Exclusive Investigation: The Power and Prejudice of DAs on Drugs – Prosecutors
Another excellent article about our futile, absurd, war on drugs. Prosecutors are the most powerful people in the system.
This extensive survey reveals that we have far too many knuckleheads working as prosecutors! Read The Whole Story for vivid, named, examples!
Excerpts from the Article:
Public opinion is souring on the criminalization of drug use. But what prevents this from translating into practice?
While politicians makes laws and police officers can arrest whoever they find in possession of drugs, it’s prosecutors who turn arrests into criminal charges. Prosecutors have the final say in who to charge with a crime, which charge to use, and what punishment will be sought. In short, they’re in a position to inflict great harm.
Filter’s Nationwide Investigation
There are over 2,000 elected local head prosecutors, most commonly known as district attorneys, in the United States. And overall, these powerful individuals do not care what people think about the War on Drugs. They are going to fight it anyway, and hope that the voting public doesn’t notice.
That is the conclusion of an exclusive investigation from Filter, which surveyed the top prosecutors of the nation’s 50 most populous counties. (We included incumbents, outgoing incumbents, incoming DAs and challengers, making 61 individuals in total.) The full results (which have been updated to reflect the results of the November 6 elections*) are presented in map, chart and table forms here.
After collecting public statements and reviewing cases, we emailed each prosecutor a short questionnaire about their positions on four key issues: marijuana legalization, drug-induced homicide prosecutions, mandatory minimum sentences for drugs, and the criminalization of relapse.
Around half of their offices never responded, even after a round of reminders. We telephoned 10 offices, which listed no email address for a media representative on their government websites. One of them—that of Wake County, NC District Attorney Lorrin Freeman—hung up immediately on hearing the word “reporter.”
Many of the prosecutors surveyed have stated publicly that we must treat drug use as a “public health issue,” rather than a criminal justice one. But our findings show that the vast majority nonetheless support or implement practices that drive criminalization, inequality and large-scale human suffering.
Most Prosecutors Still Radically Oppose Marijuana Legalization. …A large number of America’s top prosecutors still fearmonger over marijuana, despite the fact that most Americans (Republicans included) favor legalization. Overall, 41 of 61 (67 percent) of the prosecutors we surveyed have failed to support or are opposed to legalization or decriminalization. Five (8 percent) support decriminalization, and 12 (20 percent) have instituted or cooperated with a county cite-and-release program, whereby people get a court summons but are not arrested.
Only a single incumbent prosecutor, Cy Vance of Manhattan, publicly supports legalization, as he says, “once and for all”—despite being harshly punitive to poor people of color, including setting prohibitively high bail fees for people arrested on misdemeanor charges. (Hennepin County, Minnesota challenger Mark Haase also supports legalization).
“After I received a felony conviction for possession of marijuana, it led to being involved in more criminal activity out of survival. I was denied housing, jobs, and the opportunity to go to college.”
While decriminalization programs are vastly preferable to no change, police officers can—and do—ignore policy mandates from DAs. In a county where marijuana is technically “decriminalized,” DA offices, too, can effectively ignore that by applying other charges, like disorderly conduct, to people found in possession, as happens in Brooklyn. After Harris County, Texas, DA Kim Ogg launched her office’s decriminalization program, for example, cops outside of Houston ignored it. Many people who support marijuana legalization do so out of concerns over racial equity. And even when decriminalization is followed faithfully, racial injustice can still run rampant. Dianna Houenou, policy counsel at the ACLU of New Jersey, told Filter that “simply replacing criminal sanctions with civil fines [as happens under decriminalization] is yet another tool that keeps people in poverty,” and can even lead to arrests for nonpayment. It is also “foreseeable that these arrests will continue to disproportionately impact poor people and people of color.”
Decriminalization additionally fails to mitigate a history of racist enforcement, whereas appropriately tailored legalization efforts can mitigate damage through employment opportunities. (That’s not to say legalization efforts thus far have necessarily succeeded.)
Police have also used the illegality of marijuana to justify violence. After Philando Castile, a Black man, was shot and killed by an officer in Ramsey County, Minnesota in 2016, the officer claimed that a marijuana smell from Castile’s car justified it. A jury acquitted him of manslaughter.
Even where small amounts of marijuana are decriminalized, prosecutors can still charge people with felonies for selling or for having certain quantities. “After I received a felony conviction for possession of marijuana, it led to being involved in more criminal activity out of survival,” Tonja Honsey, a formerly incarcerated community organizer in Minnesota, told Filter. “I was denied housing, jobs, and the opportunity to go to college. The only option I saw was to start to sell drugs to provide for my family.”
“Drug-induced homicide” laws allow prosecutors to charge people who provided drugs involved in an overdose death with homicide. Many of these laws were first passed as a response to basketball star Len Bias’s overdose death in 1986. But the charge became a common part of the prosecutor’s repertoire only recently—contemporaneous with courts like the Mississippi Supreme Court and the Virginia Court of Appeals seriously curtailing its potential use. The uptick in these prosecutions has had no effect on the frequency of overdose deaths. The people on the receiving end are often friends and family members of the deceased, and these prosecutions can deter people from calling 911. Eighteen (30 percent) of our 61 prosecutors have used the charge for members of public at least once, while six of 61 (10 percent) are explicitly open to doing so in the future. An additional two prosecutors have used the charge specifically for doctors involved in a patient’s fatal overdose.
Drug-induced homicide prosecutions are most prevalent in the Midwest and Northeast, where the current overdose crisis is hitting the hardest. In Columbus, Ohio, Franklin County Prosecutor Ron O’Brien has said: “If we can prove it, we are going to charge you with manslaughter.” In New York, Nassau County District Attorney Madeline Singas, who has a self-styled “heroin war room,” pushed for a bill to permit prosecutors there to follow suit.
Getting rid of mandatory minimum sentencing, especially for drug-law violations, has strong bipartisan support. That’s because mandatory minimums impede individualized consideration of fair sentencing based on the facts of the case and defendants’ characteristics. Historically, prosecutors have used mandatory minimums to obtain disproportionately punitive sentences.
In the name of “consistency,” these sentencing provisions take power from judges and siphon it to prosecutors, who already have power over how to charge cases. Prosecutors often use the threat of a high mandatory minimum to coerce defendants to plead guilty to lesser charges, rather than risk fighting a charge with a potentially terrifying sentence attached.
However, as our survey reflects, several prosecutors have spoken out against these laws. For example, DA Marian Ryan of Middlesex, Massachusetts, claimed while facing a competitive primary in September that her advocacy “played a part in the change in mandatory minimums for a number of drug offenses.” (Ryan won the primary and is uncontested in the November election).
The top prosecutors in Salt Lake City, Utah, San Jose, California, and other large cities also issued a joint statement denouncing Attorney General Jeff Sessions’ demands for increased use of drug mandatory minimums. Kevin Ring, president of Families Against Mandatory Minimums, told Filter: “We’re encouraged that more local prosecutors are questioning the effectiveness of mandatory minimums, especially in drug cases.” But other prosecutors have lobbied state legislatures for more mandatory sentencing laws. “These are naked power grabs cloaked in the language of public safety,” said Ring.
Prosecutors Swim Against the Science on Addiction. DA Stephen A. Zappala, Jr. of Allegheny County (Pittsburgh), Pennsylvania, continues to prosecute marijuana cases, fights to bring drug mandatory minimums back to his state, and charges fatal overdoses as homicides. But unlike many DAs surveyed, Zappala admits that the criminal justice system field “is not well equipped to handle” drug addiction.
Most prosecutors see drug courts—programs that seek to reduce drug use through mandated treatment and close judicial oversight—as the solution. Fifty-five of our 61 prosecutors (90 percent) support and/or employ drug courts. Prosecutor Jessica Cooper of Oakland County, Michigan, received criticism for shuttering a drug court in 2009—stating that she needed to save her “severely diminished financial and personnel resources to deal with the surge in violent crime and the surge in technically complex cases”—but even her county currently has a drug court. In San Diego County, DA Summer Stephan’s office told Filter that “relapse is often a part of the process and does not result in being dismissed” from her office’s drug use program. In general, however, as drug users relapse, they face a range of sanctions, including imprisonment.
Diversion programs are employed by four of our 61 prosecutors (7 percent). The best known of them, the Law Enforcement Assisted Diversion (LEAD) program, pioneered in part by Prosecuting Attorney Dan Satterberg of King County (Seattle), Washington, goes a step further than most drug courts. It is a pre-booking program, which means that people who qualify are diverted before they are arrested or charged with a crime. But it struggles with its claimed public health goal. Eligibility requirements, like a lack of serious criminal history and a three-gram limit on drugs possessed, contravene the science of addiction. LEAD can also ensnare more people in the criminal justice system if officers are fishing for people who fit an “addict” profile.
Some major urban county district attorneys have acknowledged that the War on Drugs is a failure. A number have made changes toward curtailing the practices associated with it, but old habits are hard to kick. Most DAs in our survey who have instituted reforms are prosecutors elected in the last few years. Former civil rights attorney Larry Krasner, elected as Philadelphia DA last November, has been working to end mass incarceration from the inside.
The traditional way of discussing the job is that the “law is the law”—or, as Palm Beach County State Attorney Dave Aronberg’s office wrote in declining our questionnaire, DAs are “constitutionally and ethically required to enforce the laws” as written. Yet anyone who has compared counties by criminal justice outcomes, even when adjusting for crime rates, knows that the reality of enforcement is much more complex—in a world of limited resources, prosecutorial discretion is key.
Interest in DA elections exploded after the Black Lives Matter movement brought national attention to holding law enforcement accountable. Now, the ACLU is spreading awareness through its Smart Justice campaign, while Color of Change PAC, Real Justice PAC, the former Vermont Governor Howard Dean-founded Democracy for America, and philanthropist George Soros offer organizing and financial support for reform. Famous R&B singer John Legend, contemporary street artist Shepard Fairey, and other celebrities have also weighed in on district attorney races.
After Wesley Bell, a Black city councilman in Ferguson, Missouri, defeated Bob McCulloch in the 2018 St. Louis County district attorney race, Jennifer Soble from the Justice Collaborative Engagement Project said: “Our jail population is out of control. Locally elected county prosecutors have the greatest capacity to change that instantly, more than any other actor in the system.”
Prosecutors should be able to usher in important changes to the criminal “justice” system. If they refuse to, as still seems likely in most cases, they will remain some of the most significant roadblocks to a more humane drug-policy future.
The Whole Story:
Exclusive Investigation: The Power and Prejudice of DAs on Drugs
In Alaska – Is SB91 working? A new report says it’s helping
Needed changes slowly are coming. Have you read this yet? I remember when the system worked well; justice nearly always was the result. Today it is a total train wreck – perhaps the most vivid manifestation is that we are imprisoning hundreds of innocent people every year. This is WHY it is a train wreck!
Excerpts from the Article:
Mention Senate Bill 91, or SB91 in Alaska, and the conversation gets heated. It’s often blamed when people talk about a spike in crime, especially car theft and shoplifting. People running for office often pound their fists about how they’ll repeal it.
It was approved in 2016 as a criminal justice reform bill, but since its creation it’s been blamed — fairly or not — as the reason crime increased.
Since that time the Alaska Criminal Justice Commission has focused on it in its annual report, which was released Thursday.
“It’s working. Is it working as fast as we would like it to work? No, but everyone wants overnight change,” said Rep. Matt Claman (D) Anchorage. “Just look at the depth of the opioid crisis, and even with efforts we’re making, we’re still seeing the overdose death rate go up, which suggests although we’re making progress in some areas there’s still a huge opioid addiction both in our community and throughout the country.”
The report says that prison populations have gone down 4.8 percent, and that more violent offenders are in prisons than non-violent offenders. Additionally, more than 80 percent of people eligible to earn time off for probation or parole have complied with the conditions of their supervision and probation officer caseloads have decreased since reform, which allows officers to focus on people who need closer supervision, according to the report.
“The major complaints with the original legislation have been fixed,” Claman said. “But the second part is that we’re actually seeing the kinds of changes that are the goal of justice reform.”
Claman says more focus now needs to get people with addictions into treatment.
“When people say that I say ‘So do you really want to get rid of those longer sentences for murder?’ and I haven’t found anybody that says ‘Oh, I want to get rid of that,'” Claman said.
The report recommends that further investments need to be made, like increasing substance use disorder funding and to expand the capacity for seriously mentally ill people to be assessed and treated outside the corrections system. It also says Department of Corrections staff should focus on rehabilitation and find more resources for “behind the walls” treatment, and that there needs to be a statewide strategic plan for therapeutic courts. Finally, the existing domestic violence programming plans need to be evaluated and the services for people on probation and parole need to be expanded.
Here are some other takeaways from the report released today:
-A recent analysis suggests that higher rates of pretrial detention for Alaska Native defendants, which has been documented in Alaska for many years, may be decreasing after the implementation of bail reform.
-More people are successfully completing probation and parole.
-More successful probation and parole discharges means fewer people are returning to prison for violating the conditions of their probation or committing a new crime, another factor contributing to the decrease in the overall population.
-Since the enactment of criminal justice reform, over $40 million has been reinvested in treatment, reentry services, violence prevention services and criminal justice reform implementation.
Brooklyn, New York’s Top Prosecutor Opens Door for Expungement of Pot Convictions – Good News! kra
Every prosecutor in America should follow his lead! For many, the expungements should be automatic if they have not been arrested for 2 years!
Excerpts from the Article:
Brooklyn District Attorney Eric Gonzalez has announced that he will accept applications from thousands of individuals to erase their low-level marijuana convictions in a program unveiled in September 2018. He said his office has already ceased prosecuting people accused of possessing small amounts of pot. Prosecutors indicated that they will not approve requests from individuals with multiple drug sales, violent crimes, and sex offenses.
Criminal justice experts have noted that individuals with a criminal history have more difficulty finding employment, securing acceptable accommodations, avoiding immigration issues, and are often barred from receiving public benefits. Statistics show that most of those affected by pot arrests are either black or Hispanic.
According to Gonzalez, “It’s a little unfair to have these folks carry these convictions for the rest of their lives.”
It is expected that there are at least 20,000 cases dating back to 1990 that could be impacted, with those crimes removed from these individuals’ criminal histories. “This is really a relief that I think we can provide, and we do it in a way that is safe,” he said.
New York City marijuana arrests peaked at over 50,000 in 2011 and declined to 17,880 in 2017, according to New York’s Division of Criminal Justice Services statistics.
A 2014 New York City policy calls for individuals to be ticketed for small quantities of pot possession and smoking cases.
Joining Gonzalez in shelving low-level pot prosecutions is Manhattan District Attorney Cyrus R. Vance Jr., who also agreed in 2018 to forgo prosecution of many misdemeanor pot possession and smoking cases. Prosecutors in San Francisco, Seattle, and San Diego, who have largely ceased low-level pot prosecutions, also have agreed to expunge low-level marijuana convictions, and the California legislature recently passed a bill awaiting Governor Brown’s signature to either remove or reduce over 200,000 marijuana convictions.
Although New York City Police Commissioner James O’Neill appears to support the changes, many police officers are not as supportive. “If you want to not have enforcement of arrests,” said Sergeants Benevolent Association President Ed Mullins, “then you need to change the law.”
LEAP makes a difference in criminal justice reform!
From my LEAP colleagues – I am a member of their Speakers Bureau :
Dear Ken,
Leading up to Election Day, LEAP speakers played a major role in criminal justice and drug policy reform efforts across the country, and yesterday, our hard work paid off!
Keep law enforcement speaking out for reform
Five key state campaigns successfully spoke out for more rational and effective policies with LEAP’s help:
• Florida: Amendment 4 passed, meaning more than one million people who have served their time for felony convictions will have their right to vote restored.
• Louisiana: Amendment 2 passed, ending non-unanimous juries in felony trials, a practice established under Jim Crow to maintain white supremacy in the state.
• Michigan: Prop 1 passed, legalizing and regulating adult use of marijuana.
• Oregon: Measure 105 was successfully defeated, blocking a repeal of laws protecting local police from being compelled to enforce federal immigration policies.
• Washington: Initiative 940 passed, requiring law enforcement to receive de-escalation, mental-health, and first-aid training; and to change standards for use of deadly force, adding “good faith” and independent investigation standards similar to those other states have successfully implemented.
Our speakers made more than 30 appearances in key states leading up to Election Day, giving interviews and live presentations, writing op-eds and letters to the editor, appearing in campaign ads, and serving as the law enforcement voice for reform. LEAP was instrumental in getting these measures across the finish line. We are so proud of our speakers’ tireless efforts and outstanding impact.
There’s still work to be done. Ohio’s Issue 1, which aimed to downgrade many nonviolent drug felonies to misdemeanors and bring a focus to rehabilitation and treatment, was defeated, as was North Dakota’s Prop 3, which aimed to legalize marijuana for adult use and expunge marijuana convictions. Though we’re disappointed in the outcomes in those states, we know that we’ve made significant progress. Our fight will continue, stronger than ever, and we will see real change, even in the places where we’ve struggled hardest. Especially in those places, because that’s where change is most needed. That’s where LEAP is most needed.
Thank you for being a part of the Law Enforcement Action Partnership, Ken. Supporters like you help get our speakers where they need to be, get our message to the masses, and – most importantly – drive our speakers and staff to keep working toward real, tangible change to our criminal justice and drug policies. Our collective public safety depends on it, so you can count on LEAP to keep things moving in the right direction.
In solidarity,
Major Neill Franklin (Ret.)
Executive Director
Florida: Federal Prison Guard Sentenced for Accepting Bribe
Good. They need prison time every time! The case was prosecuted by Assistant U.S. Attorney Robert E. Bodnar, Jr. God Bless him! READ How to avoid the deaths of prison guards and inmates
For every crooked guard like this one, there are 1,000 who get away with it every day!
Excerpts from the Article:
Fohittemore accepted his guilty plea for taking a bribe as a public official.rmer FCC Coleman guard Albert Larry Harris, Jr., 27, was sentenced to 24 months in prison on February 15, 2018 after Senior U.S. District Court Judge James D. W
According to a press release from the U.S. Attorney’s office in Ocala, Florida, Harris provided tobacco and drugs to prisoners in exchange for large cash payments. He was arrested after he accepted a $5,000 bribe and 200 strips of Suboxone, a medication prescribed for opiate addiction and withdrawal, as well as for pain.
The investigation, conducted by the U.S. Department of Justice, Office of the Inspector General and the FBI, was initiated after three prisoners reported Harris’ misconduct. One of the prisoners set up a “drug deal” between Harris and an undercover agent; another reported that Harris had approached him in an attempt to locate a cocaine dealer. Authorities also traced money orders that Harris received in contraband transactions with other prisoners.
The case was prosecuted by Assistant U.S. Attorney Robert E. Bodnar, Jr.
https://www.prisonlegalnews.org/news/2018/oct/12/florida-federal-prison-guard-sentenced-accepting-bribe/
Family of 18-year-old who died in Lebanon County Prison awarded $4.75 million in settlement – YOUR tax money! – kra
Four Points for Outrage in this short article:
- Her death was preventable, had the prison health care staff only done what they are required by law to do: provide reasonable care.
- This cost YOU at least $5 Million, maybe closer to $6 million. The way these cases work, YOU pay for all of the litigation, all the lawyers, the judge, etc…. CALL me and I’ll be glad to explain. $5 Million is a drop in the bucket of money wasted in cases just like this one every year! My number is 302-423-4067
- Nobody was prosecuted for this death, as they should have been under 18 USCA Sections 242 and 242. And nobody admitted wrongdoing.
- The prison LIED to try to cover up the truth, as they often do!
UPDATED with this:
Left to DIE
Left to die on the cold cell floor,
Though many a guard had walked past her door,
They looked in, saw the foam in her mouth, and kept on walking,
As all the inmates heard them talking,
“She’s just another fucking junkie”, one would say,
“Yeah, let’s get some coffee”, the other replied, on that, her last day.
She died around noon, and the jail labeled it “natural causes”,
As they so often lie in their “official” reports, the sentences and clauses,
Another casualty of extreme medical neglect in prisons and jails,
Just yesterday I got another call about a similar tale,
So here I sit long before the sun pops up,
And soon I shall send that inmate’s Mom an email follow-up,
Telling her exactly what to do,
So that he may not be … Left to DIE.
kra 10/28/18
DEAD! An addict who needed treatment, not prison, and who could have been YOUR daughter, sister, niece, etc.
Excerpts from the Article:
The family of an 18-year-old woman who died while going through heroin withdrawal in Lebanon County Prison will be awarded $4.75 million after settling their civil and wrongful death lawsuits against Lebanon County this month, court documents show.
Victoria “Tori” Herr collapsed and died after suffering from withdrawal symptoms for four days while she was an inmate. She was arrested in March of 2015 after police who were looking for her boyfriend found drugs in the apartment she shared with him. Herr allegedly told the intake staff at the prison that she used 10 bags of heroin a day, and later told a cellmate she was afraid her withdrawal process would be difficult.
The lawsuit accused staffers at the prison of ignoring her medical needs for days, and then lying about it after she died.
Herr went through bouts of vomiting and diarrhea over four days. She was given Erasure, water and adult diapers, the lawsuit alleges. But Herr was unable to keep the fluids down and collapsed of an apparent case of dehydration while being brought back to her cell after a stay in the prison’s infirmary on March 31, the lawsuit says.
She died on April 5. Her death was ruled accidental by the Lebanon County Coroner’s Office. Cause of death was listed as complications of chronic substance abuse and anorexia. Herr’s family sued the county in 2016.
Settlement of the family’s lawsuit was finalized on October 5, court documents show. No Lebanon County employees acknowledged any wrongdoing as part of the settlement.
The Whole Story:
Family of 18-year-old who died in Lebanon County Prison awarded $4.75 million in settlement
How Jury Duty Gives You the Power to Erase Bad Laws – Jury Nullification – kra
See related articles on jury nullification. YOU, as a juror, have the power to provide justice where the law is unjust! In today’s wildly dysfunctional criminal justice system everyone should be aware of this! Your DUTY is to do JUSTICE!
Excerpts from the Article:
There’s not a single person that has to go to prison in the USA for growing, selling, using, or possessing marijuana. But 21 states still prohibit marijuana use, cultivation, or sale in any form, even for medical use. Everything cannabis related is still illegal at the federal level. As a schedule 1, highly illegal drug, marijuana is considered just as dangerous and addictive as heroin. Yet PEW Research says 62% of Americans nationwide support marijuana legalization. So it is reasonable to think that about 7 or 8 people on any randomly selected 12 person jury disagree with laws criminalizing marijuana. And those people have the power to deliver a not guilty verdict, based on their belief that marijuana laws are unjust.This is one example of how jury nullification can be used to erase or nullify, bad laws.
In the United States, all accused criminals have the right to be tried by a jury of their peers.
Adults from the area where an alleged crime was committed are chosen to hear the court case. They have to weigh the evidence. And if they have any reasonable doubt that the accused committed the crime, they are supposed to deliver a not guilty verdict. But not everyone knows that juries can also deliver a not guilty verdict when they disagree with the law. So say all the evidence clearly shows that, for example, a veteran was growing marijuana to treat Post Traumatic Stress Disorder.
As a juror, you do NOT have to deliver a guilty verdict, even if you are 100% sure he committed the “crime.” Instead, you can disagree that it should be criminal at all, and say not guilty. Unfortunately, defense attorneys are often not allowed to argue in court for jury nullification. The judge can force them to only argue the facts of the case. They usually cannot suggest that the jury find the defendant not guilty because the law is unjust.
Some states, like New Hampshire and Oregon, have tried to pass laws requiring courts to inform juries of their right to nullify. New Hampshire’s bill would require courts to inform juries that even if the facts point clearly to guilt, “you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.”
Of course, prosecutors will do everything possible to give the impression that the jury must decide the case based on the facts, and a strict reading of the law.
In the 1969 Court Case United States v. Moylan acknowledged that juries have an “undisputed power” to acquit, even if that verdict “is contrary to the law as given by the judge, and contrary to the evidence.”
Because of this “mistake” on the part of prosecutors, the man will get a new trial on federal drug charges. But that doesn’t mean the jury will necessarily know that they have the power to nullify the bad laws he is being prosecuted under. United States v. Moylan also said that the court can refuse to allow the jury to be instructed on jury nullification.
Thomas Jefferson gave another good reason to use jury nullification. He said juries should deliver a not guilty verdict if the defendant’s case “relates to any point of public liberty, or if it be one of those in which the judges may be suspected of bias.” In other words, if the defendant was simply exercising a basic freedom that didn’t hurt anyone, he should be found not guilty. It doesn’t matter if he broke the law, freedom is more important.
And then he adds, if you suspect a biased judge, you should also rule not guilty.
And consider the history of racism in the justice system dating back to when slavery was legal in the south.
Even then, northern juries used jury nullification for laws relating to slavery. For instance, the Fugitive Slave Act compelled northerners to help return runaway slaves to the south. Juries could use nullification to declare northerners who violated this act not guilty.
There are countless instances in today’s courts where jury nullification would be appropriate. It just depends on the specific facts and circumstances of each case.
Victimless crimes are violations of the law that don’t actually hurt anyone. If you can’t point to a victim, it means no one was actually hurt by the criminal actions. That is why possession of drugs is a victimless crime–having drugs in your pocket doesn’t actually victimize anyone. The same goes for laws criminalizing sex acts between consenting adults, code violations, or failing to get a business license.
It is better to let guilty people walk free than to send an innocent person to prison. If the evidence rests solely on inherently fallible witnesses, or if there is any reason to believe the witnesses, prosecution, or court is corrupt, you should consider jury nullification.
Jury nullification needs to go mainstream. Every juror walking into a courtroom should know that they have the power to deliver a not guilty verdict if they disagree with the law that was violated, or suspect corruption from the police, prosecutors, or judges. Tell everyone you know, especially when they get called for jury duty.
The Whole Story:
How ‘Underground Justice’ Has Failed Americans – “Plea Mediators”, a great idea! – kra
I enjoyed 5 years as a prosecutor, and I am appalled by so many of today’s prosecutors. They are the most powerful component of our criminal justice system, and so many lack common sense and an understanding of “fairness”. Maybe that’s why so many results in today’s courts make little sense and are unfair.
I have written on all of the ills mentioned by professor Kelly: stacking charges, rush to sentence, etc. I am surprised that he does not mention ending the war on drugs as one needed measure. But he does offer a very sensible change: plea mediators. Independent third parties to temper the worst instincts of prosecutors.
Excerpts from the Article:
In a series of recent interviews, prosecutors were asked what role they believe they play in reducing recidivism.
The most common answers:
“None.”
“Not my job.”
And the few who said they did have a role indicated that harsher punishment was the way to lower recidivism.
The interviews, conducted for a forthcoming book I co-authored with Robert Pitman, “Confronting Underground Justice, ” make one thing painfully clear: We need to change the thinking of prosecutors regarding the roles they can and should play if we want to fix our broken justice system.
We have spent upwards of $1 trillion dollars over the past 45 years in direct criminal justice costs and another $1 trillion on the war on drugs—an investment that has resulted in recidivism rates of nearly 85 percent for state offenders and nearly 45 percent for federal inmates.
I don’t see how anyone can spin that into a positive. There’s a clear consensus that the U.S. justice system is a massive failure.
Focusing on changing the culture of prosecutors is one way to turn this thing around.
Here’s why.
The prosecutor is the most influential individual in the justice system. He or she is the key player in plea negotiation—the way that over 95 percent of criminal convictions are achieved.
The combination of broad prosecutorial discretion and plea negotiation effectively makes prosecutors the judge, jury and sentencer in most criminal prosecutions. Prosecutors determine who to prosecute, what to charge, who is guilty and of what—and they are instrumental in determining the sentence, either directly (through sentence bargaining) or indirectly (through charge bargaining).
While plea negotiation was developed as a way to manage crushing caseloads and dockets, it has become the fast track to criminal conviction and punishment. Punishment is the currency of the plea deal. Time in prison, jail or on probation is what is negotiated. Punishment is what prosecutors know and therefore that is what is delivered.
Punishment does little to reduce crime and recidivism.
The problem is that punishment does little to reduce crime and recidivism.
The majority of individuals who enter the justice system have a mental health problem, a substance abuse problem, a neurodevelopmental and/or neurocognitive problem, and often co-morbidities of all three, as well as serious problems with employment, housing, and education, among others.
Punishment does little to alter any of these circumstances and conditions. In many cases, it exacerbates them.
Prosecutors are lawyers. They are not psychiatrists, psychologists, neurologists or clinical social workers. However, since they are the pivotal decision makers, it is important to help them make better decisions, in turn, improving short term and longer-term outcomes.
Therefore, true criminal justice reform must encompass providing ways in which prosecutors can make better decisions that have recidivism reduction as a primary consideration. In a previous book (“From Retribution to Public Safety”), we developed the concept of independent panels of experts—psychiatrists, psychologists and neurologists who can clinically screen and assess offenders when they enter the system, and then advise prosecutors regarding the best path forward for recidivism reduction and risk management.
Recidivism reduction involves intervention/treatment; and risk management requires supervision and control.
We tested this concept with the prosecutors we interviewed. They nearly universally embraced the idea, as did the public defenders and judges whom we interviewed.
Plea negotiation also raises serious concerns about fairness, criminal procedure and due process. Examples include the risk of involuntary confessions (often the result of charge stacking, threats of greater punishment, and pre-trial detention), ambiguous standards of proof for conviction, limited discovery, not litigating the evidence, not considering criminal intent, and many more.
How do we mitigate these concerns and assure fairness?
Having defense counsel present is a very important step, but we need to appreciate that public defenders do not have the luxury of time and reasonable caseloads. We have plea negotiation because it meets the needs of prosecutors, judges and defense counsel to move cases.
We believe that a plea mediator, a neutral, independent third party similar to the mediator role in civil litigation, can serve to level the playing field, bring the process above ground, and assure that plea negotiation meets constitutional standards. One of the ironies is that our failure to effectively reduce recidivism is the main reason dockets and caseloads are so extraordinarily high, and why we rely so heavily on plea negotiation.
Until prosecutors embrace recidivism reduction as one of their primary responsibilities, and until we provide prosecutors with expert tools to make better, fairer decisions, efforts at meaningful justice reform will fail.
William R. Kelly is professor of sociology at the University of Texas at Austin, and the author of four books on criminal justice reform, including From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice ( Rowman and Littlefield, 2017), and Confronting Underground Justice: Reinventing Plea Bargaining for Effective Criminal Justice Reform (Rowman and Littlefield, forthcoming, October 29, 2018).He welcomes comments from readers.
The Whole Story:
Report focuses on ‘lasting harm’ of incarcerating mothers prior to trial in Oklahoma It states pretrial detention can ‘snowball into neverending family separation’
The harm is incalculable. I have written at least a dozen articles on the senseless societal damage caused by our mass incarceration policies. Did you know that black females are the fastest growing segment of our prison population?!
This article highlights that all is often lost in pretrial detention situations – cases where nobody has been convicted and often charges are dropped. Dropped … gone … but too late for Mom and family!
The perils of pretrial incarceration practices in Oklahoma are spotlighted again in a report that specifically zeroes in on the “devastating” consequences of keeping mothers from their adolescent children.
Human Rights Watch and the American Civil Liberties Union on Wednesday released a 121-page report on “the lasting harm of jailing mothers before trial in Oklahoma.” The report states that women are the fastest growing correctional population in the U.S., and since the 1990s, Oklahoma has incarcerated more women per capita than any other state.
The majority of women admitted to jails are accused of minor crimes, with pretrial detention that can “snowball into never-ending family separation as mothers navigate court systems,” according to the report. After obtaining release, fines, fees and costs stack up and potentially impede a mother’s ability to regain personal footing and custody of her kids.
Nationally, nearly 80 percent of women in jails have minor children.
“This report finds that jailed mothers often feel an added, and unique, pressure to plead guilty so that they can return home to parent their children and resume their lives,” the report states. “These mothers face difficulties keeping in touch with their children due to restrictive jail visitation policies and costly telephone and video calls. Some risk losing custody of their children because they are not informed of, or transported to, key custody proceedings.”
Notably at the local level, the report found that more than 400 women in 2016 and 2017 were booked into the Tulsa County jail who ultimately had their cases dismissed. Their average length of stay was 21 days, with a median of nine days.
“Even a few days in jail can lead to someone losing employment, not seeing or speaking to their kids or losing personal belongings,” said Jasmine Sankofa, author of the report. Sankofa said interviewers spoke with one mom who lost all of her belongings because she had been living out of a motel when she was put in jail.
National studies show children of incarcerated parents are more likely to have poor peer relationships and exhibit emotional and psychological problems, as well as behaviors such as aggression, hostility, eating disorders and self-harm, the report states. School-aged children also often have poorer grades and higher suspension and dropout rates.
Significant shame transfers to children, and they often don’t understand why their parent is away, according to the report. The instability at home seeps into school, with students who are bullied, unable to focus and feel their parents don’t love them.
Oldie but Goody – Rise and Shine!
One of hundreds of poems I wrote in prison – usually first thing when I awoke, one would pop out, just to be sure my brain was still working after another day in isolation! 🙁 “Thank you, God, for my strong spirit!” 🙂
Rise and Shine!
Rise and shine .. get going… there’s a ton of work to do!
For the criminal justice system has hundreds of people to screw,
And it will .. today … as sure as I sit in this chair,
With crazy sentences, or unjust convictions, causing much despair,
Even worse will be the prison abuse, causing some to pull out their hair,
When they file all the proper legal work, only to see that the judge doesn’t care,
Only to see that the judge will ignore the law, to make the case go away,
Oh, you better believe it is happening in our courts … every single day!
And, by God, when my book is done I shall proudly name names,
There are so many officials to rightly share the blame,
But for now I must focus on getting the job done,
Spreading vital information, and helping people one on one,
There is much more trauma and injustice in store today,
Hundreds will find incredible unfairness coming straight their way,
And the system’s so overloaded by the “war on drugs”, I know,
That even their lawyers will be struck by the system, but the client takes the blow,
It is all so manifestly unfair, in this land where we say “justice for all”,
So get up, get going, hold some wrongdoers accountable, right against the wall!
And, oh yes, today is the first day of Fall,
But, I assure you, you don’t notice it much, when unfairly in a 13’x8′ prison stall.
kra 9/22/14
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