The Big Winners in DA Races: Women and Blacks

For decades, the prosecutorial profession has sorely lacked diversity. This year’s midterm elections demonstrated how decisively that has changed.

For decades, the prosecutorial profession has sorely lacked diversity. After analyzing data from 2014, The Reflective Democracy Campaign found that 95 percent of the nation’s elected prosecutors were white.

According to their research, just one percent of prosecutors at the time were women of color.

But in recent elections—including the Nov. 6 midterms—voters have opted for a slew of diverse prosecutors who better reflect the communities they serve, and who promised to do their part to move away from policies that perpetuate mass incarceration.

Rachael Rollins

Rachael Rollins via Twitter

In Boston this month, voters elected Rachael Rollins as the first black woman to serve as District Attorney in Suffolk County, Mass. Rollins has boldly advanced a proposal to not prosecute 15 offenses, including: trespassing and drug possession with intent to distribute –charging choices that align with reforms made by other recently elected DAs in Chicago, Philadelphia and elsewhere.

Rollins’ win continued a trend towards electing more women, African Americans and Latinos to prosecutorial posts that really became evident four years ago, when Baltimore voters cast their ballot for Marilyn Mosby, the youngest district attorney that city has ever elected.

In 2015, Portsmouth, Va., voters elected Stephanie Morales, the first woman to be the elected Commonwealth Attorney for the City.

Then, in 2016, Chicago voters elected Kim Foxx as Cook County District Attorney, Aramis Ayala as the first black State Attorney in Florida, Mark Dupree as the first black district attorney in Kansas, Kim Gardner as St. Louis Circuit Attorney, and Kim Ogg as the first Democratic district attorney in almost four decades in Houston, Tx.

And this year, in Rensselear County, New York, incumbent County District Attorney Joel Abelove lost to challenger Mary Pat Donnelly, a former town justice in East Greenbush, N.Y., and a mother of five who ran on the Independence Party ticket.

But what may be equally significant is the impact this month’s elections are likely to have on criminal justice reform in America.

While prosecutors on the ballot are often less well-known then individuals running for Congress, or for governor, they wield immense influence in the areas they serve. Prosecutors set the tone for the administration of justice, deciding whether to implement policies that increase incarceration or promote new practices that embody transparency, accountability, and aim to undo centuries of systemic racism.

This month, voters made clear that they’re largely ready for reform.

For example, Boston voters appear to have decisively rejected the perspectives of Rollins’ opponent, Michael Maloney, who positioned himself as tough on crime.  He had told  The Boston Globe that he would prosecute violence and gun crimes to the fullest extent of the law.

In Rensselear County, Donnelly came out in favor of implementing Law Enforcement Assisted Diversion (“LEAD”), which encourages officers to bring low-level arrestees to treatment or social services, rather than to booking. Meanwhile, her opponent, Abelove, may have suffered from criticism of his handling of a 2016 fatal police shooting in Troy, N.Y., of an unarmed DWI suspect.

Then-New York Attorney General Eric Schneiderman filed criminal charges against Abelove related to that case.  The charges were later dismissed, but could be re-filed by the state’s newly elected Attorney General, Letitia James, the first African-American women ever to hold that position in New York.

Another revealing result came in Dallas County, where voters elected John Creuzot, a former judge who helped pioneer the county’s first diversion court two decades ago, and who pledged to continue the strategies he pursued on the bench of ensuring those charged with low-level drug offenses received treatment in lieu of incarceration. During his campaign, Creuzot made clear that his priorities as District Attorney would align with his thinking as a judge.

“In the first 90 days, I’m going to give you a plan to end mass incarceration,” he promised.

In Texas’ Bexar County, Joe Gonzales registered a decisive win over his opponent Tylden. On the campaign trail, Gonzales stated he would immediately work on better implementing a policy allowing police to issue tickets to those found in possession of less than four ounces of marijuana instead of arresting them.

And also in Texas, in Fort Bend County, Brian Middleton beat GOP opponent Cliff Vacek, a veteran judge, becoming the first black district attorney for the county of more than 765,000 residents. Middleton campaigned on moving bail reform forward and examining racial biases in the prosecution of his office’s cases.

Criminal justice reform was not a winning issue in every prosecutor election.

Oklahoma boasts the nation’s highest incarceration rate, and in its Payne and Logan counties, District Attorney Laura Austin Thomas was reelected Tuesday. She defeated challenger Cory Williams by more than 4,400 votes. Back in June, Thomas described reform efforts as a “fun and nice and popular” sound byte, but largely full of “empty, empty words.”

Those prosecutors who are embracing reform, however, join a growing movement.

Working with others who are part of the Fair and Just Prosecution network, they are challenging the status quo and taking on innovative practices to create solutions that promote safer and healthier communities.

Many of these prosecutors are promoting changes to fortify the trust of their constituents.

Recently, State Attorney Kim Foxx published a groundbreaking report revealing demographics of defendants prosecuted and data on sentencing and dispositions. Others are promoting accountability by creating conviction integrity processes, including in Jacksonville and Orlando, Florida (where none existed previously in that state), and in Kansas City (where over 50 justice system leaders wrote to support the vital role of DAs to correct past injustices).

And it’s not just DA races.

Lauren-Brooke Eisen

Lauren-Brooke Esen

Voters chose to transform the criminal justice system in a number of ways. In Colorado, a constitutional provision that allows prison slavery was overturned. And Floridians decided to amend the state constitution to restore the voting rights of those convicted of a felony crime, which is expected to impact at least 1.4 million disenfranchised people in that state.

The movement away from the punitive criminal justice policies of the last four decades is gaining momentum, and on Nov. 6, a significant number of Americans said that was exactly what they wanted.

Lauren-Brooke Eisen is Senior Fellow in the Brennan Center’s Justice Program and the author of Inside Private Prisons: an American Dilemma in the Age of Mass Incarceration. She welcomes comments from readers.


Are Americans Finally Turning Away From ‘Tough-on-Crime’ Era?

The victories of reform-minded prosecutors like John Creuzot in Dallas County last week could signal a “sea change” in public support for reductions in mass incarceration and the easing of sentencing guidelines, advocates and experts tell TCR.

Democrat John Creuzot, who defeated Republican incumbent Faith Johnson in the Dallas County District Attorney’s race last week,  had a campaign website that declared in big, bold letters, “It’s time to END Mass Incarceration.”

Republican Locke Thompson ran a successful campaign in Cole County, Missouri, with a campaign platform that included eliminating cash bail for low-level misdemeanors.

The victories chalked up by Creuzot and Thompson underlined a fact that has largely been overlooked in postmortems of this month’s midterms: the growing support of voters for genuine change in the criminal justice system regardless of their party affiliations—-and there is perhaps no clearer bellwether for how far voters think the needle should move on criminal justice reform than how they vote for local prosecutors.

While legislators run on a variety of issues, we are left with clear choices on a single subject in district attorney races: How will they handle the prosecution of crime?

In addition to the passage of pro-reform ballot initiatives and the election of pro-reform candidates to national offices, the outcome of some local district attorneys’ races last week represented encouraging signs for justice reform advocates.

“Prosecutors are the most powerful actors in the criminal justice system,” says Udi Ofer, director of the American Civil Liberties Union (ACLU) Campaign for Smart Justice, which worked to inform voters about where candidates stood on criminal justice reform.

He said that while gubernatorial candidates with platforms to end or reduce mass incarceration won 78 percent of the races and 71 percent of federal races, the district attorney results on Nov. 6 also continued to show a steady drumbeat toward reform in even the reddest parts of the country.

Ofer added that “95 percent of elected prosecutors are white men in the United States, but the prosecutors elected on Election Day in Dallas, Birmingham, Boston and St. Louis, were all black.”

In Dallas, Creuzot’s victory over Johnson, the county’s first female African-American DA, lent itself to a more nuanced interpretation.

During the campaign, Johnson touted her “tough on crime” stance, but, according to The New York Times, she also oversaw a program in which people with an arrest but no conviction could have their records wiped. She promised not to seek cash bail for those arrested with small amounts of marijuana.

Creuzot, however, appeared willing to go a step further, defining drugs more as a “public health problem” and pledging to cut incarceration by 15 percent to 20 percent by the end of his first term.

While there was a  “Blue Wave” in the Texas courts on Election Day, giving Democrats majorities on seven of the state’s 14 appeals courts compared with only three before, Ofer said the outcome of the Creuzot-Johnson faceoff was the most exciting in the nation.

“In the Dallas DA race, there was both a very contested primary and a very contested general election, and the candidate who ran on a platform of reducing incarceration by 15-20 percent won,” he said. “That’s a big deal,”

Added Ofer: “Even the Republican candidate who had not taken a criminal justice reform platform embraced it. It became a referendum on which candidate is better on criminal justice reform.”

In Jefferson County, Ala., pro-reform challenger Danny Carr become the district attorney after committing his office to stop jailing people for low-level marijuana offenses. Ofer said his stance was linked to a report showing that black people in Alabama were four times more likely than whites to be arrested for marijuana possession.

Locke Thompson

Locke Thompson, elected DA in Cole County, Mo..

Lucy Lang, executive director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice, said that with far-right libertarian groups and reformers getting on the same page, politics is playing a smaller role in determining voters’ criminal justice stances.

Measures such as eliminating cash bail or changing marijuana policy, are not “going to drastically affect the problems of mass incarceration,” she told The Crime Report, but these kinds of changes are “starting to reflect the fact that people think differently about a prosecutor’s role.”

Ofer said the polling ahead of the Nov. 6 election indicated that voters were hungry for reform.

An ACLU poll, for example, found 78 percent of likely voters, including 71 percent of Republicans, were more likely to support a candidate who believes in criminal justice reform; 59 percent of likely voters said they wanted candidates who would reduce jail and prison populations; and 75 percent of voters said they were more likely to support candidates who pledged to reduce the criminal justice system’s racial disparities.

The results, he said, build on the gradual sea change that had already begun.

“This is a continuation, so it’s not a blip, it’s yet another milestone in the movement to holding prosecutors accountable for fueling mass incarceration in America,” he said.

Kate Pastor is a freelance journalist based in New York City. Readers’  comments are welcome.


Firearm Homicide Rates Rising: CDC Study

The Centers for Disease Control and Prevention, in a study of the most recently available data from 2015-2016, found that 43 percent of the largest 50 metropolitan areas reported increases in the rate of gun-related deaths compared to 2012-2013. Firearm suicide rates are also going up.

After steady declines, firearm homicide rates are on the rise, according to a recent study by the U.S. Centers for Disease Control and Prevention.

Firearm suicide rates have also continued to increase, accounting for 50 percent of all suicides and 42 percent of youth suicide, and suicide is now the 10th leading cause of death among all those over 10 years of age, said the study which examined statistics for shootings between 2015-2016—the latest period for which data is available.

The study outlined rising rates, possible means of prevention and steps forward in gun control.

“Another factor likely affecting both firearm homicide and suicide is access to firearms by persons at risk for harming themselves or others,” the CDC said.

Youth homicide rates, though lower than those among persons of all ages, have also been increasing. In large metropolitan areas, firearm homicide rates have remained higher than national rates.

The authors of the study—Scott Kegler, Linda Dahlberg and James Mercy—noted three instances in which reducing access to guns may be helpful: reducing access to guns during an “acute suicidal risk,” particularly among young people; preventing persons accused or convicted of domestic violence restraining orders from possessing a firearm; and strengthening the background check system.

They called for more research.

According to 2015-2016 figures on large metropolitan area firearm homicide and suicide rates, 43 percent of the largest 50 metropolitan areas reported increases in the rate of gun-related deaths, compared to the rates in 2012-2013.

More than 27,000 people were killed in gun homicides in 2015-2016. In 2013-2013, that number was 23,000.

The data was collected using the National Vital Statistics System and population data from the U.S. Census Bureau.

Homicide rates have begun to rise only recently. On the other hand, rates of suicide have been steadily increasing in the past 15 years across all ages, states, population groups and rural and urban settings. Rates of firearm suicide are still increasing. Rates increased 21 percent between 2006 and 2016.

“It is too soon to know whether recent increases in firearm homicide rates represent a short-term fluctuation or the beginning of a longer-term trend,” the report said.

The report noted preventing firearm homicides was difficult, but suggested policies to modify physical and social environments in urban areas may help, such as low income housing tax credits and greening activities.

The full study can be downloaded here.

Lauren Sonnenberg is a TCR news intern.


A Prisoners’ Pen Pal Finds Making Connections is a ‘Beautiful Thing’

For four decades, a Syracuse, N.Y. woman has been writing letters to death row inmates and other prisoners, enriching their lives and hers. But things got a little more personal when she began writing to someone who was a student at an elementary school where she once worked.

Carole Horan of Syracuse, N.Y., has been handwriting letters for 40 years.

As for many people, the era of email and texting hasn’t altered that practice. It takes some extra time of course, but her correspondents have all the time in the world.

All of them are in prison, some on death row.

Horan originally got involved in writing to prisoners through a program based out of Chicago that connected letter-writers with inmates sentenced to death. She never asked them how they feel about getting her letters, but then she had a first-hand experience that provided an answer.

The first man she wrote to was Jeff Dicks of Tennessee. He was on death row for about 17 years before he died of a massive heart attack. In 1979, he had been convicted of murdering an elderly store owner.

Horan felt that Dicks, whom she described as a poor, white man from the South, had a hard time getting a fair trial. Horan added that his mother fought for his innocence, even writing six books about it.

“The first letter was so hard to write because you don’t know what to say or ask,” Horan said.

Horan said that Dicks, like many of the others, was surprised to hear from somebody—anybody.

In his written letters to her, Dicks described his time in solitary confinement, when he was allowed to come out of his cell for only one hour a day. During that hour he had a choice to exercise or take a shower, but as time passed he was allowed to do more — even teach a class.

Horan recalled that Dicks’ handwriting was small because he was depressed. He would talk to her about how long his appeals process was taking, a divorce from his wife, not seeing his daughter, and how he felt his public counsel was being ineffective.

Over a few years, a friendship developed, and Horan eventually got a chance to meet him. While she was visiting, she stayed with his mother, and got to experience what it is like to be in a maximum-security prison.

“To physically see (him) and being able to hug him,” Horan said. “It was pure joy.”

For the first 17 years she was only writing to Dicks, and after he died she stopped for a time, processing it all.

But she soon realized how important the connection could be. Currently, Horan writes to three prisoners, one of them on death row

Horan said she writes the letters by hand using a fountain pen. For most letters she writes, she is usually paired with someone by the Death Row Support Project. But then she reached out to someone whose name she saw in the news.

And that’s when it became even more personal.

His name was Habakkuk Nickens. Horan remembered him as a student when she worked as a secretary at Seymour Elementary School in Syracuse.

She had known all the Nickens children, and she was inspired to reach out to Habakkuk after reading an article in The Stand about efforts he is leading to prevent gang violence in Syracuse’s South Side community — efforts he oversees while behind bars.

Nickens is serving 20 years for gang activity at the Federal Correctional Institution in Ray Brook, New York.

Horan got in contact with him initially through his mother—via email. They have been writing back and forth for over a year now.

“It’s just a beautiful thing,” she said. “(It is a) very loving friendship, and he is doing beautiful work trying to turn his life around.”

Horan has a visit with Nickens scheduled later this month, but her trip could be canceled if the prison is on lockdown, which he tells her has been happening a lot recently.

So far, she has written to 10 incarcerated men. (She has never been paired with a woman.)

Her regular correspondents include “Jonathan,” an inmate at the Louisiana State Penitentiary at Angola, who is not on death row; and “Von,” a 72-year-old who has been on death row in Ohio for 35 years.

“You are sharing your life with them,” Horan said. “It’s a lovely thing.”

She does not ask her correspondents questions about what they did that put them behind bars. She sticks instead to how they spend their time and their prison jobs.

She shares stories about her grandchildren, travel and books, and what she or they like to read.

She said “Von” likes to crochet, sharing he was having a hard time completing the feet of a penguin. “Jonathan” makes her laugh, often describing how he doesn’t like working in the fields in Louisiana, where inmates farm crops such as cotton and corn.

“I am not fearful about writing,” Horan said. “I am cautious in the sense that there are things I don’t tell them about me.”

Word has spread about Horan’s efforts. One of her prison correspondents, named “Richard,” gave her name to two other inmates, who then wrote to her. One was “Jonathan,” and the other wanted money.

Horan made clear she never gives money. What she offers instead is friendship—and the rewards are mutual.

Horan shares an image of her pen pal Habakkuk Nickens with his family he sent her. |Photo by Bianca Moorman/The Stand

When she first wrote Nickens, he remembered her from school but didn’t recall what she looked like. So she sent him a picture with her daughters, who Nickens called “Miss Americas.”

He dubbed his pen pal “Miss Universe.”

He shared that he is not a monster; but a changed man. He’s created a program while in prison called Men Educating Neighborhoods (M.E.N.). That impressed Horan.

“What he is working on now is to help men realize that violence is not the answer,” Horan said.

A lot of people who are on death row, said Horan, are rejected by members of their family, so she fills a critical void— which the prisoners themselves admit.

In a recent letter that she received from “Jonathan,” he joked, “(You’ve) got this Pope Francis, Mother Theresa thing going on, haven’t you?”

When she first wrote to Dicks, her original prison pen pal, it took her anywhere from a day to weeks to complete a letter. Now she says it takes her about an hour, or up to three days.

She keeps pictures of all the prisoners she writes — her “friends,” as she calls them — on her refrigerator. She also keeps a box under her bed of letters she has received. Just recently, she went through the box and saw the last letter that she received from “Jeff.”

She reads them for inspiration.

She feels that somehow she is keeping alive a tradition that is fading far too fast.

“A long time ago people wrote letters,” Horan said during a chat at a coffee shop. “I mean real letters—not email letters— to people because long-distance phone calls were really expensive.”

In 1987, households reported receiving 1.6 pieces of personal correspondence each week, according to a U.S. Postal Service survey. By 2015, personal correspondence declined 69 percent, to just 0.5 pieces per household per week.

“One of the beautiful things about writing and receiving [a letter] is that you can read it again and again,” Horan said. “And sometimes in writing, you can say things on paper that are a little hard to say in person.”

And also, she believes that having something handwritten makes it a little more permanent than digital notes in cyberspace.

That’s one reason she intends to keep at it as long as she can.

“To me it is not important what they did,” she said. “(What’s important is) who they are trying to become.”

EDITORS NOTE: If you’re interested in becoming a prisoner’s penpal through the Death Row Support Project, you can find out more by clicking on this link.

This is a condensed and slightly edited version of a story published in The Stand, a community newspaper produced in Syracuse, N.Y., in partnership with S.I. Newhouse School of Public Communications. The full version is available here. Ashley Kang, director of The Stand, is a 2018 John Jay/H.F. Guggenheim Justice Reporting Fellow. Click here for an earlier story in The Stand’s “Prison-to-Family series. Readers’ comments are welcome.


Will a New Congress Revive the Hopes of DREAMers?

Even with a divided government following the midterm elections, President Trump has all the discretionary powers he needs to provide a path to citizenship for children of undocumented immigrants—if he wants to. A paper in the Lewis & Clark Law Review explains why.

The refusal by the current Congress to reinstate or codify the Deferred Action for Childhood Arrivals program (DACA) shouldn’t be the end of the story, according to a paper in the Lewis & Clark Law Review.

Although Congress has the exclusive authority to create new paths to citizenship, the Executive Branch—if it wants to—also has “discretionary” power to make it easier for children of undocumented immigrants to obtain permanent residence and citizenship, wrote Susan Dussault, an adjunct professor at the Lewis & Clark Law School.

“Suggesting ways that the Executive Branch could exercise its discretion in the context of immigration may seem foolish or naive, given the numerous political and legal challenges that have nullified the Obama and Trump Administrations’ recent forays into that realm,” she wrote.

“When Congress expressly delegates discretion to the Executive Branch, however, exercising that discretion within the clear parameters of that grant not only comports with, but bolsters, the separation of powers principle.”

Dussault, founder and executive director of Legal Immigration Services & Teaching for Oregon Students, wrote her paper before the midterm elections Tuesday changed the power balance in Congress and gave Democrats the majority in the House of Representatives.

With immigration still a radioactive issue in the country, particularly after the election campaign, there’s no certainty that it will be any easier for legislators to respond to calls to allow children brought to the U.S. by undocumented parents who had been allowed to stay under the Development, Relief, and Education for Alien Minors (DREAM) Act the chance to become citizens.

But her paper provides a possible pathway that would support a more pro-active role by the President, who has at times said he favors allowing individuals who qualify under DACA to stay in the country.

According to Dussault, the Executive Branch has the discretion, for example, to allow noncitizens to join the U.S. military and subsequently earn expedited citizenship through their service. Section 10 of the U.S. Code allows noncitizens, including those present in the U.S. without legal immigration status, to join the military if the armed services determine that “such enlistment is vital to the national interest.

“The Executive Branch could use this discretion to allow qualifying childhood arrivals to join the military and access this path to citizenship,” Dussault writes.

Today, the only way that noncitizens may join the military is through the Military Accessions Vital to National Interest program (MAVNI), according to the report. The Department of Defense piloted the program in 2009. The program recruits can naturalize after completing at least 180 days of active duty service or at least one year of satisfactory service in the reserves.

Another discretion awarded to the Executive Branch by Congress is the ability to grant lawful permanent resident status to noncitizens in removal proceedings who meet certain requirements.

“There are several ways the Executive Branch could change how it administers cancellation of removal to make that path to permanent residence more accessible to childhood arrivals,” Dussaualt writes.

“The Executive Branch could allow childhood arrivals to initiate removal proceedings themselves for the sole purpose of seeking cancellation of removal, and guarantee that a rejection would not result in removal proceedings continuing.”

The DACA program, which the Obama Administration launched in August 2012, partially addressed this issue by letting eligible childhood arrivals stay and work in the country for two-year renewable increments.

But last year President Donald Trump rescinded DACA, citing the Attorney General’s conclusion that it was an unconstitutional exercise of authority by the Executive Branch.

However, Trump later stated that if Congress failed to legalize DACA within six months he would reconsider the issue.

“Neither DACA nor the DREAM Act offers a complete solution,” Dussault cautioned.

“Codifying DACA gives its recipients no legal status, and every iteration of the DREAM Act Congress has considered imposes requirements that disqualify many childhood arrivals.”

And she conceded that using executive powers to extend citizenship under DACA would only affect a limited number of people.

Even if the Executive Branch implemented every one of the proposals [I] identified, it would only help a relatively small number of childhood arrivals obtain citizenship,” Dussault wrote.

Ultimately, she wrote, Congress remains the key to DREAMers’ hopes.

“While that could certainly be meaningful for those impacted, the majority of childhood arrivals would remain without legal status and subject to deportation absent comprehensive Congressional action,” the paper said.

A copy of the paper can be downloaded here.

J. Gabriel Ware is a TCR news intern. Readers’ comments are welcome.


Florida Restores Voting Rights to Formerly Incarcerated in a ‘Ballot Cast With Love”

The measure was among numerous  criminal justice-related initiatives on gun control, police training and marijuana approved by voters Tuesday. One big standout: Ohioans rejected an amendment to keep low-level drug offenders out of prison.

Floridians voted overwhelmingly Tuesday in favor of an amendment that will restore the right to vote for most convicted felons upon completion of their sentences, including prison terms, parole and probation.

“We showed that every ballot cast was a ballot cast with love,” Desmond Meade told the Orlando Sentinel, president of Floridians for a Fair Democracy and champion of the Amendment 4 initiative.

“We showed what can happen when we come together along the lines of humanity and reach each other where we’re at. That’s what happens when we transcend partisan lines and bickering, when we transcend racial anxieties and when we come together as God’s children.

While most formerly incarcerated people are rejoicing that Florida voters overturned the state’s 150-year-old constitutional voting ban, many others are feeling left behind, as the Amendment excludes restoration for those convicted of murder and sex crimes.

Paul Wright, editor of Prison Legal News and director of the Human Rights Defense Center, was convicted of murder in 1987 and spent nearly 20 years in prison.

“No one involved in the campaign for Amendment Four has said anything along the lines of ‘this is just the first step.’ They’ve all been pretty clear that this is it and that they’re done if the amendment passes,” Wright told The Crime Report.

Wright claimed money played a big role in excluding those convicted of murder and sex crimes from the initiative.

“No one is going to spend $16 million to re-enfranchise 80,000 murders and sex offenders,” Wright said.

Before Tuesday, the only way a person with a prior felony conviction could vote was through the state’s clemency system, spearheaded by the governor. Now, at least 1.4 million residents in the state have the opportunity to participate in the election process again – or for the first time

Iowa, Kentucky and Virginia joined Florida in felony disenfranchisement, which dates back to the Reconstruction Era when many politicians sought ways to prevent African Americans from voting after the 15th Amendment was ratified in 1870.

More Crime and Criminal Justice Ballot Results

Initiative-1639 in Washington State, the only state gun-regulations measure anywhere in the country, passed— effectively banning people under 21 from buying semi-automatic assault rifles and increasing background checks for those types of weapons.

Background checks will include a local law enforcement check of the most up-to-date local court, criminal and mental health records, and the completion of a firearm safety training course. New standards will be created for holding gun owners accountable if children or other prohibited people injure themselves or others with an insecurely stored firearm.

Also, in Washington voters approved initiative-940, requiring law enforcement officers to obtain violence de-escalation and mental health training to help officers resolve conflicts without using physical or deadly force.

In Oregon voters opted against Measure 105, which would have repealed the state ‘sanctuary law that would have forbade state and local law enforcement agencies from using public resources to arrest those whose only criminal violation is that they are illegally in the United States.

Louisianans voted yes to bar convicted felons, from seeking or holding public office until five years after completing their sentences. Voters in the state also voted to require an unanimous verdict of a 12-member jury for a felony conviction. The previous Jim Crow-era law allowed convictions when at least 10 of the 12 jurors agree.

In Colorado slavery can no longer be used as a punishment for any crime as voters opted to remove such language from the state Constitution. Article II, Section 26 of Colorado’s constitution has historically read there “shall never be in this state either slavery or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted,”

Now it will read “There shall never be in this state either slavery or involuntary servitude.”

Colorado District Attorney Dan Rubinstein opposed it as it could eliminate court-ordered community service.

“With most low-level offenses carrying jail, fines and community service as the only sentencing options, I fear that this action will result in more low-risk offenders filling our jails and would disproportionately incarcerate indigent offenders who lack the ability to pay fines,” Rubinstein recently said in a statement to KKCO 11 News.

The amendment was on the ballot two years ago but failed to pass due to confusing language.

Ohio Rejects Issue 1

In Ohio, though a recent poll showed that a near majority of voters supported Ohio State Issue 1—the proposed constitutional amendment that would change Ohio law to keep low-level drug offenders out of prison and promote more treatment of drug addiction—about 65 percent of voters rejected the amendment.

Ohio is among the top five states with the highest rates of opioid-related overdose deaths.

Ohio chief Justice Maureen O’Connor called the proposed amendment a disaster, arguing that “Ohio may end up with some of the most lenient drug crime laws in the nation if this proposed constitutional amendment passes,”

Voters in Michigan approved legalizing recreational marijuana while those in North Dakota voted against it. Medical marijuana is now legal in Utah and Missouri.

Florida, Georgia, Oklahoma, Kentucky, North Carolina, and Nevada expanded the rights of crime victims to their state constitutions in separate amendments. Some proposals would enshrine the right of crime victims to receive to receive timely notification of changes to the offender’s custodial status; others call for the right to be heard at plea or sentencing proceedings or any process that may result in the offender’s release; and the right to restitution.

The ACLU has called Marsy’s Laws unconstitutional.

J Gabriel Ware is a TCR news intern


How the Law Complicates Tracking Hate in Oregon

Some hate crimes are so heinous there’s no debate about whether they should be prosecuted. But the law isn’t always so clear-cut for police. Oregon is a good example.

Hassania heard the footsteps one late summer evening in downtown Portland, Ore.

She was on her way home from work. Hassania, a Muslim woman from Morocco, wore a hijab, as she does every day, and bright-colored clothing bejeweled at the wrists. The hem of her kaftan hovered just barely off the ground.

The footsteps grew closer. Then she saw him — an older white man with gray hair and glasses ran at Hassania from behind and then got in her face, blocking her way. He stood just inches from her.

“Too close to my body,” Hassania said.

The man raised his middle finger at her, then spat at her feet.

She gasped and shouted a sarcastic remark about his impoliteness. The man ran off.

As the noise of his footsteps receded, she asked herself one question over and over:

“Why? Why? Just why?” Hassania said. “Maybe because I’m a Muslim, African woman?”

Hassania came to the United States in July to share the work she’s doing teaching Moroccan girls from the countryside about leadership skills and gender equality issues. The image of America she had formed in her mind while studying U.S. history in books and classes 5,700 miles away — an America where racism is a thing of the past, where everyone, regardless of background, is welcome if they’re willing to contribute to society — began to unravel.

Once safely home, she called friends to ask for advice. One told her to take off her hijab. She couldn’t fathom that.

“’No, don’t say that to me,’” she remembered telling the friend. “’Please, this is my identity, this is me. This is not easy to take it off.’”

Another friend advised her to call the Portland Police Bureau. That friend told her to report the incident as a hate crime.

She tried.

Within hours of last month’s horrific attack on a Pittsburgh synagogue, federal prosecutors charged the shooter with multiple hate crimes: obstruction of the exercise of religious beliefs resulting in death and obstruction of religious beliefs resulting in injury to a police officer.

In Kentucky, Senate Majority Leader Mitch McConnell called for the death penalty for the man accused of targeting and shooting two African-Americans last week at a grocery store in his home state.

“If these are not hate crimes,” McConnell said, “I don’t know what a hate crime is.”

But the judicial system isn’t always so clear-cut, and people who lash out in hateful ways aren’t always criminals according to the law.

Under Oregon law, a hate crime occurs when a person or group damages property, does something threatening or subjects another person to offensive physical contact “because of the person’s perception of the other’s race, color, religion, sexual orientation, disability or national origin.”

It’s a very specific legal definition, one that police, sheriffs and district attorneys say often falls short of satisfying people who have experienced hateful behavior.

“It is really difficult to provide the solution a community member is looking for and is asking for,” said officer Natasha Haunsperger, who works in the Portland Police Bureau’s community engagement office. “It’s such a major disconnect in what we can do versus perception once you’re a victim of a hate crime.”

That’s because law enforcement officials must have enough probable cause to determine an alleged perpetrator intentionally threatened or assaulted someone because of a victim’s race, color, religion, national origin or sexual orientation. Unless they occur in conjunction with a crime, derogatory statements about a person’s race or religion, while hostile, aren’t unlawful.

In fact, they’re protected by the First Amendment.

“You are allowed to use hurtful, awful, disgusting words; you’re allowed to say that under our Constitution,” said Deschutes County District Attorney John Hummel. “You’re not allowed to threaten somebody, put someone in fear of imminent physical violence.”

Hassania called Portland Police a day after she was accosted.

The officer she spoke with wouldn’t take a police report because, Hassania later recalled, he said what had happened to her was not a crime.

If the police arrested everyone in Portland who offended someone, the officer added, police would have to arrest everyone in Portland. Under the law, he explained, there was nothing they could do.

Hassania, who asked to be identified by just her first name to protect her from further abuse, said the officer she spoke with made her feel like an idiot.

“My dream of America became nightmare of America,” she said.

Hassania wasn’t alone when she called the police. Seemab Hussaini, who chairs Oregon’s chapter of the Council on American-Islamic Relations, was with her when she made the call and was appalled at what he overheard.

On Aug. 24, the day after Hassania called the police, CAIR-Oregon publicly denounced the Portland Police Bureau’s response.

“These are statements that marginalize affected communities, remove power or any hope of being recognized for victimhood,” Hussaini said.

That tension between what people — particularly people of color — expect when they call the police for help and what law enforcement officers can legally prosecute under the law plays out time and time again in communities across the Northwest and around the country.

Within many communities of color, skepticism toward law enforcement is rooted in historic precedent. And now, with a spike in reported hate crimes since the election of President Donald Trump and a spate of attacks fueled by hate, there’s more pressure for law enforcement to get it right. If they don’t, critics say, hate festers and the people police have sworn to protect end up feeling even less safe.

Documenting Hate To Address Hate

Hassania’s call to the police would have been handled differently just a few hours south in Eugene, Ore., which has the largest number of documented hate crimes in the state, and where city officials have taken a different approach to hate.

There, she would have had the option to report what happened to her to the city’s Office of Human Rights and Neighborhood Involvement even if the police decided there was no crime to investigate. Information about the incident would then also be collected by the Eugene Police Department and reviewed by city officials and police, who meet quarterly to make sure each complaint about hateful behavior is correctly labeled.

Those results are put into an annual report analyzed by the city’s Human  Rights Commission.

So far, all that additional information and analysis haven’t led to specific policy changes in Eugene. But just keeping track is important, city leaders say.

Hate crimes

Lt. David Natt of the Eugene, Ore. Police Dept. says the city’s approach to documenting hate crimes and bias incidents helps. Photo by Conrad Wilson/OPB

“It allows us to give them something that’s more actionable than showing the empathy of understanding how they feel about something and explaining to them it doesn’t necessarily rise to a criminal level,” said Lt. David Natt, who heads up bias crimes and documentation for the Eugene Police Department.

“We still get the opportunity in the community to recognize that we’ve had this event.”

Eugene residents say that process gives law enforcement a clearer sense of what’s happening in their communities. That’s important because hate and bias crimes tend to be under-reported nationwide.

Eugene’s unique system of documenting hate and bias incidents has a magnifying effect:

The number of hate crimes reported in Oregon nearly doubled from 2015 to 2016 — a jump from 66 to 104. Portland — Oregon’s largest city — had 10 hate crimes reported in 2016, according to data voluntarily reported to the FBI. Eugene had 38.

The numbers in Eugene last year, which include both incidents and actual crimes, are even higher, at 139. According to the most recent data, vandalism replaced intimidation as the most common hate crime charge, and race remains the leading motivating factor. Reports of vandalism involved swastikas; racist, homophobic and transphobic slurs; and white nationalist recruitment material.

The data also shows African-Americans are significantly overrepresented as victims of hate and bias crimes. Of the 31 reported race-related hate crimes, 25 were committed against African-Americans.

“Those reporting mechanisms have helped,” said Eric Richardson, president of the Eugene chapter of the NAACP. “It’s a way for us to see what the problems are.”

By documenting hate, he said, you address hate.

Eugene’s approach casts a wider net because it documents bias incidents on top of hate crimes. Hussaini, with CAIR-Oregon, said that would be helpful in Portland, where only hate crimes — those incidents that appear to meet the legal definition of a hate crime — are tracked.

“Track the culture,” Hussaini said. “Track the culture behind what causes a hate crime to occur. They can be circumvented, stopped if they are found early.”

Portland Considers Another Approach To Hate

Recently, the Portland Police Bureau (PPB) invited officers from Eugene to exchange information about how they document hate. They met with Natt, the Eugene lieutenant who heads the city’s bias unit, and a representative from Eugene’s Human Rights and Neighborhood Involvement division.

Eric Richardson

Eric Richardson, president of the Eugene, Ore., chapter of the NAACP. Photo by Conrad Wilson/OPB

In August, following that meeting, PPB launched a public database of potential bias and hate crime statistics.

But the data doesn’t include incidents such as Hassania’s. Rather, the data only illustrates incidents that officers have deemed a crime, meaning they took the initial step of officially documenting what happened. In launching the new public tool, PPB said it hopes to “increase transparency and encourage the community to report instances of possible bias and hate crimes to the PPB, regardless of the nature or type of incident.”

Portland police say when it comes to documenting more bias incidents, they need help from the community. In fact, the city already has a foundation for a system like the one that exists in Eugene.

Portland Detective Jeff Sharp, who investigates bias crimes, said the bureau is hoping to work with Portland United Against Hate, a partnership of community organizations, neighborhood associations and the city. Portland City Council awarded $40,000 to PUAH in 2017 for a pilot project to collect, track and analyze hate incidents.

Findings from the program’s first year show that hate crimes go unreported in Portland because of an expectation of inaction when a victim reports: People don’t call the police because they don’t think the police will do anything. Organizers also found that the process for reporting hate crimes needs to take into account a victim’s trauma and, above all, avoid exacerbating it.

There’s also the Police Bureau’s Muslim Advisory Council, which is made up of leaders in the Muslim community. Its members meet every month with officers. Those interactions help the community feel heard, said Laila Hajoo, president of the Islamic Social Services of Oregon State, a Portland-based nonprofit.

“A lot of the refugees that come here are terrified to bring up issues with authorities because they are afraid of deportation, or because it’s going to make their life more miserable,” Hajoo said. “If they can confide in us, then we have an opportunity to discuss this at the council” — and police officers can engage.

While the bureau is making strides, it still falls short of a system for tracking incidents such as Hassania’s. And from Hassania’s perspective, the reality is that talking about hate isn’t as powerful as documenting it.

“Now, I felt like, ‘No, I have to protect myself,’” she said.

It took Hassania weeks to process what happened to her. She missed several days of work because she was afraid to go outside. She even attended the Portland Police Bureau’s “WomenStrength” self-defense workshops.

More than a month after the incident, Hassania attended a seminar titled “Islamophobia Workshop: Strategies for Survival” at a mosque in Beaverton, Ore. She was eager to hear other people’s experiences with hate and reflections on why they occurred.

Among the attendees were Destinee Mangum and Walia Mohamed, the two girls who prosecutors say were targeted aboard a MAX train in 2017, just before a white man stabbed three people, killing two. Mohamed wore a hijab at the time of the attack, just as Hassania does.

Hassania stood and faced the two girls. “I want to thank you so much for being here,” she told them.

Then, she retold the events of that late summer evening on her way home from work to those in attendance at the seminar. She turned to the dozen or so people in the room, and posed a question: “Who will protect me if the police didn’t protect me?”

What Hassania wanted, and still wants, is for someone from the city of Portland—anyone—to say that what happened to her matters in the eyes of law enforcement.

This is a slightly edited version of a broadcast report by Erica Cruz Guevarra and Conrad Wilson of Oregon Public Radio. Wilson is a 2018 John Jay Rural Justice Reporting Fellow. For the complete broadcast, please click here.


Does the Fourth Amendment Block Cops from Using Artificial Intelligence?

The constitutional prohibition against unreasonable searches and seizures could prevent law enforcement from using the sophisticated surveillance technology made possible by artificial intelligence, according to a University of California-Davis law professor.

The Fourth Amendment’s prohibition against unreasonable searches and seizures could prevent law enforcement from applying increasingly sophisticated surveillance and predictive policing technology, including “superhuman” methods employing artificial intelligence, according to a professor at the University of California-Davis School of Law.

In an essay published in the Ohio State Journal of Criminal Law, Elizabeth E. Joh argues that the recent U.S. Supreme Court decision in Carpenter v United States established a precedent for using the Fourth Amendment to limit the use of emerging technology, ranging from drones that help patrol borders to predictive-analytic software that can determine when and where the next crime will occur.

In that landmark case, decided this summer, the Court ruled law enforcement cannot access citizens’ cellphone location records without a search warrant. Although the decision focused on whether information held by “third parties” such as cellphone providers was subject to privacy protections guaranteed under the Constitution, Joh said it also touched on the changing “nature of policing” ─specifically the technologically enhanced means law enforcement can now exploit to gather information in the cyber era.

In the Carpenter case, justices were asked to rule on whether FBI agents sidestepped their constitutional obligations to show “probable cause” for obtaining a search warrant to retrieve the locational data of a suspected serial robber’s cellphone to prove he was near the scene of stores in the Detroit area where thefts had occurred. The agents had instead applied for an order under the federal Stored Communications Act.

In her essay, titled “Artificial Intelligence and Policing: Hints in the Carpenter Decision, Joh cited Chief Justice John Roberts’ assertion that while technology can be a useful tool for law enforcement, its use also raises the risk of the kind of government “encroachment” on personal liberty that the framers of the Constitution sought to prevent.

“Rapid advances in technology are changing Fourth Amendment boundaries,” Joh wrote. “Lower courts are already grappling with how to apply Carpenter’s new protections.”

Joh also noted the dissenting opinion from now-retired Justice Anthony Kennedy, who warned that the ruling could unduly interfere with law enforcement’s legitimate efforts to investigate and counter serious crimes.

“The new rule the Court seems to formulate puts needed, reasonable, accepted, lawful, and congressionally authorized criminal investigations at serious risk in serious cases, often when law enforcement seeks to prevent the threat of violent crimes,” Kennedy wrote.

But Joh argued that the majority decision effectively showed that police applications of artificial intelligence, which uses machine-created algorithms to approximate human thinking, could also be blocked under the Court’s interpretation of the Fourth Amendment.

“Artificial intelligence has begun to change the capabilities of the police, by permitting them to do what was once nearly impossible or impracticable,” Joh wrote, noting that it allows them to access to vast amounts of data scooped up by automated technologies and stored in the “cloud.”

“Resource constraints always checked traditional surveillance discretion,” she wrote.

“There are never enough officers nor enough money for cameras and other machines. But machine-generated analyses have changed that calculus. 

“The police today enjoy a surfeit of data that can be collected, stored, mined, and sifted through easily and cheaply: license plate data, social media posts, social networks, and soon our own faces.”

Even though artificial intelligence did not specifically enter into the Carpenter ruling, Joh said the Court effectively developed a template for assessing how constitutional protections should be applied to so-called “superhuman” technologies which processed data faster and cheaper than ordinary human beings could, in an environment where urban life was increasingly policed by automated or cloud-based systems.

“If I am right about the Court’s forward-looking approach to the Fourth Amendment and policing methods, that may begin to cast doubt on the extreme deference courts have given to the judgments of human police officers,” she wrote.

The essay may be downloaded here.

J.Gabriel Ware is a TCR news intern. Readers’ comments are welcome.


Why Your Vote Today Can Be the Start of Real Justice Reform

Many prosecutors have made the end of mass incarceration and other justice reforms a focus of their election or re-election campaigns, That’s welcome news, says the director of John Jay’s Institute for Innovations in Prosecution–and long overdue. But it should galvanize support for a broader approach to change.

The scourge of mass incarceration is at last getting the attention it deserves from reform-minded district attorneys around the country. Many of  them are running for election or re-election today.

The data bears out the extent to which elected prosecutors have contributed to the unconscionable number of people in American prisons, the tragically disparate racial impact, and underscores the fact that the exercise of prosecutorial discretion could significantly reduce those numbers.

The Vera Institute’s recent report Unlocking the Black Box of Prosecution provides vital information for both communities and prosecutors to help increase transparency in furtherance of this goal.

The United States has the highest per capita prison rate in the world, with more than two million people in American prisons, of whom nearly 60 percent are people of color (while comprising only 30 percent of the population).

As Michelle Alexander and others have persuasively argued, it cannot be overlooked that all of this exists in the haunting shadow of slavery, and the nation’s moral conscience depends on ending mass incarceration.

But in the midst of the public outcry and the heightened scrutiny of local prosecutors, voters and advocates would be well served to consider the public actors outside the criminal justice system who could do the same.

The agencies responsible for mental health, homelessness, substance use disorders, and other social ills have increasingly experienced political and budgetary constraints since the 1970s, which have been highly variable across agencies and jurisdictions. As communities have found themselves facing increased numbers of people without access to services, the clarion call to elected prosecutors has been to find ways to get those people out of sight, out of mind.

And so, over the past 50 years, coincident with the erosion of public welfare services, Americans have increasingly relied on the criminal justice system to solve problems that are not, at their heart, criminal. Problems like mental health, substance use, and poverty sometimes lead to criminal conduct.

But even more regularly, these conditions lead to conduct of which communities disapprove, but which do not, ultimately, constitute matters warranting criminal justice intervention.

Deinstitutionalization of the mentally ill since the 1960s has led to 2.2 million Americans with severe mental health conditions receiving no psychiatric treatment at all.

In the 1970s, 4.5 million units were removed from the nation’s housing stock, over 1 million SRO units were lost, and the nation’s public housing program was essentially abandoned, while increased numbers of single-person households significantly expanded the demand for housing nation-wide.  Some 25 percent of  incarcerated Americans suffer from mental health problems, and 10 percent are homeless at the time they enter jail or prison.

The effect of increased prosecutions has been well-documented. The devastation of the war on drugs, along with the broken windows policies of the 1990s in New York City and elsewhere, increased the probability of indictment and lengthened sentences for violent crimes, and the attendant parole and probation violations.

Bad federal legislation like the 1994 Violent Crime Control and Law Enforcement Act incentivized states to increase their prison population.  And so, we have quickly and devastatingly become the most incarcerating country in the history of the world.

Acknowledging this reality, progressive modern prosecutors over the past decade  have responded to requests from communities to become purveyors of alternatives for the homeless, the mentally unwell, or the poor.

And so, as elected officials come under increased scrutiny, Americans have increasingly seen their local DAs developing social service programming for people who come into contact with law enforcement.  Prosecutors across the country have created supervised release, cognitive behavioral therapy, and substance treatment options, to name just a few.

Thoughtful and well-meaning prosecutors, often with little social work, public health, or psychological expertise — responding to their communities as they are charged to do — find themselves making decisions in cases that at other times in American history would have been addressed through mental health facilities, homeless shelters, or other civil service providers.

Why is a prosecutor better situated than any number of other, lighter-touch agencies, to identify programming for a person who repeatedly drives with a suspended drivers’ license to get to work, or who breaks into an abandoned building to seek shelter?

In addition to asking DAs to process and divert these cases out of the courts, communities might also ask for increased early interventions by public housing, public health, and the civil courts.

It is an oft-repeated trope that to someone with a hammer, everything looks like a nail.  Americans should turn out to vote for their local reform DAs, and the winners of those elections should continue the trajectory that some have started towards reducing the nation’s prison population.

Lucy Lang

Lucy Lang. Director of the John Jay Institute for Innovation in Prosecution

But perhaps instead of asking the criminal justice system to look like a different tool entirely, communities would be well served to ask the other “tools” — many of which are agencies that are not electorally accountable — to rise to the occasion and help end mass incarceration as well.

Lucy Lang is the Executive Director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice. She welcomes readers’ comments.


After Raise the Age, Where Will Adolescent Offenders Go?

New York has finally joined other states in barring 16- and 17-year-oldswho get in trouble with the law from being tried as adults. But now officials are scrambling to find a secure place to house them and keep them out of the justice system.

On Oct. 1, the first phase of a New York State law known as “Raise the Age” took effect, meaning 16-year-olds can no longer be arrested or tried as adults. A year from now, the law will extend to 17-year-olds as well.

Authorities are just beginning to grapple with the next challenge: Where will these young offenders be housed?

New York’s Albany County, which encompasses the state capital district, is upgrading a facility in Colonie, N.Y., not far from the county jail, to accommodate the new class of youthful offenders.

Senior Investigator Shawn Noonan, the commanding officer of Professionals Standards for the Albany County Sheriff’s Office, calls it a “two-pronged approach”—and the first prong involves upgrading security.


The Capital District Detention Facility in Colonie, N.Y., is being upgraded in anticipation of taking older offenders, aged 16 and 17 years, following the implementation of the state’s Raise the Age legislation. Photo by Michael Koff/The Enterprise

He said that the new facility must take into account that some of the youths may have committed “serious crimes,” and need to be held securely to avoid dangers to others, even as it seeks to make the facility “less institutionalized” in the hope of decreasing recidivism and providing troubled young people with an alternative to jail.

The Capital District Juvenile Secure Detention Facility, which primarily serves Albany, Schenectady, Saratoga, and Rensselaer counties, is one of only eight secure facilities in the state, which are the only institutions qualified to take in detained 16-year-olds and eventually 17-year-olds.

New York used to be just one of two states that prosecuted 16- and 17-year-olds as adults. Only North Carolina remains. In five states—Georgia, Michigan, Missouri, and Texas—17-year-olds are automatically prosecuted as adults.

Thirteen states—Alaska, Delaware, Florida, Hawaii, Idaho, Maine, Maryland, Michigan, Pennsylvania, Rhode Island, South Carolina, Tennessee, and West Virginia—have no minimum age for prosecuting a child as an adult.

Under New York’s new law, 16-year-olds must be placed in settings appropriate for their age, rather than in jail; those charged with non-violent crimes are to be diverted into community-based programs just like offenders who are 15 and younger.

Sixteen-year-olds arrested on serious charges will go to a youth part of criminal court and be placed in secure detention facilities for adolescents.

A 16-year-old in New York now has several different paths that he or she can follow, according to Noonan, who has been helping with several Raise the Age transitions, including upgrading the county’s juvenile facility to house adolescent offenders, as well as dealing with changes in policy for arresting and charging them.

Sent to Family Court

Any 16-year-old charged with a penal misdemeanor after Oct. 1 will be sent to Family Court, so that he or she will not have a permanent criminal record. If the youth is pulled over for a vehicle or traffic misdemeanor, or a violation, he will go to the local court.

But if that 16-year-old is charged with a felony, he’ll be sent to the newly created Youth Court.

In Albany County, the Youth Court will be in the same building as Family Court and will be overseen by Family Court Judge Richard Rivera, said Noonan.

The 16- and 17-year-olds whose cases remain in Youth Court will be known as adolescent offenders; their counterparts aged 13 to 15, known as juvenile offenders, will be tried in the Youth Court as well. According to the Raise the Age law, adult sentencing will apply, but the judge must take the adolescent offender’s age into account when sentencing, and he or she is eligible for youthful-offender treatment.

In the court system, public defenders will be trained to represent someone in the Youth Court, said Susan Bryant, the acting director for the New York State Defenders’ Association.

Public defenders are also participating in local conversations on county plans for implementation of Raise the Age, which include addressing social services, probation, and transportation.

There is still concern about minors being detained as juveniles, she said.

“It’s certainly a step hopefully towards continued reform,” she said. “I’m not sure if this is the best structure for it, but we will see how it goes.”

One debate is over whether all cases should begin in Family Court, said Bryant. She noted a judge may treat a 16- or 17-year-old more like an adult since they appear older.

Judicial education is needed, Bryant said, although the Youth Court judges being trained to work with adolescent offenders may also be serving in Family Court.


A map of New York shows eight secure juvenile detention facilities in red, which are able to hold adolescent offenders. Another two dozen non-secure facilities are marked in blue. Counties shaded in purple are in a partnership to share Albany County’s facility; those shaded in lavender have side agreements to send adolescent offenders to Albany County’s facility. Courtesy The Enterprise.


New York has two dozen detention centers for juveniles 16 and younger, scattered across the state. Under the new law, New York has eight secure facilities for adolescent offenders who are awaiting trial and for those convicted and sentenced to less than a year.

The goal is to avoid young people being held far from their homes and families, said David Condliffe, executive director of the advocacy group Center for Community Alternatives and a member of the state’s Raise the Age task force.

Adding ‘Trauma to Trauma’

“Imagine you’re 16 years and you find yourself hundreds of miles from home … It adds trauma to trauma,” said Condliffe.

Condliffe said incarceration has decreased in places like New York City, due to a focus on alternatives to incarceration, while incarceration has increased in rural parts of the state, an assertion backed up by data from the Vera Institute.

Sixteen- and eventually 17-year-olds who face trial in Youth Court must now be held for trial in youth facilities if a judge determines there is a need for pre-trial detention. They can no longer be held in county jails as adults, but instead must be held in separate wings of secure youth facilities, or “specialized secure juvenile detention facilities for older youth.”

Adolescent offenders will be detained in county-operated facilities located in Buffalo and Rush, a suburb of Rochester, as well as in Onondaga, Albany, Westchester, and Nassau counties, according to Monica Mahaffey, a spokeswoman for the Office of Children and Family Services.

They may be held at such facilities not only during pre-trial detention, but also if their sentence is one year or less following conviction.

“OCFS and the State Commission on Correction certify and regulate the detention centers. Counties operate them,” Mahaffey wrote in an email to The Enterprise. “Every county is not required to operate a facility, but every county must have a facility available for its use.”

She noted that these facilities are not to be located at county jails, but can be at juvenile secure detention facilities if the offenders are separate from the younger juvenile delinquents and juvenile offenders.

Alex Wilson, associate counsel for the New York State Sheriff’s Association, said that lately the association members have frequently discussed the issue of so few secure facilities in the state, especially upstate.

But beyond transportation, there are concerns about having enough beds, or places for the 16-year-olds, Wilson said.

“It certainly presents a problem,” said Bryant. Currently, she said, no 16-year-old has been sent to a secure facility.

Bryant said a number of counties are considering alternatives to using one of the eight secure facilities. For example, Tompkins County, in central New York on the edge of the Southern Tier, is considering creating a specialized secure facility to be shared among counties in the Southern Tier, she said.

On Oct. 16, the Tompkins County Legislature authorized the county to enter into an agreement to form a local development corporation to create a new specialized secure detention facility.

In April, the Tompkins County joined 10 other counties in a coalition to explore Raise the Age issues, including where to house adolescent offenders.

“The problem is the law requires them to be in these specialized facilities, but the cost of every county having one just doesn’t necessarily make any sense,” Bryant said.

“But from the defense perspective we want our clients to be as close to home as possible, as close to a lawyer as possible so that they can have regular communication and aren’t being transported across the state for a court appearance.”

Wilson noted that there has been a lot of discussion on treating 16-year-olds and eventually 17-year-olds as juveniles rather than adults upon their arrest. He said that their detention will have to take place in special rooms separate from where adult offenders are detained upon their initial arrest up until they are arraigned in court.

But Wilson said that the Raise the Age legislation is written with the presumption that most young offenders will not be detained; he believes most are or will be released on their own recognizance and that probation officers and ankle monitors will be more often used than jail time.

The goal of the legislation and the presumption is that, when someone is brought into the Youth Court, they will be released, Bryant said.

But finding secure facilities for those who require it remains a hurdle.

“You’re trying to find balance,” said McLaughlin, explaining that the county cannot have too few beds or suffer as some facilities have from having too many empty beds after overbuilding.”

Juvenile detention in New York has been reduced by over half since 2010 due to diversion and prevention programs, said Mahaffey.

“Raise the Age provides an opportunity for the same strategies to be applied to 16- and 17-year-olds,” she wrote in an email to The Enterprise.

This is a condensed and slightly edited version of an article by H. Rose Schneider, a 2018 John Jay Rural Justice Reporting Fellow, written as part of her fellowship project. The complete story, published in the Altamount Enterprise, can be viewed here. Readers’ comments are welcome.