live with three of his siblings and stepsiblings in a gray house with vinyl siding.
When White got home on the night of his release, he was so overwhelmed to see his family again that he forgot about the letter. He spent the next few days hanging out with his siblings, his mother, who had returned to Missouri earlier that year, and his girlfriend, Demetria, who was seven months pregnant. He didn’t report to EMASS.
What he didn’t realize was that he had failed to meet a deadline. Typically, defendants assigned to monitors must pay EMASS in person and have the device installed within 24 hours of their release from jail. Otherwise, they have to return to court to explain why they’ve violated the judge’s orders. White, however, wasn’t called back for a hearing. Instead, a week after he left the Workhouse, Colbert-Botchway issued a warrant for his arrest.
Three days later, a large group of police officers knocked on Thompson’s door, looking for information about an unrelated case, a robbery. White and his brother had been making dinner with their mother, and the officers asked them for identification. White’s name matched the warrant issued by Colbert-Botchway. “They didn’t tell me what the warrant was for,” he said. “Just that it was for a violation of my release.” He was taken downtown and held for transfer back to the Workhouse. “I kept saying to myself, ’Why am I locked up?’” he recalled.
The next morning, Thompson called the courthouse to find the answer. She learned that her son had been jailed over his failure to acquire and pay for his GPS monitor. To get him out, she needed to pay EMASS on his behalf.
This seemed absurd to her. When Daehaun was 13, she had worn an ankle monitor after violating probation for a minor theft, but the state hadn’t required her to cover the cost of her own supervision. “This is a 19-year-old coming out of the Workhouse,” she told me recently. “There’s no way he has $300 saved.” Thompson felt that the court was forcing her to choose between getting White out of jail and supporting the rest of her family.
Over the past half-century, the number of people behind bars in the United States jumped by more than 500%, to 2.2 million. This extraordinary rise, often attributed to decades of “tough on crime” policies and harsh sentencing laws, has ensured that even as crime rates have dropped since the 1990s, the number of people locked up and the average length of their stay have increased. According to the Bureau of Justice Statistics, the cost of keeping people in jails and prisons soared to $87 billion in 2015 from $19 billion in 1980, in current dollars.
In recent years, politicians on both sides of the aisle have joined criminal-justice reformers in recognizing mass incarceration as both a moral outrage and a fiscal sinkhole. As ankle bracelets have become compact and cost-effective, legislators have embraced them as an enlightened alternative. More than 125,000 people in the criminal-justice system were supervised with monitors in 2015, compared with just 53,000 people in 2005, according to the Pew Charitable Trusts. Although no current national tally is available, data from several cities — Austin, Texas; Indianapolis; Chicago; and San Francisco — show that this number continues to rise. Last December, the First Step Act, which includes provisions for home detention, was signed into law by President Donald Trump with support from the private prison giants GEO Group and CoreCivic. These corporations dominate the so-called community-corrections market — services such as day-reporting and electronic monitoring — that represents one of the fastest-growing revenue sectors of their industry.
By far the most decisive factor promoting the expansion of monitors is the financial one. The United States government pays for monitors for some of those in the federal criminal-justice system and for tens of thousands of immigrants supervised by Immigration and Customs Enforcement. But states and cities, which incur around 90% of the expenditures for jails and prisons, are increasingly passing the financial burden of the devices onto those who wear them. It costs St. Louis roughly $90 a day to detain a person awaiting trial in the Workhouse, where in 2017 the average stay was 291 days. When individuals pay EMASS $10 a day for their own supervision, it costs the city nothing. A 2014 study by NPR and the Brennan Center found that, with the exception of Hawaii, every state required people to pay at least part of the costs associated with GPS monitoring. Some probation offices and sheriffs run their own monitoring programs — renting the equipment from manufacturers, hiring staff and collecting fees directly from participants. Others have outsourced the supervision of defendants, parolees and probationers to private companies.
“There are a lot of judges who reflexively put people on monitors, without making much of a pretense of seriously weighing it at all,” said Chris Albin-Lackey, a senior legal adviser with Human Rights Watch who has researched private-supervision companies. “The limiting factor is the cost it might impose on the public, but when that expense is sourced out, even that minimal brake on judicial discretion goes out the window.”
Nowhere is the pressure to adopt monitors more pronounced than in places like St. Louis: cash-strapped municipalities with large populations of people awaiting trial. Nationwide on any given day, half a million people sit in crowded and expensive jails because, like Daehaun White, they cannot purchase their freedom.
As the movement to overhaul cash bail has challenged the constitutionality of jailing these defendants, judges and sheriffs have turned to monitors as an appealing substitute. In San Francisco, the number of people released from jail onto electronic monitors tripled after a 2018 ruling forced courts to release more defendants without bail. In Marion County, Indiana, where jail overcrowding is routine, roughly 5,000 defendants were put on monitors last year. “You would be hard-pressed to find bail-reform legislation in any state that does not include the possibility of electronic monitoring,” said Robin Steinberg, the chief executive of the Bail Project.
Yet like the system of wealth-based detention they are meant to help reform, ankle monitors often place poor people in special jeopardy. Across the country, defendants who have not been convicted of a crime are put on “offender funded” payment plans for monitors that sometimes cost more than their bail. And unlike bail, they don’t get the payment back, even if they’re found innocent. Although a federal survey shows that nearly 40% of Americans would have trouble finding $400 to cover an emergency, companies and courts routinely threaten to lock up defendants if they fall behind on payment. In Greenville, South Carolina, pretrial defendants can be sent back to jail when they fall three weeks behind on fees. (An officer for the Greenville County Detention Center defended this practice on the grounds that participants agree to the costs in advance.) In Mohave County, Arizona, pretrial defendants charged with sex offenses have faced rearrest if they fail to pay for their monitors, even if they prove that they can’t afford them. “We risk replacing an unjust cash-bail system,” Steinberg said, “with one just as unfair, inhumane and unnecessary.”
Many local judges, including in St. Louis, do not conduct hearings on a defendant’s ability to pay for private supervision before assigning them to it; those who do often overestimate poor people’s financial means. Without judicial oversight, defendants are vulnerable to private-supervision companies that set their own rates and charge interest when someone can’t pay up front. Some companies even give their employees bonuses for hitting collection targets.
It’s not only debt that can send defendants back to jail. People who may not otherwise be candidates for incarceration can be punished for breaking the lifestyle rules that come with the devices. A survey in California found that juveniles awaiting trial or on probation face especially difficult rules; in one county, juveniles on monitors were asked to follow more than 50 restrictions, including not participating “in any social activity.” For this reason, many advocates describe electronic monitoring as a “net-widener": Far from serving as an alternative to incarceration, it ends up sweeping more people into the system.
Dressed in a baggy yellow City of St. Louis Corrections shirt, White was walking to the van that would take him back to the Workhouse after his rearrest, when a guard called his name and handed him a bus ticket home. A few hours earlier, his mom had persuaded her sister to lend her the $300 that White owed EMASS. Wurst, his public defender, brought the receipt to court.
The next afternoon, White hitched a ride downtown to the EMASS office, where one of the company’s bond-compliance officers, Nick Buss, clipped a black box around his left ankle. Based in the majority white city of St. Charles, west of St. Louis, EMASS has several field offices throughout eastern Missouri. A former probation and parole officer, Michael Smith, founded the company in 1991 after Missouri became one of the first states to allow private companies to supervise some probationers. (Smith and other EMASS officials declined to comment for this story.)
The St. Louis area has made national headlines for its “offender funded” model of policing and punishment. Stricken by postindustrial decline and the 2008 financial crisis, its municipalities turned to their police departments and courts to make up for shortfalls in revenue. In 2015, the Ferguson Report by the United States Department of Justice put hard numbers to what black residents had long suspected: The police were targeting them with disproportionate arrests, traffic tickets and excessive fines.
EMASS may have saved the city some money, but it also created an extraordinary and arbitrary-seeming new expense for poor defendants. When cities cover the cost of monitoring, they often pay private contractors $2 to $3 a day for the same equipment and services for which EMASS charges defendants $10 a day. To come up with the money, EMASS clients told me, they had to find second jobs, take their children out of day care and cut into disability checks. Others hurried to plead guilty for no better reason than that being on probation was cheaper than paying for a monitor.
At the downtown office, White signed a contract stating that he would charge his monitor for an hour and a half each day and “report” to EMASS with $70 each week. He could shower, but was not to bathe or swim (the monitor is water-resistant, not waterproof). Interfering with the monitor’s functioning was a felony.
White assumed that GPS supervision would prove a minor annoyance. Instead, it was a constant burden. The box was bulky and the size of a fist, so he couldn’t hide it under his jeans. Whenever he left the house, people stared. There were snide comments ("nice bracelet") and cutting jokes. His brothers teased him about having a babysitter. “I’m nobody to watch,” he insisted.
The biggest problem was finding work. Confident and outgoing, White had never struggled to land jobs; after dropping out of high school in his junior year, he flipped burgers at McDonald’s and Steak ’n Shake. To pay for the monitor, he applied to be a custodian at Julia Davis Library, a cashier at Home Depot, a clerk at Menards. The conversation at Home Depot had gone especially well, White thought, until the interviewer casually asked what was on his leg.
To help improve his chances, he enrolled in Mission: St. Louis, a job-training center for people reentering society. One afternoon in January, he and a classmate role-played how to talk to potential employers about criminal charges. White didn’t know how much detail to go into. Should he tell interviewers that he was bringing his pregnant girlfriend some snacks when he was pulled over? He still isn’t sure, because a police officer came looking for him midway through the class. The battery on his monitor had died. The officer sent him home, and White missed the rest of the lesson.
With all of the restrictions and rules, keeping a job on a monitor can be as difficult as finding one. The hours for weekly check-ins at the downtown EMASS office — 1 p.m. to 6 p.m. on Tuesdays and Wednesdays, and 1 p.m. until 5 p.m. on Mondays — are inconvenient for those who work. In 2011, the National Institute of Justice surveyed 5,000 people on electronic monitors and found that 22% said they had been fired or asked to leave a job because of the device. Juawanna Caves, a young St. Louis native and mother of two, was placed on a monitor in December after being charged with unlawful use of a weapon. She said she stopped showing up to work as a housekeeper when her co-workers made her uncomfortable by asking questions and later lost a job at a nursing home because too many exceptions had to be made for her court dates and EMASS check-ins.
Perpetual surveillance also takes a mental toll. Nearly everyone I spoke to who wore a monitor described feeling trapped, as though they were serving a sentence before they had even gone to trial. White was never really sure about what he could or couldn’t do under supervision. In January, when his girlfriend had their daughter, Rylan, White left the hospital shortly after the birth, under the impression that he had a midnight curfew. Later that night, he let his monitor die so that he could sneak back before sunrise to see the baby again.
EMASS makes its money from defendants. But it gets its power over them from judges. It was in 2012 that the judges of the St. Louis court started to use the company’s services — which previously involved people on probation for misdemeanors — for defendants awaiting trial. Last year, the company supervised 239 defendants in the city of St. Louis on GPS monitors, according to numbers provided by EMASS to the court. The alliance with the courts gives the company not just a steady stream of business but a reliable means of recouping debts: Unlike, say, a credit-card company, which must file a civil suit to collect from overdue customers, EMASS can initiate criminal-court proceedings, threatening defendants with another stay in the Workhouse.
In early April, I visited Judge Rex Burlison in his chambers on the 10th floor of the St. Louis civil courts building. A few months earlier, Burlison, who has short gray hair and light blue eyes, had been elected by his peers as presiding judge, overseeing the city’s docket, budget and operations, including the contract with EMASS. It was one of the first warm days of the year, and from the office window I could see sunlight glimmering on the silver Gateway Arch.
I asked Burlison about the court’s philosophy for using pretrial GPS. He stressed that while each case was unique and subject to the judge’s discretion, monitoring was most commonly used for defendants who posed a flight risk, endangered public safety or had an alleged victim. Judges vary in how often they order defendants to wear monitors, and critics have attacked the inconsistency. Colbert-Botchway, the judge who put White on a monitor, regularly made pretrial GPS a condition of release, according to public defenders. (Colbert-Botchway declined to comment.) But another St. Louis city judge, David Roither, told me, “I really don’t use it very often because people here are too poor to pay for it.”
Whenever a defendant on a monitor violates a condition of release, whether related to payment or a curfew or something else, EMASS sends a letter to the court. Last year, Burlison said, the court received two to three letters a week from EMASS about violations. In response, the judge usually calls the defendant in for a hearing. As far as he knew, Burlison said, judges did not incarcerate people simply for failing to pay EMASS debts. “Why would you?” he asked me. When people were put back in jail, he said, there were always other factors at play, like the defendant’s missing a hearing, for instance. (Issuing a warrant for White’s arrest without a hearing, he acknowledged after looking at the docket, was not the court’s standard practice.)
The contract with EMASS allows the court to assign indigent defendants to the company to oversee “at no cost.” Yet neither Burlison nor any of the other current or former judges I spoke with recalled waiving fees when ordering someone to wear an ankle monitor. When I asked Burlison why he didn’t, he said that he was concerned that if he started to make exceptions on the basis of income, the company might stop providing ankle-monitoring services in St. Louis.
“People get arrested because of life choices,” Burlison said. “Whether they’re good for the charge or not, they’re still arrested and have to deal with it, and part of dealing with it is the finances.” To release defendants without monitors simply because they can’t afford the fee, he said, would be to disregard the safety of their victims or the community. “We can’t just release everybody because they’re poor,” he continued.
But many people in the Workhouse awaiting trial are poor. In January, civil rights groups filed suit against the city and the court, claiming that the St. Louis bail system violated the Constitution, in part by discriminating against those who can’t afford to post bail. That same month, the Missouri Supreme Court announced new rules that urged local courts to consider releasing defendants without monetary conditions and to waive fees for poor people placed on monitors. Shortly before the rules went into effect, on July 1, Burlison said that the city intends to shift the way ankle monitors are distributed and plans to establish a fund to help indigent defendants pay for their ankle bracelets. But he said he didn’t know how much money would be in the fund or whether it was temporary or permanent. The need for funding could grow quickly. The pending bail lawsuit has temporarily spurred the release of more defendants from custody, and as a result, public defenders say, the demand for monitors has increased.
Judges are anxious about what people released without posting bail might do once they get out. Several told me that monitors may ensure that the defendants return to court. Not unlike doctors who order a battery of tests for a mildly ill patient to avoid a potential malpractice suit, judges seem to view monitors as a precaution against their faces appearing on the front page of the newspaper. “Every judge’s fear is to let somebody out on recognizance and he commits murder, and then everyone asks, ’How in the hell was this person let out?’” said Robert Dierker, who served as a judge in St. Louis from 1986 to 2017 and now represents the city in the bail lawsuit. “But with GPS, you can say, ’Well, I have him on GPS, what else can I do?’”
Critics of monitors contend that their public-safety appeal is illusory: If defendants are intent on harming someone or skipping town, the bracelet, which can be easily removed with a pair of scissors, would not stop them. Studies showing that people tracked by GPS appear in court more reliably are scarce, and research about its effectiveness as a deterrent is inconclusive.
“The fundamental question is, What purpose is electronic monitoring serving?” said Blake Strode, the executive director of ArchCity Defenders, a nonprofit civil rights law firm in St. Louis that is one of several firms representing the plaintiffs in the bail lawsuit. “If the only purpose it’s serving is to make judges feel better because they don’t want to be on the hook if something goes wrong, then that’s not a sensible approach. We should not simply be monitoring for monitoring’s sake.”
Electronic monitoring was first conceived in the early 1960s by Ralph and Robert Gable, identical twins studying at Harvard under the psychologists Timothy Leary and B.F. Skinner, respectively. Influenced in part by Skinner’s theories of positive reinforcement, the Gables rigged up some surplus missile-tracking equipment to monitor teenagers on probation; those who showed up at the right places at the right times were rewarded with movie tickets, limo rides and other prizes.
Although this round-the-clock monitoring was intended as a tool for rehabilitation, observers and participants alike soon recognized its potential to enhance surveillance. All but two of the 16 volunteers in their initial study dropped out, finding the two bulky radio transmitters oppressive. “They felt like it was a prosthetic conscience, and who would want Mother all the time along with you?” Robert Gable told me. Psychology Today labeled the invention a “belt from Big Brother.”
The reality of electronic monitoring today is that Big Brother is watching some groups more than others. No national statistics are available on the racial breakdown of Americans wearing ankle monitors, but all indications suggest that mass supervision, like mass incarceration, disproportionately affects black people. In Cook County, Illinois, for instance, black people make up 24% of the population, and 67% of those on monitors. The sociologist Simone Browne has connected contemporary surveillance technologies like GPS monitors to America’s long history of controlling where black people live, move and work. In her 2015 book, “Dark Matters,” she traces the ways in which “surveillance is nothing new to black folks,” from the branding of enslaved people and the shackling of convict laborers to Jim Crow segregation and the home visits of welfare agencies. These historical inequities, Browne notes, influence where and on whom new tools like ankle monitors are imposed.
For some black families, including White’s, monitoring stretches across generations. Annette Taylor, the director of Ripple Effect, an advocacy group for prisoners and their families based in Champaign, Illinois, has seen her ex-husband, brother, son, nephew and sister’s husband wear ankle monitors over the years. She had to wear one herself, about a decade ago, she said, for driving with a suspended license. “You’re making people a prisoner of their home,” she told me. When her son was paroled and placed on house arrest, he couldn’t live with her, because he was forbidden to associate with people convicted of felonies, including his stepfather, who was also on house arrest.
Some people on monitors are further constrained by geographic restrictions — areas in the city or neighborhood that they can’t go without triggering an alarm. James Kilgore, a research scholar at the University of Illinois at Champaign-Urbana, has cautioned that these exclusionary zones could lead to “e-gentrification,” effectively keeping people out of more-prosperous neighborhoods. In 2016, after serving four years in prison for drug conspiracy, Bryan Otero wore a monitor as a condition of parole. He commuted from the Bronx to jobs at a restaurant and a department store in Manhattan, but he couldn’t visit his family or doctor because he was forbidden to enter a swath of Manhattan between 117th Street and 131st Street. “All my family and childhood friends live in that area,” he said. “I grew up there.”
Michelle Alexander, a legal scholar and columnist for The Times, has argued that monitoring engenders a new form of oppression under the guise of progress. In her 2010 book, “The New Jim Crow,” she wrote that the term “mass incarceration” should refer to the “system that locks people not only behind actual bars in actual prisons, but also behind virtual bars and virtual walls — walls that are invisible to the naked eye but function nearly as effectively as Jim Crow laws once did at locking people of color into a permanent second-class citizenship.”
As the cost of monitoring continues to fall, those who are required to submit to it may worry less about the expense and more about the intrusive surveillance. The devices, some of which are equipped with two-way microphones, can give corrections officials unprecedented access to the private lives not just of those monitored but also of their families and friends. GPS location data appeals to the police, who can use it to investigate crimes. Already the goal is both to track what individuals are doing and to anticipate what they might do next. BI Incorporated, an electronic-monitoring subsidiary of GEO Group, has the ability to assign risk scores to the behavioral patterns of those monitored, so that law enforcement can “address potential problems before they happen.” Judges leery of recidivism have begun to embrace risk-assessment tools. As a result, defendants who have yet to be convicted of an offense in court may be categorized by their future chances of reoffending.
The combination of GPS location data with other tracking technologies such as automatic license-plate readers represents an uncharted frontier for finer-grained surveillance. In some cities, police have concentrated these tools in neighborhoods of color. A CityLab investigation found that Baltimore police were more likely to deploy the Stingray — the controversial and secretive cellphone tracking technology — where African Americans lived. In the aftermath of Freddie Gray’s death in 2015, the police spied on Black Lives Matter protesters with face recognition technology. Given this pattern, the term “electronic monitoring” may soon refer not just to a specific piece of equipment but to an all-encompassing strategy.
If the evolution of the criminal-justice system is any guide, it is very likely that the ankle bracelet will go out of fashion. Some GPS monitoring vendors have already started to offer smartphone applications that verify someone’s location through voice and face recognition. These apps, with names like Smart-LINK and Shadowtrack, promise to be cheaper and more convenient than a boxy bracelet. They’re also less visible, mitigating the stigma and normalizing surveillance. While reducing the number of people in physical prison, these seductive applications could, paradoxically, increase its reach. For the nearly 4.5 million Americans on probation or parole, it is not difficult to imagine a virtual prison system as ubiquitous — and invasive — as Instagram or Facebook.
On Jan. 24, exactly three months after White had his monitor installed, his public defender successfully argued in court for its removal. His phone service had been shut off because he had fallen behind on the bill, so his mother told him the good news over video chat.
When White showed up to EMASS a few days later to have the ankle bracelet removed, he said, one of the company’s employees told him that he couldn’t take off his monitor until he paid his debt. White offered him the $35 in his wallet — all the money he had. It wasn’t enough. The employee explained that he needed to pay at least half of the $700 he owed. Somewhere in the contract he had signed months earlier, White had agreed to pay his full balance “at the time of removal.” But as White saw it, the court that had ordered the monitor’s installation was now ordering its removal. Didn’t that count?
“That’s the only thing that’s killing me,” White told me a few weeks later, in early March. “Why are you all not taking it off?” We were in his brother’s room, which, unlike White’s down the hall, had space for a wobbly chair. White sat on the bed, his head resting against the frame, while his brother sat on the other end by the TV, mumbling commands into a headset for the fantasy video game Fortnite. By then, the prosecutor had offered White two to three years of probation in exchange for a plea. (White is waiting to hear if he has been accepted into the city’s diversion program for “youthful offenders,” which would allow him to avoid pleading and wipe the charges from his record in a year.)
White was wearing a loosefitting Nike track jacket and red sweats that bunched up over the top of his monitor. He had recently stopped charging it, and so far, the police hadn’t come knocking. “I don’t even have to have it on,” he said, looking down at his ankle. “But without a job, I can’t get it taken off.” In the last few weeks, he had sold his laptop, his phone and his TV. That cash went to rent, food and his daughter, and what was left barely made a dent in what he owed EMASS.
It was a Monday — a check-in day — but he hadn’t been reporting for the past couple of weeks. He didn’t see the point; he didn’t have the money to get the monitor removed and the office was an hour away by bus. I offered him a ride.
EMASS check-ins take place in a three-story brick building with a low-slung facade draped in ivy. The office doesn’t take cash payments, and a Western Union is conveniently located next door. The other men in the waiting room were also wearing monitors. When it was White’s turn to check-in, Buss, the bond-compliance officer, unclipped the band from his ankle and threw the device into a bin, White said. He wasn’t sure why EMASS had now softened its approach, but his debts nonetheless remained.
Buss calculated the money White owed going back to November: $755, plus 10% annual interest. Over the next nine months, EMASS expected him to make monthly payments that would add up to $850 — more than the court had required for his bond. White looked at the receipt and shook his head. “I get in trouble for living,” he said as he walked out of the office. “For being me.”
Republished with permission under license from ProPublica, an investigative news agency.
I recently finished, Ava DuVernay's "When They See Us" a four-part mini-series on Netflix that tells the story of the Central Park 5; five black and brown teenage boys who were wrongly convicted of raping a white woman and spent between 6 to 14 years in prison. If you have not yet seen this movie, I highly recommend that you do. The trailer for "When They See Us" is below.
The film drives homes what can happen when a person doesn't know their rights or how to exercise them. Ironically, the mother of Yusef Salaam understood her son's rights and took the right steps to protect him, however, lack of knowledge of the other parents resulted in Yusef going to jail with the others.
"When They See Us" provides lessons about our criminal justice system that all African-Americans need to be aware of. If you're a black parent, watch it with your kids or at least make sure they see the series as part of their education about the U.S. justice system. Ava DuVernay discussed the film and the criminal justice system with Trevor Noah in the video below:
Children in juvenile court proceedings do not enjoy the same constitutional rights as adults. Prior to the civil rights era in the 1960s, juveniles had few due process rights at all.
The U.S. Supreme Court held that there’s no jury-trial right in juvenile delinquency proceedings. (McKeiver v. Pennsylvania, 403 U.S. 528 (1971).) However, minors tried in adult systems are entitled to juries.
A child’s statements to police can be used against them in court proceedings, however, only when the statements are voluntary and given freely. The government may not coerce confessions, as provided by the Fifth Amendment privilege against self-incrimination and the due-process prohibition against admitting involuntary confessions into court. However, forced confessions are not easy to prove. Parents need to teach their children not to say anything to police without a parent or attorney present.
The U.S. Supreme Court has ruled that police can use deception and are allowed to falsely claim that a friend or acquaintance has confessed or implicated someone when in fact he/she had not (Frazier v. Cupp, 1969). The police can claim to have found a suspect's fingerprints at a crime scene when there were none (Oregon v. Mathiason, 1977), determining such acts insufficient for rendering the defendant's confession inadmissible. State courts have permitted police to deceive suspects about a range of factual matters, including, for example, falsely stating that incriminating DNA evidence and satellite photography of the crime scene exist (State v. Nightingale, 2012).
Children need to be trained on how to respond when stopped or detained by police. Police officers must have probable cause to search and arrest a minor who is suspected of violating a criminal statute. Minors like adults have the right to remain silent and are not required to answer questions. There are exceptions
In some states, you must provide your name to law enforcement officers if you are stopped and told to identify yourself. But even if you give your name, you are not required to answer other questions.
If you are driving and you are pulled over for a traffic violation, the officer can require you to show your license, vehicle registration and proof of insurance (but you do not have to answer questions).
Even if you have already answered some questions, you can refuse to answer other questions until you have a lawyer.
Keep in mind that lying to a government official is a crime but remaining silent until you consult with a lawyer is not.
When my sons were minors, I required them to keep a reverse Miranda card in their wallets that stated the following:
To: Any agent, law enforcement officer, or representative of the government
My Name is: X Hill – I am a minor child, following my parent’s instructions.
If you have been presented with this, then you have detained me against my will. I wish to be released at once. If you believe you have a legal reason for still holding me, then it must be for one of two reasons:
1. You believe I have information relevant to a case or investigation and need my assistance. I am happy to comply and will in no way obstruct justice. Simply type up your questions and contact my parent/s (R or C Hill 314-xxx-xxxx). Upon review by them and any attorney they so choose, I will answer any and all that they and their attorney advise me to. Please do not argue about this, or it will delay the investigation, and neither of us wants that.
2. You believe that I have committed a crime. I want to speak with my parent/s and/or the attorney they provide me and do not wish to answer any questions or make any statement until I do. You may contact my parents at 314-xxx-xxxx, alternate contact, grandmother 314-xxx-xxxx.
While doing those things, please see to it that I am given food, drink, and bathroom breaks frequently, as I will not ask. Please do not ask that I fill out, sign, initial, check off, or in any way mark anything for any reason. I have been forbidden to do this by my parent/s until they and/or their attorney, can review any such documents.
Finally, please do not interpret my silence as rudeness, guilt, retardation or anything else but what it is – obedience to my parent/s and their attorney.
Prison Industrial Complex
Locking up prisoners is big business. The three largest private prison corporations CoreCivic, formerly the Corrections Corporation of America (CCA), Geo Group, and MTC take in $5 billion in revenue a year. If you bank with Wells Fargo, Bank of America, JP Morgan Chase, BNP, and U.S. Bancorp, you may have helped finance private prisons.
In addition to private prisons, there are corporations that contract cheap prison labor, construction companies, surveillance technology vendors, companies that operate prison food services and medical facilities, prison guard unions, phone companies, private probation companies,lawyers, and lobby groups that represent them. "The Prison Industrial Complex: Mapping Private Sector Players” exposes over 3,900 companies profiting off mass incarceration.
Private prison inmates earn as little as 17 cents per hour. Companies including: IBM, Boeing, Motorola, Microsoft, AT&T, Wireless, Texas Instrument, Dell, Compaq, Honeywell, Hewlett-Packard, Nortel, Lucent Technologies, 3Com, Intel, Northern Telecom, Nordstrom’s, Revlon, Macy’s, Pierre Cardin, Target Stores, and many more have profited from prison labor.
It Begins Early
School districts thru zero tolerance policies often trap disadvantaged kids in the school to prison pipeline that can unfairly introduce them into the criminal justice system. Black students, in particular, are more likely to be arrested in school for minor behavior issues.
When my youngest son was in grade school, the principal shared some startling information, the number of prisons built are based on third-grade reading scores. This is supposed to be an urban myth, however, test scores are used to make some predictions. During my son's freshman year in high school, I had to appeal an excessive penalty for horseplay.
You owe it to yourself and your children to use Court.rchp.com and other resources to educate yourself about the law and our legal system. As "When They See Us" demonstrated, we're only as strong as our weakest link.
The immense powers of prosecutors throughout the US mean that the scales are tipped against defendants — and justice itself, says a legal expert
By Jessica Brown
Every country with a functioning criminal justice system depends on prosecutors, the attorneys who charge defendants with crimes and build the case to convict. But the ones in the US are a breed apart. They are more than agents of the court: Top prosecutors in every US county typically have to run for the office, making them elected officials as well. No other nation in the world elects its prosecutors, and few give them so much power.
Prosecutors in the US have broad discretion over how and when to press their cases, which means they often control the fates of defendants, says Stanford Law School professor David Alan Sklansky. In a 2018 paper published in the Annual Review of Criminology, Sklansky notes that prosecutors are increasingly blamed for the problems that plague US criminal justice — its excessive severity, its lopsided targeting of racial minorities and its propensity for error. Part of the difficulty, he suggests, is the largely unchecked power of prosecutors.
Black men also receive federal prison sentences that are on average almost 20 percent longer than those of white men who commit the same crime. When prosecutors offer a plea deal, white defendants are 25 percent more likely than black defendants to have their most serious initial charge dropped or reduced to a less severe charge. And there are a disturbing number of cases in which prosecutorial misconduct has led to convictions that later are overturned on appeal. In one famous case from 1987, prosecutors removed all four potential black members from a jury that later convicted a black man named Timothy Foster of murder. The prosecutors denied that they were motivated by race during jury selection. Years later, Foster’s lawyers obtained prosecutors’ notes and the Supreme Court declared, by a vote of 7-1, that the jury selection in his trial was unconstitutional.
In another case, Anthony Graves, a 26-year-old black man in Texas, was wrongfully convicted in 1994 of murdering a family of six. He ended up spending 18 years behind bars, including 12 years on death row. The real murderer, Robert Carter, eventually confessed that he had acted alone, and investigations showed that the prosecutor, Charles Sebesta, withheld testimony that would have cleared Graves.
A growing chorus of legal scholars and reform-minded prosecutors has called for a new approach that would restore fairness and justice to the prosecutorial process. But Sklansky says reform won’t come easy. Any meaningful change must start with disentangling prosecutors from conflicting roles that straddle the legal and political systems. In other words, he says, we must be clearer about what we want from prosecutors.
Sklansky spoke with Knowable about the rise of prosecutors and the need for reforms to restore fairness and justice. The discussion has been edited for length and clarity.
What is the biggest problem with prosecutors in the US?
It’s hard to say. There are actually several different problems with US prosecutors. One is that they have so much power to coerce guilty pleas, another is that they have almost unbridled discretion over how to use that power. A third is that prosecutors are often overzealous and break the rules, and a fourth is that they are sometime unimaginative about how to use their discretion more constructively.
But I think the most fundamental problem may be that we have complicated and often contradictory expectations for prosecutors. We want them to be impartial but also to be forceful advocates, to follow the law but also to exercise mercy, and to work closely with the police but also to stand apart from them.
The conflicting expectations for prosecutors, and the ambiguity regarding their role, can make it difficult to regulate them, and difficult for prosecutors themselves to know what it means to do their job well.
Are prosecutors really more powerful than judges?
In many cases, yes. That’s partly due to a surge in statutes calling for mandatory minimum sentences for a wide range of crimes. Because judges have little ability to lower the sentences called for in these statutes, often the only way for defendants to avoid these penalties is to strike a deal with prosecutors — or take their chances at trial. Because prosecutors can threaten such draconian sentences, they have tremendous power to coerce guilty pleas.
Do current laws make it difficult for prosecutors to achieve fair verdicts and sentences?
I wouldn’t say that the laws make it hard for prosecutors to achieve fair results. But they do make it complicated. Some laws — especially many of the laws calling for harsh mandatory sentences — can be unjust when applied to particular cases. So doing justice will often mean being judicious about when these laws should be invoked.
And then there are procedural rules that require prosecutors to take off their advocate’s hat and be fair and impartial. Prosecutors are often called on to decide, for example, when evidence that could be helpful to the defense needs to be disclosed. That’s like asking basketball players to call their own fouls.
We won’t be able to eliminate the ambiguity of the prosecutor’s role, and we should continue to pressure prosecutors to be impartial. But we need to be relatively realistic about how well we can expect them to navigate these conflicting expectations.
Why don’t prosecutors use their powers more fairly?
Again, it’s important to stress that many prosecutors work hard to be impartial, and many do an admirable job of exercising their powers in a balanced, thoughtful way. But many prosecutors’ offices have a culture of competitiveness, and courtroom victories are the primary measure of their success. Prosecutors are attracted to the job partly because of the excitement of legal combat. Too often, convictions and long sentences get celebrated, even if they are undeserved.
It’s hard to shift prosecutors’ priorities from victory to justice. Prosecutors don’t get their names in the newspaper because they worked out a reasonable compromise. “So-and-so convicted on all counts” is an easy headline to write.
If prosecutors want to achieve true justice for defendants, they need to ask themselves some tough questions that go beyond convictions and acquittals — questions that can be very difficult to answer. Have they helped to resolve cases in ways that are equitable and humane? Have they helped move the community forward?
Why do we keep learning about cases where prosecutors have failed to disclose evidence that would help the defense?
Prosecutors have vastly more investigative resources at their disposal than defense attorneys, so they often have more access to information and evidence. Prosecutors are required to share evidence with the defense only if it could help the defendant in a significant way. But because they’re so motivated to win, it can be very hard for prosecutors to objectively decide whether the evidence they’ve uncovered is worth sharing. They have an incentive to convince themselves it isn’t.
Is there a lack of diversity among prosecutors, and does that contribute to unfair and discriminatory practices?
Prosecutors’ offices generally don’t disclose statistics on racial and gender demographics, so we don’t know much about prosecutor diversity. A few years ago, some of my students at Stanford Law School carried out research on the race and gender of prosecutors in California. As far as I know, this was the first time that comprehensive statistics of this kind were compiled for prosecutors in any state. And what the students found was that prosecutors in California are far whiter than the state as a whole.
That matters. There’s very good reason to believe that when prosecutors don’t reflect the diversity of the communities that they serve, it skews their decision-making. Diversity reduces systemic bias and makes it easier for prosecutors to take into account the perspectives of all parts of the community.
Racial diversity is never a panacea. Just as police departments aren’t magically transformed by employing more minority officers, we can’t fix prosecutors’ offices simply be electing or hiring people from different backgrounds. But when prosecutor offices are as diverse as the communities they serve, they bring different skills and perspectives and give fairer consideration to all the factors that should go into prosecutorial decision-making.
Other than increasing diversity, how else could the system be improved?
We need safeguards against prosecutorial power. Strengthening the resources of defense attorneys would be an important step. The vast majority of criminal defendants in the US are represented by appointed counsel, because they’re too poor to hire their own lawyers, and we’ve known for decades that we don’t pay enough to appointed defense attorneys or employ enough of them; they’re overworked and under-resourced. We need to invest more in defense if we want the system to operate properly.
Legislatures can help by rolling back mandatory sentences and by strengthening and clarifying the rules requiring prosecutors to share evidence with defense counsel.
More judicial oversight could also make a big difference. Judges could reclaim some of their power by tightening the rules that require prosecutors to share evidence with the defense. They could force prosecutors to explain and justify their charging decisions and their plea bargaining offers in court. In many courts, judges have the authority to dismiss cases in the interest of justice, such as when prosecutors pursue draconian sentences.
But in order for any of that happen, there would need to be something of a change of judicial mindset; judges would need to believe that prosecutors should be held more accountable, and to believe that it’s part of the business of the judiciary to make that happen.
Finally, there is much that prosecutors themselves can do — and in many places, are doing — to make the system fairer, less discriminatory and less damaging. They don’t need to wait for legislation mandating more disclosure of evidence; they can start doing that on their own. They can stop using unreasonably long mandatory minimum sentences to coerce guilty pleas. And they can work to change the cultures of their offices, so that fair outcomes are celebrated and not just courtroom victories.
Is reform on the horizon?
To some extent, yes. We’re in an unusual moment now because there is great attention to reforming prosecutors’ offices through the ballot box. Criminal justice crusaders have devoted more attention to elections over the last decade. As a result, we have a growing number of head prosecutors who’ve won elections based on a platform of pulling back on mass incarceration and seeking a more balanced approach to criminal justice. For the most part, though, this wave of reform isn’t doing anything to reduce the power of prosecutors’ offices.
How significant is the criminal justice reform bill that passed at the federal level in 2018?
It’s a step in the right direction, although it affects only federal prosecutors. The law modestly cuts back on mandatory minimum sentences and allows federal judges to hand down sentences lower than the statutory minimums without any motion from the prosecutor. That means that federal prosecutors, in some cases, won’t have quite as heavy a hammer to use in pressuring defendants to plead guilty. The new law is important symbolically, even for state prosecutors. It’s a signal of the growing consensus in the US that criminal justice has veered too far in the direction of severity, and that tougher isn’t always better.
What if wider reform doesn’t happen?
If there’s no reform, we’ll likely continue to face the dire problems of the criminal justice system: mass incarceration, excessively long sentences, wrongful convictions and racial bias. Prosecutors have helped to create all of these problems, and they have a critical role in solving them.
The federal class-action claims thousands of people in Missouri were jailed because they couldn’t pay off fines. Four years after the suit was filed, the plaintiffs are still waiting, and wondering if the deck is stacked against them.
By Topher Sanders
In January 2014, Tonya DeBerry was driving through an unincorporated area of St. Louis County, Missouri, when a police officer pulled her over for having expired license plates.
After discovering that DeBerry, 51, had several outstanding traffic tickets from three jurisdictions, the officer handcuffed her and took her to jail.
To be released, she was told, she would have to pay hundreds of dollars in fines she owed the county, according to her account in a federal lawsuit. But after her family came up with the money, DeBerry wasn’t released from custody. Instead, she was handed over to the municipalities of Ferguson and Jennings, and in each city, she was told she would be released only after she paid a portion of the fines she owed them, according to the lawsuit.
It was as if she were being held for “ransom,” her lawyer would later say.
The Supreme Court ruled almost 50 years ago that a person can’t be jailed for not being able to pay a fine. But like so many people in Missouri, DeBerry had ended up cycling through a succession of jails for that very reason, caught up in what critics have called modern-day “debtors prisons,” used by towns to keep fines flowing into municipal coffers.
“It’s a cat-and-mouse game,” said her daughter, Allison Nelson, who has also spent time in jail for not being able to pay traffic fines.
If DeBerry and her family were exasperated by the heavy-handed collection efforts, they would learn how hard it would be to hold the authorities accountable, especially in Ferguson, even after the killing of Michael Brown later that year drew national attention to the city’s troubled criminal justice system.
The city slowly stopped jailing people for not being able to pay fines as the news media showed the victims were primarily black and the Justice Department made clear that what Ferguson had been doing was wrong. But four years after a federal class-action suit was filed against the city on behalf of thousands of people who claimed they were jailed for their inability to pay fines, the plaintiffs are still waiting for redress.
The city has sought to have the lawsuit dismissed, filing a succession of motions, arguing among other reasons that instead of suing the city, the plaintiffs should be suing the municipal division of the state court. All three of the motions have been denied by the judge, Audrey G. Fleissig, of the U.S. District Court in St. Louis, though one of the rulings was appealed and that took about a year to resolve.
One issue has proved to be particularly frustrating to the plaintiffs: whether the city of Ferguson is even insured for a class action.
In March 2016, the lawyer representing Ferguson sent an email to a representative of the city’s insurer, saying that the scope of the lawsuit had expanded, and that concern about the case “grew” after a similar suit was settled for what was believed to be a “substantial amount of money.”
The five-sentence email concluded with the lawyer, Peter Dunne, of the St. Louis firm Pitzer Snodgrass, saying that legal action may be necessary to resolve the question of whether the city was covered for a class action.
“We believe a DJ [declaratory judgment] suit to determine coverage may be necessary,” Dunne wrote.
Three months later, the insurance trust filed a declaratory judgment suit against Ferguson in St. Louis County Circuit Court, asking a judge to find that the city did not have insurance coverage for class actions.
Dunne’s role was not publicly known until September when St. Louis Post-Dispatch columnist Tony Messenger reported Ferguson’s allegation that Dunne had violated his duty to the city. The email documenting Dunne’s discussion of a lawsuit with the insurer was first obtained by ProPublica. Dunne, one of the firm’s principals, did not respond to requests for comment. The other principals did not respond to emails or to a call to the firm’s office.
Suggesting legal action involving his own client was a breach of legal ethics, some experts said, and the revelation has only deepened the sense among the plaintiffs and their supporters that the deck is stacked.
“No matter where the citizens of Ferguson go in the legal system, justice is really hard for them to obtain,” said Vincent Southerland, executive director of New York University School of Law’s Center on Race, Inequality and the Law. “It’s another example that we have a legal system that was not built to protect and vindicate the rights of the most vulnerable among us.”
The killing of Brown by a police officer in August 2014 and the unrest that followed thrust Ferguson into the middle of a growing national debate over race and law enforcement. But for black people in Ferguson and the surrounding North County region, racial discrimination had long defined their relationship with the local police and courts.
Even as the rest of the country moved on from Ferguson, the people seeking a judgment against the city found themselves mired in the machinations of an insular legal system and an overburdened insurance carrier.
Ferguson, a city of about 21,000 people, was insured through a cooperative of 25 municipalities called the St. Louis Area Insurance Trust, commonly referred to as SLAIT.
Messenger said the rural courts ensnared whites, while in Ferguson and elsewhere in North County, it was blacks who were victimized. “But it’s the same concept,” he said. “It’s policing on the poor, it’s jurisdictions that don’t have a tax base anymore looking to the judicial system as a fundraising tool and judges allowing themselves to be tax collectors rather than purveyors of justice.”
The trust hired Dunne to provide Ferguson’s defense of the class-action lawsuit. But his firm, Pitzer Snodgrass, was also providing the trust with legal advice on insurance coverage issues, according to a court filing by Ferguson. That set up what Ferguson said in the filing was a conflict that the city had not been made aware of.
Even if city officials wanted to settle the case, the trust claims in court filings there isn’t coverage and it won’t pay out. The insurance trust’s lawsuit will determine whether there is coverage.
Michael Downey, a law professor at Washington University in St. Louis and an expert on legal ethics, said that unless Dunne had Ferguson’s permission, Dunne should not have talked to the insurer about the possibility of a lawsuit over coverage.
“A breach of the duty of confidentiality basically to encourage a party to take action against your client is a pretty serious violation of the rules,” Downey said.
Even if Dunne thought he was conveying something that the insurer already knew, the exchange was still concerning, Downey said.
The trust, through its lawyer, declined to comment.
Michael Frisch, Georgetown University Law Center’s ethics counsel, said that, were the bar to pursue an investigation, any punishment would not be severe. A reprimand — at most, he said.
“It’s the kind of a thing that would not draw that much of a response from the bar,” Frisch said. “Lawyers tend not to get suspended for things like this.”
New York University law professor Stephen Gillers, who specializes in legal ethics, said that regardless of any punishment, Dunn’s actions are significant.
“It’s a big deal, because clients are entitled to loyalty,” he said. “If you can’t be equally loyal to both clients, then you have a conflict and you have to withdraw entirely or from one or the other client.”
For lawyers hired by insurance companies to represent policyholders, the question of who is the client was for many years unsettled ethical terrain, experts say.
Lawyers can feel a sense of obligation to the insurance companies that hire them — and that can provide a steady stream of business — said William Barker, co-author of “Professional Responsibilities of Insurance Defense Counsel.”
Barker, a Chicago lawyer with the firm Dentons, said that until the 1970s, lawyers hired by insurance companies to represent a policyholder typically thought of the company as their chief client. But a series of court decisions since then established that the lawyer owes undivided loyalty to the policyholder, and that is why the lawyer’s actions in the Ferguson case appear to be troubling, Barker said. “That’s something that the defense lawyer ought not to be doing,” he said. “The lawyer who is handling the defense ought not to be involved, certainly in advising the insurance company on coverage issues.”
Michael-John Voss, a lawyer for the ArchCity Defenders, the civil rights group that brought the lawsuit against Ferguson, expects to case to drag into 2020.
“The relief and the remedy has been a long time coming, and there’s no clear end in sight,” he said. “And it reemphasized to me the way that these larger structures are put in place to avoid accountability and to perpetuate a system of social control.”
ProPublica asked the insurance trust if it had instructed Dunne to act as he did, but the trust’s lawyer said the organization would not answer any of ProPublica’s questions because of the ongoing lawsuits.
The insurance cooperative was created in the 1980s to help small St. Louis-area municipalities share the cost of liability insurance and health care. The arrangement worked for the occasional slip-and-fall claim and other routine municipal litigation. But it has not held up well in the face of payouts to cops injured on duty and for actions by the police and the courts.
Most notably, the trust paid $1.5 million to Brown’s family in 2017 to settle a wrongful death claim against Ferguson. But that was hardly the only big hit in recent years. In 2016, a jury awarded $3 million to the family of Jason Moore, an unarmed 31-year-old man, who died after a Ferguson police officer delivered several shots from a Taser.
A state audit released in February showed the organization’s fund balance dropped to $3.8 million in 2018 from $12.2 million in 2016. Like many insurers, the trust also has its own coverage, known as reinsurance, and it turned to those carriers to help with the Moore verdict. But the companies have told the trust that they won’t cover the judgment in the Moore case because the companies allege the trust improperly notified them of the claim. The trust is suing the companies.
Dunne and his firm are no longer working on the Ferguson case. The firm was disqualified by the judge after it hired a lawyer from the ArchCity Defenders who represented one of the lawsuit’s plaintiffs in court.
De’carlon Seewood, who stepped down in March after three and a half years as Ferguson’s city manager, said resolving the lawsuit will help the community move beyond the abuses and the notoriety that came with them.
“It is important to kind of move forward and show that new face, that better face,” Seewood said this year, before he left Ferguson to become the city manager in Fairburn, Georgia, just outside Atlanta. Jeffrey Blume, Ferguson’s interim city manager, directed questions to the city’s attorney, who declined to answer.
Seewood said the city had hoped the insurance trust would take care of the settlement the way the insurer for the city of Jennings had. But Jennings was in a very different position. Its insurer was Travelers, the country’s sixth-largest property and casualty insurer. By contrast, the insurance trust is a small cooperative with dwindling funds.
“The insurance [trust] looked at the enormity of what’s being asked and they said that’s it’s outside their [coverage] of the city, and so the city finds itself fighting with its insurance company about [coverage],” Seewood said.
According to a memo written by the trust’s claims administrator, the plaintiffs originally asked for $27.5 million but during mediation in April 2016 reduced the demand to $9.5 million. That amount is what the plaintiffs believe, based on the policies, is the total coverage limit of Ferguson’s insurance.
Alexandra Lahav, a professor at the University of Connecticut School of Law and an expert in civil litigation, said a case like this typically would be resolved in about two years and said the insurance dispute was slowing the process.
“This really shouldn’t be a very complicated class action,” Lahav said.
Lisa Soronen, executive director for the State and Local Legal Center, a Washington organization that supports states and local governments in legal disputes that rise to the U.S. Supreme Court, said the dispute between the trust and Ferguson didn’t leave the city with many sound options other than fighting the case mightily.
“As a practical matter, Ferguson’s a really small city that has no money,” she said. “If there’s no insurance coverage and there’s a huge judgment, I don’t know how it would pay.”
John Rappaport, a professor at the University of Chicago Law School who has studied the impact insurance can have on police practices and policies, said insurance trusts have a reputation for being less likely than commercial insurers to settle cases involving police officers.
“The risk pools or the trusts, they see themselves as extensions of the cities themselves,” he said. “Their reluctance to settle litigation against the police would seem [to be] a kind of loyalty to their members — their cities.”
Rappaport said commercial insurers often see the issues as purely a matter of dollars and cents.
“Whereas if the city either is in a risk pool or the city represents itself, they see it as more of like a moral issue, like we have to stand up for our officers,” he said.
Even after the Ferguson suit is resolved, litigation in Missouri over “debtors prison” practices won’t be. ArchCity Defenders has lawsuits pending in six other cities, with more in the pipeline stretching beyond North County.
DeBerry, the Ferguson woman who was a named plaintiff in the Ferguson class action, was also a plaintiff in the lawsuit against neighboring Jennings, which settled for $4.8 million less than a year and a half after the suit was filed.
But the suit in Ferguson has dragged on longer than DeBerry could wait.
She died in April 2018.
“And now she will never even get a piece of this justice because she’s no longer here,” said Nelson, her daughter. “That’s sad, that’s really sad. It’s actually pathetic because it should have never come to that. It hurts.”
Republished with permission under license from ProPublica, a Pulitzer Prize-winning investigative newsroom.