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.
The United States has the highest incarceration rate of any major nation. And the prison population looks far different from the country as a whole. More than 75 percent of the residents of the US identify as white and about 13 percent identify as black. But at the end of 2016, black inmates outnumbered white inmates by 487,000 to 440,000. One report found that black Americans are incarcerated in state prisons at an average rate five times that of white Americans.
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.
Texas attorney Charles Sebesta, shown here in front of a county courthouse, was disbarred in 2015 after an investigation found he withheld crucial testimony that would have cleared a man of murder. Anthony Graves spent 18 years behind bars before being released.
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.
Allison Nelson in Jennings, Missouri. Her mother, Tonya DeBerry, was jailed over outstanding traffic tickets from three jurisdictions. After paying St. Louis County, she was handed over to Ferguson and Jennings, and in each, she was told she’d be released only after paying a portion of the fines.
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.
Nelson flips through photocopies of traffic tickets and legal filings.
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.”
Four years after a federal class-action suit was filed against Ferguson on behalf of thousands who claimed they were jailed for their inability to pay fines, the plaintiffs are still waiting for redress.
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.”
DeBerry died in April 2018. “And now she will never even get a piece of this justice because she’s no longer here,” Nelson said.
Republished with permission under license from ProPublica, a Pulitzer Prize-winning investigative newsroom.
By Kathy Roberts Forde, Associate Professor, Journalism Department, University of Massachusetts Amherst
The press is an essential guardrail of democracy. As The Washington Post tells its readers, “Democracy Dies in Darkness.”
But the press has not always been a champion of democracy.
In the late 19th century, Henry W. Grady, one of the South’s most prominent editors, worked closely with powerful political and business interests to build a white supremacist political economy and social order across Georgia – and the entire South – that lasted well into the 20th century. One of his primary tools was his newspaper, The Atlanta Constitution – which merged with The Atlanta Journal in 2001 to become The Atlanta Journal-Constitution.
My research, a collaboration with Ethan Bakuli and Natalie DiDomenico, undergraduate research partners in the Journalism Department at the University of Massachusetts Amherst, uncovers this history.
The ‘New South’ and racial terror
Grady enraptured white Americans with his speeches and columns about the “New South,” a narrative meant to attract Northern investment in the South’s emerging industrial economy.
“The relations of the Southern people with the negro are close and cordial,” Grady proclaimed in the 1886 New York speech that made him famous.
It was a brazen lie. Many white Americans believed it, or pretended they did, but black editors, journalists and leaders challenged it at every turn.
Grady promoted the New South’s reconciliation with the North, its industrial development and the availability of cheap Southern labor. What’s more, he insisted the “race problem” must be left to the South to resolve.
He meant, of course, the white South.
T. Thomas Fortune, a militant black newspaper editor in New York, would have none of it.
“Mr. Grady appeals to the North to leave the race question to ‘us’ and ‘we’ will settle it,” he wrote. “So we will; but the we Mr. Grady had ‘in his mind’s eye’ will not be permitted to settle it alone. Not by any means, Mr. Grady. Not only the White we, but the Colored we as well, will demand a share in that settlement.”
Grady didn’t listen. Instead, he explained to adoring white crowds why the South was committed to one-party rule: to deprive black men of electoral power.
In 1889, the year he died unexpectedly at 39, Grady told a crowd at the Texas State Fair, “The supremacy of the white race of the South must be maintained forever, and the domination of the negro race resisted at all points and at all hazards – because the white race is the superior race.”
The pioneering black journalist Ida B. Wells understood his meaning. In “Southern Horrors,” a pamphlet that documented lynching and the all-too-frequent collaboration of the white Southern press, Wells drew a straight line from Henry Grady’s New South ideology to the white South’s practice of racial terror:
“Henry W. Grady in his well-remembered speeches in New England and New York pictured the Afro-American as incapable of self-government. Through him … the cry of the South to the country has been ‘Hands off! Leave us to solve our problem.’ To the Afro-American the South says, ‘the white man must and will rule.’ There is little difference between the Antebellum South and the New South.”
Under Grady’s editorial guidance, the Constitution wrote about lynching with disturbing levity, condoning and even encouraging it. One headline read “The Triple Trapeze: Three Negroes Hung to a Limb of a Tree.” Another rhymed “Two Minutes to Pray Before a Rope Dislocated Their Vertebrae.”
Yet another headline read: “Lynching Too Good For the Black Miscreant Who Assaulted Mrs. Bush: He Will Be Lynched.” And appallingly, the man was lynched. Today, his name – Reuben Hudson – appears on the National Memorial for Peace and Justice, a monument in Montgomery, Alabama, for victims of “racial terror lynchings.”
Some historians have called Grady a racial moderate for his time and place, but his own words suggest he was comfortable with racial violence.
Well before he became managing editor and part owner of the Constitution, Grady addressed an editorial in the Rome Commercial, a Georgia newspaper he edited early in his career, to his “friends” and “brothers” in the “Ku Klux Klan.”
“The strength and power of any secret organization rests in the attribute of mystery and hidden force,” he wrote. Its members “can be called together by a tiny signal, and when the work is done, can melt away into shadowy nothing.”
Statue of Henry Grady. The city of Atlanta erected the statue in 1891, which still stands today on Marietta Street in the heart of downtown
Convict labor in the ‘New South’
Lynching was not the only white tool of racial terror and control in the South. Another was the convict lease, which, along with lynching, Wells termed the “twin infamies” of the region.
Grady’s New South promise of cheap labor for industrialists was fulfilled in part by convict leasing – a penal system targeting black men, women and even children, who were routinely arrested for vagrancy, minor offenses and trumped up charges. Once convicted, victims were leased to private companies to serve their sentences working in coal mines, laying railroad tracks and making bricks.
Horrors awaited in these private labor camps: shackles, chains, rancid food, disease, filthy bedding, work from sunup to sundown and tortures like the “sweat box,” flogging, hanging by the thumbs, a water treatment akin to waterboarding and rape. Convicts were killed during escape attempts, in mine explosions and railroad accidents and by sadistic camp bosses.
Grady knew the convict lease system well. His newspaper reported on it frequently, as I discovered by reading material in his personal archive at Emory University and contemporaneous issues of the Constitution.
What’s more, from 1880 to his death in 1889, Grady served as kingmaker for a group of white supremacist Democrats – variously termed the “Atlanta Ring” and the “Bourbon Triumvirate” – who enriched themselves by leasing convicts from the state to work in their private businesses.
In an era of machine politics and a press aligned with political parties, Grady proved a master of both.
Using the Constitution as a tool of public influence, Grady helped appoint or elect Joseph E. Brown to the U.S. Senate (1880-1890), Alfred H. Colquitt to the governorship (1880-1882) and U.S. Senate (1883-1894), and John B. Gordon to the governorship (1886-1890).
Brown made a fortune working convicts at his Dade Coal Mines, where Colquitt was a major investor. Gordon worked convicts on his plantation and subleased others to companies and farmers.
In 1886, Grady sent a Constitution reporter to cover a rebellion at Brown’s coal mines. The prisoners were “ready to die, and would as soon be dead as to live in torture,” one convict said. The governor ordered the convicts starved into submission, and Grady’s reporter witnessed the flogging that followed their surrender. He called it “a special matinee” in his news report.
Black Georgians protested their powerful white neighbors profiteering off forced black labor. William White, editor of the black newspaper the Georgia Baptist, put it plainly: “The fortunes of many a prominent white Georgia family [are] red with the blood and sweat of Black men.”
Grady’s legacy
Grady may have been a pioneering journalist, but his journalism served profoundly anti-democratic purposes.
The University of Georgia’s journalism school is named for Grady – a fitting namesake, it was recently said, because of Grady’s “work in uniting the country, not dividing the country.”
Grady may have united Southern and Northern whites, but he did not unite the country. Rather, he excluded black Americans from the union of North and South and the national democratic project that union represented.
The Grady College motto is “We Are Grady.” Thomas Fortune might well have asked Grady who he would include in that “we.”
Natalia Orendain, University of California, Los Angeles
Children under 12 will no longer be treated as criminals in the state of California when they break the law, based on a new law that went into effect on Jan. 1.
Youth detention center in Atlanta. AP Photo/David Goldman
Before the law was passed, California had no minimum age for sending children to juvenile court – and that’s still true of most states. That means that in many places, children as young as six, for example, can be arrested and detained.
In Texas, Mississippi, Kansas, Colorado and other states, the minimum age is 10. Many California state legislators believe that setting a higher standard, 12 years old, will protect younger children from the dangers that come with juvenile detention. And, given that California’s juvenile justice system houses the largest number of youth in the United States and even the world, their stance may influence how other states set their standards for criminal responsibility.
I am a doctoral student studying neuroscience at UCLA. In my lab, we are examining how time spent confined in juvenile facilities affects brain development and behavior. To do so, we study a range of experiences kids encounter when confined, from the good – increased daily structure – to the terrible – assault by other youth and staff. Our study is just beginning, but previous research has shown that the majority of youth experience abuse while confined and show structural brain changes similar to individuals who have experienced lifetime trauma exposure.
What happens in juvenile detention?
Juvenile facilities function as prisons for youth. The key difference between adult prisons and juvenile facilities is that the latter advocate for rehabilitation.
That’s because young people, usually until their mid- to late 20’s, have brains that are still developing and so have the capacity for change – what scientists often refer to as “plasticity.”
Every year, over 1.3 million youth in the U.S. are arrested and 60 percent face confinement for offenses neither violent or sexual in nature, such as probation violation, status offense, drug offense or property crime.
Rehabilitative efforts can include behavior management, writing classes, religious services and even training on how to manage finances.
Despite these efforts, the experience of being detained appears to have overwhelmingly negative consequences for young people.
Research shows that the more youth are involved with the juvenile justice system – from arrest to detainment to transfer to an adult court – the higher their chances are of early death, specifically a violent one. Going to juvenile detention also increases risk for poorer life outcomes in terms of educational attainment, relationships and gainful employment. At this point, these relationships are only correlational, but have been demonstrated across many large studies.
The physical environment inside juvenile detention facilities has an industrial feel, with limited natural light. They are surrounded by chain-linked fences topped with barbed wire.
Once inside, youth are rarely in contact with their support systems, whether that be family, friends or other individuals. While some youth may have been removed from abusive situations at home, the high-threat environment of secure juvenile facilities is far from a rehabilitation-oriented setting.
Maltreatment has been documented in youth detention facilities in most states. According to one survey, about 42 percent of youth in detention are afraid of being physically attacked, 45 percent report unneeded use of force by staff and 30 percent state that staff use isolation as discipline. Isolation, particularly during development, comes with a range of negative physiological and psychological reactions and is associated with the development of mood disorders, like depression and anxiety, and psychosis.
Under such stressful conditions, even young brains would have a difficult time learning or growing. To make matters worse, most youth in the juvenile justice system have experienced early life trauma like abuse and neglect, which can compound the negative effects of these already detrimental experiences.
No ‘magic number’
The clinicians and academics who wrote a policy brief on the California bill cite developmental research, court decisions on youth sentencing and international standards on juvenile justice as the reasons to adopt the age of 12 as the minimum age at which children can be sent to juvenile detention.
However, there is no strong evidence that setting 12 as the lowest age for sending children to detention will provide major benefits. Among these sources cited by the clinicians and academics, the only specific reference to the age of 12 is from international standards set forth by the United Nations Committee on the Rights of the Child.
In 2007, the committee announced 12 as the absolute minimum age of criminal responsibility, but at the same time strongly advocated for higher ages, like 14 or 16. At the time, research investigating brain development in youth was still emerging. Now, more than 10 years later, we know that experiences during all of adolescence tremendously impact brain development and behavior into adulthood.
While a systemic overhaul would be needed to address the current conditions of juvenile confinement, existing diversion programs are an avenue to affect youth of all ages. One such program is the Juvenile Detention Alternatives Initiative, founded by the Annie E. Casey Foundation more than 25 years ago.
The initiative monitors the treatment of youth in secure detention facilities and diverts youth or limits time spent confined. The initiative is implemented in over 300 counties nationwide.
Instead of placing young people in detention facilities, these initiatives promote confining them in their homes, in shelters and reporting centers. This approach has been shown to lower the number of times the youth commit crimes again – a large feat given that 70 to 80 percent of youth involved in the juvenile justice system traditionally face rearrest within three years of their release.
Rather than focusing on a specific age for juvenile detention, I believe a greater impact would come from ensuring that confinement is truly rehabilitative and developmentally appropriate for all youth.
Republished with permission under licence from The Conversation.
As a formerly incarcerated person who now is now an endocrinologist and professor at two world-renowned medical institutions – Johns Hopkins Medicine and Howard University College of Medicine – I believe this move is a positive one. People’s prior convictions should not be held against them in their pursuit of higher learning.
While I am enthusiastic about the decision to remove the criminal history question from the Common Application, I also believe more must be done to remove the various barriers that exist between formerly incarcerated individuals such as myself and higher education.
I make this argument not only as a formerly incarcerated person who now teaches aspiring medical doctors, but also as an advocate for people with criminal convictions. The organization I lead – From Prison Cells to PhD – helped push for the change on the Common Application.
My own story stands as a testament to the fact that today’s incarcerated person could become tomorrow’s professor. A person who once sold illegal drugs on the street could become tomorrow’s medical doctor. But this can only happen if such a person, and the many others in similar situations, are given the chance.
There was a time not so long ago when some in the legal system believed I did not deserve a chance. With three felony convictions, I was sentenced to 10 years in prison for drug trafficking as a prior and persistent career criminal. My prosecuting attorney once stated that I had no hope for change.
Today, I am Dr. Stanley Andrisse. As a professor at Johns Hopkins and Howard University, I now help train students who want to be doctors. I’d say that I have changed. Education was transformative.
US incarceration rates the highest
The United States needs to have more of this transformative power of education. The country incarcerates more people and at a higher rate than any other nation in the world. The U.S. accounts for less than 5 percent of the world population but nearly 25 percent of the incarcerated population around the globe.
Roughly 2.2 million people in the United States are essentially locked away in cages. About 1 in 5 of those people are locked up for drug offenses.
“‘How I Learned to Read – and Trade Stocks – in Prison,’ by Curtis ‘Wall Street’ Carroll.
I was one of those people in prison not so long ago.
Early life of crime
Growing up in the Ferguson, North St. Louis area, I started selling drugs and getting involved with other crimes at a very young age. I was arrested for the first time at age 14. By age 17, I was moving substantial amounts of drugs across the state of Missouri and the country. By my early 20s, I found myself sitting in front of a judge and facing 20 years to life for drug trafficking charges. The judge sentenced me to 10 years in state prison.
When I stood in front of that judge, school was not really my thing.
Although I was a successful student athlete and received a near full scholarship to play football for Lindenwood University, a Division II college football program, I found it difficult to get out of the drug business. Suffice it to say, there were people in the drug world who wanted me to keep moving drugs. And they made it clear that they would be extremely disappointed if I were to suddenly stop. So I continued. For this reason, I didn’t view my undergraduate college experience the way I view education now.
The transformative power of education
Education provides opportunities for people with criminal records to move beyond their experience with the penal system and reach their full potential. The more education a person has, the higher their income. Similarly, the more education a person has, the less likely they are to return to prison.
A 2013 analysis of several studies found that obtaining higher education reduced recidivism – the rate of returning to prison – by 43 percent and was four to five times less costly than re-incarcerating that person. The bottom line is education increases personal income and reduces crime.
Despite these facts, education is woefully lacking among those being held in America’s jails and prisons. Nearly 30 percent of America’s incarcerated – about 690,000 people – are released each year and only 60 percent of those individuals have a GED or high school diploma, compared to 90 percent of the overall of U.S. population over age 25. And less than 3 percent of the people released from incarceration each year have a college degree, compared to 40 percent of the U.S. population.
Rejected by colleges
I had a bachelor’s degree by the time I went to prison but never got the chance to put it to use. Then something tragic happened while I was serving time that prompted me to see the need to further my education. Due to complications of diabetes, my father had his legs amputated. He fell into a coma and lost his battle with Type 2 diabetes. I was devastated. This experience made me want to learn more about how to fight this disease.
While incarcerated, I applied to six biomedical graduate programs. I was rejected from all but one – Saint Louis University. Notably, I had a mentor from Saint Louis University who served on the admission committee. Without that personal connection, I’m not sure I would have ever gotten a second chance.
I finished near the top of my graduate school class, suggesting that I was likely qualified for the programs that rejected me.
Restore Pell grants to incarcerated people
Based on the difficulty I experienced in going from prison to becoming a college professor, I believe there are things that should be done to remove barriers for incarcerated or formerly incarcerated people who wish to pursue higher education.
One of those barriers is cost. When the government removed Pell funding from prisons by issuing the "tough on crime” Law Enforcement Act of 1994, the vast majority of colleges offering courses in prison stopped. Due to the federal ban on receiving Pell grants while incarcerated, most of those serving time are not able to afford to take college courses while in prison. The Obama administration took a step toward trying to restore Pell grants for those in prison with the Second Chance Pell pilot. The program has given over 12,000 incarcerated individuals across the nation the chance to use Pell grants toward college courses in prison.
Inmate Terrell Johnson, a participant in the Goucher College Prison Education Partnership at Maryland Correctional Institution-Jessup, speaks with then-Education Secretary Arne Duncan in 2015.Patrick Semansky/AP
Through the program, 67 colleges and universities are working with over 100 prisons to provide college courses to the incarcerated.
Under the Trump administration, this program is at-risk of being discontinued at the end of 2018. Historically, some have argued that allowing Pell dollars to be used by those in prison takes precious Pell dollars from people who did not violate the law. However, the current Second Chance Pell pilot funding being directed to prisons, $30 million, accounts for 0.1 percent of the total $28 billion of Pell funding. Even if the program were expanded, based on historical levels, it would still amount to one-half of 1 percent of all Pell funding. This is justified by the impact that Pell dollars would have in prison in terms of reducing recidivism.
Remove questions about drug crimes from federal aid forms
Federal policymakers could increase opportunities by removing Question 23 on the federal student aid form that asks if applicants have been convicted of drug crimes. A 2015 study found that nearly 66 percent of would-be undergraduates who disclosed a conviction on their college application did not finish their application.
Federal student aid applicants likely feel the same discouragement. I felt discouraged myself when I was applying to graduate programs when I came across the question about whether I had ever been convicted of a crime. It made me feel like I was nothing more than a criminal in the eyes of the college gatekeepers.
This question also disproportionately effects people of color, since people of color are disproportionately impacted by the criminal justice system. Furthermore, the question runs the risk of making formerly incarcerated people feel isolated and less valuable than those who’ve never gotten in trouble with the law.
When people who have been incarcerated begin to feel like they don’t belong and higher education is not for them, our nation will likely not be able to realize their potential and hidden talents.
It will be as if we have locked them up and thrown away the key.
Republished with permission under license from The Conversation.
By Kimberly R. Kras, University of Massachusetts Lowell
A fundamental right of U.S. citizenship is having your voice heard by voting to elect representatives. However, at least 6 million U.S. citizens cannot vote in the United States because they have been convicted of a felony.
Losing the right to vote is among numerous other consequences of being convicted of a crime. This so-called “civil death” suggests that person is considered dead to society. The larger political consequence is a lack of representation in government of a large group of citizens who are largely poor and people of color.
I study the impact of being convicted on individuals and communities. States have a variety of rules and regulations when it comes to voting rights and felony convictions. In some states, when a person is convicted they are barred from voting until they successfully complete prison, probation or parole. But in 12 states, people convicted of felonies are barred from voting for life.
In response to growing concern that these laws disenfranchise large segments of America’s citizens, several states have recently made substantial, yet controversial, changes to voting rights of ex-felons. This may be a growing movement.
In July, the Florida Supreme Court heard arguments in a case about whether laws excluding felons from the right to vote are constitutional. In November, the state will vote on a ballot measure to restore ex-felon’s voting rights automatically upon completion of their sentence.
These decisions will impact a large segment of Florida’s voting-age population and continue to build a strong precedent for other states.
Florida has historically played an important role in American elections. Yet roughly 10 percent of Floridians can’t vote because they have been convicted of felonies. Research suggests that had these Americans been able to cast their vote for president in the 2000 election, Florida would have been a blue state. Studies show that ex-felons largely vote Democrat, and in this case would have made an impact in a presidential election.
That may be true, but research shows that for many ex-felons it’s because they don’t know they can. This means fewer people have input in electing representatives who generally support causes important to them such as rehabilitation for offenders and criminal justice reform.
Crime and the social contract
Some pundits and legal scholars argue that felons should not be eligible to vote because when people commit crime they violate the “social contract.” The social contract is the agreement among citizens to abide by rules and laws for the good of society. This reasoning says that those who break it, say by committing a crime, are no longer entitled to the benefits of the contract, such as political representation.
People who study criminal behavior often say the opposite is true. They argue that restoring voting rights may in fact reinstate the social contract and improve factors that led the individual to commit crime in the first place.
In research I conducted, and headed by professors Beth Huebner and Timothy Bynum, we spoke with people returning from prison about how their felony conviction impacted their life after release. One participant whose name is protected under a confidentiality agreement, stated: “Not being able to vote restricts our voice.”
Another participant stated how his inability to vote about things important to him, like justice reform, meant that other voters might reinforce laws and restrictions that affect him: “Those are usually the people who want to put harsher rules and penalties and categorize everybody the same. I feel that they allow more and more of those laws to be piled on us because we’re not allowed to speak our minds.”
Restoring voting rights signals to all citizens that those who have served their time for a past crime can participate in a key mechanism of civic engagement: voting. Participating in civic life is associated with reductions in recidivism, so an inclusive approach to democracy can only strengthen the political process. That’s because the interests of more Americans, especially those historically silenced, will be heard through their vote.
Ex-felons as citizens
Moreover, research has shown that denying voting rights impacts not just individuals, but also families and entire communities, especially those typically underrepresented in political arenas like people of color and those in poverty. For example, partners of ex-felons are less likely to vote.
Restricting ex-felons from voting really says that, if you have committed a crime in the U.S., you can never be a full citizen again, even after serving punishment. That message suggests that they are always second- or third-class citizens.
But studies have shown that when people are reintegrated meaningfully in our society, the chances that they return to prison are reduced and the public is safer. Without the right to vote, ex-felons have less of a benefit or an interest in contributing positively to our communities. Being fully engaged in your community and having a voice in what happens to you are vital connections to others in the community – connections that can act to reduce crime. Voting rights represent the epitome of what it means to be a U.S. citizen.
New evidence pointed to innocence in the cases of these four Baltimore men, yet prosecutors would only let them go if they agreed to controversial plea deals.
by Megan Rose
Despite new evidence undermining the convictions of at least eight men for violent crimes in both Baltimore City and County over the last two decades, none were exonerated. Instead, they left prison only after agreeing to plea deals with state prosecutors. In each case, the men took either Alford pleas, in which defendants can maintain their innocence for the record, or were given time-served arrangements. With these deals, the defendants were granted their freedom, but gave up the right to clear their names. (Two additional men took similar deals but years later were fully exonerated after more exculpatory evidence was found in the police files.)
ProPublica’s examination of these cases reveals a troubling pattern — one that legal experts say plays out across the country. Persuasive innocence claims were met with refusals by the state’s attorney’s office to reexamine the cases, sometimes despite — or perhaps because of — discoveries of official misconduct. Prosecutors often fought for years to prevent the consideration of any new evidence or the testing of old evidence for DNA. Or they accommodated contrary new facts by stretching their theories of crimes. If the DNA in a rape case, for example, didn’t match the defendant, prosecutors would assert that another unknown assailant was involved, too. When judges ordered new trials or granted writs of innocence, prosecutors started bargaining for plea deals that would maintain the convictions.
Over time, prosecutors have defended their decision to seek deals, claiming in each case that they still believed in the defendants’ guilt. They also argued that given the amount of time passed, the cases would be difficult to retry.
But Michele Nethercott, the head of the Innocence Project Clinic at the University of Baltimore School of Law, said with these cases, “often, the truth doesn’t seem to matter much.”
George Seward with his mother on the day of he got out of prison after 32 years. A judge had granted him a writ of innocence, but prosecutors vowed to retry him. He took an Alford plea to guarantee his immediate release.
The Original Case
The white victim identified him 10 weeks after the crime. The victim’s ID of Seward, an 18-year-old black man who had a moustache and goatee at the time of the murder, conflicted with her contemporaneous description after the attack of a clean-shaven assailant. Neither the fingerprints nor biological evidence from the crime matched Seward.
New Evidence Later Discovered
Seward’s employment records as a part-time dog washer, which were discovered 12 years after the trial, showed he’d been at work the day of the shooting. His boss also testified she kept the shop locked and it would have been “impossible” for him to have left.
Prosecution Reaction
Fought for the next 19 years, arguing, in turn, that the records weren’t admissible as new evidence and shouldn’t be given any consideration; that they didn’t provide an alibi because no hours were specified; and that they bolstered the case against Seward because the shop was near the victim’s house. One of the prosecutors on the case, John Cox, also told ProPublica that the records’ discovery so long after the trial meant they couldn’t be trusted.
Baltimore County State’s Attorney Scott Shellenberger said recently that because the victim saw her attacker up close, he wasn’t concerned that the case rested on a cross-racial identification. (That type of ID has been shown to be less reliable because people are generally bad at distinguishing facial features of people who aren’t their own race. Of the 351 people exonerated by DNA evidence since 1989, the national Innocence Project found that 41 percent had been convicted on mistaken cross-racial identification.)
How the Deal Happened
Judge said the employment records “thoroughly exculpate[d]” Seward and granted a writ of innocence. The state appealed and eventually lost. “The state’s immediate reaction was to offer a plea,” said Shawn Armbrust, of the Mid-Atlantic Innocence Project and one of Seward’s lawyers.
Shellenberger said that he’d been confident about the case and wanted to go to trial, but the victim didn’t want to testify again. “Keeping something on the record was extremely important to us.”
Why Defendant Agreed to Deal
Seward first turned prosecutors down, but then, as he awaited a new trial, a close friend was stabbed in prison. Seward had nine months before the trial began, so he reconsidered.
Jesse Barnes
Convicted: 1972
Released: 2011
Type of Deal: Time served
Crime: Murder
Barnes was convicted of murder when he was 17 based off of nothing more than his uncorroborated confession, which also described a violent rape.
The Original Case
Based solely on Barnes’ confession made after 31 hours in custody. A largely illiterate 17-year-old with a low IQ and no prior record, Barnes’ police-typed statement conflicted with the evidence in the case in major ways, such as how and where the 15-year-old female victim was killed. And he had an alibi for the time of the murder. (Barnes’ confession also incriminated two others, but no one else was charged.)
New Evidence Later Discovered
In 2009, 37 years after Barnes’ conviction, DNA evidence collected from the victim’s body was tested and excluded him from any sexual assault, further undermining his confession, which had described a violent gang rape that included Barnes and another man ejaculating. The DNA, which only came from one male, also excluded one of the other teenagers implicated in Barnes’ statement.
Prosecution Reaction
Prosecutor Sharon Holback said at the time that the state “vehemently and firmly believes that [Barnes] was fairly and properly convicted.” She argued that his confession was sound and that the third person implicated in it must have been the source for the DNA. That man couldn’t be found for comparison testing. (Holback was also the prosecutor who handled the post-conviction hearings in the case of James Thompson, whose rape and murder conviction was undermined by DNA testing, but was offered an Alford plea.)
How the Deal Happened
Judge Yvette Bryant went many months without issuing a ruling on the case, so Barnes’ lawyer took the innocence claims directly to Gregg Bernstein, who recently had been elected as Baltimore City state’s attorney on a reform agenda and had started a conviction integrity unit. The fighting over Barnes’ post-conviction motions had happened under Bernstein’s predecessor, so he had not publicly committed to any position. He was also free of one common concern prosecutors face when dealing with potentially wrong convictions: angry relatives of the victim who don’t want the case to unravel. With Barnes, the victim’s family so believed in his innocence that they had hired a lawyer to defend him.
Bernstein, who said recently that he didn’t recall the case, would concede only that Barnes didn’t deserve to be in prison anymore, seizing on a mistake in sentencing. The judge who had sentenced Barnes had thought wrongly that his only option was life.
Why Defendant Agreed to Deal
Barnes was 57 years old, had been in prison for more than 40 years and was in failing health. “I had to say to him ‘I’m confident in the end we will vindicate you, but it might be 1, 2 years or even 4 to 5 years, and there’s no guarantee,’” said Barnes’ pro bono lawyer, Michael Imbroscio, noting it was “the most difficult conversation I’ve ever had in my 22-year legal career.”
Wendell Griffin
Convicted: 1982
Released: 2012
Type of Deal: Time served
Crime: Murder
Wendell Griffin walked out the back door of a Baltimore courtroom on May 23, 2012, free for the first time in nearly 31 years. Griffin, who’d been convicted of murder, was let out on a time-served deal after evidence pointing to his innocence was discovered buried in a police file.
The Original Case
A neighbor testified that she saw Griffin before and after the murder with a gun, and a second neighbor, who was 150 feet away, said she heard Griffin make threatening remarks the night of the murder. A set of keys found about 90 feet from the crime scene was connected to Griffin, who lived in the neighborhood.
New Evidence Later Discovered
In 2011, significant evidence was found in the police’s files that had never been given to the defense: three photo lineups in which eyewitnesses failed to identify Griffin and eight witness statements that either incriminated another suspect or contradicted the testimony used to prosecute Griffin.
One eyewitness pointed to Griffin’s picture in the lineup and said that he looked like the suspect, “but it’s not him.” Griffin’s picture was nine years old, so detectives went back to that witness and showed her another array with a current picture. She still did not identify him. Nonetheless, detectives used her description of the suspect to get a search warrant for Griffin’s home — never mentioning that she’d twice failed to pick him out of a photo array. The warrant also cited a neighbor who saw a man with a gun, but left out that he said the man wasn’t Griffin.
“There was pretty powerful evidence of innocence that was buried by the state,” Steve Mercer, Griffin’s attorney, said.
Prosecution Reaction
Baltimore City prosecutor Michael Leedy denied that the evidence represented a Constitutional violation. (In 1963, the U.S. Supreme Court declared that the state must turn over all favorable information to the defense in order for a trial to be fair, which has come to be known as the “Brady” requirement.) Leedy wouldn’t agree to a new trial.
How the Deal Happened
When a judge, who called the evidence “earth shattering,” indicated she’d be ordering a new trial, Leedy shifted, saying that although he didn’t believe “there were, in fact, any Brady violations” the allegations were “plausible enough” that he’d “concede to a resentencing on this matter.” This was the “best course,” Leedy said, to “ensure that Mr. Griffin will for the rest of his life remain convicted for the murder of James Wise.”
Leedy also wanted it on record that by accepting the deal Griffin gave up the right to an actual innocence ruling.
Why Defendant Agreed to Deal
Griffin was 61, knew his best years were gone and he might “die in here.” Having spent nearly 31 years in prison, he didn’t have it in him, he said recently, to wait another year-and-a-half for a new trial. But he is now trying to withdraw his deal, so he can clear his name and sue over the Brady violations. Marilyn Mosby, the current state’s attorney who ran in part on a platform of police accountability, is fighting his motion. (Her spokeswoman didn’t respond to multiple requests for comment.) A hearing is set for November.
Antoine Pettiford
Convicted: 1995
Released: 1998
Type of Deal: Alford plea (exonerated in 2000)
Crime: Murder
Antoine Pettiford was convicted of murder in 1995, but was let out on an Alford plea three years later when a court ruled that the detectives and prosecutors deliberately withheld evidence from the defense. He was fully exonerated in 2000 after more evidence came to light. Pettiford was killed in 2015.
Original Case
Pettiford, 23 and with a record, was identified as one of two shooters by two eyewitnesses and was tied to the murder weapon by a suspect in a related crime. But at trial, the witnesses said they’d been mistaken and the suspect said he’d lied about the weapon. Late in the trial, prosecutors produced a new witness who identified Pettiford. Pettiford had an alibi and no motive.
According to The Baltimore Sun, before the judge sentenced Pettiford to life plus 20 years, he said: “I don't care if every witness that appeared in the trial — including the detectives — come back here and say it was all a farce and it was all false and it was all wrong. I think justice was done.”
New Evidence Later Discovered
A year later, a separate federal drug investigation led to a different suspect in the murder, who pleaded guilty in federal court and told investigators that Pettiford had nothing to do with the crime.
There was also evidence that had never been given to the defense: a three-page statement from a friend of the victim that said he was the intended target and pointed to the same suspect prosecuted by the feds; a police bulletin that named that same suspect in connection to the murder; a statement from an eyewitness who identified the second shooter as someone the federal prosecutors thought was involved; and a police report naming that second person as a suspect.
Prosecution Reaction
Baltimore City prosecutor Nancy Pollack, who had handled the trial, didn’t act on the information federal prosecutors gave her suggesting Pettiford was innocent. Michelle Martz, Pettiford’s lawyer, said she went repeatedly “to beg and plead for [prosecutors at the time] to do something. I was floored the state wouldn’t be more concerned that they might have the wrong guy.”
How the Deal Happened
At the end of a post-conviction hearing, at which a detective revealed the existence of the three-page statement implicating someone else, the judge ordered Pollack to turn over everything in her files. Pollack agreed to a new trial and offered the plea.
Why Defendant Agreed to Deal
Pettiford, scared of what the prosecutors might do during a second round, had only one question: “Do I have to go back to prison if I take it?” He accepted the Alford plea, walked down the courthouse steps and into his family’s waiting car.
How He Was Later Exonerated
A year after the Alford plea, The Baltimore Sun newspaper exposed that the state had suppressed even more evidence and that a detective had misled the defense. In response, the judge vacated the Alford plea, saying it had been “a miscarriage of justice,” and the state declined to prosecute again. Pollack, who declined to comment, had already resigned, but the Baltimore Police Department found that the detective did nothing wrong. That detective was also named in a lawsuit filed by Sabein Burgess, who was wrongfully convicted in 1995 and exonerated in 2014.
A case in Baltimore — in which two men were convicted of the same murder and cleared by DNA 20 years later — shows how far prosecutors will go to preserve a conviction.
Republished with permission under license from ProPublica
A case in Baltimore — in which two men were convicted of the same murder and cleared by DNA 20 years later — shows how far prosecutors will go to preserve a conviction.
by Megan Rose
James Owens, now 52, was sentenced to life in prison without the possibility of parole in 1988 for a murder he didn’t commit.
On Oct. 15, 2008, James Owens shuffled, head high despite his shackles, into a Baltimore courtroom, eager for his new trial to begin. Two decades into a life sentence, he would finally have his chance to prove what he’d been saying all along: The state had the wrong man.
Owens had been convicted of murdering a 24-year-old college student, who was found raped and stabbed in her home. Then he’d been shunted off to state prison until DNA testing — the scientific marvel that he’d watched for years free other men — finally caught up with his case in 2006. The semen that had been found inside the victim wasn’t his. A Maryland court tossed his conviction and granted Owens a rare do-over trial.
State prosecutors balked, insisting they still had enough evidence to keep Owens locked away and vowed to retry him. But they had also offered him an unusual deal. He could guarantee his immediate release from prison with no retrial and no danger of a new conviction — if he’d agree to plead guilty. The deal, known as an Alford plea, came with what seemed like an additional carrot: Despite pleading guilty, the Alford plea would allow Owens to say on the record that he was innocent. The Alford plea was an enticing chance for Owens, by then 43, to move on as a free man. But he’d give up a chance at exoneration. To the world, and legally, he’d still be a killer.
Owens refused the deal. He told his lawyer he wanted to clear his name, and he was willing to take his chances in court and wait in prison however long it took for a new trial to begin. It was a startling choice for an incarcerated defendant — even those with persuasive stories of innocence typically don’t trust the system enough to roll the dice again with 12 jurors or an appellate court. Most defendants, lawyers say, instinctively and rationally, grab any deal they can to win their freedom back.
The decision cost Owens 16 more months behind bars. Then, on that fall day in 2008, when the trial was set to begin, the prosecutor stood and, without a glance at Owens, told the judge, “The state declines to prosecute.”
In a legal gamble in which the prosecution typically holds the winning cards, Owens had called the state’s bluff. He walked out that day exonerated — and with the right to sue the state for the 21 years he spent wrongly imprisoned.
It seemed the ultimate victory in a city like Baltimore, with its deeply rooted and often justified mistrust of police and prosecutors. But Owens wasn’t the only man convicted of murdering that 24-year-old college student. Another white Baltimore man, James Thompson, had also been put away for life. Tests showed that his DNA didn’t match the semen either, but the state’s attorney’s office refused to drop the charges. Instead, as it had with Owens, it offered Thompson an Alford plea. Thompson grabbed the deal and walked out of prison a convicted murderer.
Same crime. Same evidence. Very different endings.
Ever since DNA ushered in a new era in criminal justice, even the toughest law-and-order advocates have come to acknowledge a hard truth: Sometimes innocent people are locked away for crimes they didn’t commit. Less widely understood is just how reluctant the system is to righting those wrongs.
Courts only assess guilt or innocence before a conviction. After that, appellate courts focus solely on fairness. Did everyone follow the rules and live up to their duties? Getting a re-hearing of the facts is a monumental, often decades-long quest through a legal thicket. Most defendants never get to start the process, let alone win. Even newly discovered evidence is not enough in many cases to prompt a review. And, for the tiny percentage of defendants who get one, the prosecutors still have the advantage: They have final discretion about whether to press charges and how severe they’ll be. Powerful influence over the pace of a case, the sentence and bail. And, compared with an incarcerated defendant, vast resources.
No one tracks how often the wrongly convicted are pressured to accept plea deals in lieu of exonerations. But in Baltimore City and County alone — two separate jurisdictions with their own state’s attorneys — ProPublica identified at least 10 cases in the last 19 years in which defendants with viable innocence claims ended up signing Alford pleas or time-served deals. In each case, exculpatory evidence was uncovered, persuasive enough to garner new trials, evidentiary hearings or writs of actual innocence. Prosecutors defend the original convictions, arguing, then and now, that the deals were made for valid reasons — such as the death of a key witness or a victim’s unwillingness to weather a retrial. The current state’s attorney in Baltimore County, Scott Schellenberger, said that “prosecutors take their oath to get it right very seriously” and wouldn’t stand in the way of exoneration if the facts called for it.
The menace of such deals, though, is clear: At worst, innocent people are stigmatized and unable to sue the state for false imprisonment, prosecutors keep unearned wins on their case records and those of the department, and no one re-investigates the crime — the real suspect is never brought to justice.
The plea deals ProPublica examined in Baltimore City involved two prior state’s attorneys. A spokeswoman for Marilyn Mosby, the current chief, didn’t respond to numerous requests for comment or for interviews with prosecutors in those cases.
The pleas in two of these Baltimore cases were later overturned after misconduct was uncovered in the original convictions, and the men won full exonerations. One, Walter Lomax, a black man convicted by an all-white jury shortly after the 1968 race riots in the city, served 38 years of a life sentence before taking a time-served deal in 2006. The state didn’t concede he was innocent until 2014.
Wrongful convictions are bad enough, Lomax said, but they’re even more “horrible when it becomes obvious the person is innocent and the state won’t at the very least acknowledge that.”
Some legal and cognitive science experts suggest that once detectives and prosecutors commit to a suspect and a theory of the crime, it changes how they evaluate evidence, and then the system itself exacerbates that focus at every step. Prosecutors are rewarded for proving and defending their theories, leaving little incentive to acknowledge weaknesses in cases, particularly in high-stakes crimes such as rape and murder. This mind-set is bolstered by one of the great positives of the system, one which legal experts, even those dedicated to exposing wrongful convictions, acknowledge: Prosecutors generally get it right.
Psychologists have a myriad of terms for the powerful, largely subconscious biases at play, but most people would call the collective phenomenon “tunnel vision.”
Wrongful convictions involving violent crimes typically involve poor, often minority defendants, sometimes with limited education or IQs, who are convicted on scant evidence or flawed forensics. The cases are fueled by an early theory of the crime that relentlessly drives the investigation and prosecution — even, in some cases, to official misconduct.
“At some point psychologically, you go from figuring out what happened to figuring out how to prove it happened the way you said it did,” Barbara O’Brien, a law professor involved with the National Registry of Exonerations at the University of Michigan, said. “It’s very difficult to take a step back from that.”
Marty Stroud, a former Louisiana prosecutor, made national headlines in 2015 when he penned a rare public apology for putting an innocent man on death row for 31 years. He told me recently that the system comes down hardest on those without the means to defend themselves. “It’s easy to prosecute those people and put them away and not think twice about it because no one is speaking for them,” he said.
The certitude of detectives and prosecutors hardens when their theory is validated by a judge or jury, and later, by an appellate court. Time, instead of allowing for fresh eyes, often makes biases worse. When a defendant like Owens gets a new hearing, the district or state’s attorney’s office — long committed to his guilt — has to re-justify that decision.
If they admit they got it wrong, prosecutors have to accept that a person was robbed of years of his life, the real perpetrator was never found, the victim’s family was let down, and, to top it off, they now have a cold case that’s unlikely to be solved. With the Alford plea, not only is the real perpetrator not caught but the case is officially closed on the books. It also dings their won-loss record on typically high-profile cases. The idea of a wrongful conviction, Stroud said, assaults a prosecutor’s sense of identity that “we’re the good guys. We have the white hats and are putting the bad guys in jail.”
Exonerations are also like a Pandora’s box in two important and unsettling ways. First, looking closely at why wrongful convictions happen — even in cases when everyone worked in good faith — could force a reckoning about deeply held beliefs on what is required to solve and punish crimes. False confessions, for example, often are a result of time-honored, and perfectly legal, tactics to soften up a suspect, such as lying or conducting questioning in the dead of night, said Steven Drizin, the former director of Northwestern University’s Center on Wrongful Convictions. When wrongful convictions are a result of misconduct, there could be a string of other bad convictions connected to that prosecutor or detective.
It’s no coincidence, many defense lawyers across the country say, that when misconduct comes up, prosecutors are quicker to propose an Alford plea or similar deal, effectively quashing any further inquiry into the behavior. One ACLU attorney told me about a galling Alabama case in which prosecutors insisted they would re-seek the death penalty, and it was “only because we were continuing to expose prosecutorial misconduct that they finally agreed to settle the case.”
After James Thompson brought police a knife that he claimed to have picked up near a murder victim’s home, a Baltimore police officer posed with the weapon. A local TV news station filmed police taking the photo and erroneously reported that the police had found it. “There’s a real danger in staging things like this,” said Stephen Mercer, a Maryland public defender. (Baltimore Police Department file, courtesy of Stephen Mercer)
On a muggy August evening in 1987, police officers swarmed a block of squat brick rowhouses in a mostly white, working-class neighborhood in southeast Baltimore. A young woman had been raped, strangled with a sock and stabbed to death in her second-floor bedroom. Detective Thomas Pellegrini, who’d been assigned to homicide only the year before and, who, by his own admission, was green enough not to sweat the details, caught the case as lead detective. He was assisted by Detective Gary Dunnigan and the squad’s boss, Sgt. Jay Landsman. The trio would become famous a few years later when David Simon heralded them in his book “Homicide: A Year on the Killing Streets” and on the subsequent prime-time TV show it inspired.
The next morning, the neighborhood reverberated with the choppy drone of police helicopters circling overhead. Thompson, a gas station attendant who’d suffered a brain injury in childhood, lived down the street with his wife and their two young boys. He’d heard detectives were looking for a knife and offering a $1,000 reward. It seemed a prime opportunity for a quick buck. The short, stocky 27-year-old wandered over to the yellow police tape and handed Pellegrini a large switchblade. Thompson said he’d found the bloody weapon in the grass the night before, pocketed it, and cleaned it at home — somehow unaware of the massive overnight police presence. At Pellegrini’s urging, he fetched a pair of cut-off jeans he said he’d been wearing at the time, which had a small bloodstain on the back right pocket.
Forensics showed a possible presence of blood or other unknown substance on a small area of the knife and no evidence to suggest it was used in a violent struggle, such as a broken tip from hitting bone. The detectives moved forward on the assumption it was the murder weapon.
Two days later, rather than being thanked and handed the reward money, Thompson found himself under suspicion. In a panic, he fingered Owens. The two had been casual friends, but they’d had a falling out over accusations of theft when they’d briefly worked together at the gas station. In a thoughtless burst of vengeance, Thompson gave an official statement at the police station; he said the knife was actually his but claimed Owens had stolen it and then told him where to find it the day after the murder. Thompson noticed the detectives ate up everything and realized they had nothing else to go on. At the time, there seemed to be no risk in just making it up as he went along. After he retrieved the knife, Thompson told detectives, Owens washed it in the kitchen sink. Thompson didn’t give the police any details about the murder, but he said Owens had told him he’d had sex with the victim.
Owens, 22 at the time, was arrested and charged with burglary, rape and first-degree murder. In just 72 hours, the detectives had closed the case. There was no forensic evidence, motive or eyewitnesses linking Owens to the crime. Landsman and Pellegrini would later say they had believed at the time that without Thompson, Owens would walk. Even the prosecutor, Marvin “Sam” Brave, said he viewed Thompson’s story as “implausible” and didn’t think he had the truth, but he nevertheless pressed charges.
Brave recently told me that “if you think you’ve got the right guy, but not that you can necessarily prove it beyond reasonable doubt, it doesn’t mean you don’t go forward.”
A Baltimore Police Department photo of James Owens from August 5, 1987, the day Owens, 22, was arrested for murder.
When Owens’ trial began in February 1988, Thompson was the star witness. He’d considered coming clean several times but was afraid he’d be sent to jail. He’d lied to the cops during a previous encounter and had been arrested for making a false police report. Despite that history, the detectives in this case had made him feel like a hero. Pellegrini didn’t think Thompson was “the sharpest pencil in the box,” but at that point in his career, he said in a recent deposition, he thought only suspects would lie to him. Brave also was unconcerned. “If the part that you think he is telling the truth [about] contributes to your case, you use it,” he said. “He doesn’t have to be telling the truth about everything.” The rest of the case relied mainly on minor scratches Owens, a factory worker, had on his arm and a spot of possible blood that had been swabbed from his hand. Two jailhouse snitches who’d been Owens’ cellmates while he awaited trial claimed he had separately confessed to them, though the story Owens purportedly told them contradicted the version Thompson had given police.
In his opening statement, Brave told the jury that any notion that police had “bungled the investigation” and the defendant was innocent was from the fantastical realm of television. But Brave was concerned enough about Thompson’s story that he took him aside the morning of his testimony and warned he was going to “look silly” and it was time he “told us the truth about how that knife really got back into his possession,” according to testimony Brave later gave about the conversation. He even assured Thompson he wouldn’t be prosecuted for making a false statement.
When Thompson took the stand, he told the jury he’d had a “heart to heart” with the prosecutor and was “ready to tell the truth.” In this new version of events — which Brave described later as “sellable” to a jury — Thompson said that around 8 a.m. the morning after the murder, Owens had come by his house and given him the bloody knife. Except this story, too, was a lie. As one of the detectives noted to Brave afterward, Owens’ boss had told police he’d been at work by that point in the morning. “The more I tried to fix things to go in my favor, the bigger hole I dug for myself,” Thompson told me recently.
That Friday Brave went home “really worried about the case,” and stewed over the weekend that he was on “a sinking ship.” Late Sunday evening, he met with Pellegrini and told him to take blood and hair samples from Thompson for testing to exclude him as a suspect and bolster his credibility as a witness. Brave already knew the pubic hairs found on the victim didn’t match Owens. Neither did saliva on a cigarette found at the scene.
During a lunch break at trial the next day, Brave and the three detectives met with the city’s forensics expert who, they said, told them the hair was a match to Thompson. Detectives brought Thompson in, read him his rights, and told him “he was in a lot of trouble” and might be charged. His hair, Landsman told him, had been found in the victim’s house. Thompson later contended he knew this couldn’t possibly be true — he hadn’t been there at all. But at the time, he said, he was scared and thought if he just said what pleased the detectives and got Owens convicted, he’d be alright.
In 1988, Baltimore's forensic examiner wrote on the back of a picture of Thompson's hair that his hair matched one found at the crime scene. In 2010, the same examiner said pictures of the hair showed that they didn't match, moreover that type of hair analysis was no longer considered valid. (Baltimore Police Department file, courtesy of Stephen Mercer)
Like an actor doing take after take to accommodate the wishes of a director, Thompson went through several more versions about what supposedly happened, adjusting his story to reflect additional pieces of evidence the detectives told him about. Thompson first said he broke into the house but didn’t go upstairs. After the detectives told him his hair had been found on the second floor, Thompson then said he did go upstairs but hid in the bathroom while Owens attacked the victim after she unexpectedly came home. Detectives then told him his pubic hair had been found on the victim’s buttocks, suggesting his pants must have been down. After several hours of this back and forth, Landsman went to the courtroom and handed Brave a note, saying Thompson had admitted to burglarizing the house with Owens.
Thompson was taken directly from the interrogation room to the witness stand to testify a second time. Now, speaking so softly at first that the judge twice had to tell him to raise his voice, Thompson said he and Owens had broken into the apartment to steal jewelry, and Owens attacked the victim when she came home unexpectedly. Then, while Owens raped her, Thompson testified that he masturbated over her back — his newly concocted explanation for how the pubic hair the state claimed was his had ended up on the victim. Owens, Thompson said, then stabbed her and threw the knife on the ground, which Thompson picked up on the way out.
This was, unbeknownst to Owens or his lawyer, Thompson’s eighth version of events — the one that satisfied the officers that they had enough “to get James Owens,” as one detective later put it.
Even on the stand implicating himself in the crime, with both Brave and Owens’ lawyer stressing charges he might face, Thompson said the full ramifications of his lies didn’t dawn on him. He thought he’d be fine once the trial was over.
“I never hurt anyone. I never touched that young lady,” Thompson said again and again on the stand, adding at one point that he’d take a polygraph to “prove my innocence on that particular behalf.”
Owens was convicted of the burglary and the murder but found not guilty of the rape. Thompson’s changing stories had cast enough doubt that Brave acknowledged in his closing argument that either man could have committed the rape. Thompson, who had been arrested right after testifying and immediately recanted his confession, was later convicted of burglary, rape and murder. Thompson’s multiple different stories of the crime had been accepted as truth, but his multiple attempts to protest his innocence were taken as lies.
Both men were sentenced to life without parole. Owens was the first in Maryland to receive such a punishment.
Owens never resigned himself to his fate. A few years into his sentence, he read about DNA in a magazine and implored everyone he could think of to test the evidence in his case. He eagerly conferred over coffee with Kirk Bloodsworth, the inmate across the hall, then cheered Bloodsworth’s exoneration by DNA in 1993, the first of its kind in the nation involving a death sentence. Shaking Bloodsworth’s hand when he left prison, Owens thought, “Man, one day I’ll be out there.” Then the O.J. Simpson trial introduced him to Barry Scheck, the founder of the Innocence Project, and Owens sent his office a letter. Shunned by his family and cut off from the way most convicts got cash, he traded chicken sandwiches from his kitchen job for stamps to mail it. Still, no one took up the cause. The semen found in the victim and the blood on Thompson’s shorts sat undisturbed in the Baltimore medical examiner’s office for 19 years.
Finally, after a special division within the Maryland public defender’s office became interested, he got a new lawyer and a hearing. A judge ordered DNA testing in 2006 — over the objections of prosecutors — and the results dismantled the state’s theory of the crime. At both trials, the state had argued that the break-in, the rape and the murder were inextricably linked. At Owens’s trial, the prosecutor told the jury Owens had leered at the victim as she sunbathed and “decided that he wanted her.” He broke into her house, laid in wait for her to return, raped her, strangled her and “for good measure … mutilate[d] her with multiple stab wounds.” The prosecution doubled down on this narrative at Thompson’s trial, telling the jury he and Owens “had to humiliate [the victim] by taking turns raping her.” And the blood on the back pocket of Thompson’s shorts, the prosecutor said, was definitively the victim’s.
DNA proved most of those arguments false. The semen found in the victim didn’t come from Owens or Thompson, and the blood on the shorts wasn’t even from a woman. It was Thompson’s own. When Owens heard the news at Jessup Correctional Institution, just southwest of Baltimore, he sat on the floor of his cell and cried.
The Baltimore City State’s Attorney’s Office was unmoved. Prosecutors fought both Thompson and Owens as the two separately sought to have their convictions overturned.
Owens’ case moved faster through the courts. His new attorney was Stephen Mercer, a Maryland defense attorney with an earnestness that had survived more than 20 years in the trenches. Mercer knew the state, with its evidence decimated, was going to push for a deal. He fumed that prosecutors were using psychological warfare to do it — opposing bail and slowing the case, so Owens would spend more time on the inside thinking about being on the outside. Owens’ evidentiary hearing was moved from January to March to May. Only then, nine months after the DNA showed Owens wasn’t the rapist, did the state agree to a new trial while insisting that Owens was still guilty of murder.
The state’s attorney’s office, run at the time by Patricia Jessamy, argued that the rape was immaterial to the murder, and, a spokeswoman said, the DNA evidence was “trivial.” Mark Cohen, the new prosecutor, told Mercer that other evidence in the case, including Thompson’s confession and the testimony of jailhouse informants, was still persuasive. (Jessamy didn’t respond to several phone messages requesting comment and Cohen has since died.)
Mercer said the prosecutor’s stance was “very cynical. It really seemed that the desire to keep the conviction was for reasons that had nothing to do with the evidence.” The state’s guiding star, Mercer knew, was a rigid belief that what was long ago decided by a jury, and upheld by an appellate court, shouldn’t be continually second-guessed.
Stephen Mercer, chief of the forensics division of the Maryland Office of the Public Defender, dug up exculpatory evidence for three defendants — James Owens, James Thompson and Wendell Griffin — who had been sentenced to life and secured their release from prison.
In Owens’ case, it wasn’t just the semen and the blood that didn’t hold up 20 years later. The type of hair analysis done on the pubic hair had subsequently been dismissed as junk science. The hair, along with the knife, had been destroyed. But the state’s own expert, who’d inspected the hair at the time of the original trials, said at a hearing that the scientific community no longer does a visual hair comparison to “draw the conclusions we drew back in 1988 with a microscope.” Now analysts use DNA analysis.
Not long after Owens was granted a new trial in May 2007, Cohen proposed a deal. It wasn’t surprising. The plea bargain is the lifeblood of the overburdened criminal-justice system. About 95 percent of cases never go before a jury. Instead, most defendants agree to plead guilty in exchange for lesser sentences. In cases like Owens’, in which new evidence undermines old, legal advocates question whether incarcerated defendants should even be offered a plea. In every case, prosecutors “need to really inspect their own motivations,” Thiru Vignarajah, a former federal and Baltimore City prosecutor who later served as deputy attorney general of Maryland, said. “Are they offering a plea or time served because that’s in the best interest of the case, or are they allowing some institutional interest of preserving the conviction to trump a prosecutor’s duty to seek justice?”
A year before Owens’ retrial, Jessamy’s office had convinced another defendant to take an Alford plea. Locked up for 20 years, that defendant had at first refused a deal after he, too, was granted a new trial because of DNA evidence. As the trial was set to begin, the prosecution requested a postponement. When the state again delayed the subsequent trial date, the defendant broke down. He accepted the plea.
Afterward, Jessamy’s spokeswoman scoffed at the defendant in a news story, saying it was “inconceivable” that after 20 years the defendant couldn’t wait a little longer, and “if he truly believes he is innocent, he should have gone to trial to see that justice is served.”
As Owens’ trial got closer, Cohen kept sweetening the deal, knocking down the charge and requiring less probation. Finally, they offered Owens an Alford plea for second-degree murder, time served and no probation. Mercer lost sleep over whether Owens should take it. A trial was risky and a chance at guaranteed freedom was rare for any defendant. Owens repeatedly asked himself: “Why are they doing this to me? Why should I have to plead guilty to something I didn’t do?” Now mostly bald and with a moustache, he’d grown up in the foster care system. He’d been viciously attacked while in prison. He didn’t have much to hold onto except his resolute insistence from day one that he was innocent. He wasn’t about to “admit there was sufficient evidence to convict him while playing this wink-and-nod game that he was claiming his innocence,” Mercer said. So the Alford plea, like all the others Mercer had passed to Owens through the Plexiglass, was flatly rejected: “Mr. Mercer, there is no way. I am going to trial.”
Cohen, suspicious that the deal hadn’t been properly relayed, had Owens and Mercer join him for a bench conference, so that the Alford plea could be offered in front of the judge. “I’m not taking nothing, dude,” Owens recalled saying. “I will die in the penitentiary if I have to.”
In October 2008, Owens was vindicated. Cohen was forced to tell the court he didn’t have the goods for a retrial. Owens stepped out of prison free for the first time in 21 years, telling gathered reporters, “You can’t give me that time back.”
es Thompson, 57, has been out of prison for less than six months and is trying to get his life back on track. After DNA cleared him of the rape, he took an Alford plea to be released from prison. “Did I want to take that? Absolutely not. But I wanted to go home.”
Thompson, meanwhile, was fighting the same battles while incarcerated about 75 miles away at Roxbury Correctional Institution in Hagerstown, Maryland. But in his case, prosecutors were employing a perplexing logic. They’d agreed that the DNA evidence from the semen warranted a new trial for Owens, who had not been convicted of rape, but they refused a new trial for Thompson, who had been.
Thompson, by now gray-haired and hard of hearing, was dismayed. He’d saved the newspaper clipping about the DNA findings, and when he read that Owens had gone free, he was certain he’d be next. He couldn’t understand why the DNA could clear Owens of all charges while it did nothing for him, even though the DNA excluded him as well. But Mercer, who’d picked up Thompson’s case after freeing Owens, did. Thompson had confessed, and that was prosecutorial gold. In Simon’s book about the Baltimore detectives who’d secured Thompson’s confession, he detailed the interrogation tactics they had commonly employed. To get confessions, he wrote, the detective became a “huckster … thieving and silver-tongued,” and without the “chance for a detective to manipulate a suspect’s mind, a lot of bad people would simply go free.”
Poorly understood at the time is that such manipulation can also compel innocent people to agree to whatever the police want. As the U.S. Supreme Court noted in 2009, “a frighteningly high percentage of people … confess to crimes they never committed.” According to the Innocence Project, 28 percent of defendants later exonerated by DNA had falsely confessed.
During the initial trials in 1988, prosecutors had argued that the pubic hair and the blood on the jeans proved Thompson was telling the truth, but in 2009 the Maryland Court of Appeals wrote that the DNA finding “usurps the State’s arguments all together.” In essence this meant none of Thompson’s statements to police or prosecutors throughout the case were corroborated by evidence.
Despite the statistics, convincing a jury that someone would falsely confess to a crime — particularly to something as heinous as a murder or a rape — is incredibly hard. Juries want to believe that people are rational actors, like themselves, with an almost primal instinct toward self-protection. It wouldn’t matter that the state no longer had the evidence to prove it, Mercer knew, a jury would most likely myopically focus on the confession.
Thompson told me he’d been happy for Owens when he was released — he’d always wished he could apologize to him for what he did — but that feeling had faded into self-pity as the calendar went from 2008 to 2009 to 2010 and his case stalled in the courts. Now he was mostly anxious. He just wanted relief, whatever it might be, so when Sharon Holback, the new prosecutor on the case, eventually offered him an Alford plea — 23 years after he’d first fatefully approached police — his excitement overwhelmed his sense of injustice.
Mercer worked to make it the best deal he could. If Thompson took the plea, it meant the state would let him go, but the deal had some risky strings attached. Any charge that carried a life sentence had to come off the table, because in Maryland, a probation violation — even something as relatively minor as a DUI — sends the defendant back to prison to serve the remainder of his sentence. The two sides agreed to second-degree murder, which carries a maximum of 30 years. That way if Thompson violated probation, he’d only have seven and a half years over his head, since he had served more than 22.
Gregg Bernstein, Baltimore City state’s attorney from 2011 to 2015, oversaw at least two similar deals. He couldn’t remember the details but said he’d thought a lot about whether it was okay for an innocent man to take an Alford plea. In the end, he said, most cases lack black-and-white certainty, regardless of evidence suggesting innocence. “It’s not that simple to say yay or nay,” he said. “Pleas are a way to resolve them.”
Former prosecutor Vignarajah, though, told me he wonders if that kind of resolution only looks like a win for everyone on paper. “In reality everyone lost,” he said. “The victim sees no justice. The defendant is walking away with a conviction. And the prosecution didn’t get anyone to take responsibility [for the crime].”
On July 29, 2010, when Thompson left prison under the Alford plea, Holback got the last word: Thompson “is in no way exonerated.”
Since their releases, Thompson and Owens have led dramatically different lives.
Thompson thought he could go back to the person he was almost 23 years earlier, before the murder rap, but society didn’t look at him that way. When he applied for a job, he put a question mark where the form asked if he’d been convicted of a felony.
“I tried to explain I was wrongfully convicted, but people don’t want to hear that,” Thompson said. “There’s no reasoning with somebody. ‘Innocent people do not go to prison’ is just the motto.”
Thompson held onto his freedom for only a little over a year. In October 2011 he was arrested after his ex-girlfriend claimed that he had molested her young daughter. Thompson, who’d recently kicked the girlfriend out of his apartment, denied the charge, saying he’d spanked the girl’s bare butt to discipline her. The state reduced the charges to a misdemeanor for touching the girl’s buttocks and gave him time served for the five months he’d been in jail.
It didn’t end there, though. Because the misdemeanor violated his probation attached to his Alford plea, Thompson went from a local jail to a state prison to serve the remaining seven and a half years.
Mercer said he believes the Alford plea made it very difficult for Thompson to defend himself. “It was a question of credibility,” Mercer said. “Who’s going to believe him? He was stuck having to do damage control.”
Thompson set into motion the prosecution of Owens, and eventually himself, when he lied about finding the murder weapon to get a $1,000 police reward. He then falsely testified that he saw Owens commit the rape and murder. “I’m really ashamed,” he said. “Why I did what I did, I can’t explain it.”
Owens has fared better. He has been embraced by what little family he had. He has moved into a cousin’s house and has begun working with him cleaning gutters and doing landscaping. And he has grown close to his nieces and nephews, a bittersweet feeling for someone who’d had no chance to build a family of his own. Owens told me he has tried not to let the anger sink him, but he struggles. His exoneration came without compensation or even an apology. “What’s striking in these cases is a total lack of accountability,” said Michele Nethercott, of the Innocence Project in Baltimore. “Nothing ever really happens” to the police and prosecutors whose actions led to wrongful convictions.
Owens wonders today if his prosecution became all about keeping the win. “Instead of focusing on me and getting me to take a deal for something I didn’t do, they need to focus on the victim. Her murder has never been solved,” he said. “I think they should go back and look and do something for this girl.”
In 2011, Owens found a lawyer, Charles Curlett, to sue Baltimore. Curlett determined that there were several issues of misconduct involved in Owens’ conviction. First, his lawyer had been told nothing of the changing stories Thompson gave the detectives. The information could have been used to undermine Thompson’s credibility and failing to share it was likely a violation of Owens’ due-process rights. Such failures are known as Brady violations, after a 1963 Supreme Court case in which the justices determined that withholding favorable information from the defense is unconstitutional. Also, one of the jailhouse snitches who testified that Owens had confessed had been a police informant for years and said he recruited the other snitch. This, too, wasn’t revealed to the defense, nor were the informant’s letters asking for favors in exchange for his testimony.
Brady violations had become so prevalent in Baltimore’s courts that the Fourth Circuit Court of Appeals recently admonished the city’s prosecutors to remember their legal obligations: “Only this practice ensures the fair trial that our justice system aspires to provide” and makes it so “no one has to worry after the fact whether the jury convicted the wrong person.”
The city furiously fought Owens. Dodging such suits, many defense lawyers contend, is part of what drives these plea offers. “If not expressly that, it’s implicit in a lot of decisions made in this setting,” said Michael Imbroscio, an attorney who had a client in Baltimore City take a time-served deal. The city won dismissal of Owens’ suit against the state’s attorney’s office and Brave, who the court ruled had immunity, and the Baltimore Police Department. But the case is going to trial in federal court, likely early next year, against detectives Pellegrini, Landsman and Dunnigan as individuals. There’s millions in compensation at stake for Owens and a public airing of misdeeds for the city.
Civil litigation is “so important,” Mercer said. “Often, that’s the only time there’s scrutiny into what wrongs were done.”
Owens will go to court early next year in his lawsuit against the detectives who investigated him. He alleges the detectives violated his constitutional right to a fair trial by withholding key material from his lawyer.
The type of misconduct alleged in Owens’ case is echoed in nine more of the 14 exonerations out of Baltimore City and County since 2002, according to the National Registry of Exonerations. The 2014 exoneration of Sabein Burgess, for example, came after it emerged that Baltimore detectives never revealed a key detail to the defense: that a young witness had told them he saw the murder suspect and it wasn’t Burgess. The detectives even submitted a report falsely stating that the witness had been asleep during the crime. Like Owens, Burgess is suing, claiming that detectives “cut corners and rushed to judgment.” His trial is set for this fall and names a different group of detectives.
Misconduct can also be found in the cases of some of the remaining exonerated defendants who, like Thompson, aren’t officially considered exonerated at all but who were released under Alford pleas or time-served deals after questions were raised about their initial convictions. Curlett is representing one such man, Wendell Griffin, who was convicted of murder in Baltimore in 1982. Decades later, it came to light that three detectives — two also featured in Simon’s book and a third who is Landsman’s brother — had buried photo lineups and witness statements pointing to Griffin’s innocence. He was let out on a time-served deal in 2012.
The detectives named in the Owens and Burgess lawsuits have denied allegations of misconduct. Michael Marshall, who represents the detectives in Owens’ and Griffin’s suits, declined to comment, referring questions to the chief of legal affairs for the Baltimore City Police Department, who didn’t return several calls.
Thompson, whose parents died while he was in prison, has been abandoned by the rest of his family. He was released early for good behavior in February after serving a little more than five of his remaining seven and a half years, and as much as he blames himself for his mistakes, he now thinks his plea was a “bum deal.” He wishes there was a way to prove to his loved ones that “although I served 30 years … I didn’t commit the crime.”
The strain of the Alford plea proved too much for one of Baltimore’s wrongly convicted. Chris Conover left prison under the plea in 2003 after DNA called into question his murder conviction in Baltimore County. On the outside, he suffered from severe panic attacks and depression, but his wife told the local newspaper that he couldn’t face in-patient treatment, which meant being back behind locked doors. His petition for a pardon from Maryland’s governor was turned down in 2012. Three years later, Conover killed himself.
“Having been convicted really defines who you are — it becomes itself a prison,” Mercer said. “Once out, with a conviction still on your shoulders, having maintained your innocence in a Alford plea is of little comfort and of very little practical benefit.
New evidence pointed to innocence in the cases of these four Baltimore men, yet prosecutors would only let them go if they agreed to controversial plea deals.
Republished with permission under license from ProPublica
'When we remove the economic motive and grease of our forced labor from the U.S. prison system, the entire structure…must shift to accommodate us as humans'
Organizers say the strike will take place in at least 24 states to protest inhumane living and working conditions, forced labor, and the cycle of the criminal justice system itself. (Photo: Getty)
Prisoners across the United States are launching a massive strike on Friday, on the 45th anniversary of the Attica prison uprising, to protest what they call modern-day slavery.
Organizers say the strike will take place in at least 24 states to protest inhumane living and working conditions, forced labor, and the cycle of the criminal justice system itself. In California alone, 800 people are expected to take part in the work stoppage. It is slated to be one of the largest strikes in history.
"Slavery is alive and well in the prison system, but by the end of this year, it won't be anymore," reads the call to action from groups including Support Prisoner Resistance, the Free Alabama Movement, and the Incarcerated Workers Organizing Committee (IWOC). "This is a call to end slavery in America."
It continues:
Our protest against prison slavery is a protest against the school to prison pipeline, a protest against police terror, a protest against post-release controls. When we abolish slavery, they'll lose much of their incentive to lock up our children, they'll stop building traps to pull back those who they've released. When we remove the economic motive and grease of our forced labor from the US prison system, the entire structure of courts and police, of control and slave-catching must shift to accommodate us as humans, rather than slaves.
As the organizers explain in their call to action, "Certain Americans live every day under not only the threat of extra-judicial execution—as protests surrounding the deaths of Mike Brown, Tamir Rice, Sandra Bland, and so many others have drawn long overdue attention to—but also under the threat of capture, of being thrown into these plantations, shackled and forced to work."
"Work is good for anyone," Melvin Ray, an inmate at the W.E. Donaldson Correctional Facility in Bessemer, Alabama, and Free Alabama Movement organizer, toldMother Joneson Friday. "The problem is that our work is producing services that we're being charged for, that we don't get any compensation from."
Prison wages, which range from a few cents to $1.15 an hour, are determined on a state-by-state basis; in many states, such as Texas, Arkansas, and Georgia, inmates are not paid at all. Meanwhile, items in the prison commissary are often hiked up from their market value, making them increasingly inaccessible to the inmates themselves. And as Prison Legal Newseditor Paul Wright explained to Mother Jones, those who refuse to work are subject to retaliation, including having their sentences lengthened or being held in solitary confinement.
The jobs themselves can vary from farming and manufacturing to doing call work for private phone companies such as AT&T and Verizon, as well as work that keeps the prison itself running, such as laundry or kitchen service.
Azzurra Crispino, media co-chair of the IWOC, toldShadowproof that the conditions are often dangerous. "We've had reports of people being asked to operate heavy machinery with standing water on the ground," she said. "In Texas, no air-conditioning, in a lot of the units. Last year, the heat in Texas was 116 degrees. You can imagine what it's like working in a kitchen, in a unit with no air conditioning."
The strike is only the first step in a sustained plan of resistance, the organizers said. The actions are scheduled to continue to "[build] the networks of solidarity and [show] that we're serious and what we're capable of."
To that end, the organizers are calling on supporters on the outside to take part in events around the country, including demonstrations, fundraising benefits, marches, discussions and film screenings, teach-ins and phone banking, and other efforts.
"Prison impacts everyone, when we stand up and refuse on September 9th, 2016, we need to know our friends, families, and allies on the outside will have our backs," the call to action reads. "Step up, stand up, and join us. Against prison slavery. For liberation of all."
Republished with permission under license from CommonDreams
The Ferguson Protest brought national attention to predatory court systems in the St. Louis Area. However, St. Louis wasn't the only local predatory system. The civil rights being demanded by groups such as Black Lives Matter ultimate help protect the rights and privileges of all American. Court.rchp.com exist to help teach Black people and others about the law and their rights and how to envoke them so they can better protect themselves from predatory situations.
We continue our look at what the ACLU calls an illegal debtors’ prison in Arkansas by speaking with a former resident who wrote a check for $1.07 for a loaf of bread. She describes how after her check bounced, her debt ballooned with fees and fines to nearly $400, and police officers twice came to her job to arrest her. Since then, she has been caught up in Sherwood’s Hot Checks Department. We are also joined by lawyer Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, who says the woman’s experience is common.
Is an Arkansas Town Operating a "Hot Check" Court as an Illegal Debtors' Prison?
A woman in Sherwood, Arkansas, just spent 35 days in a county jail after she accidentally bounced a $29 check five years ago. Nikki Petree was sentenced to jail last month by a judge accused of running a debtors’ prison. She had already been arrested at least seven times over the bounced check and paid at least $600 in court fines. Her release comes as the Lawyers’ Committee for Civil Rights Under Law, the ACLU and an international law firm have filed a lawsuit to challenge the modern-day debtors’ prison in Sherwood. We speak with Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, who says Sherwood jails people in violation of a long-standing law that forbids the incarceration of people for their failure to pay debts.
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: We’re also joined by Janice, who is a native of Little Rock, Arkansas, who’s been caught up in Sherwood’s Hot Checks Department for decades. One check she wrote for $1.07 for a loaf of bread bounced. The debt ballooned after fees and fines to nearly $400. She currently has a warrant in Sherwood’s Hot Checks Department and wishes to remain anonymous for fear of arrest.
So, Janice, you’re in profile; you don’t want to be seen. But explain what happened to you.
JANICE: On several occasions, I have been arrested by Sherwood Police Department for bounced checks, insufficient funds checks. I’ve even been arrested on my job—two different jobs, as a matter of fact, one—with two different hospitals. My checks has totaled, I would say, less than $1,000 worth of checks. And they’re little, small checks. I was a bad manager. I didn’t keep a good register, so, therefore, I had bounced checks. Some were $20. Hundred dollar may have been the highest number of checks that I wrote. But I have had accumulated fees up to thousands of dollars in fees and costs, on roughly less than $1,000 worth of checks.
JUAN GONZÁLEZ: And when you go into the—before the judge on these cases, what’s the process? What happens there?
JANICE: He just bring you before him, and, like they say, you sign a waiver. You go up before the judge, and he assesses your fees and court costs, and give you a monthly payment amount, until you have to pay this monthly payment by such, such date. You have a 10-day grace period. If it’s not paid, then there’s another failure-to-pay warrant issued and additional costs and fines assessed to the amount you already have.
AMY GOODMAN: Now, part of your struggle is you have MS—is that right, Janice? And you’re trying to deal with medical costs, as well?
JANICE: Correct.
AMY GOODMAN: And is this Judge Hale that you’re going before, who Kristen Clarke just described?
JANICE: Yes, it is.
AMY GOODMAN: Are you allowed to bring in a friend, a family member, a lawyer at your side?
JANICE: Now, if you do retain an attorney, an attorney can be there, but family members and friends are not allowed in.
AMY GOODMAN: So what is your situation right now?
JANICE: Right now, I have not been there since somewhere around 2008. And I have an active warrant, because I could not afford to pay the monthly payment that he had assessed of $200, because I feel as if I have paid, you know, restitution on the checks that I’ve previously wrote, but these are all accumulated fines and court costs that has been assessed.
JUAN GONZÁLEZ: And they’ve come on several occasions to arrest you on your job? I find this hard—this is a civil issue. Why they would be coming to arrest you on your job?
JANICE: Because that’s what they do. Even though they know your address, your home address, they will come out to your job, opposed to your home. And this has caused me to lose two jobs because of that.
JUAN GONZÁLEZ: Kristen Clarke, what about that, this issue of—I mean, normally, if somebody writes a check that they don’t have funds for, the bank will send them and issue, you know, a charge, but having law enforcement come in and arrest you for this, especially on your job, is this—is this illegal?
KRISTEN CLARKE: This abusive debt collection practice is part of the scheme. The clients that we represent in this case have had the cops show up at their doorstep and insist that they pay money now, or they are threatened with arrest. I am heartbroken to hear the story of the woman who just spoke. But again, we know that these are not isolated cases. This is a systemic pattern that exists across Sherwood and across Pulaski County. This is a court that has made big business out of preying on the backs of poor people. And they have made the focus on the most marginalized people in this community the focus of this court. People who have written small checks that are returned for insufficient funds, that is the focus of this court. And I can’t tell you how many people we’ve talked to who have stories like the woman who just spoke. We represent a cancer patient in this case. You know, he was hospitalized and receiving chemotherapy. And two—you know, a few checks bounced for very small amounts, and this man has been jailed and remains indebted in thousands of dollars to a court. Every time someone appears before Judge Hale, he imposes more court costs, more fines, more fees. And there is no way out for the people who are entrapped in this system.
AMY GOODMAN: So where does the lawsuit go from here, Kristen?
KRISTEN CLARKE: Well, we filed a federal class-action lawsuit. The woman who just spoke may indeed be somebody who is a member of this class. We will fight. We believe that Sherwood is a poster child, if you will. This is a classic example of a debtors’ prison. And we believe we’ll be successful at the end of the day in securing relief for the poor people of Sherwood. We believe that when somebody faces criminal charges, that they should have a lawyer by their side. They should have a judge who warns them about their rights and who counsels them about their rights and respects their due process rights. We will—we will fight on.
And then we’re going to look elsewhere around the country, because we know that this is a nationwide problem that we face. All around the country, we’ve seen the resurgence of debtors’ prisons. We’ve seen the criminalization of poverty. So, we are going to fight until we end this practice and bring our courts in line with that 1983 ruling from the Supreme Court that says you cannot lock poor people up merely because of their inability to pay a fine or fee.
AMY GOODMAN: Well, I want to thank you, Kristen Clarke, with the Lawyers’ Committee for Civil Rights Under Law. And, Janice, thank you for being with us—not her real name. She is in shadow, but that’s because of what she faces as a poor person who is a victim of Sherwood’s Hot Checks Department in Arkansas.
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35 Days in Jail, For $29 Bounced Check
This is a rush transcript. Copy may not be in its final form.
JUAN GONZÁLEZ: We turn now to Arkansas to look at the case of a mother who just spent 35 days in a county jail after she accidentally bounced a $29 check five years ago. Nikki Petree was sentenced to jail just last month by a judge accused of running a debtors’ prison. Petree had already been arrested at least seven times over the bounced check, and paid at least $600 in court fines—more than 20 times the original debt. Petree said, quote, "Every time I go to jail, they’d let me out immediately for $100. They’d turn around and add $600 or $700 more to my bond. I couldn’t afford to pay. They cornered me, and there was no way out from underneath it. I felt overwhelmed and hopeless," she said.
AMY GOODMAN: Nikki Petree’s release comes as the Lawyers’ Committee for Civil Rights Under Law, the ACLU and the international law firm Morrison & Foerster have filed a class-action civil rights lawsuit challenging the modern-day debtors’ prison in Sherwood, Arkansas. The lawsuit was filed in the United States District Court for the Eastern District of Arkansas against the city of Sherwood, Arkansas; Pulaski County, Arkansas; and Judge Milas Hale. Petree is one of four named plaintiffs in the suit who allege their constitutional rights were violated by the Hot Check Division of the Sherwood District Court when they were jailed for their inability to pay court fines and fees. The lawsuit alleges that Sherwood, Pulaski County, engages in a policy and custom of jailing poor people who owe court fines, fees and costs stemming from misdemeanor bad check convictions. It also says they jail people in violation of a long-standing law that forbids the incarceration of people for their failure to pay debts.
For more, we’re going to Washington, D.C., to Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, one of the groups that filed this lawsuit.
Welcome to Democracy Now! Can you explain exactly what happened to Nikki Petree? She ends up in jail for a $28-and-change check, that she didn’t realize had bounced because her last paycheck hadn’t put in, and she ends up in jail five years later?
KRISTEN CLARKE: Yeah, Nikki Petree is not alone. This is a debtors’ court system that’s been in place in Sherwood that preys on the backs of poor people. Nikki Petree is one woman who exemplifies what happens if you’re poor in Sherwood. She wrote a check that was returned for insufficient funds about five years ago. That check amounted to about $28. And since that time, she’s spent more than 25 days in jail and has paid more than $600 in fines to the local court system. That is money that she did not have. She lives below the poverty line. She remains indebted by more than $2,500 to the local court system. And she was jailed at the time that we filed this suit last week. And there are so many people like her in Sherwood. We filed this lawsuit to bring an end to a court system that we believe preys on the backs of poor people.
JUAN GONZÁLEZ: Well, Kristen Clarke, in that lawsuit, you raise the issue of why this is happening. You say that local courts and municipalities throughout Arkansas have used the threat and the reality of incarceration to trap their poorest citizens in a never-ending spiral of repetitive court proceedings and ever-increasing debt. But you say also that faced with opposition to increased taxes, municipalities have turned to creating a system of debtors’ prisons to fuel the demand for increased public revenue. How extensive is this in Arkansas that municipalities are using this as a new revenue source?
KRISTEN CLARKE: It’s not only the case in Arkansas, but all over the country we’re seeing the resurgence of debtors’ prisons. In Sherwood, this is a court that’s generated more than $12 million over the course of five years by imposing fines and fees over and over again on poor people who wrote checks to local merchants that were returned for insufficient funds. In Ferguson, Missouri, we saw a local court system that was built on this concept of entangling people in the court system for transit, for traffic offenses. That court generated $20 million off the backs of poor people in Ferguson. But we know that these are not isolated practices.
What’s happened is that in 1983 the Supreme Court made clear that this is unconstitutional, that you can’t lock people up merely because they are poor. But what we’ve seen is the resurgence of debtors’ prison, because there hasn’t been enough enforcement to put a check on court systems like the one in place in Sherwood. So we filed this lawsuit to bring an end to an era that’s been marked by a court system in which one judge presides, Judge Butch Hale, where he has disregarded the due process rights of poor people at every turn.
What happens in Sherwood is that people get on line outside his courtroom. They are forced to sign a waiver of their right to counsel. Nobody is allowed in that courtroom but the defendants. If you come with a family member, an advocate or friend, you’re not allowed in. There are no tapes or recordings of the proceedings, no transcripts of the proceedings. People appear without counsel by their side. No one explains their rights to them. And every time they stand up before Judge Butch Hale, he imposes fine, fee after fine and fee, and court costs on them, subjecting these people to a spiraling cycle of debt.
AMY GOODMAN: I mean, it is an astounding story about Nikki Petree. Didn’t she end up owing something like $2,600 on this $28-and-change check?
KRISTEN CLARKE: That’s exactly right. She remains indebted by more than $2,500, $2,600. She spent more than 25 days in jail. She’s already come out of pocket more than $600. And that’s money that she doesn’t have, because she, like everybody who appears before this court, are poor people. This is a court that preys on the most vulnerable people in Sherwood. And they make a profit off of this.
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Republished with permission under license from DemocracyNOW
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