Pennsylvania judges often do not explain their decision to jail people over unpaid fines, even though the law prohibits incarceration when a defendant is unable to pay, the Pittsburgh Post-Gazette finds.
Is there a resurgence of debtors’ prisons? Some district judges and court officials argue that jailing people over unpaid fines is within the confines of the law, but the American Civil Liberties Union believes that such practices are illegal, harm those jailed and waste public dollars by arresting and imprisoning people who can’t pay, reports the Pittsburgh Post-Gazette. The ACLU condemns “the arrest and jailing of poor people for failure to pay legal debts they can never hope to afford, through criminal justice procedures that violate their most basic rights.” Defendants convicted of crimes in Pennsylvania, even minor ones, often must pay a host of fines, costs and other fees.
When people don’t pay and fail to respond to a summons, a district judge can issue a warrant for their arrest. Judges are supposed to jail only defendants who can afford to pay but “willfully” do not. “The Constitution is very clear, the law is very clear, you cannot be jailed for failing to pay when you can’t pay,” said University of Pittsburgh law Prof. David Harris. That is not always what happens. A Post-Gazette review of more than 4,500 cases covering everyone jailed in 2016 in Pennsylvania for failure to post collateral (about 2,500 people) shows that in fewer than one in five cases, judges appear to meet the standard in explaining why payment can be made. They use statements such as “defendant has bank account” or “defendant has been working” or “gainfully employed.” The data show the system for meting out jail stays over unpaid court fines is wildly inconsistent among the state’s 67 counties and varies from one judge to another.
Since the 2013 reauthorization of the Violence Against Women Act, non-Native Americans can be brought to tribal courts in domestic violence cases. But attorneys still face a minefield of jurisdictional issues, according to a study in the Winter 2018 issue of Criminal Justice.
Tribal courts are the “latest battleground” for reforming the way domestic violence cases are handled in Indian Country, a new study says.
The study, published in the Winter 2018 issue of Criminal Justice, examines the jurisdictional issues relating to criminal law and Native Americans in the aftermath of the 2013 reauthorization of the Violence Against Women Act (VAWA), specifically in the handling of domestic violence cases involving non-Native Americans in tribal courts.
The 2013 amended version of VAWA gives tribal courts enhanced jurisdiction over criminal cases brought by tribes against nonmembers, including non-Native Americans. Yet Congress’s recognition of tribal criminal jurisdiction is accompanied by limitations and sets obligations on tribes.
Tribes that want to make use of VAWA’s jurisdictional provisions may be required to amend tribal law, and hire new judges and public defenders.
The article summarizes the limitations of the enhanced jurisdiction under VAWA according to types of offenses, types of defendants, types of victims, and procedural safeguards. For instance, non-native defendants in VAWA cases can only be prosecuted in tribal cases if they have one of the three following connections to the tribe’s reservation or lands:
They reside in Indian Country;
They’re employed in Indian country; or
They are “the spouse, intimate partner, or dating partner of an Indian living in Indian country or a tribal member.”
In February 2013, the Justice Department announced a pilot program giving three tribes jurisdiction over non-Native Americans in domestic violence cases that occur on their reservations.
Since 2015, another ten tribes were granted the same special domestic violence jurisdiction over non-Native Americans in tribal territory. Beginning in February, 2014 the original three jurisdictions began to put into practice their new strengthened jurisdiction.
Most likely, all of the courts approved in the pilot program will commence prosecuting cases shortly, if they haven’t already.
“It is extremely likely that many more tribes will soon adopt the enhanced VAWA domestic violence jurisdiction,” the paper said.
“Attorneys wishing to appear in tribal courts must be admitted to practice in those courts, which have their own rules for admission.”
Some tribes have their own bar exams, including two tribes currently applying the special domestic violence jurisdiction. Attorneys who appear in tribal courts shouldn’t anticipate the applicable rules of evidence or civil procedure of state or federal courts to be applicable in tribal court. Tribal courts have their own rules, procedures, and practices.
The paper concludes with the author admonishing attorneys to thoroughly prepare in advance before entering tribal courts in any domestic violence case.
Sexual violence continues to be an epidemic in tribal territory and until it subsides Indian nations will act vigilantly to protect their people and work toward a solution, the study said.
“Attorneys, as always, will be on the frontlines,” it added.
The paper was written by James D. Diamond, director of the Tribal Justice Clinic and professor of practice at the University of Arizona James E. Rogers College of Law.
The identities of jurors expected to decide the fate of accused Mexican drug lord Joaquín ‘El Chapo’ Guzmán later this year will be kept secret. A judge cited the defendant’s use of hitmen over the years.
The identities of jurors expected to decide the fate of accused Mexican drug lord Joaquín ‘El Chapo’ Guzmán at a trial later this year will be kept secret, The Guardian reports. U.S. District Judge Brian Cogan in Brooklyn said jurors’ names, addresses and places of employment will be shielded from Guzmán, his lawyers, prosecutors and the press. Jurors be transported to and from the courthouse by federal marshals, and sequestered from the public while there. Prosecutors offered “strong and credible reasons” why the jury needs protections, including Guzmán’s use of hitmen to carry out thousands of acts of violence over more than two decades, Cogan said.
That history “would be sufficient to warrant an anonymous and partially sequestered jury, but that many of the allegations involve murder, assault, kidnapping or torture of potential witnesses or of those suspected of assisting law enforcement makes the government’s concerns particularly salient”, he said. Guzmán’s attorney, Eduardo Balarezo, said his client was disappointed by the ruling. The defense argued that an anonymous jury would give the false impression that Guzmán is dangerous. Guzmán is accused of running a massive international drug trafficking operation. Since his extradition in January 2017, he has been held in solitary confinement at a high-security federal jail in Manhattan, with officials mindful of how he twice escaped from prison in Mexico, the second time via a mile-long tunnel dug to the shower in his cell. The trial is expected to begin in the fall.
The first federal judges appointed by President Trump are in training this week in Texas. They will talk to federal prisoners and discuss sexual harassment, among sessions on case management and sentencing.
This week, the newest federal judges are in Texas for training on their new jobs, a workshop affectionately called “Baby Judges School,” the Associated Press reports. The training is the first to be held for judges appointed by President Trump, but there will be more. The new judges are learning everything from how to manage the hundreds of cases they’ll oversee to how to pick a jury, try civil and criminal cases, and take a guilty plea. And they’re attending sessions on ethics, on sentencing and on how to talk to victims, defendants and their families. “The goal of the baby judge program is to make sure that people have the fundamentals that they need to be able to do the job,” said Judge Jeremy Fogel of the Federal Judicial Center, the judicial branch’s research and education agency.
The training isn’t mandatory, but the vast majority of new, federal trial-level judges choose to attend, and some appeals court judges do, too. The Senate has confirmed 24 Trump nominees, and the president has 145 judicial vacancies to fill. For the first time a portion of the class will be dedicated exclusively to discussing workplace harassment. Last year, federal appeals court Judge Alex Kozinski retired after accusations of sexual misconduct, including that he had touched women inappropriately and asked law clerks to view pornography in his chambers. Judges will discuss that behavior, along with other scenarios such as whether it’s ever appropriate to tell a sexually explicit joke or ask a clerk to pick up dry cleaning. The judges will spend a half-day touring a federal prison. Previous groups have eaten a prison meal, and they always talk with prisoners about their experiences in the courtroom and as inmates.
District Judge Rodolfo “Rudy” Delgado was released on a $100,000 bond Monday on charges of taking bribes in three cases. He allegedly took money and other items of value in exchange for releasing defendants.
Texas District Judge Rodolfo “Rudy” Delgado is charged with bribery in connection with programs that receive federal funds, according to a criminal complaint unsealed Monday, reports the San Antonio Express-News. Federal investigators allege that Delgado, 64, accepted three bribes between November 2016 and January of this year in exchange for favorable judicial consideration on cases. Delgado was released on a $100,000 bond Monday. He is running for an appellate court seat.
While the investigation into Delgado began in November 2016, an attorney alleged that bribes made in cash and other items of value started as far back as 2008. On two occasions over the past two years, Delgado allegedly took bribes from the lawyer, and in return released the attorney’s clients on bond. These two bribes totaled $520 in cash, investigators said. A third bribe allegedly occurred in January, when the lawyer, wearing audio and video recording devices, gave Delgado $5,500 in cash in a white envelope. The lawyer asked for Delgado’s help on a case involving a client with a pending motion. Delgado allegedly agreed to help, and accepted the cash. The next day Delgado released the client on bond.
For over a decade, civil libertarians have been fighting government mass surveillance of innocent Americans over the Internet. We’ve just lost an important battle. On January 18, President Trump signed the renewal of Section 702, domestic mass surveillance became effectively a permanent part of US law. Section 702 was initially passed in 2008, as an amendment to the Foreign Intelligence…
For over a decade, civil libertarians have been fighting government mass surveillance of innocent Americans over the Internet. We've just lost an important battle. On January 18, President Trumpsigned the renewal of Section 702, domestic mass surveillance became effectively a permanent part of US law.
Section 702 was initially passed in 2008, as an amendment to the Foreign Intelligence Surveillance Act of 1978. As the title of that law says, it was billed as a way for the NSA to spy on non-Americans located outside the United States. It was supposed to be an efficiency and cost-saving measure: the NSA was already permitted to tap communications cables located outside the country, and it was already permitted to tap communications cables from one foreign country to another that passed through the United States. Section 702 allowed it to tap those cables from inside the United States, where it was easier. It also allowed the NSA to request surveillance data directly from Internet companies under a program called PRISM.
The problem is that this authority also gave the NSA the ability to collect foreign communications and data in a way that inherently and intentionally also swept up Americans' communications as well, without a warrant. Other law enforcement agencies are allowed to ask the NSA to search those communications, give their contents to the FBI and other agencies and then lie about their origins in court.
In 1978, after Watergate had revealed the Nixon administration's abuses of power, we erected a wall between intelligence and law enforcement that prevented precisely this kind of sharing of surveillance data under any authority less restrictive than the Fourth Amendment. Weakening that wall is incredibly dangerous, and the NSA should never have been given this authority in the first place.
Arguably, it never was. The NSA had been doing this type of surveillance illegally for years, something that was first made public in 2006. Section 702 was secretly used as a way to paper over that illegal collection, but nothing in the text of the later amendment gives the NSA this authority. We didn't know that the NSA was using this law as the statutory basis for this surveillance until Edward Snowden showed us in 2013.
Civil libertarians have been battling this law in both Congress and the courts ever since it was proposed, and the NSA's domestic surveillance activities even longer. What this most recent vote tells me is that we've lost that fight.
Section 702 was passed under George W. Bush in 2008, reauthorized under Barack Obama in 2012, and now reauthorized again under Trump. In all three cases, congressional support was bipartisan. It has survived multiple lawsuits by the Electronic Frontier Foundation, the ACLU, and others. It has survived the revelations by Snowden that it was being used far more extensively than Congress or the public believed, and numerous public reports of violations of the law. It has even survived Trump's belief that he was being personally spied on by the intelligence community, as well as any congressional fears that Trump could abuse the authority in the coming years. And though this extension lasts only six years, it's inconceivable to me that it will ever be repealed at this point.
So what do we do? If we can't fight this particular statutory authority, where's the new front on surveillance? There are, it turns out, reasonable modifications that target surveillance more generally, and not in terms of any particular statutory authority. We need to look at US surveillance law more generally.
First, we need to strengthen the minimization procedures to limit incidental collection. Since the Internet was developed, all the world's communications travel around in a single global network. It's impossible to collect only foreign communications, because they're invariably mixed in with domestic communications. This is called "incidental" collection, but that's a misleading name. It's collected knowingly, and searched regularly. The intelligence community needs much stronger restrictions on which American communications channels it can access without a court order, and rules that require they delete the data if they inadvertently collect it. More importantly, "collection" is defined as the point the NSA takes a copy of the communications, and not later when they search their databases.
Second, we need to limit how other law enforcement agencies can use incidentally collected information. Today, those agencies can query a database of incidental collection on Americans. The NSA can legally pass information to those other agencies. This has to stop. Data collected by the NSA under its foreign surveillance authority should not be used as a vehicle for domestic surveillance.
The most recent reauthorization modified this lightly, forcing the FBI to obtain a court order when querying the 702 data for a criminal investigation. There are still exceptions and loopholes, though.
Third, we need to end what's called "parallel construction." Today, when a law enforcement agency uses evidence found in this NSA database to arrest someone, it doesn't have to disclose that fact in court. It can reconstruct the evidence in some other manner once it knows about it, and then pretend it learned of it that way. This right to lie to the judge and the defense is corrosive to liberty, and it must end.
Pressure to reform the NSA will probably first come from Europe. Already, European Union courts have pointed to warrantless NSA surveillance as a reason to keep Europeans' data out of US hands. Right now, there is a fragile agreement between the EU and the United States -- called "Privacy Shield" -- that requires Americans to maintain certain safeguards for international data flows. NSA surveillance goes against that, and it's only a matter of time before EU courts start ruling this way. That'll have significant effects on both government and corporate surveillance of Europeans and, by extension, the entire world.
Further pressure will come from the increased surveillance coming from the Internet of Things. When your home, car, and body are awash in sensors, privacy from both governments and corporations will become increasingly important. Sooner or later, society will reach a tipping point where it's all too much. When that happens, we're going to see significant pushback against surveillance of all kinds. That's when we'll get new laws that revise all government authorities in this area: a clean sweep for a new world, one with new norms and new fears.
It's possible that a federal court will rule on Section 702. Although there have been many lawsuits challenging the legality of what the NSA is doing and the constitutionality of the 702 program, no court has ever ruled on those questions. The Bush and Obama administrations successfully argued that defendants don't have legal standing to sue. That is, they have no right to sue because they don't know they're being targeted. If any of the lawsuits can get past that, things might change dramatically.
Meanwhile, much of this is the responsibility of the tech sector. This problem exists primarily because Internet companies collect and retain so much personal data and allow it to be sent across the network with minimal security. Since the government has abdicated its responsibility to protect our privacy and security, these companies need to step up: Minimize data collection. Don't save data longer than absolutely necessary. Encrypt what has to be saved. Well-designed Internet services will safeguard users, regardless of government surveillance authority.
For the rest of us concerned about this, it's important not to give up hope. Everything we do to keep the issue in the public eye -- and not just when the authority comes up for reauthorization again in 2024 -- hastens the day when we will reaffirm our rights to privacy in the digital age.
Dozens of states are now facing up to the challenge of reducing correctional spending while improving public safety. In an excerpt from a forthcoming book, two experts examine “accountability courts,” one of the initiatives launched by Georgia Gov. Nathan Deal that have already curbed the projected growth in state prison populations.
On Monday, The Crime Report, in partnership with The Pantagraph, described the criminal justice reforms that have resulted in major reductions in prison populations in Illinois. We are pleased to publish an excerpt from a book looking at similar efforts in Georgia and elsewhere. The book, “Start Here: A Road Map to Reducing Mass Incarceration,” will be published in March by The New Press. Its authors are Greg Berman, director of the Center for Court Innovation, a New York-based think tank that works to improve the performance of state courts and criminal justice agencies; and Julian Adler, the center’s director of research-practice strategies. The excerpt has been condensed for space.
When Republican Gov. Nathan Deal took office in January 2011, Georgia’s prison population was still growing; the corrections budget had already reached $1 billion per year. “I was told that as Governor, I should be prepared to build two new adult prisons because our prison population would grow by another 5,000 during my first term,” recalls Deal, a former prosecutor.
Georgia is not alone in its efforts to analyze the future trajectory of its criminal justice system. In recent years, dozens of states have sought to simultaneously reduce correctional spending and improve public safety. Much of this work has been driven by something known as the Justice Reinvestment Initiative. The idea behind justice reinvestment is simple: to encourage administrative and legislative changes at the state level that will result in significant cost savings in terms of reduced spending on corrections. These savings can then be “reinvested” in community-based rehabilitative programs.
The idea behind justice reinvestment might be straightforward, but the implementation is not. It involves all three branches of government agreeing to work together. It requires intensive data analysis. And it demands a commitment to bipartisan political consensus. To help states interested in embarking down this path, nonprofit groups, including the Council of State Governments and the Pew Charitable Trusts, provide research support and strategic advice, much of it underwritten by the U.S. Department of Justice.
Tackling Drug Crime First
“The fact that we were ultimately able to [institute change] in Georgia, a state that has legislative and executive branches run by Republicans, makes for a pretty interesting conversation about the soundness of smart-on- crime policy reform initiatives,” notes Georgia Supreme Court Justice Michael P. Boggs. In 2012, Boggs was appointed by Gov. Deal to serve as co-chair of the Criminal Justice Reform Council, a group charged with finding problems to solve within the criminal justice system that might yield to bipartisan consensus. The first problem the council chose to tackle was drug crime.
Justice Boggs had witnessed the potential of alternatives to incarceration firsthand, having once presided over a felony-level drug court in Georgia. Even those without a personal connection were won over when they reviewed the research literature, which credited adult drug courts with appreciable reductions in both recidivism and drug use. Several studies documented even larger effects for higher risk individuals and users of more serious drugs (for example, heroin and cocaine).
The Criminal Justice Reform Council recommended expanded funding for drug courts and other specialized “accountability courts” in Georgia. “We’ve not only expanded the number of accountability courts but we’ve enlarged the scope,” explains Boggs. “We are now increasing the number of veterans’ courts, family dependency courts, DUI courts, mental health courts, and of course adult felony drug courts.” Georgia’s accountability courts now have the capacity to serve upwards of 3,500 participants each year…
The decision to start with drug crimes in Georgia was strategic. “By focusing on this segment of our prison population first, we proved that there was a better way,” explains Governor Deal. He adds that the success of this initial reform effort paved the way for a more expansive and ambitious approach to rethinking incarceration in Georgia … Deal says, “That allowed us to move into some of the more difficult areas of criminal justice reform: community-based diversion programs for juveniles; reforms within our prison system which focused on increasing educational and technical skills of inmates.”
All of these moves were accomplished with bipartisan support. According to Zoë Towns, of the Pew Charitable Trusts, the ultimate impact was dramatic: “In a state like Georgia, the governor put the brakes on forty years of very fast, very steep growth in the prison population.” The numbers suggest that Georgia has indeed succeeded in bending the curve, significantly altering the projected growth in the state prison population.As we write this, Georgia’s prison system has about 8,000 fewer inmates than was projected for 2017. And the number of African Americans committed to Georgia prisons had dropped to roughly 10,000 from more than 13,000 in 2009.
That said, the number of Georgians behind bars is essentially the same today as it was in 2009. Years of effort and energy by really smart and committed people have altered Georgia’s trajectory, but they have not dramatically reduced the number of people behind bars.
Change ‘Won’t Happen Overnight’
So what are we to take away from the Georgia experience? The most important lesson is that reducing incarceration in the United States is not going to happen overnight. Reformers in Georgia have devoted an enormous amount of time, money, and political capital to the cause of reform. They have found that the criminal justice system changes course slowly, if it changes course at all …
Seizing the current window of opportunity means more than just identifying the right policy goals or providing money to scale up model programs. We need to be thoughtful about the details of implementation, and give practitioners the tools and training they need to do things differently. We need to actively engage frontline justice professionals in the reform process to ensure that they will take ownership of new ideas rather than working behind the scenes to subvert them …
And we must also have the patience and resolve to pursue the goals of reform not just for an election cycle or two, but over the course of a decade or more. There are no quick fixes or easy solutions here. But there is a lot of room for improvement.
Greg Berman is director of the Center for Court Innovation, a New York-based think tank that works to improve the performance of state courts and criminal justice agencies. Julian Adler is the center’s director of research-practice strategies. The authors welcome readers’ comments.
Secret proprietary algorithms used to make decisions on bail, sentencing and parole make our justice system less accountable, according to a Duke University professor. She proved software engineers could create simpler risk assessment tools that were more transparent, but just as accurate, by working with colleagues to create one.
The justice system is increasingly turning to complicated computer algorithms to help make decisions about bail, sentencing and parole. But many question whether paying private software companies to use secret algorithms in criminal justice is in the public’s best interest.
Last month, New York City passed the country’s first legislation to subject such algorithms to greater public scrutiny. Known as the Algorithmic Accountability Bill, it established a task force to examine how algorithms are used by city agencies. Lauded by some as a watershed moment for ending the algorithmic bias of so-called “black box” systems in the justice system and elsewhere, it was called too ambitious by others.
But there’s another way to make some of the algorithms in courts more accountable—by using transparent models derived from public data and public source code. The new models are free, the new algorithms are already in public code repositories, and they could save taxpayers money.
Risk assessment tools, which have been in use since the 1920s, analyze how people with similar profiles have behaved in the past to predict a defendant’s likelihood of committing a crime again in the future. As many as 60 such tools are in use across the country.
The American Law Institute’s Model Penal Code, currently being revised for the first time since 1962, has adopted language endorsing the role of risk assessments. Advocates say they help judges determine the risk that an individual poses to society more consistently than predictions based on human intuition and experience alone.
So the question is not whether the justice system should embrace risk assessment algorithms, but which ones they should use.
However, the opaque and proprietary nature of many of the new prediction tools presents unique challenges.
One commonly used tool, COMPAS, is proprietary. We do not know its secret formula. It scores a person’s risk of recidivism and assesses their “needs” based on 130-plus items including criminal history, age, gender and other information, such as whether their mother was ever arrested or whether they have trouble paying bills.
And its use has led to mistakes.
In 2016, Glenn Rodríguez, an inmate at the Eastern Correctional Facility in upstate New York, was mistakenly denied parole–despite a record of good behavior behind bars—because a corrections employee checked a wrong answer on his COMPAS survey.
And in 2017, a 19-year-old San Francisco man was released from jail based on a miscalculation of a different risk score that deemed him only medium risk, just days before he allegedly killed someone.
Such errors are possible in any risk assessment. Data could be flawed due to typos, missing data, inaccurate information or other problems. But it is hard to know when or why a flaw occurs if the calculation is proprietary. When these mistakes go unnoticed, courts could easily base high-stakes decisions on information that isn’t true.
New methods for interpretable machine learning have developed over the last few years. The new methods can provide predictions for future criminal behavior just as accurately as “black box” models, but their predictions are completely transparent.
They enable people to see exactly why they received the risk score they did. They can make the justice system more reliable and could save millions of dollars.
Since they are developed using public data and public source code, outside researchers can test them for accuracy and racial bias, or evaluate them against other models.
In a recent academic paper, my colleagues Elaine Angelino, Nicholas Larus-Stone, Daniel Alabi, Margo Seltzer and I recently used a new machine-learning algorithm we designed, called CORELS, to produce simple yet accurate models that predict a person’s likelihood of re-arrest.
One predictive model from the CORELS algorithm says that if someone has (i) at least 3 prior offenses, or (ii) if they have 2 or more priors and are between 21 and 23 years old, or (iii) they are younger than 21 and male, then we should predict that they will be arrested within two years of release. If none of the conditions are met, the model predicts they will not be arrested. Even though the models from CORELS are simple, our study using data from thousands of individuals in Broward County, Florida, shows they are as accurate as COMPAS and many other state-of-the-art machine-learning methods, for both blacks and whites.
The other machine-learning methods often produce formulas that are too complicated to fit on a page, rather than a set of rules like the CORELS model above. All of CORELS’ code and the data are publicly available.
Given the existence of these simpler models, why do we still use proprietary models instead?
Last June, the U.S. Supreme Court declined to hear an appeal by a Wisconsin man named Eric Loomis, who said he was denied due process because his prison sentence was based on a prediction made by a secret computer algorithm that its private developer, the maker of COMPAS, refused to explain.
New York City’s Algorithmic Accountability Bill represents an opportunity for decision-makers to consider these issues again.
The task force established by the bill will have 18 months to figure out how to test algorithms that could be used by courts, police and city agencies for bias, and make them more understandable to the public.
But when it comes to criminal justice, simply providing an explanation of a black box prediction, and a means to seek redress—as the bill proposes—is not enough. Explanations do not reveal the full truth.
If New York City takes this bill seriously, it would not allow proprietary models at all for risk assessments. Proprietary models are error prone (leading to dangerous situations for the public), potentially unfair, raise due process questions, are a waste of taxpayer dollars, and have not been shown to be any more accurate than extremely simple transparent models.
Transparent models are strictly better for the justice system in every possible way.
A Washington State parole board rejected our columnist’s appeal for release from prison for a crime committed when he was a juvenile on the grounds that he had a “moderate to high” likelihood of re-offending. But they appear to have based the decision on a psychological risk assessment tool used to measure adult offenders.
Across the United States, there are hundreds of prisoners serving sentences of life without the possibility of parole for crimes committed when they were juveniles, but who now have an opportunity to be freed from newly imposed indeterminate sentences once they complete lengthy minimum terms of confinement. I am one of them.
Call us the Miller family. (After the 2003 Supreme Court Miller vs. Alabamaruling that determined imposing a life without parole sentence on a juvenile violated constitutional protections from cruel and unusual punishment.)
My original sentence was imposed for crimes that I committed when I was 14. However, in light of the Court ruling, the Washington State legislature gave prisoners like me the opportunity to be freed—provided that we are deemed by the parole board to be unlikely to “commit new criminal law violations if released.”
I must admit I rejoiced at this news after serving 20 years of a natural-life sentence. Yet as I moved closer to completing my newly imposed minimum term, I came to realize that the light at the end of the tunnel might actually be a train: my former cellmate, Anthony Powers, was denied parole even though, to many in the know, he was a model of reform.
Take the Deputy Secretary of the Department of Corrections (DOC), for example. Prior to the parole hearing, he wrote to Powers declaring:
Nevertheless, when Powers later underwent the requisite psychological assessment to determine whether he posed a recidivism risk, the conclusion was that he posed a high risk to reoffend.
This made me wary—for the arc of our lives had striking similarities. I too had committed a heinous crime when I was a teen. Therefore, to my mind, if it could be said that “a role model for other offenders” posed a risk to public safety, surely the same could be said for me.
My history provided all the elements necessary to craft a narrative to support keeping me confined, permanently, or setting me free—notwithstanding the results of a potentially negative psychological risk analysis.
Quite simply, there was the good, the bad, and the ugly.
Were this the parole board’s conception of me, undoubtedly I would be freed.
This is the narrative that I tried to focus upon to prevent being consumed by worry over psychological methodologies that were, quite frankly, a mystery to me. But worrying was becoming all too easy. In doing research to understand the legal landscape governing the authority vested in parole boards, the case law that I read further unsettled me.
All of this reading was chilling. Given the “multiplicity of imponderables” involved in this decision making, it seemed parole boards could do damn near anything.
Although the standard for parole eligibility is less discretionary when (as here) the governing statutes require prisoners to be freed unless a preponderance of the evidence shows that a disqualifying condition is present; in the final analysis, how a parole board weighs the evidence is entirely subjective.
Educated guesses and static risk assessments are all that most parole boards are left with. As a consequence, little has changed in the 50 years since the Washington Supreme Court gave voice to the mindset of parole boards:
This begs the question: How can a parole board with any degree of certainty utilize a rational means to separate prisoners who are “depraved, sadistic, cruel and ruthless” from those who pose little risk to public safety?
Psychological evaluations to measure a prisoner’s recidivism risk are one way to go about the process. In fact, they are mandated for Washington State prisoners affected by Miller v. Alabama and its progeny.
Prisoners just like me.
Stafford Creek Corrections Center, Aberdeen, Wa., where Jeremiah Bourgeois is currently serving a sentence of 25 years to life. Photo courtesy Washington State Dept. of Corrections
Which leads us back to my pre-parole hearing wariness about psychological risk assessments.
On which side of the coin would I fall on after undergoing such an analysis?
Rehabilitated or likely recidivist?
This question was resolved for me on Nov.7, 2017, when the Indeterminate Sentence Review Board informed me of the following:
“The Board commends Mr. Bourgeois for completing a significant amount of programming. However the Board has determined that he does not meet the statutory criteria for release at this time for the following reasons. Mr. Bourgeois has been assessed in his most recent psychological evaluation at a ‘Moderate to High’ risk to reoffend. Additionally, he has a history of serious violence while in prison, to include two felony assaults against Corrections Officers during his prison stay. Also, Mr. Bourgeois’ offense is particularly heinous as it was a revenge killing against victims of a crime for which they had been willing to testify in court to assist in securing a conviction of their perpetrator, Mr. Bourgeois’ brother.”
And that was the end for me: The parole board took note of the good, but was primarily influenced by the bad—and ugly.
Since this decision was reached, I have come to understand the methodology behind the DOC psychologist’s finding that I am a “Moderate to High risk to reoffend” if conditionally released. Indeed, my discovery gives insight into the difficulty in assessing the recidivism risk of those who have spent decades confined for crimes that they committed when they were minors.
Since there is no large-scale data specific to the parole outcomes of prisoners like me, psychologists within DOC rely upon the Violence Risk Appraisal Guide (VRAG) which was constructed and validated on a cohort comprised mostly of white Canadian male forensic patients.
Further, in its revised edition (VRAG-R), relies upon a sample of individuals who, for the most part, either plead or were found not guilty by reason of insanity and spent an average of four years imprisoned.
The VRAG-R is designed to measure the risk of future violence by those who committed their instant offense when they were adults, not adolescents and, as Dr. John Monahan, a preeminent expert on risk assessments, explains:
The VRAG-R scoring sheet, for instance, gives higher points if a person did not live with their parent(s) until they were at least age 16, are unmarried, and their crime(s) took place before they were age 26. These strikes are therefore baked in the cake when assessing those who are confined as adolescents because, ultimately, the assessment does not account for the fact that “children are different.”
Notwithstanding the efficacy of utilizing the VRAG-R to assess the potential risk I pose to public safety—as I said in the beginning—my history provided the means for crafting a narrative to support keeping me confined permanently, or setting me free.
In this instance, I just happened to fall within the category of those believed to be cloaking their criminogenic propensities.
I am still coming to terms with the notion that I am a likely recidivist.
Having been denied parole after 25 years of confinement for crimes committed when I was 14-years-old, I can now envision the day when all I will have to live for is writing my monthly columns for The Crime Report.
Jeremiah Bourgeois is a regular contributor to TCR, and an inmate in Washington State, where he has been serving a life sentence since the age of 14. He welcomes comments from readers. Those who wish to express their opinion regarding the decision to deny his release can contact the Indeterminate Sentence Review Board. Readers’ comments are welcome.
Justice-involved women, particularly women of color, are often “exploited” twice: first by human traffickers, and then by a court system that focuses on punishment rather than on providing the trauma services and counseling they need, said a New York City judge.
The rising number of incarcerated women has focused more attention on the need for trauma-informed services for domestic abuse and trafficking victims, New York City judges and advocates told a webinar organized by Project SAFE in partnership with The Center for Court Innovation Thursday.
Many women passing through the criminal justice system are victims of sexual abuse and exploitation, rather than being convicted criminals—but courts often aggravate the harm already done to them, said Toko Serita, a judge at the Queens (NY) Misdemeanor Treatment Court.
“The courts are further exploiting their victimization,” Serita said. “There’s something wrong with seeing women in court who shouldn’t be there in the first place because they were forced into prostitution.”
The webinar, titled “Specifying the Needs of Justice-Involved Black Women,” noted that a substantial number of those caught in the prison pipeline are women of color, and many are victims of domestic violence or human trafficking.
Speakers detailed the importance of intervention courts, such as human trafficking courts, drug courts and mental health courts, which provide treatment and assistance for women all over New York City.
They are also among the nation’s most vulnerable population. Those found working for massage parlors, escort services, and strip clubs are more likely to be arrested for prostitution and loitering–even though many are victims of human trafficking, the webinar was told.
In 2013, then New York State Chief Judge Jonathan Lippman spearheaded efforts to address the problem of criminalizing abuse victims by creating eight new human trafficking courts, in addition to three working courts in Queens, which included judges, prosecutors, and defense attorneys who were informed about the dynamics of sex trafficking and could offer services to victims.
These courts refer victims to social services, vocational and educational training, domestic violence and sexual assault services, and substance abuse and mental health treatment centers.
Victims who comply with the mandated services have the opportunity to receive non-criminal dispositions or dismissal of their case.
“This has been a quite successful model,” said Judge Serita, who said her court now hears 200 cases a year.
However, it can be difficult to measure the success of human trafficking courts: Often, victims return to their pimp or former abuser.
Compared to drug courts, which have been proven to reduce recidivism, it may take a woman between seven and eight attempts before she leaves her abuser, said Afua Addo, a coordinator for Gender and Justice Initiatives.
“When someone is being trafficked, you’ll see them re-arrested a number of times because they don’t have a choice in what they’re doing,” Judge Serita responded.
“They might be under the control of a pimp and not have many resources. I have never put anyone in jail because they were arrested for another prostitution charge.”
When it comes to trafficking and sex abuse, there is never a “perfect victim,” the webinar, which was held during “Human Trafficking Awareness Month,” was told.
The unique circumstances each individual faces makes it difficult to provide a uniform response from the courts.
“It’s more how can we help this person so she doesn’t get arrested again and can leave her trafficker,” said Serita.
Significantly, trafficking victims are always in recovery from traumatic experiences, and understanding how trauma is perceived can help the criminal justice system move forward with trauma informed care, she continued.
Domestic violence is another form of trauma that can lead to incarceration, and 80 percent of black women in prison have been abused by a husband or loved one, reported the webinar.
Largely, the victimization of women reflects the issue of how women are valued in society, noted Addo.
“It’s hard to acknowledge black women as victims in need of care and support because of systemic racism and sexism.”
Childhood abuse also plays a role in the pipeline to prison.
“Youth who experience childhood trauma and neglect are 59 percent more likely to be arrested as a juvenile, 29 percent more likely to be arrested as an adult and more likely to commit violent crime,” according to Project SAFE.
“And girls often are on the receiving end of abuse and neglect, twice the amount as boys.”
The most important thing we can offer victims of abuse is an open door, Addo said.
“You can’t force someone to leave their abuser—but you can provide an open door.”
Editor’s Note: Anyone who wishes to access the full recording of the Webinar “Specifying the Needs of Justice-Involved Black Women” should contact Mara Chin Loy at firstname.lastname@example.org.
Megan Hadley is a staff writer at The Crime Report. Readers’ comments are welcome.