How to Reduce the ‘Safety Hazards’ of Plea Bargaining

The U.S. legal system should apply engineers’ tactics for minimizing risk to the plea bargaining process to prevent innocents from going to jail, Israeli law professor Boaz Sangero writes in a paper for the Pace Law Review.

The U.S. legal system should apply engineers’ tactics for minimizing risk to the plea bargaining process to prevent innocents from going to jail, according to Israeli law professor Boaz Sangero.

In a paper entitled “Safety from Plea Bargains’ Hazards,” Sangero, who heads the Criminal Law and Criminology Department at the Academic Center of Law and Business in Israel, claims plea bargains pose a safety hazard because of the way they incentivize defendants to plead guilty regardless of their actual innocence or guilt, resulting in false convictions.

Sangero’s article, published this summer in the Pace Law Review, argues that this risk can be mitigated through the adoption of an engineering safety model called the “System-Theoretic Accident Model and Processes” (STAMP).

STAMP seeks to identify potential safety hazards and put “constraints” in place to prevent them before they occur.

The vast majority of cases in the American criminal justice system are settled through plea deals—97 percent of all federal cases and 94 percent of state ones. In a plea-bargain arrangement, the defendant admits to an offense in exchange for a lighter sentence from the prosecutor than could be expected following a conviction at trial.

Advocates of plea bargaining emphasize their supposed benefits for the state and the defendant. The former saves the resources it would otherwise spend on conducting a full trial; the latter receives more lenient sentencing.

But for precisely these reasons, the plea-bargain system runs the risk of locking up the innocent.

Plea bargains make sentencing significantly more efficient for prosecutors, allowing them to file many more indictments than they realistically could try.

This spares prosecutors from needing to screen cases before indicting. While they might otherwise be forced to weed out those cases where the charge is minor and the evidence weak, plea bargains enable them to overcharge, knowing that most cases will be resolved quickly and without going to trial.

Meanwhile, the threat of heavy “trial penalties”—more severe punishments should defendants go to trial and lose—incentivize defendants to plead guilty regardless of their actual innocence or the strength of the case against them.

Sangero cites the 1999 Tulia scandal, in which the testimony of one undercover cop in Tulia, Tx., later shown to be an unreliable witness, resulted in the conviction of 38 people on drug charges, as one example of a case where many innocent defendants were charged, and a majority of them pled guilty.

A judge later overturned all 38 convictions, begging the question why so many innocent people pled guilty in the first place.

The likely answer lies in the disparities in sentencing. A Tulia defendant who accepted a plea bargain received an average of four years in prison, compared to the 51 years received by a defendant who plead innocent and was convicted at trial.

Citing data from the Innocence Project, Sangero estimates that the false conviction rate is at least five percent for the most serious crimes, and potentially higher for more minor infractions.

To put that number in context: in 2006 (more recent aggregate data is difficult to come by), state courts sentenced an estimated 1,132,290 persons for a felony conviction. Using the Innocence Project estimates, that translates to over 55,000 false felony convictions at the state level alone.

But while false convictions are not uncommon, they often go undetected. Exonerations are exceedingly rare, leading policymakers and the public to believe that the justice system is functioning well when in fact large numbers of innocent people are behind bars.

“The plea-bargain system in its entirety is truly a disaster, particularly from the perspective of the need for safety from false convictions,” Sangero writes.

“Indeed, it is an anti-safety system.”

Though Sangero himself is a proponent of abolishing plea bargains entirely, he concedes this is unlikely to happen any time soon. So to mitigate the harm he says is caused by the process, he proposes applying STAMP to the criminal justice system to reduce the number of innocent defendants who are incarcerated on plea deals.

STAMP involves determining what “constraints” are necessary to make the system function without mishap and creating a structure that will enforce those constraints.

In the case of the plea-bargaining system, this means strengthening the pre-screening procedures for indictments. Courts, Sangero says, should review whether the evidence of the defendant’s guilt merits his or her indictment in the first place.

He also calls for recognizing defendants’ right to a fair plea-bargain offer so that the offer a defendant receives is not dependent on the goodwill of a particular prosecutor.

The court should supervise the prosecution’s policy for determining the divergence between the punishment offered in a plea deal and that expected if convicted at trial, Sangero writes, so as to remove any enticement to confess for the innocent. This it a normal practice in the German legal system, he points out.

In the event that a guilty plea is entered, the court must ensure that the defendant’s confession of guilt was made with adequate legal representation and not under duress from the prosecution.

“There have always been, and always will be, accidents. In some aspects of our life, this appears to be an inevitable reality,” Sangero writes.

“However, a high rate of accidents is not an unavoidable fact of life, but rather the product of human negligence; or even indifference—when we are aware of the danger but do not act purposefully to reduce it.”

Sangero argues that adopting STAMP will “significantly reduce the terrible phenomenon of false convictions based on plea bargains.”

Elena Schwartz is a TCR news intern. Readers’ comments are welcome.

from https://thecrimereport.org

Lucas County, Ohio: A Case Study in Fixing America’s Broken Jails

Justice stakeholders in Lucas County, in Ohio, used a grant from the MacArthur Safety +Justice Challenge to tackle jail overcrowding. They achieved significant reductions of 24 percent in pretrial population alone.

For years, the jail in Lucas County, Ohio was an embarrassment.

Elevators didn’t work; inmates slept on floors because of overcrowding; and living conditions resembled an “overall cesspool,” recalls Sheriff John Tharp.

John Tharp

Lucas County Sheriff John Tharp

But today overcrowding has eased with a 24 percent reduction in the pretrial jail population, and a spirit of optimism is shared across the county that they are on their way to significant change.

What happened?

The answer, Tharp and other Lucas County officials told a conference at John Jay College this week, came from a shift in perspectives that involved rethinking how all the parts of the justice system could work together efficiently.

And it involved listening to the individuals who were at the system’s short end: the jail inmates themselves.

“People felt that the system was listening to them,” said Holly Matthews, executive director of the county’s Criminal Justice Coordinating Council, a multi-stakeholder group formed to guide the county’s painstaking journey towards reform.

“They felt they had a voice in the system…[and] this is the outcome you want,” she said.

Holly Matthews

Holly Matthews. Photo by John Ramsey/TCR

In 2016, Lucas County was one of ten “core” sites selected as part of a nationwide effort by the John D. and Catherine T. MacArthur Foundation “Safety + Justice Challenge” to explore ways to fix the nation’s broken jail system. Over the past several decades, jails have emerged as the hidden drivers behind the rise in mass incarceration, with jail populations—particularly in rural areas—tripling since 1980 even as prison numbers fell.

“Research has shown that spending as few as two days in jail can increase the likelihood of a sentence of incarceration,” the foundation said in a statement describing the program. “(It makes) jail a gateway to deeper and more lasting involvement in the criminal justice system.”

See also: Rural (InJustice): The Hidden Crisis in America’s Jails

The $25 million program, which will expand to an estimated 40 jurisdictions, aims to incubate innovative approaches that could serve as models across America of ways to relieve overcrowding.

The county received a grant of $1.76 million to implement its plan for change over a two-year period.

The key stakeholders gathered at John Jay to discuss the results of what was, in effect, a case study in changing hearts and minds before a group of rural reporting fellows participating in a two-day conference exploring the roots of the jail crisis.

The Challenge

The growth of the jail population in Lucas County and the consequent overcrowding reached a degree which demanded a reform in Lucas County’s method of making pretrial release and detention decisions.

In 2014, a year after Tharp was elected sheriff , his focus became building a new jail to remedy these pressing issues. His fervor helped initiate the process of positive change.

Gene Zmuda

The Hon. Gene Zmuda. Photo by John Ramsey/TCR

The obvious first question in constructing a new jail is “What size does it need to be?’

It was a seemingly simple question, but it caused county officials to step back and examine what was driving their increase in jail numbers. They singled out an assessment instrument used in determining whether defendants would be offered bail—a tool used for decades but provided little useful information about the arrestee’s background.

“It was the gospel tool, but it really wasn’t efficient,”  said Judge Gene Zmuda of the Lucas County Court of Common Pleas, who became one of the prime players in the criminal justice coordinating council.

Zmuda said the tool, which had been used for decades in many jurisdictions around the country, contributed to the harmful system in which high-risk, wealthy individuals are frequently released from jail pending trial, while low-risk—usually nonviolent—defendants spend a significant amount of time in jail simply because they cannot afford to post bail.

In order to holistically consider the factors that contribute to an individual’s risk to society and therefore their release, Lucas County adapted the Arnold Foundation Public Safety Assessment (PSA) tool in 2015.

As defined by the Arnold Foundation, the PSA pretrial risk assessment tool “uses evidence-based, neutral information to predict the likelihood that an individual will commit a new crime if released before trial, and to predict the likelihood that he will fail to return for a future court hearing.”

Additionally, the tool indicates individuals who have a heightened probability of committing a violent crime while release on recognizance.

Race and gender neutral, this tool considers the answers to nine questions, gathering information on factors such as age, current offense, and prior convictions (including violent offenses).

“Because this is a risk-based tool, it allows judges to make more informed decisions,” explained Zmuda.

Within three years, this new method resulted in a 30 percent reduction in the average Failure to Appear (FTA) rate, and a 50 percent reduction in the average crime committed, including violent crime, said Matthews.

These figures underscored the county’s goal of keeping the community safe while lessening the strain, both fiscal and social, that a swollen jail population creates.

The positive effects that this one change induced led officials to examine additional areas of their justice system where reform seemed promising and impactful.

“We know we can do [even] better while still maintaining public safety and providing the appropriate services to our community,” says Matthews.

At that point, Lucas County applied for and was selected to participate in the Safety + Justice Challenge.

Strategies for Change

Lucas County selected five strategies to implement after sitting down with stakeholders to fully understand their system and identify problem areas.

One: Pre-arrest Deflection

The main goal of this first strategy is to prevent an individual from coming in contact with the jail (and the justice system) in the first place.

This “pre-arrest” phase revolved around law enforcement. Police have the discretion to determine the next step for an individual: take him or her into custody, send the individual  home, or refer her to a crisis center. Officers received training in skills needed for crisis intervention.

In partnership with the Center for Court Innovation, Lucas County planned to implement a four-hour deflection curriculum class for individuals who commit specific targeted offenses including drug possession, disorderly conduct, and obstructing official business.

If an individual completes this course within a month of eligibility, no charges will be filled against. This breaks the revolving door,  and reduces the amount of low-risk, nonviolent offenders being sent to jail.

The reason for the delay in complete implementation, notes Matthews, is finding a place where officers feel comfortable bringing an individual eligible for this deflection class, but who needs to be removed from the scene and assessed.

For example, an intoxicated individual arrested for disorderly conduct will not understand the conditions of the diversion course until after he or she is sober.

Two: Managing Based on Risk

The notion of whether or not someone will be released from custody after  arrest using a validated risk tool is just the beginning, says Zmuda.

“Once you decide that a [person] is not really a threat to the community or themselves, and therefore shall be released,… how do we deal with it?” he said.

It’s important to get an individual who poses no threat released as quickly as possible from jail,because even a few days in jail can make someone more “criminal minded” and therefore more likely to commit additional offenses, said the judge.

The question then becomes what extent of oversight should the justice system have on that released individual?

Strategy Two has created a “risk score” using the PSA tool to determine the amount of connection that an individual has with the court. The higher the score, the more the connection.

This score, along with the results from the PSA questions, are entered into a digital dashboard allowing officials to easily find comprehensive information for specific offenders in a timely manner.

Zmuda also notes the effectiveness of electronic monitoring as a risk oversight tool, saying that the person is not taking up resources in custody, yet is still not free; there are considerable restrictions placed upon those individuals.

With the digital dashboards, information of offenders supervised by electronic monitoring who enter a restricted zone is immediately added to the dashboard, notifying officers, officials, as well as victims (if applicable).

Three: Population Review Team

The sharing of information is crucial to understanding the whole picture, especially in the case of an offender. Under this strategy, the digital dashboards are shared with all stakeholders involved. This is especially useful for judges, who can now see information on an individual in real-time on the bench when making sentencing or bail decisions.

In order to compile this data, Lucas County has formed a population review team, consisting of a group of officials who review the pretrial jail population on a weekly basis. They look at each specific case to determine exactly who is in the jail and why, including examining documents such as arrest reports, affidavits, and plea negotiations.

According to Matthews, this comprehensive collaboration and review saved 1,800 contracted jail bed days in 2017, effectively eliminating the county jail’s sentence-serving population.

In addition, this team of pretrial service professionals reviews bond recommendations which includes prosecutors, public defenders, pretrial service professionals, mental health personnel, the Lucas County Sheriff’s office and Commissioners’ office. This results in the identification of individuals who are suitable for expedited case resolution or bond modification, getting a defendant through the system as quickly as possible.

This strategy is very effective in quantifying trends that show who is being put in jail, why and for how long, allowing officials to pinpoint potential issues within the jail system.

Four: Diversion of the Underserved Population

Reaching populations that are under-served and overlooked within the system is imperative to addressing underlying issues driving jail numbers.

With the PSA tool, there are no disparities in the release decision of an offender. When determining an individual’s situation, a judge has no racial or gender-based bias that would lead to inequality in this decision (if based solely on the PSA).

In this implementation, as well as the deflection curriculum course, Matthews reported that the feedback of these strategies was overwhelmingly positive.

Five: Coordinated Probation Practices

When reviewing exactly who was in the Lucas County Jail, officials found that over30 percent of the population comprised individuals who violated parole.

One of the reasons why this number is so high is due to the lack of coordinated probation practices. Lucas County maintains five adult probation authorities which serve each of the five independent criminal courts within the county jurisdiction.

These different authorities did not coordinate in operating policies and procedures for offender supervision or case management for offenders serving probation in more than one court. This forces individuals on parole to juggle different, sometimes conflicting, standards and obligations, resulting in technical violations of parole, landing the individual in jail for a minor infraction.

To facilitate coordination, Lucas County hired a community corrections coordinator who brought training and evidence-based practices to the facilities; stressing the importance again of sharing information.

Results

Since the implementation of these strategies in 2016, the Lucas County average daily jail population has undergone a 26.3 percent reduction.

Not only is the general total on a decline but the population of inmates in jail for pretrial detention was reduced by 20 percent.

Lucas County found that African Americans represent 58 percent of the arrested jail population while they represent only 19 percent of the general community population and 29 percent of those diverted from the system.

This made it clear that in order to address racial and ethnic disparities within the justice system, the focus must be on arrest and diversion.

As Lucas County shows, the role that pretrial deflection and post-conviction supervision plays in the reducing the jail population is critical.

After seeing the success that the SJC brought about within the jail system, Lucas County is currently applying to multiple foundations for additional grants, striving to expand these efforts and bring about greater positive results.

Laura Binczewski is a TCR News Intern. Readers’ comments are welcome.

from https://thecrimereport.org

Re-think Sentencing for Violent Offenders: Philly DA Larry Krasner

Six months after taking office, Philadelphia’s controversial DA says incarceration levels have dropped as a result of his reforms, with no increase in most categories of violent crime. But he argues that further reductions require changes in the way the justice system deals with individuals convicted of violent offenses.

The nation cannot effectively reduce prison populations unless the justice system changes the way it handles violent offenders and sex criminals, Philadelphia District Attorney Larry Krasner said Tuesday.

“This is the topic that the left and the press never want to talk about, because this is the tough one,” he told journalists at a John Jay College conference.

“Young people are all in favor of legalizing weed, but as soon as you say violent, there’s a certain visceral response,” said Krasner, who delivered the keynote luncheon address at the conference on “Rural (In)Justice: America’s Hidden Jail Crisis.”

“And yet the reality is, if you’re going to take a serious shot at reducing levels of incarceration, you do have to address this issue.”

While he acknowledged that the gravest offenses necessitate long sentences—“none of us are going to tolerate stranger rape, none of us are going to tolerate serial murder, none of us want Charles Manson walking around”—Krasner stressed the exorbitant cost of incarceration, and the potential good those funds could do in other areas.

He estimated that a five-year sentence in Philadelphia cost $210,000–roughly the same price tag as five public school teachers’ annual salaries.

“We disconnected all of this from the discussion of where the assets might otherwise have gone,” he said.

“Somehow we got to the point where one year just felt like five years, because we’re not talking about $210,000, or $420,000, and what that could have meant in terms of prevention in the long term.”

Krasner acknowledged that perpetrators should pay a price for crime, but “the price doesn’t have to be much higher than in every other country, and so debilitating that we bankrupt the public schools in Philly.”

The DA, who was elected last November after a long career as an outspoken public defender in America’s sixth-largest city, entered office with a sweeping plan to transform Philadelphia’s prosecutorial practices.

Less than three months after taking office in January, he issued a memo instructing assistant district attorneys to cease charging certain offenses entirely, and to charge lower gradations for others.

In addition to declining and lowering charges, Krasner recommended that district attorneys utilize diversion more frequently, implement bail reform, and opt for lower sentences when they do seek convictions.

“Don’t come up with artificial obstacles” to decarceration, he said, citing the example of a statute that prevented undocumented immigrants from being sent to diversion when charged with driving under the influence because they were prohibited from owning a driver’s license.

“What’s the big deal? So you expand it,” he said. “You expand the provisions that allow people to get in, and maybe you require more of those people so that there’s a level playing field. But you expand it.”

Currently, one of Philadelphia’s four jails stands empty, the result of efforts that Krasner conceded began before he was elected but accelerated since he took office. He said he expected the jail population to continue declining, a boon to taxpayers that, he pointed out, has done no discernable harm to public safety.

“The result of all these people getting out of jail is a reduction in homicides, a reduction in rapes, a reduction in armed robbery,” he said. “Shootings are up four percent, everything else in the violent category is down.

“Among the property offenses, the bottom line is a zero percent change.”

Krasner said the media and political opponents had warned during his election campaign that his policies would result in Philadelphia being overrun by violent criminals and “zombies.”

“But it turns out when you let some of the zombies out of the jail, they’re not really zombies,” he said.

He added that while he continued to face opposition from tough-on-crime advocates and from the Fraternal Order of Police, a substantial number of Philadelphians welcomed his reforms—including, he noted, the Guardians, the association representing African-American police officers in Philadelphia.

“The jail population…is dropping 13 a day [since] our policies went into effect,” he said. “So there’s no question there’s an impact, and there’s no question that the impact is significant.”

Elena Schwartz is a TCR news intern. She welcomes comments from readers.

from https://thecrimereport.org

Louisiana Justice Reforms Save $12.2 Million

Changes to criminal laws resulted in Louisiana’s prison population dropping to its lowest level in 30 years, which led to the savings. By law, 70 percent of money saved from the criminal justice changes must be used on education, inmate reentry, life skills, drug treatment and other programs aimed at keeping people out of prison.

Louisiana’s criminal justice overhaul saved the state $12.2 million, twice as much as experts had expected in the first year of the program, but less than the Department of Corrections had announced it would save just last month, says Gov. John Bel Edwards. Changes to criminal laws last year resulted in Louisiana’s prison population dropping to its lowest level in 30 years, which led to the savings, the New Orleans Times-Picayune reports. The state probation and parole population is also the lowest it has been in eight years. By law, 70 percent of money saved from the criminal justice changes must be used on education, inmate reentry, life skills, drug treatment and other programs aimed at keeping people out of prison.

That means the state should have $8.5 million available for those anti-incarceration efforts in the coming year. The remaining $3.7 million can be absorbed back into the state’s overall budget and used for purposes other than criminal justice. “Just as we’re beginning to reinvest in reentry programs, these savings will give so many people a new lease on life,” Edwards said. The Department of Public Safety and Corrections had announced in mid-June that it expected the savings to be even higher, about $14 million. That would have allowed for more money, about $9.8 million, to be spent on anti-incarceration efforts. A report to the Joint Legislative Committee on the Budget shows the difference between the two numbers can be attributed to the use of different formulas for calculating the savings. The Pew Charitable Trusts — which has provided technical assistance to Louisiana for over two years  — calculated the savings by using the growth in the prison population that was projected if the criminal justice overhaul never took place. That is why it came up with a higher savings total, around $13.9 million.

from https://thecrimereport.org

Memo to the New Court: Let’s Avoid ‘Stupid’ Law

A former Supreme Court Justice once said, allegedly quoting Thurgood Marshall, that the Constitution doesn’t prohibit legislatures from enacting “stupid laws.” The only check on judicial ignorance or duplicity is engaged voters, says a commentator on drug issues.

Whatever we think of individual policemen, lawyers, or judges, we have a lofty idea of the Law itself, ingrained in us by noble if flawed depictions in the media or civics classes.

Although we talk of someone “escaping justice” due to a loophole or a technicality, by and large, we believe that if you’re not guilty, you won’t be arrested.

If by some mistake you are arrested even though innocent, you will not be convicted. And even when its execution is faulty, the Law is backed by principles of Justice, of fair play and, above all, finding the truth.

Until we run afoul of the law, anyway.

Then we remember that the Law is mostly about control, maintaining order, enacted by legislators who may have political or personal motivations and that it need not be fair or rational.

The Law is Allowed to be Stupid

Former US Supreme Court Justice John Paul Stevens said—allegedly quoting fellow former justice Thurgood Marshall, though I can find no attribution that doesn’t come by way of Stevens, who did not share in what context he may have made the statement—“The Constitution does not prohibit legislatures from enacting stupid laws.”

Just as one may be released for a constitutional violation by the police or courts that does not in itself show their innocence, so too, one who has been convicted may not have evidence of innocence considered if there is no constitutional violation.

On two occasions, Supreme Court Justice Antonin Scalia almost said that innocence is no reason to halt an execution or compel a lower court to consider new evidence. (Actually, he said “claims of innocence,” as in affidavits.)

Similarly, if a law is based on demonstrably incorrect beliefs, that’s not enough reason for the courts to overturn the law.

As one commentator put it, if the government can show that the law is “rationally related or legitimate” in serving its purposes … even if it is idiotic”, the courts will likely grant it deference. Many judges believe that is still in the purview of the legislators, and they are under no obligation to change the law to correspond with the facts.

Marijuana

Take marijuana, or cannabis as many proponents of legalization prefer to call it.

Under federal drug law, it is kept on Schedule I of the Controlled Substances Act, the most restrictive list, and so is considered irredeemable: It is, according to the law, extremely addictive. It has no medical use. And, even if it did (which the law says it doesn’t), it has no safe use even under the direct supervision of a physician.

As applied to marijuana, those assertions are demonstrably false. It’s not just anecdotal evidence either.

All of those contentions have been contradicted by scientific study:

  • Millions of Americans and others have used marijuana “safely”. They have suffered no health problems, continue to hold down jobs, raise families, and contribute to society. No one has ever died from an overdose of marijuana, as even the Drug Enforcement Agency has affirmed. That’s more than can be said for many drugs that are on Schedule II or III, such as the opioids driving the opioid epidemic, aspirin, or alcohol which isn’t anywhere on the CSA.
  • There is some doubt as to whether marijuana is addictive at all. If it is, it’s an extremely low risk of addiction, with none of the severe side effects withdrawal from most addictive substances entail. Some researchers and rehab facilities in California believe marijuana can replace highly addictive opioids such as oxycodone and hydrocodone for treatment of chronic pain, actually preventing addiction.
  • Medical use. Thirty states now recognize that marijuana has medical benefits and allow its use for a range of conditions, including chronic pain, anxiety, epileptic seizures, and post-traumatic stress disorder.

There are fewer protests that cannabis can’t help some patients with some health conditions. Judge Alvin Hellerstein of the Southern District of New York said, “We recognize now that there are medical purposes marijuana can be useful for.”

Hellerstein was hearing a lawsuit that argued it was irrational and unconstitutional to place marijuana on Schedule I. He clearly didn’t buy that part of the government’s argument but decided that wasn’t enough reason to compel the Congress or the courts to do so.

Instead, he dismissed the case, arguing the plaintiffs should have exhausted the administrative process, i.e. continued to petition the Drug Enforcement Agency (DEA) to reclassify marijuana.

Many plaintiffs have tried. In the eyes of even a sympathetic judge, they should just keep banging their heads against the wall.

One reason the DEA has given for keeping marijuana on Schedule I appeared in its 2017 Drugs of Abuse resource guide: “the U.S. Food and Drug Administration that has the federal authority to approve drugs for medicinal use in the U.S…. has not approved a marketing application for any marijuana product for any clinical indication.”

That has since changed. In June, the Food and Drug Adminstration approved Epidiolex, an epilepsy medicine for children derived from marijuana—specifically, from cannabidiol (CBD), a non-euphoric, non-psychoactive cannabinoid found in marijuana and hemp.

It won’t get you high, so it’s not the same as marijuana—except that as recently as May, the DEA considers CBD as illegal as marijuana, and persuaded a federal appeals court to agree. It appears that a case could be made that FDA now considers marijuana as medicine.

Drug Courts

Some drug courts have likewise ignored the facts when it comes to how to treat drug offenders.

Some send offenders, even if not themselves drug users or drug addicts, to drug rehab camps that are more like work camps. No rehab other than free physical labor. If perchance the inmate/patient tests positive for drug use while there, they instead go to a traditional prison for the full sentence, no second chance, no sentence reduction for time already served.

As a New York Times article expressed it, if addiction is a disease, as even the US Surgeon General’s office now agrees, why is relapsing a crime? Statistics and experts at the National Institute on Drug Abuse say that relapse is likely, as it is with any “chronic medical illnesses such as diabetes, hypertension, and asthma.”

A relapse may be a one-time event. It may not be a return to constant or regular drug use. Sure, some may be people trying to game the system and stay out of jail without ever intending to stop using, but this system penalizes almost all addicts for being addicts. How many times has it taken more than one attempt to quit smoking?

Travel Ban

Likewise, the Supreme Court has upheld the latest version of the President’s travel ban. Lower courts had stalled the immigration ban because as a candidate Trump had promised “a total and complete shutdown of Muslims entering the United States”, which would violate the Establishment Clause’s religious freedom protections.

Once in office, he said, “I’m establishing new vetting measures to keep radical Islamic terrorists out of the United States of America,” meaning the first version of his travel ban. Later, adviser Rudy Giuliani said, “When he first announced it, he said ‘Muslim ban.’ He called me up, he said, ‘Put a commission together, show me the right way to do it legally’”.

That sounds like Trump wanted a ban on Muslims from entering the country, and the only reason he doesn’t call it that is because he wants it to seem legal.

The Supreme Court said, no, that would be an unwarranted assumption.

“We cannot substitute our own assessment for the Executive’s predictive judgments on such matters”, said Chief Justice John Roberts. Besides, not all of the countries on the amended list are majority Muslim, and “The text says nothing about religion.”

Of course, the Court couldn’t have called President Trump before them and asked him, under oath, whether he intended the eight-nation immigration ban to be a Muslim ban – it only has appellate jurisdiction—but this seems like more than judicial restraint.

It seems like determined judicial ignorance or duplicity in disguise.

Is There a Solution?

Legislatures and chief executives can craft laws inelegantly, or deliberately obfuscate, but the question is when or if the courts should intervene. Like it or not, whether or not the laws are rational is not a legal ground.

The problem is not that the legislatures, executives, and judges aren’t rational, it’s that people aren’t rational. From smoking to overeating, drug abuse to pollution, personal relationships to personal finances, people are inconsistent, illogical, and with all the survival instincts attributed to lemmings.

All people make mistakes or betray hidden prejudices, but they don’t like to be told when they are wrong. They would rather double-down on their misconceptions—belief perseverance—and there’s no reason to believe judges are immune, and certainly not legislators.

The best remedy isn’t in the courts or the congresses, but the voting booth. Vote. Organize. Stay informed. Otherwise, all those other idiots will make decisions for you.

Stephen Bitsoli, a Michigan-based freelancer, writes about addiction, politics and related matters for several blogs. He welcomes readers’ comments.

from https://thecrimereport.org

Memo to the New Court: Let’s Avoid ‘Stupid’ Law

A former Supreme Court Justice once said, allegedly quoting Thurgood Marshall, that the Constitution doesn’t prohibit legislatures from enacting “stupid laws.” The only check on judicial ignorance or duplicity is engaged voters, says a commentator on drug issues.

Whatever we think of individual policemen, lawyers, or judges, we have a lofty idea of the Law itself, ingrained in us by noble if flawed depictions in the media or civics classes.

Although we talk of someone “escaping justice” due to a loophole or a technicality, by and large, we believe that if you’re not guilty, you won’t be arrested.

If by some mistake you are arrested even though innocent, you will not be convicted. And even when its execution is faulty, the Law is backed by principles of Justice, of fair play and, above all, finding the truth.

Until we run afoul of the law, anyway.

Then we remember that the Law is mostly about control, maintaining order, enacted by legislators who may have political or personal motivations and that it need not be fair or rational.

The Law is Allowed to be Stupid

Former US Supreme Court Justice John Paul Stevens said—allegedly quoting fellow former justice Thurgood Marshall, though I can find no attribution that doesn’t come by way of Stevens, who did not share in what context he may have made the statement—“The Constitution does not prohibit legislatures from enacting stupid laws.”

Just as one may be released for a constitutional violation by the police or courts that does not in itself show their innocence, so too, one who has been convicted may not have evidence of innocence considered if there is no constitutional violation.

On two occasions, Supreme Court Justice Antonin Scalia almost said that innocence is no reason to halt an execution or compel a lower court to consider new evidence. (Actually, he said “claims of innocence,” as in affidavits.)

Similarly, if a law is based on demonstrably incorrect beliefs, that’s not enough reason for the courts to overturn the law.

As one commentator put it, if the government can show that the law is “rationally related or legitimate” in serving its purposes … even if it is idiotic”, the courts will likely grant it deference. Many judges believe that is still in the purview of the legislators, and they are under no obligation to change the law to correspond with the facts.

Marijuana

Take marijuana, or cannabis as many proponents of legalization prefer to call it.

Under federal drug law, it is kept on Schedule I of the Controlled Substances Act, the most restrictive list, and so is considered irredeemable: It is, according to the law, extremely addictive. It has no medical use. And, even if it did (which the law says it doesn’t), it has no safe use even under the direct supervision of a physician.

As applied to marijuana, those assertions are demonstrably false. It’s not just anecdotal evidence either.

All of those contentions have been contradicted by scientific study:

  • Millions of Americans and others have used marijuana “safely”. They have suffered no health problems, continue to hold down jobs, raise families, and contribute to society. No one has ever died from an overdose of marijuana, as even the Drug Enforcement Agency has affirmed. That’s more than can be said for many drugs that are on Schedule II or III, such as the opioids driving the opioid epidemic, aspirin, or alcohol which isn’t anywhere on the CSA.
  • There is some doubt as to whether marijuana is addictive at all. If it is, it’s an extremely low risk of addiction, with none of the severe side effects withdrawal from most addictive substances entail. Some researchers and rehab facilities in California believe marijuana can replace highly addictive opioids such as oxycodone and hydrocodone for treatment of chronic pain, actually preventing addiction.
  • Medical use. Thirty states now recognize that marijuana has medical benefits and allow its use for a range of conditions, including chronic pain, anxiety, epileptic seizures, and post-traumatic stress disorder.

There are fewer protests that cannabis can’t help some patients with some health conditions. Judge Alvin Hellerstein of the Southern District of New York said, “We recognize now that there are medical purposes marijuana can be useful for.”

Hellerstein was hearing a lawsuit that argued it was irrational and unconstitutional to place marijuana on Schedule I. He clearly didn’t buy that part of the government’s argument but decided that wasn’t enough reason to compel the Congress or the courts to do so.

Instead, he dismissed the case, arguing the plaintiffs should have exhausted the administrative process, i.e. continued to petition the Drug Enforcement Agency (DEA) to reclassify marijuana.

Many plaintiffs have tried. In the eyes of even a sympathetic judge, they should just keep banging their heads against the wall.

One reason the DEA has given for keeping marijuana on Schedule I appeared in its 2017 Drugs of Abuse resource guide: “the U.S. Food and Drug Administration that has the federal authority to approve drugs for medicinal use in the U.S…. has not approved a marketing application for any marijuana product for any clinical indication.”

That has since changed. In June, the Food and Drug Adminstration approved Epidiolex, an epilepsy medicine for children derived from marijuana—specifically, from cannabidiol (CBD), a non-euphoric, non-psychoactive cannabinoid found in marijuana and hemp.

It won’t get you high, so it’s not the same as marijuana—except that as recently as May, the DEA considers CBD as illegal as marijuana, and persuaded a federal appeals court to agree. It appears that a case could be made that FDA now considers marijuana as medicine.

Drug Courts

Some drug courts have likewise ignored the facts when it comes to how to treat drug offenders.

Some send offenders, even if not themselves drug users or drug addicts, to drug rehab camps that are more like work camps. No rehab other than free physical labor. If perchance the inmate/patient tests positive for drug use while there, they instead go to a traditional prison for the full sentence, no second chance, no sentence reduction for time already served.

As a New York Times article expressed it, if addiction is a disease, as even the US Surgeon General’s office now agrees, why is relapsing a crime? Statistics and experts at the National Institute on Drug Abuse say that relapse is likely, as it is with any “chronic medical illnesses such as diabetes, hypertension, and asthma.”

A relapse may be a one-time event. It may not be a return to constant or regular drug use. Sure, some may be people trying to game the system and stay out of jail without ever intending to stop using, but this system penalizes almost all addicts for being addicts. How many times has it taken more than one attempt to quit smoking?

Travel Ban

Likewise, the Supreme Court has upheld the latest version of the President’s travel ban. Lower courts had stalled the immigration ban because as a candidate Trump had promised “a total and complete shutdown of Muslims entering the United States”, which would violate the Establishment Clause’s religious freedom protections.

Once in office, he said, “I’m establishing new vetting measures to keep radical Islamic terrorists out of the United States of America,” meaning the first version of his travel ban. Later, adviser Rudy Giuliani said, “When he first announced it, he said ‘Muslim ban.’ He called me up, he said, ‘Put a commission together, show me the right way to do it legally’”.

That sounds like Trump wanted a ban on Muslims from entering the country, and the only reason he doesn’t call it that is because he wants it to seem legal.

The Supreme Court said, no, that would be an unwarranted assumption.

“We cannot substitute our own assessment for the Executive’s predictive judgments on such matters”, said Chief Justice John Roberts. Besides, not all of the countries on the amended list are majority Muslim, and “The text says nothing about religion.”

Of course, the Court couldn’t have called President Trump before them and asked him, under oath, whether he intended the eight-nation immigration ban to be a Muslim ban – it only has appellate jurisdiction—but this seems like more than judicial restraint.

It seems like determined judicial ignorance or duplicity in disguise.

Is There a Solution?

Legislatures and chief executives can craft laws inelegantly, or deliberately obfuscate, but the question is when or if the courts should intervene. Like it or not, whether or not the laws are rational is not a legal ground.

The problem is not that the legislatures, executives, and judges aren’t rational, it’s that people aren’t rational. From smoking to overeating, drug abuse to pollution, personal relationships to personal finances, people are inconsistent, illogical, and with all the survival instincts attributed to lemmings.

All people make mistakes or betray hidden prejudices, but they don’t like to be told when they are wrong. They would rather double-down on their misconceptions—belief perseverance—and there’s no reason to believe judges are immune, and certainly not legislators.

The best remedy isn’t in the courts or the congresses, but the voting booth. Vote. Organize. Stay informed. Otherwise, all those other idiots will make decisions for you.

Stephen Bitsoli, a Michigan-based freelancer, writes about addiction, politics and related matters for several blogs. He welcomes readers’ comments.

from https://thecrimereport.org

Do Jail Diversion Programs Really Work?

The ACLU has filed suit in Kansas, alleging that the state has failed to give defendants sufficient opportunity to benefit from diversion programs. But a TCR investigation finds many experts who argue that the effectiveness of such programs depends on how well they are executed.

Melissa Braham, 27, had no adult criminal history when she was apprehended by police in Kansas last fall while moving from Colorado to Missouri. After searching her car, officers charged Braham and her boyfriend with misdemeanor marijuana and paraphernalia possession.

Under state law, she was entitled to receive notice that she could apply for a diversion program to avoid criminal charges. Instead, she was jailed for a month, during which time she lost her job and had her children taken from her and placed in foster care.

“My kids came to see me in jail, and it was really hard to see my baby crying,” Braham said in a video produced by the American Civil Liberties Union (ACLU) of Kansas. “They’re still in foster care and I’m still trying to get them back.”

“All of this big heartache really could have been avoided if I had known about diversion.”

Braham is one of thousands of Kansas defendants who could have benefitted from diversion programs had they been given the opportunity. According to figures collected by the ACLU of Kansas, elected prosecutors in the state use diversion in only about five percent of felony cases—about half the rate diversion is used nationally.

The ACLU brought a lawsuit against a county prosecutor in Kansas in June for failing to disclose diversion opportunities to defendants in accordance with state law.

“These programs are essential to establish a rehabilitative rather than punitive criminal justice system,” said Somil Trivedi, a National ACLU attorney who is partnering with the ACLU of Kansas in the lawsuit, in a press release on June 8.

“We’re taking action in Kansas to send a message to prosecutors that it’s their obligation to uphold the law and serve their community, not just rack up as many convictions as they can.”

But how effective is diversion in the first place?

Diversion allows low-level defendants to avoid criminal charges, and thus divert them from the criminal justice system, if they follow a prescribed program set out by a prosecutor. Conditions can include some combination of classes, community service, addiction treatment, mental health counseling, and restitution.

The central promise, should defendants complete diversion successfully: a clean record.

Diversion programs seek to address the root causes of crime. Proponents say they can be a means of relieving overburdened courts and crowded jails, and can save offenders from the adverse consequences of a criminal conviction.

Nearly every state has some form of diversion program, according to the National Conference of State Legislatures, but advocates claim the programs are vastly underutilized and are often inaccessible to low-income defendants.

Prosecutors exert almost total control over diversion: they alone have discretion over whether to grant a diversion, and have exclusive responsibility for determining whether a defendant is complying with the diversion agreement’s terms. The district attorney’s decision is almost always final, and defendants have no way to appeal a rejection.

Rules about who is eligible are different in different jurisdictions. Drunk drivers are eligible for diversion in Oregon, but not in Tennessee. In Saline County, Kansas, diversion is not offered for drug offense; three counties south, it is.

Does Diversion Work?

But the availability of diversion does not always successfully prevent defendants from becoming ensnared in the justice system.

Even in cases where diversion is offered, the fines and fees that come with it prove prohibitive for many defendants.

In 2016, the New York Times analyzed 225 adult diversion programs run by prosecutors in 37 states. Two-thirds of lawyers who answered a Times questionnaire about diversion reported that fees were a barrier for their clients.

The exact cost of diversion varies widely. In some places, prosecutors charge nonrefundable application fees that can go up to $250. Additional charges—for counseling, classes, drug tests, monthly supervision, charitable contributions, court costs—mount quickly. The ACLU estimates that a defendant in diversion could pay up to $5,283 for a marijuana possession charge.

“To tell somebody that if you can pay for this, you can get your charges dismissed, but if you are poor you are going to go through the system? That’s completely unfair,” Mark Kammer, who runs diversion programs for the Cook County State’s Attorney in Chicago, told the Times.

Sometimes even after a defendant successfully completes diversion, the promise of a clean record can prove false.

Prosecutors can opt to leave a case open until diversion has been completed, and the resulting pending charge can then stymie defendants’ efforts to find work or housing. Once the case has been closed, expungement is often not automatic, meaning a dismissed case can still show up in a background check.

Diversion vs Punishment

Some district attorneys require defendants to enter a guilty plea that can later be used to prosecute them, undermining the benefits of diversion. And when requirements are strict—hundreds of hours of community service, years of probation—diversion can look very similar to punishment.

A widespread lack of data about fees, success rates, recidivism, and who is accepted or rejected from diversion programs, precludes accountability and improvement almost nationwide.

When diversion is done well, however, its results can be significant. Cook County’s diversion program (in Illinois), which is widely recognized as a model, is an example: a year after finishing felony diversion, 97 percent of graduates have no new felony arrests, and 86 percent have no new arrests of any kind. The program’s drug school alone saves the county an estimated $1.5 million annually.

In the Cook County program, which handles about 5,000 defendants a year, participants are not obliged to plead guilty, and they pay no fee for participation. If they do not successfully complete their program, they are either returned to traditional prosecution with no penalty or are switched to a more comprehensive program.

The intensity of the program is proportionate to the offense: misdemeanor defendants might be required to attend only two counseling sessions, while those charged with high-level felonies can be sent to Branch 9, a yearlong program that connects members to services such as classes for a high school equivalency diploma, substance abuse evaluations, and health insurance.

The Miami-Dade diversion program in Florida, another oft-cited example, focuses specifically on redirecting people with mental illness away from the criminal justice system. In the 18 years it has been in operation, the Criminal Mental Health Project (CMHP) has both reduced the county’s jailed population and improved public safety.

County Judge Steven Leifman began the program in 2000 after realizing that while 9.1 percent of the county’s population has a serious mental illness, only about one percent receive services in the public mental health system, leading to preventable crime and arrests.

CMHP includes a pre-booking program and a post-booking program that divert mentally ill people who might otherwise be arrested for minor offenses or who are already jailed to crisis units for treatment.

To be eligible for the program, a defendant must have a primary diagnosis of a serious mental illness such as schizophrenia, bipolar disorder, major depression, or PTSD. They may also have a co-occurring substance abuse disorder. Defendants can be charged with any non-traffic misdemeanor case, as well as third-degree felonies and second-degree felonies in select cases.

All cases must be approved by the state attorney’s office.

“People with serious mental illnesses need access to the treatments and services that will help them to get better, and they don’t get better in jail,” said Cindy Schwartz, the jail diversion program director.

“We believe this a much better alternative for the people we serve, and it’s a much better alternative for our community.”

In 2016, the New England Journal of Medicine reported that CMHP had facilitated 4,000 diversions, and that the annual recidivism rate among participants was about 20 percent—less than a third of the 75-percent recidivism rate among defendants not in the program.

In some places, diversion takes the form of specialty courts, such as drug courts and veterans’ courts. In these cases, judges take the lead. Generally, however, diversion is a prosecutors’ game: it falls to the district attorney to give or withhold.

Many opt for the second option. Diversion is currently utilized in a small minority of felony cases nationwide, about nine percent.

“The incentives within a prosecutor’s office are skewed towards conviction and long sentences—it’s how they justify their existence,” Trivedi said. “So that is the default approach.”

“If somebody has broken the law, then the only approach to rectifying that wrong is to convict someone of a crime and send them to jail. That’s deeply ingrained in the culture.”

But Trivedi believes it’s time for that culture to change.

“The reason that this issue is so important is that it addresses all the issues we want the criminal justice system to address, but in a smarter way,” he told The Crime Report.

“If prosecutors say they want to keep their communities safe, well, getting people with substance abuse problems the proper treatment they need is a much smarter long-term solution to keeping the community safe, because you’ve eliminated the problem that was driving the criminal activity.”

“If we say we want to save taxpayer money…well, diversion programs save money, because having the state take care of you from morning to night is much more expensive than keeping tabs on someone while they’re in an outpatient program.”

“And if we’re reducing recidivism and keeping people from reoffending, we’re also reducing the cost of the overall system,” he said.

“If states and municipalities and district attorneys and police were serious about keeping the community safer long-term, then these would be much more frequently used programs.”

Elena Schwartz is a TCR news intern. She welcomes readers’ comments.

from https://thecrimereport.org

The Poor Need Federal Protection from Exploitive Court Costs: Study

As local governments increasingly rely on fines, fees, and harsh collection practices, federal courts should take a more aggressive role in intervening when these practices pose “irreparable harm” to poor Americans, according to a study in the Harvard Law Review.

As local governments increasingly rely on fines, fees, and harsh collection practices to conduct their operations, federal courts should take a more aggressive role in intervening when these practices pose “irreparable harm” to poor Americans, according to a study in the Harvard Law Review.

 Many of the 450,000 individuals in local jails across America are there simply “because they are poor,” and cannot afford to pay court costs or raise bail—setting up what the study called a “cycle” of repeated punishment, said the study.

“Some remain in jail for days or weeks while waiting to see a judge,” the study said. “Some remain there for months because courts did not take their indigence into account when setting or reviewing bail.

“If they plead guilty in order to leave jail, this often triggers a new set of fines and fees that they cannot afford to pay. Failure to pay results in a new arrest. The cycle starts anew.”

Although class action suits challenging these practices have been filed, the federal government is often reluctant to step in because of a 1971 Supreme Court ruling in Younger v Harris that enjoins federal courts from disrupting criminal proceedings through injunctions or declaratory judgments.

The so-called “Younger abstention” has been regarded as a check against federal authorities encroaching on states’ prerogatives.

But the study argues that the abstention should be ignored when litigants challenge “structural or systemic constitutional violations.”

“When a state is engaging in a structural or systemic constitutional violation, federalism interests diminish and the risk of irreparable harm is grave,” the study argued.

The study by Fred O. Smith Jr., of the Emory University School of Law, entitled, Abstention in the Time of Ferguson, reviews the history of federal lawsuits against state and local governments who criminalize poverty, and the legal barriers to federal intervention in corrupted justice systems.

The criminalization of poverty is highlighted in the study’s reference to The Ferguson Report. In 2014, after the killing of an unarmed teenager by a police officer, the Department of Justice issued a critical report of the town’s criminal justice practices, such as “onerous fees, fines, and collection practices.”

In some cases, government invocations of the Younger abstention principle have kept the underlying merits of the case from being seen by federal courts, the study noted. Conversely, district courts have rejected abstention in cases involving rigid bail schedules, pecuniary-interest schemes, and post-judgement debtors’ prisons.

Three legal models are identified as means of challenging state and local justice systems. One approach is the policy-or-custom approach. If a corrupt policy or custom can be established in a suit, the litigants are likely to have the case go their way. However, limited this strategy may be, in the sphere of municipal liability, it nevertheless offers a set of accepted legal principles “aimed at determining when a government’s policy caused a violation, as distinguished by a rogue one-off.”

A second approach is termed “pattern or practice.” The Attorney General, under the 1964 Civil Rights Act, may bring claims “to end a ‘pattern or practice’ of unlawful discrimination. The class action framework is a third approach.

“Litigants in leading cases challenging criminalization tend to plead all three paradigms,” the study said. “They allege unconstitutional ‘polic[ies], pattern[s] and practice[s], and eligibility for class certification.”

These cases have gone on to see courts issue injunctive relief, declaratory relief, and consent decrees, resulting in significant reductions in the jail populations of Harris County, Texas, and New Orleans, Louisiana.

Despite the Younger abstention doctrine, federal courts have a history of intervening in states’ affairs to stop or prevent irreparable harm, particularly in cases where “an underlying state process provides an inadequate means to raise federal constitutional claims.”

According to the study, there are two reasons for waiving the abstention doctrine, structural and systemic errors in a state’s criminal justice system.  A structural flaw is one that influences a judicial process’s basic framework in incalculable ways, such as denial of counsel during a critical period or a judge’s financial interest in an outcome.

Systemic flaws are errors that routinely impacts litigants by way of a policy, pattern or practice, “or other class wide common set of violations.”

“When a state is engaging in a structural or systemic constitutional violation, federalism interests diminish and the risk of irreparable harm is grave.”

The author argues that protecting against irreparable harm when other remedies are lacking is a core function of the federal judiciary and should not be obstructed by Younger abstention.

Legally, the heart of the question lies in the following: “How should federal courts balance the vindication of federal constitutional rights with respect for states’ ability to correct their own constitutional violations?”

The article’s formulated “exception to Younger abstention” doesn’t demand a doctrinal revision from the Supreme Court, the study said, noting that district courts are capable of implementing the structural and systemic exceptions.

Some have already begun to do so, explicitly or implicitly, and to varying degrees, it added.

Those impacted by the criminalization of poverty are calling out and resisting systems that exploit them. What remains to be seen is, as the author proposes,  “whether ‘Our Federalism’ is capacious enough to hear them.”

A copy of the full report can be downloaded here.

This summary was prepared by TCR News Intern John Ramsey. Readers’ comments are welcome.

from https://thecrimereport.org

‘That’s Not Me:’ How a Mistaken ID Put an Innocent Couple in Jail

A series of procedural misteps by Philadelphia cops landed Vickson and Korpu Korlewala in jail four years ago on a wrongful charge of robbery. They’re still seeking the return of property seized by authorities—and an apology.

Vickson Korlewala drove from his West Philadelphia home on April 2, 2014, planning to pay off some utility bills. Instead, he and his wife Lorpu found themselves caught in a four-year roller coaster ride inside the justice system.

After driving just a few blocks, he pulled over when a police cruiser flashed its lights behind him. Korlewala, 62, a Liberian immigrant and the CEO of his own renewable energy business, Ecopower Liberia, was expecting to hear about a traffic violation.

To his shock, he was told that he was being placed under arrest for the recent robbery of an elderly woman. One of the officers pulled out a cell phone and showed him a grainy surveillance camera picture with the face of another black man—not Korlewala.

“I thought it was a joke,” recounted Korlewala. “He said, ‘Here’s you.’ I said, ‘No, it’s not me. Look at the picture. Now look at me. That’s not me!’”

Korlewala’s wife Lorpu was later arrested at her hair braiding salon—on the same charge. The victim had said she was abducted and robbed by a couple allegedly matching the Korlewalas’ description.

To this day, Korlewala can’t understand how no one in the criminal justice system stopped to closely compare the surveillance picture with his face. (Detectives acknowledged they never ran the images through the police department’s facial recognition software.)

Korlewala and the suspect caught on surveillance cameras were both black men, but that was the extent of their similarity.

Experts agree that surveillance camera images are so low quality that they are often not treated as objective evidence.

“Errors in matching identity of two facial images are commonplace,” said Prof. Tim Valentine of Goldsmiths, University of London. “People make errors in 20-30 percent of comparisons even under ideal conditions with good quality images. Clear differences can be used to eliminate a suspect, but an absolute identification can never be made.

“For this reason, prosecutions should rely on other evidence than a disputed identification from CCTV.”

The Korlewalas, who had never been arrested before, posted bail of one million dollars, and with support from family, neighbors and members of the Liberian community, fought the case for six months before it was thrown out at the preliminary hearing, after the victim was unable to re-identify Vickson.

But when the Korlewalas went to federal court to sue the city and police who had wrongfully arrested them, their suit was thrown out in summary judgment for failure to show that the officers had done anything outside the standards of their job.

In November 2017, the US Court of Appeals for the Third Circuit upheld the dismissal. Faced with a long-shot petition to the Supreme Court, the Korlewalas accepted their defeat, as well as the court order to pay attorney’s fees for the detectives they had sued.

“It’s double victimization,” said Rev. Dr. Pastor Moses S. Dennis, who attended the Korlelwalas’ hearings in their support. “They went through the pain of that, just to find out there are no consequences for the actions of law enforcement.”

A Bizarre Twist of Fate

The fact that Vickson and Lorpu Korlewala were ever identified as suspects in the robbery of an elderly woman forced to withdraw her savings from Citizens Bank began with a bizarre twist of fate.

Philadelphia police officers Phillip Williams and Edward Bond were looking for a vehicle with New Mexico plates driven by a man and woman who had abducted a 92-year-old woman walking near 55th and Market streets, tricked her into withdrawing approximately $8,000 from her account, and then taken the money. She was spotted being forced out of a vehicle two weeks before the Korlewalas were stopped by police.

plates

Police assumed an eyewitness couldn’t tell the difference between a New Mexico and Pennsylvania license plate. Images provided by NM.gov/PA.gov

The “flash” description from a witness was for a green Saturn SUV with a New Mexico license plate. On April 1, the officers spotted the Korlewalas’ black Saturn SUV parked near their home. Their car had a Pennsylvania license plate, not a New Mexico one. But it did have something else that caught the officers’ eyes—a bumper sticker reading ‘South of the Border,’ from the faux-Mexican tourist attraction in South Carolina.

“The South of the Border sticker led me to believe that someone—because people, when you say South of the Border, people think Mexico – so maybe the person thought they seen a Mexico license plate,” Officer Bond testified during a deposition for the Korlewalas’ lawsuit against the police department.

“That South of the Border sticker led me to believe that this vehicle could possibly have been the vehicle involved.”

All the detectives and officers involved in the Korlewalas’ arrest agreed that it was plausible the witness may have been confused by the bumper sticker into identifying the wrong state’s license plate. But one person who disagreed was the witness himself, Vencent Acey, 49, a Verizon employee who was in his work truck outside a Verizon facility when the suspects pulled up right alongside him.

He saw the victim being shoved out of a car near 57th and Chestnut and watched her fight to try to get back in. The woman got caught in the door and partly dragged as it sped away. Acey got out of his truck and rushed to help the victim, who was distraught and kept saying ‘They took my money,’” he recalled.

He saw a police officer across the street near a Rite-Aid pharmacy and brought her over to report the crime, later giving a description of the vehicle to detectives. He only heard about the outcome of the case when he was contacted by this reporter.

“I wasn’t mistaken,” Acey said of his the original vehicle description he gave detectives in 2014.

“I know the difference between a Pennsylvania license plate, because I have one myself, and a New Mexico license plate. It’s a big difference. I know the difference between New Mexico and South of the Border.”

Officers’ confidence in investigating the Korlewalas based on the South of the Border bumper sticker was reasonably bolstered after the victim, 92, picked Vickson’s and Lorpu’s driver’s license photos out of photo arrays of eight pictures prepared by police. The array was administered “double-blind,” by detectives not directly handling the case, which is a policing “best practice” in line with the Philadelpha Police Department guidelines for identifications.

Detectives on the case said they couldn’t remember who prepared the photo-array in depositions for the Korlewalas’ lawsuit.

But even still, the photo array identification method can be “suggestive,” said veteran Philly defense lawyer Paul Hetznecker, and shouldn’t overpower other evidence like bank surveillance video that showed a different person. (Hetznecker was not involved in the Korlewala case, but reviewed their court papers.)

“If you were to do a statistical analysis of all the identification cases which involved a pretrial, post-incident identification procedure, I would have no doubt that there would be a significant number of misidentifications, not necessarily because of the ill will of the officers or the detectives, but because of the process,” Hetznecker said.

“The person is still under the stress of the incident that just happened. They’ve been brought to this process and they believe inherently in the authority of the police, in the expertise of the police, they must have it right, so it must be the guy in the photo array.”

Police had other evidence against the Korlewalas: a trenchcoat like one the suspect wore was found in Vickson’s home, while he was observed to be somewhat short and walk with a limp, like the suspect.

Lorpu was determined to have “bad teeth,” like the female suspect, but unlike the suspect, she is not a tall woman. The Korelwalas also both have thick Liberian accents, which no victim ever described.

The origin of the “South of the Border” bumper sticker on their car, which wound up linking Vickson Korlewala and his wife to the criminal case for which they were jailed for nearly a month and fought in court for five more months, was itself a mystery.

“It was on the car when we bought it,” Vickson Korlewala said.

After police obtained photos of Vickson and Lorpu Korlewala, based on their vehicle resembling the suspects’ car, and got positive identifications of both of them in photo arrays from the 92-year-old victim, the couple was placed under arrest.

One day after the couple was arrested, they were both brought out of holding and told they were being charged with another crime: a second, similar robbery of an elderly woman by a black couple who intimidated the 80-year-old victim into withdrawing money from her bank account.

At this stage in the process, the Korlewalas were not given any chance to present evidence or defend themselves. The cases were joined in court, and at $250,000 bail per robbery per person, the couple wound up detained on $1,000,000 bail.

Notably, the 92-year-old victim did identify the Korelwalas in photo arrays, but failed to re-identify them in a live line-up. The 80-year-old victim never was able to identify them. But none of that appears to have deterred Philly prosecutors from proceeding with the case.

Meanwhile, the Korlewalas’ family, friends and fellow Liberian community members had seen images of the suspected robber broadcast on news media, and knew it wasn’t Vickson. They began organizing and reaching out to elected officials for details, and the Korlewalas’ daughter printed up T-shirts with Vickson’s face next to that of the suspect, under the message “Mistaken Identity: Release the Korlewalas.”

Members of the Liberian community began pooling funds to help them fight their case.

Photo array

Vickson Korlewala was identified once by a 92-year-old victim in the above photo array – but she was unable to re-identify him in a live line-up. (Courtesy of the Korlewalas)

“People were pulling money out of their retirement accounts to pay for the bail,” said Dr. Susanna J. Dodgson, a friend of the Korlewalas who became involved in efforts to spread the word about the case. “It was just appalling. He’s well-known in the African community. It was almost like, ‘Who would be the worst person to pick out of this community?’ And it would be Vickson.”

Korlewala came to the US in 1983 to study environmental chemistry. As his homeland was engulfed in a tragic civil war, he stayed in the US, working at a variety of companies before starting his own, Ecopower Liberia, to help bring renewable energy to his homeland, where some 90 percent of the population doesn’t have access to electricity.

In 2011, the U.S. Agency for International Development awarded his company a grant. He started marketing biomass-powered generators, which burned locally available materials like coconut shells, back home in Liberia. But his arrest put all of that on hold. Korlewala had to surrender his passport and missed a planned trip to Africa while the charges were pending.

The Korlewalas posted 10 percent of their bail and were released from jail after three weeks.

Four years later, both say they still feel traumatized from their time incarcerated.

“It was just being there. The shame of being in jail. The psychological effect just hit us,” Korlewala said. “That cultural shame of, you’re supposed to be in the US doing good things, and you end up locked up.”

The Second Victim

The 80-year-old victim who had been robbed on February 1 in a similar robbery— accosted by a black man and woman who forced her to withdraw money from her account at a Citizens Bank—had been given the Korlewalas’ pictures in a separate photo array, but didn’t identify them.

(Surveillance video from Citizens Bank was viewed by police but never released to the public or the Korlewalas’ attorneys).

Mincey said having a defendant who didn’t match the suspect on the video was unusual, but not an infrequent situation.

“I’ve had cases where a guy is stopped 10 minutes after a robbery, they said the suspect was clean shaven, and my guy has a full Philly beard, and they’re still charged,” Mincey said. “That happens. It’s unfortunate, because the collateral consequences of being held, even for a short period of time, can be monumental for an individual or family like the Korlewalas.”

At their next preliminary hearing in September 2014, Judge Charles Hayden tossed the charges after finding prosecutors had still not obtained the court-ordered line-ups identifying the suspects for the case, which Judge Shuter had marked “must be tried.”

Even after Judge Hayden announced his decision and the hearing adjourned, the Philly prosecutor handling the case, Joseph McCool, maintained it wasn’t over, and loudly warning the Korlewalas “Get ready for the re-arrest!” as they started to walk away after the hearing adjourned.

“That was really scary, when he said that,” Vickson Korlewala recalled. “Every police suit I saw after that, I panicked.”

A few months later, the Korlewalas applied for expungement, which the Philadelphia D.A.’s office, then led by Seth Williams, did not oppose. The charges against them were erased.

Korlewala

The Korlewalas, Vickson, third from left, and Lorpu, second from right, celebrate with friends and community members after charges were dropped in September 2014. (Photo by Sam Newhouse)

Seeking Justice

Still reeling from the experience of being arrested and jailed, having their cell phones full of personal data and business contacts seized and never returned, along with the $600 Vickson was carrying at the time of his arrest, the Korlewalas decided to seek justice by filing a lawsuit in federal court.

“They took our phones, they took my money, but most of all, we just wanted an apology,” Vickson Korlewala said.

They hired attorney Lopez Thompson, who filed their civil rights lawsuit in November 2015, alleging false arrest and conspiracy. He said the case involves conduct that goes beyond police officers’ usual qualified immunity.

“That law is situated so that, unless you can show that a police officer has some sort of personal vendetta or they’re doing something outside of what a reasonable police officer would do, it’s hard to point the finger at them,” Thompson said.

“I think this particular case falls outside that, because of the video. The video clearly shows that there was another individual that was inside that bank. There was just too many flags. … You have a video of one person, you have another person in front of you. How can you point the finger at that person?”

But in December 2015, U.S. Magistrate Judge Lynne Sitarski threw out the entire suit against five detectives on summary judgment.

“The court concludes that the evidence as described here certainly gives rise to a ‘fair probability’ that the Korlewalas committed the crimes alleged, and therefore, that probable cause to arrest existed,” Sitarski wrote, writing that the photo array identification by the 92-year-old victim outweighed other evidence, including the bank surveillance video.

Thompson argued that decision would result in “manifest injustice” and appealed to the U.S. Court of Appeals for the Third Circuit. In November 2017, the Circuit Court affirmed Sitarski’s ruling. The case was never taken to the Supreme Court and is now effectively over.

Taken as a whole, some say the Korlewalas’ case is an instance of the system working, since the charges were eventually dropped.

“I look at this and see the police system of photo and witness identification worked in this case,” said former NYPD Detective Sergeant Joseph Giacalone, a professor at CUNY’s John Jay College of Criminal Justice, noting that grainy surveillance video can’t be considered reliable.

“I don’t see that as an error by the police that they should have figured out ahead of time. That’s totally subjective,” he said. “Some people would say ‘It looks like the guy to me,’ and the victim’s telling them it is, so they say ‘It’s got to be him.'”

Jim Bueermann, president of the Police Foundation, a police research group, and former chief of the Redlands, Ca. police department, said while police may have followed the rules, the end result raises questions about the “fallibility” of the criminal justice system. He wondered if police and prosecutors should have interviewed the couple, and asked for voluntary live line-ups, rather than immediately proceeding to arrest, incarceration and pressing charges.

“For somebody to stay in jail that long and then ultimately have the case against them dismissed very clearly highlights that there’s a weakness in the system,” said. “I’m not saying the police made a mistake here, because I don’t know they did.

“I just think it’s clear this illustrates the weakness within the system and the potential indifference the system can have to the people who became victim to a mistake.”

At this point, the Korlewalas have mostly returned to normal life. Vickson travels regularly to Liberia to market solar panel electricity generators to communities and families. But for him and his wife, their arrest remains a life-altering tragedy that permanently shook their faith in law enforcement and the US legal system.

“If this is the kind of police system and police force we have, it’s really terrible,” Vickson Korlewala said. “For these guys, just locking people up, it just says they have no value for human life at all. How can you justify that? …. I can just imagine how many folks have gone through that. There are so many, so many young folks in jail.”

The Philly police department did not answer inquiries about the case.

“We are not going to accommodate your requests for comment,” a spokesperson said via email.

This piece was written as part of the 2018 John Jay College/Harry Frank Guggenheim fellowship in criminal justice reporting. Sam Newhouse is news editor at Metro Philadelphia. The full version of his story can be read here.

from https://thecrimereport.org

Why Do We Keep Our Aging Prisoners Behind Bars?

We spend an incredible amount of money warehousing older and sicker low-risk people, while not spending what we should on intervention and re-entry resources for young people. A smarter approach to incarceration would do the reverse, write two justice experts.

The evolving figures on US prison populations represents both good news and bad news. The good news is that US incarceration rates are no longer increasing, and have even declined slightly.

The bad news is that we still far outpace the rest of the world in unnecessarily locking people up.

We don’t lock up more people because the US is a more dangerous place, we lock up more people primarily because we’ve made policy decisions over the last 30 years that give prosecutors enormous discretion and we have succumbed to cultural and political will for punishment that is closely linked to our continuing struggles with institutional racism and implicit bias.

Our incarceration rates also demonstrate an unwillingness to meaningfully discuss and change our approach to people charged with violent crimes.

But a new report on recidivism data recently released by the Department of Justice’s Bureau of Justice Statistics (BJS) suggests that there are two places we could be making a significant difference, simultaneously reducing future crime and the costs of mass incarceration. The report shows a clear pathway that could create a significantly less expensive system that is fairer, and keeps everyone safer.

While young adults under age 24 are at high risk of recidivism, adults age 55 and above are at low risk for recidivism. We currently spend an incredible amount of money warehousing older and sicker low-risk people, while not spending what we should on effective intervention and re-entry resources for young people.

If we inverted that ratio, releasing the significant portion of older incarcerated people who can safely be released and putting those savings into strategies that would help reduce crimes committed by young adults, we would be much more successful in making society safer and healthier for today and tomorrow.

Marc Schindler

Marc Schindler

We know that young adults account for a disproportionately high percentage of violent crime, and the BJS data show that young adults also have the most difficulty returning to the community, with 51.8 percent being arrested in just the first year. In the Justice Policy Institute’s Improving Approaches to Serving Young Adults in the Justice System, we explore the tailored community-based services that build on the strengths of the young person to provide the best chance of success.

If we chose to implement developmentally appropriate prevention programs and provide research-based reentry approaches to successfully get youth beyond their first year of release, we would do much a much better job of preventing young adults from committing crimes. By tailoring services that provide sufficient education, employment opportunities, and health and mental health supports, states would not only lower recidivism rates, but also save a substantial amount of its budget.

Estimates show that each young adult who avoids returning to the justice system saves taxpayers $ two million. That’s something both the right and left can get on board with.

Contrary to young adults, older individuals, particularly those 55 and older, were re-arrested at much lower rates. This is consistent with previous research in the field. For example, in New York, only four percent of people age 65 and older were re-convicted; while in Virginia, only 1.3 percent of people older than 55 were re-convicted.

The research is clear: there is minimal negative impact on public safety from releasing older people from prison.

These findings are also consistent with an organic experiment playing out in Maryland. In what is known as the “Unger” case, almost 200 people who had been convicted of violent crimes and sentenced to life were released following a 2012 court ruling that jury instructions in their cases were constitutionally flawed.

Jeremy Kittridge

Jeremy Kittridge

With an average age of 64 upon release, and having served an average of 40 years, they have had a recidivism rate of less than one percent.

Part of the Unger defendants’ achievement can be credited to the re-entry support provided before and after their release. Their overwhelming success has been acknowledged by both legislators and prosecutors, who have said “the Ungers are a perfect example that you can age out of violent crime.”

Despite the incredible success rates among older people safely released from prison, we continue to annually spend approximately $16 billion to incarcerate this population. The financial impact will increase substantially with population projections for elderly incarcerated people to hit 400,000 by 2030. We have barely touched the surface of the potential savings that could be reinvested by safely returning older incarcerated individuals to the community.

We’re currently operating secure nursing homes for people who pose almost no threat to public safety; we should, instead, be better utilizing those resources by targeting services for a higher risk young adult population and thereby reducing crime.

Marc Schindler is executive director of the Justice Policy Institute (JPI). Jeremy Kittridge is a research and policy associate with JPI. They welcome comments from readers.

from https://thecrimereport.org