In North Carolina’s Durham County, reforms have begun by simply making better pre-trial services available, according to an investigative report by the Smoky Mountain News.
When county jails are constantly at or over capacity, the easiest answer seems to be to build a bigger one.
G. Larry Mays, a New Mexico-based criminologist who has studied jails for 35 years, says communities need to start examining the bigger picture if they want to reduce the number of people sitting in jail.
Illustration courtesy Smoky Mountain News
“You can’t build yourself out of a crowding crisis — the shoe tells the foot how big it will grow,” he said.
The more jails that are built, the more it will cost taxpayers to operate and maintain those facilities. At an average cost of $80,000 per jail bed, a new 150-bed facility could cost a county $12 million or more as construction costs are on the rise.
For a facility that only has an estimated 30-year life expectancy, constructing a new jail is not a decision that should be entered into lightly.
Dr. Allen Beck, who has been a criminal justice consultant since 1983 and a principal of Justice Concepts Incorporated (JCI), says local jurisdictions can take one of two approaches to addressing criminal justice system operations — passive or active.
“A passive role is the most costly. This role accepts arguments that the system does not need improvement and that the number of inmates housed in jail cannot be altered,” Beck wrote in a JCI report.
“In contrast, the active role recognizes that improvement is possible in all aspects of government, which in this instance happens to be the criminal justice system. There is always the possibility that significant improvement might be made in controlling growth of the inmate population.”
As part of a year-long investigation into the nation’s rural jail crisis, the Smoky Mountain News examined jails in western North Carolina. One of them, the Durham County Detention Facility, offers a case study in how change can be driven by improving pretrial practices.
The Durham Facility opened in the summer of 1996 with a capacity of 576 single cells. By 2005, the jail was at or over capacity a majority of the time.
“Now our jail population has gone down by 20 percent. We don’t have an overcrowding problem and our average daily population is lower than it has been since the jail opened.
“We can’t reduce the cost of the jail itself — most of that cost is fixed — but we are 15 years past the point where the county started talking about building a new one so we’re saving future costs.”
The work involved to get to those results hasn’t been quick or easy, but Parmer said the payoff has been worth it for the county.The Criminal Justice Resource Center in Durham County has been in place since the late 1990s, when North Carolina’s General Assembly passed reforms that put more uniform sentencing in place for felony convictions.
The state reform also included grant funding for most counties to allow them to provide services to people being sentenced under the new grid.
With more state reform coming out of the General Assembly in 2011, the original grant funding that helped establish the Durham resource center was done away with, but efforts have continued and programming has increased to provide services to people throughout the criminal justice system.
“In Durham, our community has grown well beyond that original program. We have services for people from the pre-arrest diversion programs all the way to our local re-entry program for when people are released,” Parmer said.
The center still goes after a number of grants each year, especially if it’s looking to start a new program, but Durham County funds the programs that are deemed a success after a good trial run. A consolidated county criminal justice department also helps to save money.
“If we add a program, we don’t have to add administration — it’s more cost effective and we have a seamless system at this point for the adult population,” she said.
The pre-arrest diversion program targets first-time offenders ages 16 to 21 for misdemeanor charges. Instead of being arrested, the person has 90 days to complete a community diversion program based on their individual assessment and needs.
If the person completes the program, the incident report is closed out and the offense doesn’t show up on the person’s record. If the person doesn’t complete the program, the arresting officer can proceed with criminal charges and prosecution.
The resource center’s pre-trial services also include being inside the jail to screen everyone being booked using a standard assessment tool — this process allows resource center staff to provide judges with the most accurate information summary about each person when they have their day in court.
Judges also utilize the resource center when it comes to setting a person’s bail. Sometimes a judge will turn the case over to the resource center for supervision in lieu of setting a money bond or sometimes it’s a combination of a money bond and supervision.
The substance abuse and the mental health court diversion programs inside the jail have also been helpful in keeping the inmate populations down while getting people the help they need.
“We have the most extensive mental health services in any jail in North Carolina — we have a whole team of people,” Parmer said.
The team works with inmates who’ve been diagnosed with severe or persistent mental illness to get them on the right medication, getting support while in jail and helping them connect with community health services once they released. The Mental Health Court allows people with mental illness to go through support services in lieu of a formal court process.
The same goes for people suffering from drug addiction: If they complete the program the district attorney will drop the charges.
Durham County even has re-entry services to help people get back on their feet after they are released from jail in hopes of cutting down on high recidivism rates. The resource center’s team of caseworkers is on hand to help people find housing, employment, get medications, food and clothing. These services are typically available for two to six months after release to ease the transition.
Sheriffs across western Carolina are re-assessing the need for jail expansion. Here, Swain County Sheriff Curtis Cochran checks in with detention officers at his jail’s booking desk. Photo by Jessi Stone.
Parmer has found that most people being released from jail don’t know where to turn for assistance and often times they’re in a worse position than when they were arrested. They could have lost their job, their children and any other stability they had in the community.
“We also connect people that have no support system with a faith-based group that will then become their support system when they’re released,” she said. “People just need somebody to help them maneuver the system. They need to know and see what it’s like to lead a life without drugs — it’s not always glamorous.”
More recently, the resource center received a grant through the MacArthur Foundation’s Safety and Justice Challenge Initiative to develop a notification system to remind people of their court date. This is one method local jurisdictions are testing to see if the money bond system can be replaced.
“With the IT department, we developed a web app where people can sign up for court reminders. It’s free and it was developed in a way that it could be used by any county in North Carolina,” Parmer said. “We started it a year ago and utilization is rising steadily. We have about a third of our cases on there for reminders.
“The grant is finished but we’re continuing it. It’s a customer service thing that really the state and the courts should be providing.”
If the notifications can get more people to their court date, then the system would be less bogged down with failure to appear charges and subsequent bench warrants, revoked bonds, deputy and police having to find and bring people in a second time, and higher incarceration rates. The cost associated with failure to appear charges falls on the local taxpayers.
“It’s not easily analyzed statewide, but I’d say probably 10 percent of people in criminal District Court in Durham don’t show up,” she said. “If you’re picked up on a failure to appear, it’s a county cost and a tremendous amount of paper work for the state to process.”
Jail Population Down 20%
The tangible success is that Durham County has decreased its jail population by 20 percent and isn’t looking to spend millions in the immediate future to build a new detention center. Also, the resource center’s diversion programs have had a 90 percent success rate, meaning only 10 percent of clients return on another arrest.
Parmer said there have been even more anecdotal successes that have come out of offering more services. The employment program finds temporary positions in the county government for people released from jail. The resource center’s clients can work with a department full time for six months at $15 an hour.
At the end of the six months, Parmer said, many have been hired on permanently as a county employee. She’s stopped seeing many of the same people struggling with mental health or addiction coming back into the jail time and time again. People who’ve gone through the substance abuse program are still attending NA meetings some 20 years later.
Recovering addicts are also becoming leaders in these programs, whether it’s through NA or by becoming a peer specialist at the resource center.
“Some people we have connected to the faith community are now working as a coordinator for a program,” she said. “We’ve established peer support positions because we know that someone who has gone through the system can provide much better insight and connect better to our clients.”
The biggest improvement the resource center has made is moving people more quickly and efficiently through the system by providing them with the services they need to work toward rehabilitation and stabilization.
“The real impact…is having services along the continuum to help them move forward,” Parmer said.
Her advice to other counties just getting started on trying to rein in overcrowded jails is to start by examining the jails — knowing who’s in the jail, what they’re charged with and how long they’ve been incarcerated.
“Start with a data analysis and begin looking for easy opportunities — lower-level cases — for release. Ask is it worthwhile for your community to lock someone up for a week for shoplifting because they can’t post a $500 bond. We need to ask ourselves if we can give someone a citation and still charge them without arresting and booking them,” she said.
“We need to make sure we’re locking people up for the right reasons.”
Jessi Stone is a 2018 John Jay Justice Reporting Fellow. The above is a slightly edited compilation of two of the stories in the Smoky Mountain News’ yearlong jail investigation, part of a reporting project undertaken as part of the Fellowship. The full series and other projects completed for the fellowship can be accessed here. Jessi welcomes comments from readers.
Texas’ Harris County jail is considered a progressive example of being attentive to mental health needs, with a suicide rate below the national average. But the recent suicides of two inmates point to systemic gaps in how the jail system handles prisoners in solitary confinement.
Sue and Eldon Jackson were childhood sweethearts. Growing up, they held hands at the roller rink and ditched school dances together. They almost got married at 17, but instead drifted apart after high school.
Then, 34 years later, he found her again on Facebook—and they thought they would start their happily-ever-after.
But then there was the meth addiction. The hurricane. The fight. The fire. The arrest.
And by April, Eldon Jackson wound up in the Harris County jail facing a 30-year sentence for arson. He’d lit their house on fire, then slit his own throat.
He came into jail with burns on his body and bloody lacerations on his neck, a visible reminder of his internal crisis. But, apparently, he didn’t get the help he needed.
He came into jail with burns on his body and bloody lacerations on his neck, a visible reminder of his internal crisis. But, apparently, he didn’t get the help he needed.
“I don’t want to die, but being in jail is too much for me,” the 61-year-old wrote in a letter to the Chronicle.
His mental state vacillated over the three months he penned the jailhouse missive, sometimes professing his love for Sue, sometimes lashing out at her.
But then early one morning in July—a day after jailers put him in solitary confinement to prevent repeated calls to his wife—he killed himself, fashioning a hand-made noose from the gauze used to treat his burns. His death was the first of two jail suicides in barely three weeks, at a facility that’s struggled to treat the influx of mentally ill patients coming through its doors.
The suicide of Jackson, a Navy veteran who’d long battled addiction, highlights cracks in the system—cracks that prison reform advocates hoped to fill with the 2017 passage of the Sandra Bland Act.
Named for the Illinois woman who died by suicide in the Waller County jail three years ago, the legislation did much to draw attention to the needs of mentally ill populations in the days immediately after their arrest, and to diverting them from jail in the first place.
But it did less to highlight the ongoing suicide risk weeks or months into a jail stay and failed to spark discussion about the problems of putting inmates having a mental health crisis in solitary confinement.
“We didn’t consider in a real way what happened here,” said state Rep. Garnet Coleman, D-Houston. “It’s just the truth of the matter—but we will. We will work to amend the law on this because we have to.”
‘You Don’t Turn Your Back’
At first, life together was great for Sue and Eldon. But a couple of years after they reconnected, he started keeping odd hours, making Walmart runs at midnight and foregoing sleep. She knew he’d been addicted to drugs once before, but only in retrospect did it seem indicative of a larger problem.
“It’s not that he was acting crazy,” she said, “it was just the hours.”
Together, they bought a house in 2013, in the same neighborhood where they’d grown up. Yet, around that time, Sue started suspecting he’d started using drugs again. At first, it was pills. But then, he switched to speed.
Happier times: Eldon and Sue Jackson in a family photo, 2011. Photo courtesy Houston Chronicle
“The next thing I know, I’m preferring the meth daily and everything is a giant train wreck just waiting happen,” he wrote.
But to Sue that wasn’t clear until Eldon got arrested on a minor possession charge, one that ultimately got tossed for lack of evidence. Just a few months later, his son —not a biological son, but one he’d raised nearly from birth—died of an opioid overdose in Florida.
Eldon fell apart. He stayed out for days, hung with shady characters, and started selling drugs. The following year, he got arrested again—and this time he went to drug treatment.
At first, Sue said, it seemed like he’d be OK when he got out. But afterwards, familiar faces started showing up at the door, and Eldon started disappearing again. He suspected she was cheating; she suspected he was cheating. At one point, she ended up filing for divorce.
“It just didn’t seem like things were going to change, and I was trying to get his attention,” the 60-year-old said. “But you don’t turn your back on somebody like that. You just don’t do it. If he was willing to get himself right I was willing to walk him through that.”
So they hung in there. Things didn’t get better—but they didn’t get worse.
Then Harvey hit.
A ‘Crisis’ in the Jail
The Harris County jail is often considered a progressive example of an urban jail attentive to mental health needs. Their suicide rate over the past decade— just over 16 per 100,000 inmates— is well below the national 15-year rate of around 42 per 100,000, according to Bureau of Justice Statistics data.
“More than 120,000 inmates are booked into Texas’ largest jail each year,” the sheriff’s office said in a statement. “While our inmate suicide rate is below the national average, our goal is a suicide rate of zero.”
To that end, Sheriff Ed Gonzalez created the Bureau of Mental Health and Jail Diversion. The jail launched two programs to help mentally ill inmates stay out of isolation and cut in half their use of solitary confinement over the past five years.
Still, the jail is ill-prepared to be the state’s largest mental health care provider.
A quarter of county inmates are on psychiatric medication, according to Harris County Sheriff’s Office spokesman Jason Spencer. There have been 15 suicides at the county lock-up since 2009, and staff members intervene in an average of about 10 suicide attempts per month, according to jail data.
“It’s no secret that we have an abundance of inmates who are in serious need of mental health care that we’re not equipped to give as a jail,” Spencer said. “We’ve been very transparent about that.”
Sometimes people still fall through the cracks. In 2014, the jail saw a string of three suicides.
That same year, news broke of a mentally ill inmate who’d been left wallowing in a solitary cell full of bugs and feces, a supervision failure that sparked outrage and dealt a harsh blow to then-Sheriff Adrian Garcia’s campaign to become Houston’s mayor.
In 2015, a mentally ill death row inmate back in county for court killed himself in solitary confinement, using shoelaces to form a noose. Then in 2017, the jail announced procedural changes after the highly publicized suicide of a 32-year-old whose family alleged he did not kill himself.
And, just three weeks after Eldon’s death, another Harris County inmate died by suicide. On Tuesday, Debora Lyons—who’d been jailed on $1,500 bail for a felony theft charge—hanged herself in a common area of the 1200 Baker Street jail just before 7 p.m. It’s not clear whether there were other inmates or guards in the area or why no one stopped her. The jail hasn’t offered clarification, citing an ongoing investigation.
Once officers found her, the 58-year-old was taken to the hospital, where she died Wednesday—the same day she was granted a personal release bond to get out of jail.
“We have a mental health crisis in the county jail,” Spencer said, “one that the state’s aware of but has not addressed.”
‘Not the Person I Fell in Love With’
When Hurricane Harvey hit in 2017, it flooded the Jacksons’ home with five inches of water, leaving them with a daunting task familiar to countless Houstonians: rebuilding their lives without flood insurance.
“It was just overwhelming,” Sue said.
Eldon, always a fix-it man, decided to do the repairs himself. But with all the work in front of him, the drug problem just got worse. He stayed up for days at time, sawing and hammering at all hours of the night.
And Sue’s chronic lung illness got worse while living in the half-finished, flooded-out single-story home. So she and her granddaughter moved out.
“It gave him free reign to do whatever he wanted to do,” she said.
By the time things were ready for Sue to move back in last December, Eldon was a changed man.
“That was not the person I fell in love with,” she said. “Drugs took over his body and his mind completely.”
Eldon Jackson prison photo. Courtesy Harris County Sheriff’s Office
After a fight with Sue, he was arrested on a misdemeanor family assault charge in March, then released with a protective order in place barring contact.
Despite that, they kept talking, and stayed in touch. Eventually, he asked her to drop the charge.
“I told him I’m not doing that, I’ve done it too many times,” she said. “You need to figure it out that what you do is not OK.”
Then, he showed up at the house one day in April, “completely crazed” and threatening to burn the place down.
When police arrived, Eldon ran to the back of the house and holed up in the still-unfinished master bathroom, shouting suicide threats. He slit his throat during the stand-off, but later claimed the fire that erupted was an accident, sparked when he dropped a cigarette. As the back part of their house went up in flames, Eldon slipped outside, leaving behind a trail of blood.
He passed out nearby and was arrested later, when—hoping to have him taken into custody before he bled to death—Sue lured him back home with a texted promise of a pack of smokes.
Gaps in the Sandra Bland Act
The Sandra Bland Act reformed the way jails handle mental health, but only at certain points of the process. In July 2015, the 28-year-old Bland’s death sparked national outrage, leading to a $1.9 million lawsuit settlement, a broader conversation about mental health in county jails, and state legislation. The measures passed—watered down considerably from what was initially filed—were guided closely by the specifics of her death.
Sandra Bland (via Twitter)
“We focused on diversion, we focused on people not being in jail if the reason they were there was because of their mental illness,” said Coleman, who authored the House version of the bill.
The measures also focused on suicide prevention at the front end, making sure inmates were screened better and courts were notified more promptly of mental health crises. But while it drew attention to the initial intake, the bill didn’t address ongoing treatment during incarceration, and did little to make sure jails are still attentive to burgeoning mental health needs in the weeks and months after initial intake.
“It didn’t deal with treatment or aftercare, and that’s a huge problem,” said state Sen. John Whitmire, D-Houston, who authored the senate version of the legislation. The act also didn’t address the use of solitary confinement with mentally ill populations or those having a mental health crisis.
“I’m really kicking myself,” Coleman said. “Had we been solving all of these problems when I did that bill, we would have covered this.”
No Help, No Phone
After his arrest, Eldon was taken to the hospital and later released to the jail, where staff did a risk assessment and decided to keep him in the infirmary on suicide watch, officials said. But because he denied being suicidal he was released to general population two days later.
That was in April. He did not get additional mental health help until July 18, when he saw a nurse for medication monitoring, officials said. Again, he denied having suicidal intentions.
All the while, he called his wife repeatedly, harassing her sometimes up to 20 times a day. So prosecutors went to court and asked that he be barred from using the phone. Judge Marc Carter agreed.
None of them had any idea the jail would enforce that order by placing Eldon in solitary confinement where, one day later, he would kill himself.
“I loved my husband and I still love my husband,” Sue said. “They put him into solitary confinement in the state of mind that he was in, and gave him the tools to kill himself.”
Advocates flagged a number of possible problems in the events leading up to Eldon’s death. For one, some questioned the decision to deem him no longer a suicide risk so soon after his last attempt.
“If someone presents at the jail as suicidal or having suicidal tendencies, that person should be considered as an individual with mental health needs throughout their time at the jail,” said Annalee Gulley, policy director for Mental Health America of Greater Houston.
“You cannot say someone is suicidal three days ago and received treatment and is no longer at risk.”
Experts also questioned putting him in isolation, a potentially triggering event for those already in mental crisis.
“It exacerbates people’s existing mental health conditions,” said Greg Hansch, public policy director for the National Alliance on Mental Illness. “If a person is experiencing delusions, or hallucinations, being alone in a room by themselves is proven to often result in an exacerbation of those symptoms.
“And for a person who is depressed, it may increase hopelessness and despair.”
Like the first days behind bars, the first days in solitary confinement can be particularly high-risk moments, experts said. And, even though Eldon died at the Harris County jail, some saw his suicide as a reminder of larger systemic problems.
“I know how deeply committed the leadership at the Harris County jail is to mental health,” Gulley said. “If a breakdown can happen at a facility that is taking such measures to protect the mental health of its inmates, then I worry about other institutions.”
Keri Blakinger, a staff writer for The Houston Chronicle is a 2018 John Jay Langeloth Justice Reporting Fellow. This story was written as part of her Fellowship project. The full version is available here.
A crime lab in the San Francisco Bay area has made an impressive dent in gun violence by helping local cops swiftly identify weapons used in crime through the 20-year-old National Integrated Ballistic Information Network. So why aren’t other police departments taking advantage of the network?
The criminals terrorizing the East Bay suburbs outside of Oakland, Ca., were getting bolder.
They robbed a family in well-to-do Fremont, Ca., at gunpoint. They broke into another house with pistols drawn, ready to confront residents. They shot a local school board member and pistol-whipped her husband as the victims unloaded groceries in their driveway, and then fled with a purse and cell phone.
For weeks in the summer of 2016, police struggled to gather enough evidence to arrest the men. Then one of them tried to dispose of a gun.
[That provided the evidence police needed to crack the case—thanks to a local crime lab that has uniquely positioned itself as a major player in combating the area’s endemic gun violence.]
As one suspect fled from carjacking a Danville man in his garage, police say he tossed his Glock in a commuter lot beside the freeway. Investigators from the county gang task force, who were monitoring the man through a wiretap on his cell phone, picked up the gun within minutes. They delivered the weapon to the Contra Costa County crime lab, where technicians used a sophisticated ballistics database to link it to shell casings from three other recent shootings, including the one that left the school board member hospitalized.
With those leads in hand, investigators gathered enough evidence to arrest eight members of the so-called Swerve Team gang and charge them with three murders, 14 attempted murders, six armed robberies, and two carjackings.
“The gun was the first link,” said Robert Pamplona, a senior inspector on the county’s gang task force.
Law enforcement departments across the country have access to the same system that Contra Costa has been using to catch the people committing gun crimes on its streets. It’s known as the National Integrated Ballistic Information Network (NIBIN), and it’s maintained by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).
When a gun is fired, it leaves a unique marking on the shell casing it ejects. Images of those casings make up the NIBIN database. Pictured: A microscope in the Contra Costa lab for examining bullets. Photo by Cayce Clifford/The Trace
NIBIN is like a giant fingerprint database—but for guns, which when fired leave unique markings on each shell casing they eject. By entering images of fresh casings into the system, investigators can make matches to those already on file, connecting different shootings to the same gun, and from there to shooters or gangs.
But NIBIN only works if police assiduously log all the casings they recover, and do so quickly, before trails grow cold. In many cities and counties, that’s not happening. Studies show many police departments and crime labs are misusing NIBIN, or not using it at all.
“Research has consistently shown that police investigators often do not receive forensic evidence testing results until after their investigation has concluded,” a team from Sam Houston State University in Texas wrote in the Journal of Forensic Sciences last year.
“These time lags prevent investigators from using this critical evidence in the manner that we expect it to be used: to assist in identifying suspects in criminal cases.”
The Contra Costa crime lab’s proficiency with NIBIN is the result of protocols put into place by its no-excuses director.
Those procedures have also made it an exception. In partnership with NBC Bay Area, The Trace surveyed California’s 18 city and county crime laboratories. On average, they report taking three months to enter evidence into NIBIN and get back leads. That’s more than 15 times as long as the turnarounds that Contra Costa achieves.
In the Bay Area, the San Francisco Police Department’s crime lab last year processed bullet casings up to 95 days after police collected them. The Santa Clara crime lab reports that it takes “months to a year” to run casings through NIBIN and look for leads. Both labs say they are working to narrow that window, and San Francisco says that, so far this year, its average turnaround time is about eight days.
At least three California counties — Fresno, Ventura and Orange — are not using NIBIN at all.
“If a lead is taking eight months to get into hands of investigators, it’s worthless,” said Sam Rabadi, who was head of the firearms division at ATF in 2012 and 2013, and who now works for Vigilant Solutions, a private investigative technology company.
“The overarching goal is to get to the shooter before they shoot again.”
Public officials are desperate for more ways to link guns to shooters. About two out of every five murders in the U.S. go unsolved, according to the FBI. Solve rates for nonfatal shootings are in the single digits in several major cities.
Unapprehended, perpetrators strike again. Street justice fills the void, leading to revenge shootings.
“NIBIN is a chance to deter that small number of people who are prone to grab guns and shoot at other people,” said William King, who authored the first comprehensive report on NIBIN for the U.S. Department of Justice in 2013.
“NIBIN holds those people accountable.”
By misusing the ballistic fingerprinting, or not using it at all, King said, “police have failed a lot of communities in the inner cities.”
Better ballistics testing, on its own, won’t fix the problem. Many police departments are understaffed, have strained relationships with the communities they rely on for witnesses, or simply don’t prioritize solving gun crimes. But taking full advantage of NIBIN’s capabilities can help cops catch shooters who might otherwise remain at large.
Underperforming Crime Labs
Contra Costa County used to be among the many jurisdictions underperforming in their use of NIBIN. Then, in 2015, a former San Francisco detective named Pamela Hofsass took over as director of its crime lab. Without an influx of funding or manpower, she transformed how her department taps the technology’s potential. The results she achieved helped shift how law enforcement throughout the county approaches solving gun crimes.
Hofsass dramatically cut the time it took to get NIBIN leads back to sheriff’s deputies and local police officers. That, in turn, helped them make more arrests, giving them greater incentives to pick up shell casings at shootings and bring them to the lab.
Without an influx of funding or manpower, Contra Costa lab boss Pamela Hofsass transformed how her department taps NIBIN’s potential and processes ballistic evidence. Photo by Cayce Clifford/The Trace
“Back in the day, when there was a shooting where no one was hurt, the officer might have kicked those casings into the curb,” Hofsass said. “They thought, there’s no blood here, no injured victims, there’s nothing. Now we know that the people who end up killing people usually start by shooting randomly.”
Ron Nichols, a former ATF NIBIN head who is widely credited with redesigning the agency’s protocols to get faster results, said the changes that Hofsass wrought are possible for any department.
“It’s less about money and resources,” he said, “and more about getting labs to change their mindset about how they do things.”
Ballistic investigations used to be an analog business. Firearm examiners would take Polaroid pictures of cartridge casings and store them in paper files. When a new shooting happened, they’d pull out the photographs and eyeball them for matches.
Beginning about 20 years ago, the ATF launched NIBIN, and brought the art of ballistics comparisons into the digital age. These days, after police send shell casings to a crime lab, staffers load them one at a time into an imaging machine, which takes photographs and uploads them into the database.
A gun collected as evidence goes through its own procedure. Technicians test fire it into a water tank, then gather the casings and enter them into NIBIN, looking for matches with ballistic signatures already on file.
The ATF now touts NIBIN as a cornerstone of its national crime-fighting operation. The agency maintains 179 NIBIN sites across the country, serving 3,000 law enforcement organizations. The system contains about 2.8 million images of shell casings.
Gun Violence Blind Spots
But laggards remain, leaving blind spots in the system. As of 2016, according to The Marshall Project, 11 states didn’t have a single NIBIN machine. Another 19 had only one or two. The ATF declined to provide The Trace with updated numbers.
Where NIBIN is available, many agencies are still struggling to realize its potential.
In Chicago, officials working to combat the city’s high murder rate have made efforts to collect more shell casings. A Chicago Police spokesman, Anthony Guglielmi, said officers now try to pick up and process shell casings after every reported shooting, even when no one is hurt.
But that requires the department to know when a round has been fired, and the city has installed gunshot-detection sensors in only about half of all precincts. In the others, it’s extremely difficult for officers to locate casings after the fact.
Processing times can also hinder investigations. Casings for homicides usually get entered into NIBIN within a couple of days, Guglielmi said. But lower priority cases, including shootings that don’t result in injuries, take a few weeks.
Experts say that delay can stall officers at critical moments — when it might be possible to stop someone from killing, or killing again.
“The sooner that I can get it [a lead] in my hands, the sooner I can get to the shooter before he or she reoffends,” ATF Firearms Operations Division Chief Michael Eberhardt told NBC Bay Area.
Last year, the ATF dispatched vans equipped with NIBIN equipment to Chicago, Baltimore, and Houston. The equipment in the vehicles is no more sophisticated than what each city is already using in-house. The bureau’s goal was to show local investigators how fast evidence can be processed when protocols are streamlined, and to entice investigators by getting them quick leads that help them bring more shooters to justice.
Spread over 700 acres of rolling hills northeast of San Francisco, Contra Costa County is dotted in some parts with cow farms and in others with desperate urban blight.
A war has raged for years in the western part of the county between gang members in Central and North Richmond.
“Out of the friends I had growing up, six are dead and three are incarcerated and not coming home,” said LeDamien Flowers, a North Richmond community organizer.
Within Richmond city limits, one in every three homicides went unsolved between 2011 and 2016.
When Hofsass took over the Contra Costa County crime lab in 2015, there was a backlog of more than 700 shell casings waiting to be scanned. On average, it took well over a year for the lab to get back to police with the results of a ballistics test.
“We’re talking about major crimes — attempted homicides or homicides with fired cartridge cases just sitting there,” she said.
Hofsass understood from her own experience as a detective that the lab had to do better.
“I knew from when I was in homicide, if I didn’t have critical information, then I wasn’t moving forward in that particular aspect of the case,” she said. “We had to think about what the detectives really need — to streamline it and strip it down. So that’s what we did. We overhauled the whole process.”
On her watch, Hofsass resolved, technicians would get detectives leads within at least four days of the shooting—two days to get the evidence to NIBIN, another two to get the lead back from the ATF.
But first, she had to get her staff onboard.
Prior to Hofsass’s arrival, “we were just functioning to put out fires right before things went to trial,” said Donnie Finley, her chief deputy. “Some days her message went over better than others. I remember people saying ‘We can’t do that, we don’t have enough people.’ ”
Tidy and no-nonsense, Hofsass convinced her team that they didn’t need more sets of hands, just smarter protocols.
Before Hofsass took over the lab, ballistic evidence routinely sat on shelves while it waited to be tested for DNA and fingerprints. Now it was immediately assigned to a technician.
She cross-trained her staff so members outside the ballistics team could help out colleagues when their own workload got thin. Investigators who primarily worked crime scenes were taught how to enter evidence into NIBIN on the side. Latent fingerprint examiners were shown how to record the make, model, and function of crime guns when ballistics tests got backed up.
Hofsass bought iPads to replace the paperwork that lab technicians had been doing by hand. Lab workers who used to have to draw pictures of shell cases and their markings now snapped photos instead.
A technician at the Contra Costa lab demonstrates the process of test-firing a gun to capture its ballistic “fingerprint.” Photo by Cayce Clifford/The Trace
She also asked for help from the ATF. At many local police labs, in-house criminalists do the initial side-by-side comparisons between shell casings they’ve entered into NIBIN and possible matches that the computer returns. That’s important work, since those initial hits are the ones that investigators can run with right away as they hustle to get shooters off the street. But it’s also time consuming.
In Contra Costa, and at 19 other labs across the country, those first matches are now made by ATF technicians based in Huntsville, Al. Hofsass said that’s been a huge help streamlining her process and opens up time her technicians can use to button up cases when they are ready to go to trial.
The ATF says it wants to do image comparisons for more agencies. The bureau plans to expand this service to as many as 30 additional sites next year.
The ATF also lent Contra Costa two technicians to help test fire about 600 crime guns that had been sitting in storage, and get that ballistic information into the NIBIN system. As they plowed through their backlog, Contra Costa crime lab workers started with the most recent cases, so they could get leads to detectives while the evidence was still fresh.
Today, Hofsass’s team is completely caught up. To keep her staff motivated, she painstakingly plans elaborate ceremonies to recognize techs who meet their benchmarks. When Hofsass hears that efficient lab work helped to make an arrest, or clear a suspect, she broadcasts that information to her staff, to make sure they know the work they’re doing matters.
“I’m saying there’s a way to be efficient, effective, and maintain your quality,” she said. “We’re here to make the world a safer place. So why would you want to take your time?”
Before Josh Medel worked for the FBI/Contra Costa County Safe Streets Task Force, he was an intelligence analyst in Iraq. He studied satellite images, drone data, and classified reports, trying to discern what opposition leaders were were planning. In Contra Costa, he looked at crime reports, social media feeds and cell phone data to figure out how who was running Contra Costa’s gangs and what they might do next.
When he heard what Hofsass was doing to produce faster ballistics results, he called the lab and asked for a year’s worth of the data it had collected. Analyzing it, he mapped out a sprawling diagram of the county’s gun crime: which guns were connected to which shootings, and which gang members might be connected to those guns—valuable information for prosecutors in California, where gang affiliation can mean longer prison sentences. In some cases, the webs sprawled to dozens of incidents.
The picture Medel was able to put together from Contra Costa’s NIBIN data was usually not enough to yield arrests on its own. But it was packed with valuable clues.
On the day of the carjacking that broke the Swerve case, police test-fired the gun that the suspect tossed in the commuter lot and entered the spent casings into NIBIN. When the ATF sent initial matches back, the results showed that three other recent shootings might have been done with the same weapon.
Investigators then gathered surveillance videos, GPS, DNA and cell phone data looking for other ties between the four shootings. They plugged that material into Medel’s map to figure out where a particular crime spree might fit in with wider county trends.
In the end, the Swerve Team linked 16 guns to 42 different shootings. Seven men were charged in the crimes. Police said that officers confiscated more than 200 illegal guns as a result of the investigation.
Getting shooters and guns off the street was not the only victory that came with the Swerve Team arrests. The headlines, and the fact that ballistics leads were key, got the attention of police at departments large and small across the Bay Area.
“Cops started saying, ‘Wow, maybe we need to clear out our evidence room,’” Medel said.
Every year, technicians at California’s Contra Costa County crime lab process hundreds of guns and shell casings recovered by police. Photo by Cayce Clifford/The Trace
Hofsass took advantage of the renewed enthusiasm for NIBIN to further refine Contra Costa’s use of the technology. She set up a drop box at the county’s central evidence locker. There, casings can be deposited round the clock with a simple evidence form, even if they aren’t collected as part of a criminal case. She’s planning a second drop box at the county jail, where police have to go regularly anyway when they book suspects.
For Carol Brown, the Swerve Team arrests marked a life-changing moment. A school board member in the leafy San Francisco suburb of Orinda, Brown and her husband were unloading groceries in their driveway in September 2016 when masked men attacked them. They beat Brown’s husband with a gun and shot her through the arm and chest.
The crime made headlines across the Bay Area, shocking in its apparent randomness.
Brown would spend two days in a locked ward in the hospital, protected from assailants who remained at large. On the third day came the NIBIN hit, when investigators connected the gun tossed in the commuter lot to shell cases from Brown’s driveway, compiling enough evidence to arrest the suspects.
Brown didn’t know that Hofsass’s ballistics team helped solve the case. What she knew was that she was safe again.
“I will not soon forget that moment,” said Brown. “Hearing they were in jail was the first time after it happened I felt like I could breathe.”
Earlier versions of this story were originally published in The Trace and the San Jose Mercury. Ann Givens is a 2018 John Jay Crime Reporting Fellow and a juror in the annual John Jay Excellence in Criminal Justice Journalism Awards. She welcomes comments from readers.
A Brooklyn, N.Y,-based grassroots group is teaching people with substance abuse disorder how to avoid getting ensnared in the criminal justice system. Organizer Jason Del Aguila says the first step is empowering individuals in their encounters with the courts and police.
VOCAL-NY, a Brooklyn-based grassroots organization seeking to empower low-income people affected by substance use disorder, recently launched a participatory defense program aimed at teaching people how to avoid getting ensnared in a criminal justice system that often works against them.
The goal is to combine traditional harm-reduction services, such as syringe exchange and HIV and hepatitis C testing, with less tangible resources, such as knowing how to de-escalate an encounter with law enforcement.
Participatory defense is a companion to Court Watch NYC, a collaborative program between VOCAL-NY and public defenders that trains community members to observe and document trends in criminal court arraignments and hearings.
“I realized we needed a program that did more than Know Your Rights and ‘CopWatch’ trainings, which focus on filming police encounters, de-escalation and documenting, and don’t necessarily go through all the court processes,” explained Jason Del Aguila, who is in charge of the participatory defense effort.
“The idea was, how do we help you navigate through the everyday legal gauntlet, from the streets to the courts, and even after doing time?
“We’re creating community efforts to keep people from becoming another victim of an injustice system.”
He says that often means helping participants understand court documents and organize support in advance of hearings, but more often the aim is to prevent them from getting arrested in the first place.
“I’ve had people who say, ‘It doesn’t matter, the cops can do whatever they want,’” Del Aguila said, “So I teach them, this is what you can do to prove that they did something wrong.”
Participatory defense is not a new concept, or even a single unified program with a defined set of protocols. Modeled on Silicon Valley De-Bug, a community advocacy and storytelling organization founded in 2001 in San Jose, the movement encourages family and friends of the accused to help with their defense.
According to the Albert Cobarrubias Justice Project, which promotes the national expansion of participatory defense, the goal is to provide additional leverage to overburdened public defenders.
Since about 80 percent of felony defendants in state court systems rely on public defenders, criminal justice reformers say participatory defense has the potential to “change the balance of power in the courts.”
Over the past decade public defender organizations in more than a dozen municipalities, including Philadelphia, Baltimore, Memphis, and Birmingham have established some form of a participatory defense program.
But some advocates say that the stigma associated with drug use and substance use disorder has promulgated a two-tiered system of advocacy that excludes users of drugs like heroin and crack cocaine.
“In progressive circles, there’s always been this sort of distinction between the deserving poor and the undeserving poor,” said Paul Cherashore, an activist who spent more than two decades working in harm reduction circles in New York and Philadelphia.
On the Bottom Rung: Drug Users
“Drug users have always held this bottom rung when it comes to providing aid or advocacy.”
VOCAL-NY’s program is among the first in the nation to combine traditional harm-reduction services with formal participatory defense training.
“As a harm-reduction agency, we do everything we can to reduce the harms associated with drug use,” said Alyssa Aguilera, co-executive director of VOCAL-NY. “Most of the time that means providing sterile syringes to prevent disease transmission or teaching people how to reverse an overdose with Naloxone.
“But it can also mean supporting people when they get arrested and helping them navigate the criminal legal system through participatory defense. For our participants, most of whom also struggle with poverty and homelessness, it’s often the police and prosecutors that cause the most harm, not their drug use.”
VOCAL-NY’s Del Aguila leads its participatory defense trainings two days per week, where he encourages people to share their experiences with the criminal justice system. His seminars also include teaching clients how to organize court support for hearings, and how to identify and protest unjust policing patterns like ethnic profiling or stop-and-frisk.
He also instructs VOCAL-NY participants on their legal rights and walks them through defusing encounters with police.
“Anything you say or do can and will be used against you, so don’t say shit,” Del Aguila said. “Whether you’re holding drugs or not, ask if you are being detained, and if the answer is no, then leave immediately.
“And if you’re asked to consent to a search, answer no, and say it loudly and clearly so any witnesses can hear.”
“I try not to make it about having a competition with the cops because you’re gonna lose even if you’re right,” he adds. “You’re trying to win against someone who has the odds stacked for them.”
Christopher Moraff is a Philadelphia-based freelancer who writes on criminal justice, policing and civil liberties. A contributor to The Crime Report, he has also written for Al Jazeera America, The Daily Beast, and The Philadelphia Inquirer, among others. This story was published earlier in The Appeal, and is reproduced with their permission. Chris welcomes readers’ comments.
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.
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.
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.
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)
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.
Four inmates have committed suicide so far this year in Alabama state prisons—three of them in solitary confinement units. Prisoner advocates say it reflects the failure of state corrections officials to improve conditions in solitary, and the system’s inadequate treatment of mentally ill inmates.
The Alabama prison system’s “dramatic increase” in inmate suicides is a result of state corrections officials’ failure to take adequate steps to improve the conditions of its solitary confinement units and its treatment of mentally ill inmates, says the Southern Poverty Law Center (SPLC).
Four inmates have already committed suicide this year in Alabama state prisons—one on death row and three in solitary confinement units. In all of 2014, the state Department of Corrections (DOC) reported just one inmate suicide, and last year there were four suicides in Alabama prisons over 12 months.
Four suicides may sound like a small number for a prison system that houses about 21,000 inmates. But if the trend continues for the remainder of 2018, the inmate suicide rate in Alabama’s prisons will be about 40 suicides per 100,000 inmates this year, ten times higher than the rate the DOC reported four years ago.
In 2014, the latest year for which such data is available from the US Bureau of Justice Statistics, there were 249 inmate suicides in state prisons across the nation. That’s a rate of about 18.4 suicides per 100,000 inmates, or less than half the rate Alabama’s prisons are experiencing so far this year.
“As far as we can tell, the state has done very little beyond promising to improve conditions in Alabama prisons,” Maria Morris, senior supervising attorney for the SPLC, said in the organization’s statement released this week.
“We continue to see the mentally ill kept in extreme isolation, and this is driving a steep rise in suicides.”
While reducing prison suicide rates is a difficult and complex task, multiple attorneys told AL.com that there are a number of concrete steps the DOC should take to begin that process in Alabama’s overcrowded state correctional facilities.
Those steps include boosting staffing levels, decreasing the number of mentally ill people held in isolation, fixing faulty solitary confinement cells, and improving the living conditions in solitary confinement units.
Dr. Edward Kern, who was appointed in April 2018 as the DOC’s first director of psychiatry, said in a statement issued by the department that the DOC is already working to address the issue of inmate suicides.
“ADOC is developing a comprehensive strategy for suicide prevention to go along with the changes already implemented in response to the court” following a June 2017 court ruling that “ordered the state to enter mediation and develop a remedial plan” to address a number of mental health care issues, the DOC statement said.
A key step toward bringing down the suicide rate would be to reduce the number of inmates—particularly inmates with diagnosed mental illnesses—in the state’s solitary confinement units, according to lawyers and experts who study such remedies.
And yet, the DOC has instead seen a marked uptick in the number and percentage of mentally ill people incarcerated in its solitary confinement—also known segregation or “seg”—units since 2014.
In January 2014, 196 prisoners on the DOC’s mental health caseload were being held in segregation units statewide, a number that represented 17.7 percent of the 1,096 people in such units at the time, according to data collected by the SPLC. As of January 2018, there were 274 prisoners on the mental health caseload incarcerated in seg units, or 25.5 percent of the 1,076 people who were in such units.
The increase in the use of solitary confinement to house mentally ill inmates creates a situation in which suicide is more likely, according to experts including Lisa Borden, an attorney with the Memphis-based firm Baker Donelson and co-counsel in a lawsuit against the DOC over prison conditions.
Jamie Wallace, a client of Borden’s, committed suicide in his cell at Bullock Correctional Facility prison in December 2016, less than two weeks after he testified in the trial in that case, which challenges the adequacy of the Alabama prison system’s mental health care.
“Less use of segregation would absolutely make an enormous difference, in my opinion,” Borden told AL.com. “When you have hundreds and hundreds of people in units that need that level of supervision, that’s a big problem and you need lots of staff to make that feasible.”
Kern said in the DOC’s statement earlier this month that though mental illness is often linked to suicide, a study released earlier this month by the US Centers for Disease Control and Prevention stated “that ‘many factors contribute to suicide,’ and that despite the strong association between mental illness and suicide, research ‘has found that more than half of people who died by suicide did not have a known diagnosed mental-health condition at the time of death.'”
The study looked at all suicides, not just those that took place within correctional settings.
The DOC added that “increasing the number of mental health professionals available to provide treatment within ADOC has been and remains a top priority … The department has increased the number of clinical positions, including psychiatrists, nurse practitioners, psychologists and licensed counselors, and is working with Wexford Health Sources to fill these positions.”
Meanwhile, the Alabama DOC faces both a severe staffing shortage and overcrowding crisis, which means that solitary units often go without proper levels of supervision, which increases the likelihood of inmates committing suicide, according to Maria Morris.
“They have a system that is putting people at an unconscionable and unconstitutionally high risk of harm,” Morris said Thursday. “Unfortunately, in the Department of Corrections they are not staffing [segregation] units anywhere near as well as they should be because of staffing shortages throughout the whole correctional system.”
Even if the DOC significantly reduced the number of inmates in segregation, flaws in the design of many Alabama prisons’ solitary confinement cells that make it easier for inmates to kill themselves would remain a concern, according to multiple attorneys who are involved in lawsuits against the department.
Some segregation unit cells have ceiling light fixtures or cell doors with exposed bars from which inmates can hang themselves, they say.
And many are each served by a single water pipe that feeds into both a metal combined toilet-sink unit and a fire sprinkler directly overhead. That setup creates an opportunity for inmates to kill themselves, according to Morris.
“If you want to kill yourself, you can climb up on the sink and hang yourself from the sprinkler head,” she said.
Some prison systems in other states have made fixes the design of solitary cells in order to reduce the ability of inmates to commit suicide.
But performing such work in all of Alabama’s state prisons—where sprinklers installed directly over toilet-sink units is “a pretty universal setup,” according to Morris—would likely cost millions of dollars, and the DOC has repeatedly stated in recent years that budgetary constraints limit its ability to make all manner of upgrades to its prisons.
On Jan. 14, 2017, Anil Mujumdar, an attorney with the Birmingham firm Zarzaur Mujumdar & Debrosse, asked DOC Commissioner Jeff Dunn during the trial challenging the adequacy of the prison system’s mental health care if he would “prioritize cost savings on sprinkler heads over the value of life,” according to a trial transcript.
Dunn responded that “[t]he value of a life is much greater than the cost of a sprinkler head. But to the specific detail as to the hundreds of items in a particular contract, I think that would have to be dealt with in concrete, in the sense of at the time, to determine.”
James Tucker, the executive director of the Alabama Disabilities Advocacy Program—one of the outfits representing plaintiffs in the lawsuit against the DOC challenging the adequacy of the prison system’s mental health care—argues that inmate safety should trump budgetary concerns.
“In any environment in which health care is being provided to persons who have serious mental health needs, there should be breakaway construction and a broad review of all aspects of physical setting so that any physical structure that can be used in completing a suicide can be removed,” he said.
“Yes, the objection of cost is made, but we’re talking about human lives here.”
Isolated for Years
The fact that some inmates are left in solitary confinement for months or even years at a time likely also contributes to the high rate of suicide in Alabama’s state prisons, according to lawyers and inmates.
“Back in December 2016, we were aware of numerous people who had been in solitary confinement for years on end, sometimes with a couple of short breaks,” Morris said. “The time I was last in Holman’s seg unit, which was 2016, there was a person who was in solitary since 2003, but he’s an outlier.”
Psychological studies have repeatedly shown that solitary confinement can wreak havoc on the mental health of inmates, according to a 2015 review of the literature by Mary Murphy Corcoran of New York University’s Department of Applied Psychology.
“Confined inmates experience a multitude of psychological effects, including emotional, cognitive, and psychosis-related symptoms … Longer stays in solitary confinement are associated with greater mental health symptoms that have serious emotional and behavioral consequences,” Corcoran wrote.
As such, many experts advocate a total ban on solitary confinement of mentally ill individuals and argue that even people without mental health diagnoses should never be isolated for long periods of time.
In April 2016, the National Commission on Correctional Health Care, a non-profit advocacy group, issued a position statement with a list of 17 “guiding principles” for the use of solitary confinement in correctional facilities. The first two principles were: “Prolonged (greater than 15 consecutive days) solitary confinement is cruel, inhuman and degrading treatment, and harmful to an individual’s health,” and “Juveniles, mentally ill individual (sic) and pregnant women should be excluded from solitary confinement of any duration.”
Yet the DOC continues to house inmates in solitary confinement for periods greatly exceeding 15 days. And as of January, 274 prisoners with mental health diagnoses were incarcerated in seg units across the state.
Mentally ill people subjected to such conditions, in addition to dealing with other issues like the overwhelming stench and the fact that they are locked in their cells more than 22 hours per day, often see their mental health degrade further, which increases the risk of suicide attempts, the lawyers said.
“They are horrific, atrocious environments, that are dark and dank and filthy, where people are in these cells that have just a tiny window into the hallway and then a tray slot for their meals and that’s their view outside of their disgusting cell,” Borden said. “Inside the cells there’s plenty of ways for someone to kill themselves should they become so inclined.”
The DOC did not respond to specific questions about the conditions in its segregation units.
“Our department is committed to safely and humanely incarcerating every individual in its custody and providing proper and appropriate care for those with mental illness,” Dunn said in the DOC statement.
“We will continue to follow the court’s order, which includes working with the plaintiffs to remedy challenges that is (sic) in the best interest of those receiving mental-health care in the state prison system.”
Connor Sheets, an investigative reporter for AL.com, is a 2018 John Jay/Langeloth Justice Reporting Fellow. This is a condensed and slightly edited version of an article published this month as part of his reporting project. The full version can be read here.
There is no national legal standard on how many years is too many for a juvenile to serve. Across the country, juvenile offenders are being released from prison based on recognition that human brains continue to develop for the first two and a half decades of life. That’s not the case in Illinois, write two reporters who investigated 11 cases of youths serving sentences of 50 years or longer.
The order came from a 15-year-old on a bicycle near a Chicago park in 2001: “Shoot him, shoot him.”
Benard McKinley, 16, obliged. And Abdo Serna-Ibarra, 23, never made his way to the soccer field.
Benard McKinley. Graphic by Jeanne Kuang/Injustice Watch
McKinley was later arrested and charged as an adult with first degree murder for the killing of Serna-Ibarra. In 2004, Cook County jurors found him guilty.
The sentencing judge, Kenneth J. Wadas, went on to make an example of McKinley and his murder, condemning the young man to 100 years in the Illinois Department of Corrections — 50 years for the murder, and a consecutive 50 years for the fatal use of a firearm. The sentence was necessary to deter other criminals, Wadas said in court, and would enable others to play soccer with “one less Benard McKinley out there with a handgun blowing them away.”
With no chance of parole or early release, McKinley was doomed to either live to celebrate and surpass his 116th birthday, or grow old and die within the fortress of the state’s prison system.
Over the past two decades, scientific researchers and courts began grappling with a question that could dramatically shift the course of McKinley’s life: When it comes to crime, are children and adults different?
Courts across the country slowly began to address the issue, bolstered by research showing that the human brain, particularly parts responsible for controlling impulses and assessing consequences, is not fully developed until one’s early 20s. And so courts ushered in a new era of decision-making, ruling again and again that children accused and convicted of crimes must be treated differently than adults.
The decisions culminated in Miller v. Alabama, a 2012 U.S. Supreme Court ruling that laws declaring mandatory life-without-parole sentences for juveniles, even for those convicted of murder, are unconstitutional under the Eighth Amendment. In the opinion, authored by Justice Elena Kagan, the court found that the mandatory sentences precluded judges from considering the defendant’s “chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences.”
The Court reasoned that the youngest offenders have “diminished culpability and greater prospects for reform,” and to require those mandatory sentences without considering features of youth constitutes cruel and unusual punishment.
That ruling applies to anyone under the age of 18, and was made retroactive in 2016 after another Supreme Court ruling, Montgomery v. Alabama. “What is with this magical moment?,” asked former Cook County Circuit Court Judge Daniel M. Locallo, now a defense attorney. “You’re 17 and 364 days, the day before your 18 birthday, allegedly your brain isn’t developed enough.”
But one day later, he mused, “it is?”
With the new standard set, a wave of prisoners across the country with mandatory life sentences, including some 80 inmates in Illinois, have or are in the process of receiving sentences that take their youth into consideration.
But McKinley is not among them.
Though Wadas imposed a 100-year sentence, to be served in its entirety, the judge was not mandated to sentence McKinley to spend his life in prison; in fact, he was only required under Illinois law to issue a minimum punishment of 45 years in prison.
After his conviction was upheld in the Illinois appellate courts, McKinley turned to the federal courts contending that his sentence was not constitutional.
In March 2014, U.S. District Judge John J. Tharp Jr. refused to strike down the sentence, reasoning that a judge’s imposition of consecutive 50-year sentences, while possibly amounting to a life sentence, was not based on a mandatory sentencing scheme that the Supreme Court prohibited in Miller:
“Whether McKinley’s sentence should have been lower due to his age is not for this Court to say; the Illinois courts held that the sentence was not excessive, and that conclusion is not in conflict with the federal Constitution,” Tharp wrote.
Those Left Behind
In Illinois, it is rare for juveniles who did not receive automatic life prison terms to win new chances at sentencing, leaving most of those with long sentences to languish in prison for decades, an Injustice Watch review found.
A review of custody data from the Illinois Department of Corrections revealed that, as of last December, at least 167 current inmates were arrested for crimes as juveniles and are set to serve 50 years or more in prison without parole eligibility, leaving them likely to die in custody but not eligible for resentencing under the dictates of Miller.
(It is not possible to know the exact number of young offenders serving long sentences at the Illinois Department of Corrections because the agency does not specifically keep track of that information.)
The imposition of long sentences is especially harsh in Illinois, a state which does not afford parole to most prisoners and which requires offenders convicted of murder to serve 100 percent of their punishment, with no chance of early release based on factors like good conduct or rehabilitation. Such sentences almost certainly lead these inmates to either spend the rest of their lives incarcerated or be released with precious little life left.
Research indicates that incarceration has a jarring effect on life expectancy. In studying a group of inmates released from New York state correctional facilities over a 10-year period, Vanderbilt University Professor Evelyn Patterson found that the former prisoners could expect to shave two years off of their average life expectancy for every one year of incarceration. Furthermore, Patterson found, undoing the negative effect on longevity takes time.
It took former inmates two-thirds of the time spent in custody back on the outside to recover from the harm of incarceration on life expectancy.
The United States Sentencing Commission considers a 39-year prison sentence the equivalent of life.
Because Illinois almost entirely abolished parole in 1978, these juvenile offenders do not get the same chance to show rehabilitation and change that they might get in other states. About a third of states do not currently employ the traditional practice of parole for newly convicted inmates, according to a report published by the University of Minnesota’s Robina Institute of Criminal Law and Criminal Justice, but Illinois is one of three states nationwide that stopped utilizing parole four decades ago, making it nearly non-existent for the current prison population.
The approximately 80 juvenile offenders in Illinois who became eligible to have their sentences reconsidered all were convicted of killing more than one person — Illinois law mandates life for anyone convicted of multiple murders. By contrast, Illinois state appellate judges have mostly declined to find that the cases of other violent youthful offenders, like McKinley, fall under the protections outlined in Miller.
There is no national legal standard on how many years is too many for a juvenile to serve. Courts across the country have differed on the issue, creating varied standards on what length of a prison term can legally be considered a life sentence.
“Getting rid of formal life without parole was the tip of the iceberg,” said Marsha Levick, deputy director and chief counsel for the Pennsylvania-based Juvenile Law Center, which has advocated for lesser sentences for juveniles convicted of crimes.
Across the country, about a dozen states have passed laws requiring that young defendants sentenced to long prison terms get a chance at parole. Legislators in Illinois have proposed a bill that would give periodic parole opportunities to newly convicted young offenders; so far those efforts have stalled.
Injustice Watch interviewed 11 Illinois inmates serving prison sentences of 50 years or longer for crimes they committed before they were 18. They spoke about their childhoods, often marred by poverty and violence; their hopes of one day re-entering the outside world; and their sense that, despite the growth and progress they said they have made entering adulthood in prison, society has already thrown them away.
Childhoods Marked by Death, Addiction, Drugs
Andrew Anderson and Ramirez Taylor both grew up in south suburban Cook County with childhoods marked by death, addiction and drugs.
As young teens they became friends. But as they grew older, the blocks between where each grew up, and the gang alliances associated with them, turned the pair into rivals. “He became the enemy because someone made him the enemy,” Taylor said.
Anderson said the gang rivalries that bound them both were so powerful that the childhood friends could have marked the other for death had they encountered each other on the streets.
After their friendship fractured, both were accused of committing separate murders before entering adulthood. They were charged and detained simultaneously in the Cook County Jail.
Anderson was arrested first, for the February 2006 shooting of 25-year-old Troy Pickett, a man he first met when he was 11 years old, selling candy bars and drinks with a friend at a housing project. Pickett told the boys they had hustle, Anderson said. The older gang member would go on to recruit Anderson into the Gangster Disciples, and train the boy to sell crack cocaine.
But by the time he turned 17, Anderson said he began distancing himself from his mentor, weary of the daily drumbeat of shootings and murders around him, and afraid he could soon be the next victim.
A month shy of Anderson’s 18th birthday, Pickett drove up to Anderson and a friend who were standing near a friend’s home in Robbins, Illinois, and told them to get in the car for a drug pickup. They climbed in. As they drove, Anderson said he saw Pickett reach for his gun. Anderson recalled what Pickett — a “real killer” whom Anderson said he once saw pointing a gun at a young girl — was capable of, and said he feared for his life. He reached for his own gun, and shot Pickett.
Five months after Anderson was booked into the jail on murder charges, 17-year-old Taylor was brought in on charges of unlawfully possessing a firearm while wearing a bulletproof vest as he fled from police.
Police sent the gun in for forensic testing, and connected it with the unsolved August 2006 shooting death of Shone Matthews in Riverdale, Illinois, during a game of dice. Taylor admitted in a videotaped statement to police that he was present during the killing, but said he was unaware of the plan beforehand and that he fired his weapon into the dirt, not at Matthews. Police found ammunition cartridges from two different firearms at the scene.
Taylor was charged with Matthews’s murder; no other suspects were charged in that case.
In jail, Taylor said a fight almost erupted between his allies and Anderson’s. But, Taylor said, the fight never happened, and instead the two former friends hashed out their differences.
“If it wasn’t for jail, I don’t think we’d ever be able to come eye to eye,” Taylor said.
In jail, Anderson said he tried to take his education seriously and earned his GED. After seven years — his entire adult life — behind bars, he went to trial. He claimed self-defense, but jurors were unconvinced, finding him guilty of first degree murder. The judge sentenced Anderson to 60 years in custody.
“To me, that meant the death penalty, like you gotta die in prison,” Anderson said. “No matter what you do, you can’t change and if you do change, we don’t care. Just go die in prison.”
Taylor was tried and convicted separately of both the weapons charge and the murder, and was sentenced to serve a combined 68 years in prison.
“They socked it to him, as far as they could jam it,” said Judith Taylor, his grandmother.
Both Anderson and Ramirez Taylor are now incarcerated at the Menard Correctional Center in southern Illinois, where they said they talk regularly about what led them to be enemies and the older gang members who took advantage of their ignorance. They offer their renewed friendship as proof that teenagers, once easily manipulated, can mature.
Anderson said he is asking to be transferred to a different state prison to access college courses. He said he refuses to dwell on the fact that he could die in prison, focusing instead on being a role model for his younger siblings. He said he wants to one day help youths at risk of choosing life on the streets.
“I grew up in prison… I learned to think 20, 30 years down the line,” he said, adding, “That’s something I didn’t see when I was living on the streets.”
In the ensuing 12 years since Taylor was arrested, both his aunt who raised him following his mother’s death, and his grandmother, said they have seen change in their relative.
The sentence has weighed heavily on Taylor, now 29. “I feel like a dead man walking,” he said in one telephone interview from Menard.
Different States, Different Rules
Inmates like Taylor and Anderson face a complex web of legal rulings as they try to ask the courts to reconsider their sentences in light of their youth.
Following the 2012 U.S. Supreme Court ruling in Miller, a judge must order a new hearing upon finding that a juvenile offender’s prison term amounts to a life sentence, and that the sentence was ordered without consideration of the defendant’s “age and the wealth of characteristics and circumstances attendant to it.”
In May 2016, an Illinois appeals court rejected Taylor’s request for a new sentence, acknowledging the consequential length of his 60-year term for the murder conviction, but finding his trial judge had exercised appropriate discretion after noting his age and difficult childhood during sentencing. Anderson’s re-sentencing request has yet to be heard by a Cook County court.
Other juvenile offenders in Illinois have had mixed luck asking for their long sentences to be overturned. A state appeals court rejected Randy Royer’s request to reconsider his discretionary 60-year sentence, but a different court allowed Erick Ortiz’s sentence, also 60 years, to be reconsidered, finding that his trial judge considered Ortiz’s age but not “the corresponding characteristics of his youth.” The Illinois Supreme Court in 2016 overturned Zachary Reyes’s automatic aggregate 97-year prison term as a functional life sentence.
Citing that decision, a state appeals court last year threw out 16-year-old offender Dimitri Buffer’s 50-year sentence. But a different appellate court last year said the state supreme court decision did not apply to Rafael Santos, and upheld his discretionary 70-year sentence.
Nationwide, courts have created a patchwork of legal standards regarding juvenile sentences. Rulings by judges across the country show stark differences in the lengths of prison sentences that are upheld for youthful offenders.
In neighboring Iowa, for example, the state supreme court in 2013 threw out a sentence that made a juvenile offender parole-eligible only after serving 52 and a half years, because it afforded him only “the prospect of geriatric release” without a meaningful opportunity to demonstrate rehabilitation. Citing that decision, the Wyoming Supreme Court in 2014 ruled the same way on a sentence that required a juvenile offender to serve 45 years before having a chance at parole.
“The challenge that all these courts are facing is literally where to draw the line and how to pick a number,” Levick said.
The Ohio Supreme Court so far has only drawn the line at a 112-year sentence; in Minnesota, the state supreme court has declined to draw the line for an aggregate sentence that included parole eligibility after 90 years.
The U.S. Supreme Court’s 2012 Miller decision banning mandatory juvenile life without parole was narrow, said Perry Moriearty, a law professor at the University of Minnesota who has represented juvenile offenders seeking shorter sentences in that state.
The decision “doesn’t say what is an alternative sentence, and left open for interpretation lots of questions,” Moriearty said. “Do we accept disunity [among states]? Should we be consistent when it comes to interpretation of the 8th Amendment?”
“These kids will languish” in prison without more explicit national legal standards on lengthy sentences, she added.
The Parole Possibility
In Illinois, one solution advocates are pushing to help this group of offenders is bringing back parole.
Under current state law, the only juvenile offenders with parole opportunities are the aging handful who were convicted before 1978, when the state’s sentencing laws drastically changed. That year, the state’s criminal justice system shifted from sentencing convicted criminals to a range of years with the chance to ask for early release through parole, to applying fixed sentences to all inmates. A later law, enacted in the 1990s, curtailed the ability for offenders convicted of violent crimes to shorten their prison sentences through good behavior and eliminated the opportunity altogether for those convicted of murder.
A 2017 bill filed in the Illinois legislature would have given newly convicted inmates who committed crimes before the age of 21 the periodic chance to ask for parole, after first serving 10 years for lesser crimes and 20 years for first degree murder or aggravated sexual assault. The bill sat in a House committee, never called. The bill was re-filed this year and passed a Senate committee last month.
Advocates like Levick and Moriearty point to California law as one solution to long sentences: it requires all young offenders to be eligible for parole after serving 15 years of their sentences for lighter crimes, and 25 years for homicides. After a minimum of 15 years, advocates say youths’ brains are developed enough with age for a “second look” to see if they have sufficiently changed in prison, or for parole boards to set goals for rehabilitation if they have not.
At least 13 other states and Washington, D.C. have passed similar laws, giving young offenders a chance to ask for parole release or a sentence reduction after first serving as few as 12 and as many as 35 years in prison, depending on the state and severity of the crime.
Such measures are not without opponents. Before voting against the prior version of the Illinois bill last May, State Senator Michael Connelly (R – Naperville) suggested that 10 years was too short a term for violent offenders to serve before having “an opportunity to be back on the street.”
“We need to start thinking about the people who are victims of these crimes and the families of the victims and the neighborhoods that these crime victim families live in,” Connelly said.
Illinois victims’ rights advocate Jennifer Bishop-Jenkins said frequent parole reviews would force victims to relive the traumatizing memories of their loved ones’ death, which she said is more painful the more often the memories come up again, and akin to “torturing the victim.”
Bishop-Jenkins, who began advocating for crime victims after her sister, brother-in-law, and their unborn child were murdered in their home by a 16-year-old boy in Winnetka in 1990, said she supports greater consideration of a defendant’s age and mental health at sentencing, and more programming in prisons for rehabilitation. But she said victims should not be subjected to the prospect of an offender’s release unless the inmate is a good candidate for parole, and said she believes one “mid-sentence review” is appropriate for those who are rehabilitated.
“If you’ve got a big sentence, and the purpose [of a parole opportunity] is to show they’ve changed, all you need is one” chance, she said. “It’s the cost versus benefits. Every five or 10 years makes it so that the victims’ family members can never get away from it.”
Another opponent, Senator Chapin Rose (R – Champaign), raised concerns that an un-elected parole board could undo a prison sentence set by state lawmakers.
Matt Jones, associate director of Illinois State’s Attorneys Appellate Prosecutor’s Office, said the age of 18 is a “pretty bright line” for extending parole eligibility.
“We think that accepting that premise creates some serious questions or concerns,” Jones said. “If they have diminished culpability…what does that mean for their ability to join the military, or get married or choose to have an abortion.”
Prosecutors statewide are divided on allowing parole opportunities for offenders under 18, he said.
While Cook County State’s Attorney Kimberly M. Foxx supports the current bill, last month, state’s attorneys in 7 counties surrounding Cook County signed a letter to all 118 Illinois House representatives strongly opposing it, arguing the bill would lead to an increase in violent crime.
“It is naïve to suggest that allowing violent offenders to be released from prison early will do anything other than increase violent crime committed by juveniles,” the letter, issued by DuPage County State’s Attorney Robert B. Berlin, reads. “The General Assembly should be looking at ways to incapacitate violent offenders instead of letting them out early.”
This March, a group of inmates at the Stateville Correctional Center in Joliet, Illinois, who are students in a class held a mock debate about the best way to reintroduce parole in the state. It was attended by state legislators and public officials.
Benard McKinley, convicted of shooting Serna-Ibarra on his way to a soccer game, was one member of the debate class. He described at the event the “emotional numbness” he felt as a young adult facing a 100-year sentence. Soft-spoken and bespectacled, he said he’s tried to better himself in prison, participating in a letter-writing program and completing paralegal training. In two days, he would start taking a DePaul University course in the hopes of one day getting a bachelor’s degree and attending law school.
He made a plea to legislators to allow inmates like him to get a chance at parole.
“There are other stories out there that are better than mine,” he said.
Tides Turning in Illinois
After Judge Tharp turned down McKinley’s petition, the inmate appealed to the U.S. Court of Appeals for the Seventh Circuit, where his attorneys argued that during sentencing the judge had barely acknowledged his young age, and ignored the rehabilitative strides McKinley made in jail, including obtaining his GED, and enrolling and excelling in classes.
Less than a year later, by a 2-1 vote, McKinley became one of the rare lucky ones.
His case was sent back to the trial court to review his sentence. Now-retired appellate Circuit Judge Richard A. Posnerauthored the opinion, writing that the trial judge “should have considered whether, in a situation of excitement, McKinley had the maturity to consider whether to obey his confederate’s order, or was prevented by the circumstances from making a rational decision about whether to obey.”
Instead, Posner wrote, the judge “treated McKinley as if he were not 16 but 26 and as such obviously deserving of effectively a life sentence.” The decision deemed McKinley’s sentence, though discretionary, still in need of another look.
Attorneys for McKinley and prosecutors came to a joint agreement to carry out a new sentencing hearing for the 33-year-old, one that would consider his young age and developing brain at the time he pulled the trigger. Judge Wadas has not yet issued a ruling vacating McKinley’s sentence.
Exoneration Project attorney Karl Leonard, who is one of the lawyers representing McKinley, said the legal team is now gathering mitigating evidence and preparing to bring in an expert witness in the hopes of getting McKinley a lower sentence.
Leonard said he hopes to be able to reach an agreement with the state on a sentence, but does not yet know what amount of years that would be. As to whether Leonard thinks McKinley would fare well if parole was brought back for young people like his client, he said he did not know.
“I think the better solution is just to not be sending children away to prison for the rest of their lives,” he said.
Former parolees in a Syracuse, N.Y. pilot program lead efforts to help individuals returning from prison adjust to civilian society and reunite with their families. It’s an uphill task that often starts with finding a place to live.
In just one day last year, Charles Rivers went from being a supervised parolee to a welcomed professional in the same state office building where one individual held the power to revoke his freedom.
That day, he was on his final scheduled office visit with his parole officer, known as a “PO,” and he was nervous.
“As a parolee, you look at your parole [officer] as an adversary,” Rivers said. “You go in thinking, ‘I got to go see this guy that could violate me at any time.’ ”
But Karen Loftin, another returning citizen who had worked with Rivers for just over two months at that point in the Syracuse, N.Y., community center that Rivers directs, pushed him into it.
‘You’re going,’” she told him firmly. “‘You’re a coordinator now.’”
Rivers now calls it “the day I came out of the shadows.”
For the past three years, Rivers has overseen PEACE, Inc.’s Emma L. Johnston Southside Family Resource Center. He came there after spending more than 19 years in prison.
When Rivers met with his PO that last time, relief should have been instant. But the nerve-wracking feelings of stress, intimidation and mistrust, even after hearing praise for all he had accomplished were hard to shake—even after purchasing a home, earning a bachelor’s degree, and mentoring parolees.
Even for those who have managed the uphill journey of remaking their lives after years behind bars, it’s a common occupational hazard.
It’s no coincidence that the organization Rivers directs now has as one of its principal missions easing the difficult transition between prison and normal life.
The Emma L. Johnston Southside Family Resource Center offers wraparound services to South Side residents in need. This center, run as an extension of PEACE, Inc., offers a food pantry, computers for job searches and re-entry support for ex-offenders. Photo courtesy The Stand/File Photo
In December 2016, PEACE was awarded a $95,000 grant by New York State to launch a pilot program for family reunification. Many experts in the field say that the struggle of ex-offenders to reconcile with family members who may have spent years or even decades without them is as critical a barrier as finding employment, adequate housing, and even attaining photo identification.
Rivers says it takes time to reconnect, and to figure out what day-to-day life will be like moving forward. The grant allowed Rivers to focus on the needs of offenders’ family members as well.
Loftin, who spent over a decade in prison and has been off parole for 16 years, was hired in February 2017 to serve as the re-entry case manager.
The grant — also awarded to two other cities —allowed each resource center to craft its own plan modeled on the successful New York City Housing Authority (NYCHA) initiative launched in 2013 called the Family Re-entry Pilot Program (FRPP).
According to a 2016 Bureau of Justice Statistics report, New York ranks ninth nationally in recidivism. According to the report, individuals released on parole are more likely to be imprisoned again—not for new convictions, but for violating the conditions of their parole.
The aim of the NYC pilot was to reconnect individuals with their families and provide stable housing after incarceration. Because many public housing authorities and private landlords have strict policies that exclude individuals with criminal records from being added to a lease, finding a safe and supportive place to live is a challenge.
When individuals apply for housing, the public housing authority runs a criminal background check of the applicant; everyone 16 or older who might also live there; any biological parent of children who will be living in the household, even parents who do not plan to live there and who are not part of the application.
Rules governing who may be denied are very broad, allowing housing authorities to exclude people it believes will risk the health and safety of other tenants. Federal Law (42 USC § 13661(c)) gives public housing authorities the power to deny people based on criminal activity.
Bill Simmons is the executive director and president of the New York State Public Housing Authority Directors Association. Photo courtesy The Stand.
However, Bill Simmons, executive director and president of the New York State Public Housing Authority, says the Syracuse Housing Authority (SHA) has a long history of embracing individuals with criminal backgrounds, citing a past re-entry job-training initiative, the Altamont Program, as one example.
“We never flat out denied them housing,” he said, noting the U.S. Department of Housing and Urban Development (HUD) has two bright-line rules: you cannot live in public housing if you are a level-one sex offender or were convicted of producing methamphetamine.
“Outside of that, it was up to the individual housing authorities to have their own policy. Traditionally, we were case by case already,” he said.
On March 3, 2017, New York Gov. Andrew Cuomo publicly announced the Family Reunification Pilot Program. In addition to Syracuse, authorities in two other New York cities—Schenectady and White Plains—also launched pilots in partnership with Schenectady County Community Action Program, Inc. and the Westchester Community Opportunity Program (Westcop).
The goal of each pilot was to enroll 12 individuals by year’s end.
Individuals found their way to PEACE by word of mouth.
“Many times, a family member reached out to us from housing who knew of someone that was up for parole,” Loftin said.
Once an individual was vetted by parole, the family member on the lease also had to agree to serve as host. Loftin met with both the potential participant and the lease-holder to go over the program, its requirements and rules.
An agreement was signed and next sent to housing, which then conducted its own review. SHA had the final say if a participant could move into a unit or not.
The clearance of property managers was key, Loftin says, because they are privy to details that may not be part of someone’s official record. They often remember the individual and know the family situation they are returning to.
“Syracuse is a small enough town that if the property manager knows the name, they’ll know any issues that could surround that family,” said Annette Abdelaziz, an SHA grant procurement specialist, whose main job function is ensuring residents stay housed.
Charles Rivers greets a resident one Thursday evening as they arrive to the center to visit the food pantry. Photo by Zachary Krahmer/The Stand
Currently six individuals are enrolled under the grant, having extended-stay guest status, which is a policy adjustment SHA made for enrollees of this initiative. The governor’s release stated that at the conclusion of the pilot program, successful participants could be added to a household’s lease.
By the end of the grant period, PEACE had seen eight individuals enrolled and living in public housing. Two of those eight, however, dropped out of the program by December 2017 — one by choice; and one violated parole and was reincarcerated for a minor offense.
With the goal of 12 parolee participants falling short, the stipulation on requiring participants to live in public housing was lifted by the state, and the pilot period was extended until grant money ran dry.
In Syracuse, that allowed a continuation into mid-February 2018. In White Plains, that extended into April 2018, but with no set closing date because additional avenues of funding had been incorporated into its plan. For example, two of the 12 participants were veterans and funded through HUD-VASH (Veterans Affairs Supportive Housing) vouchers, an exception HUD allows for veterans with convictions.
With removal of the requirement of living in public housing, Syracuse instantly jumped from six participants to 17, because of PEACE’s long-standing practice of supporting individuals’ re-entry. Rivers said he was able to pull participants from that pool and bring them into the pilot.
All three cities regularly stayed in touch over the course of the pilot, and staff in both Syracuse and White Plains noted that Schenectady’s initiative never seemed to take off. Staff with the Schenectady Community Action Program declined to speak for this story.
By March of this year, the state asked only Syracuse and White Plains to submit for a grant renewal.
The problems faced in enrolling participants provided a few lessons learned.
In the weeks leading up to being released, prisoners are asked to provide an address. Typically, they give a family member’s, spouse’s or partner’s home address. In Syracuse, if there’s no family immediately available to contact, they’ll often end up at the Rescue Mission.
James Rivers, Charles’ uncle, an ex-offender, sits at a computer in the center’s public computer lab, offered for residents to complete online job applications and print resumes. Photo by Zachary Krahmer/The Stand
When released, they’re given $40 and a bus pass to return home. Rivers describes this as “the symbolic 40 acres and a mule.”
Next, they have 24 hours to report to parole, where an assessment of their mental health and level of risk to the community is conducted.
An individual’s most urgent needs during the transition are housing, health and income, says Bruce Western, author of the forthcoming “Homeward: Life in the Year After Prison.” The book, scheduled to be released May 15, examines what individuals face upon returning home through detailed accounts from more than 100 individuals on probation.
Researchers on Western’s team also spoke with family members.
In these in-depth interviews, conducted five separate times along the span of a year, participants in the book’s study shared that probation officers chiefly focus on compliance and monitoring.
“For most, we found that there was no process with probation to develop a plan and tackle priorities,” Western said in a phone interview with The Stand, noting only a few went above that level to also discuss with a probationer goals for the year ahead. “There is a deficit of that kind of support.”
Western calls it an unmet need right now.
Rivers and Loftin would agree. When working with their clients, they first share: “We are not your parole officer.”
“After telling them that, the air clears,” Rivers said. “It’s like a big sigh of relief, and in that meeting, we can tell tension has left the room.”
In describing a successful model, Western, who also teaches sociology at Harvard University and is co-director of the Columbia University Justice Lab, says case managers would engage parolees for long periods of time, serving as advocates.
“Coercive treatment is a difficult model,” Western said. “This type of role should involve noncriminal justice actors that don’t wield the threat of arrest and revocation. People view it as a continuation of surveillance and control, and many times we heard from respondents that ‘the system just wants to make money off of us.’”
For this pilot, gaining such trust took time.
“If they can feel it, they will be willing to work with you,” said John Fuller, who oversees the pilot program in White Plains, N.Y., stressing that consistency is key.
“You have to be able to follow up and deliver something tangible.”
He said if released offenders trust the case manager, they’ll pass on the referral to others.
Fuller says that, once enrolled, the majority of his new participants exhibit what he terms “re-entry malaise,” where people struggle with their self-worth, settling for their current limitations.
In an open group discussion with Syracuse participants in February, one man shared that “you know you are doing your best, but your best is never enough.”
Later, Rivers paused, locking eyes with another grant participant.
“We said one day we’d be out,” he said while maintaining eye contact.
Both walked the yard together and lived in the same cell block, at various prisons, at different points in their pasts.
“On those walks, we said we’d have a second chance, and that time is now,” Rivers concluded.
Next he encouraged the men to share their personal stories in order to illustrate to others what barriers they face in their transition from incarceration to free society.
Re-entry support is not all hand-holding, the case managers note. There is a spectrum with some requiring help as minimal as a bus pass to make a job interview. But for others, support offered by a case manager could be in tackling their staggering issues of self-doubt when rejections seem to be at every turn — “no” from a landlord; “no” to callbacks on potential jobs; even “no” to requests to reconcile with an estranged child.
Karen Loftin, 52, was hired by PEACE under the Family Reunification Pilot grant to work as the program’s re-entry case manager. She worked one-on-one with each ex-offender to support their needs during transition from prison back to their family. Photo by Zachary Krahmer/The Stand
For Loftin, patience is what she stresses to each of her clients. “It takes time to get back to a sold foothold,” she tells them. “But when parolees come home from prison, they want everything back immediately.”
She adds that society tells them the same thing: Be productive now.
“That’s where the frustration comes,” Loftin said of her clients’ feelings, “and as a case manager that’s where I come in and can be advantageous and tell them ‘listen, it’s not going to happen overnight.’”
It takes time.
Lots of time.
Loftin says the “top priority” is to ensure they meet their parole conditions.
“Whatever the commissioner said for you to do upon release — education, drug treatment, counseling — everything else has to be met around those.”
She gives an example. Several clients wanted jobs because they felt having money in their pockets was empowering, but if assigned by parole to be in a substance-abuse program four days a week, you first have to complete the program, she says.
This works as good discipline, discouraging hopes of the quick fix. “That hustling mindset,” she began, “has to be changed. While those actions may be quick money, they come with greater consequences. Let that patience have its perfect work to get a greater reward.”
Fuller has also found this to be a population full of fear.
“They are afraid to fail, afraid of rejection,” Fuller said. Some he has worked with have such high levels of anxiety and post-traumatic stress that they aren’t mentally ready for a group training.
Even scheduling a meeting during peak office hours when foot traffic is high is too overwhelming.
In substance-abuse counseling, there’s a common saying. “Recovery is the bridge back to life,” Fuller said. “But if you’ve never had much of a life, there’s really no point of reference for what you’re trying to return to. You never had glory; you never had direction; you never had good counsel.”
Deep trauma was the most surprising factor Western learned in the process of interviewing subjects for his book.
“The extreme level of violence people have had to contend with over a lifetime,” he said, “may seem obvious, but we learned that nearly everyone we spoke to had been seriously victimized by violence.”
After Prison, Resilience
He noted many had done very violent things themselves, but they also had serious histories of victimization. Despite this, he said, many displayed resilience.
Fuller says a major component of his role is teaching individuals how to find value in themselves. He said this is something they’ve been missing.
“For some — all of their lives.”
Many are scared to death, he added: Scared to go to that job interview, to try, for fear of failing yet again. “Then when we get that spark, we fan it,” Fuller said with enthusiasm. He noted that success isn’t always employment. “Sometimes success is getting a guy to BOCES to complete a basic course, because sometimes we have to set up wins for them in order to grow their confidence and show them what’s possible.”
Still he views this as a collaborative effort, not simply him telling them what to do. “They have to be invested,” he said “… be part of their own rescue.”
Even if the grant is not renewed, Rivers says, PEACE will continue its re-entry efforts.
“This is something I’ve done since I started and something we were doing before the grant,” he stressed. “The support I offer is not dependent on this grant continuing.”
Neither is the passion the others in this field feel.
Loftin, who spent over a decade in prison and has been off parole for 16 years, says serving as a mentor is ingrained to her core. Rivers’ and Loftin’s past experience, they say, helps to connect with their clients and to show what is possible in the long term. The pair’s combination of having both experienced prison makes them uniquely qualified for this work, making their role instrumental in the grant’s success.
As well, Rivers has earned his master’s degree in social services, while Loftin is pursuing her master’s.
For housing, grant continuation is a major factor in future approval of a tenant with a criminal background.
“A participant’s willingness to participate in case management services is an important indicator of their commitment to change,” said Annette Abdelaziz, the SHA’s grant procurement specialist, whose main job function is ensuring residents stay housed.
Currently, three potential enrollees serving out their sentences are in the pipeline to join family in public housing when up for parole. SHA says no decision to approve their move will be made until a release date is near.
The stall is due to the uncertainty of the grant. If the grant is not renewed, SHA staff would not confirm if their efforts will cease, noting that decisions on individual approval will continue on a case-by-case basis.
“While we want to ensure the case management will be there,” Abdelaziz said, “we won’t tell people ‘no’ yet.”
This is a condensed and slightly edited version of a story published in The Stand, a community newspaper produced in Syracuse, NY in partnership with S.I. Newhouse School of Public Communications. Ashley Kang, director of The Stand, is a 2018 John Jay/H.F. Guggenheim Justice Reporting Fellow. Readers’ comments are welcome.
A number of prosecutors, apparently backed by President Trump and his attorney general, think the death penalty should be among the punishments for dealers found to have caused opioid deaths. Public health experts aren’t so sure.
Drug overdoses are now the leading cause of death among Americans 50 and under. But can a “get-tough” approach to drug dealers—including the death penalty—address the country’s spiraling opioid epidemic?
Attorney-General Jeff Sessions has called on federal prosecutors to seek the death penalty for dealers who are found to cause opioid-related deaths, and President Donald Trump appears to back him.
As the crowd applauded, Trump added cautiously, “Maybe our country is not ready for that.”
But a few jurisdictions seem to be.
In Florida, overdoses are traced back to suspected dealers, who are then charged with first-degree murder for the unlawful distribution of a controlled substance which results in death. First-degree murder in that state is punishable by life without parole, and the death penalty.
Such charges have already been brought against at least two drug dealers. One dealer, in Lakeland, is facing a life sentence, and another, in Palm Beach County, was given a 30-year sentence.
Emboldened by the renewed “get-tough” approach on drugs, prosecutors elsewhere have been moving fast to charge dealers with murder.
Another example is Broome County in New York State, where County District Attorney Steve Cornwell, assisted by his first-ever “overdose investigator,” moved last September to upgrade charges against Richard Gaworecki , 29, of Union, N.Y., to second-degree manslaughter, in a case involving a heroin sale that led to the death of Nicholas McKiernan, 26.
The manslaughter charge meant that Gaworecki now faced 14 years in prison instead of four.
“Whenever we can, we separate out dealers and users,” Cornwell said, in an explanation of his actions.
“That’s the goal. But when someone is selling drugs that kill somebody, then they can expect to be charged. We’re going to find those people and target that investigation to get to the root of the crime.”
However, public health and legal experts are skeptical of such hard-line approaches, and fear that drug users addicted to opioids—not dealers and major traffickers—will face unduly harsh sentences.
A Broome County attorney with direct knowledge of Gaworecki’s charges, who asked not to be identified because he is not authorized to discuss the case, told In Justice Today that Gaworecki was a heroin user, not a drug dealer.
“I believe the underlying drug deal here was the result of Gaworecki supporting his own habit,” the attorney said.
“I also believe that the proposed manslaughter charges against Gaworecki were completely unjust and politically motivated by the ambitions of District Attorney Cornwell.”
Public health activists and families who have lost loved ones to overdoses in Broome County are growing increasingly critical of Cornwell’s approach to “treat overdose deaths as crime scenes.”
Out of over 95 overdose deaths in 2016, 84 have become potential homicide investigations, according to local news reports. Cornwell’s critics say that most of those designated dealers are actually users themselves who, like Gaworecki, sell small amounts of drugs to their peers to support their habit, and that locking them up is counterproductive.
The number of overdose deaths in Broome County, which jumped 55 percent in 2016, appears to support that argument. There were just 10 fewer overdoses in 2017, according to Cornwell’s final count.
“Our elected officials’ actions do not match their words,” Broome County resident Alexis Pleus told In Justice Today.
Pleus started Truth Pharm, a nonprofit that helps families deal with the legal consequences of addiction, after losing her son to an overdose shortly after he was released from jail in August 2014.
“At every turn, it seems District Attorney Cornwell promotes arrests while saying, ‘We can’t arrest our way of out of this crisis,’” she said.
Cornwell’s office did not return multiple requests for comment from In Justice Today.
This is an updated version of an article that appeared earlier in In Justice Today. Zachary Siegel is a 2017-2018 John Jay/H.F. Guggenheim Justice Reporting Fellow. Readers’ comments are welcome.
Under an initiative inspired by the Trump Administration’s crime crackdown, the U.S. attorney in Jackson, Ms., plans to expel convicted gun offenders outside the state. But criminologists say “Project EJECT” will complicate efforts to help returning prisoners rebuild their lives.
President Donald Trump, who had appointed Hurst the previous June in a second wave of U.S. attorney nominees, described him as sharing “the president’s vision for ‘Making America Safe Again.'”
A sign with a large red button and “Project EJECT” written across the center leaned on a tripod easel.
Hurst had invited media, Hinds County District Attorney Robert Shuler Smith, Hinds County Sheriff Victor Mason, FBI Special Agent-in-Charge Christopher Freeze, and clergy to stand by him as he unveiled Project EJECT (Empower Jackson Expel Crime Together).
“Today is a new day,” Hurst began, adding, “(T)he message to violent criminals in Jackson is simple: you break the law, you terrorize our neighborhoods, and you will be ejected from our community.”
Hurst has charged 35 people since he first announced the anti-crime initiative in late 2017. In the next two months, 13 people are going to trial before a federal jury of their peers to decide whether they will be among the first ejected from Jackson under the strategy that Hurst, Freeze and Sessions embrace, with (qualified) support from the City of Jackson.
But the program has already prompted skepticism from community residents, criminologists and reformers from all sides of the political spectrum.
“Many times … you’ve got people locked up all over the country. How are you supposed to re-integrate these folks back into the community when they’re in Kansas?” said Koufos, a former felon in New Jersey, in a speech at Jackson’s Old Capitol Inn.
Phillip Goff, co-founder and president of the Center for Policing Equity at John Jay College of Criminal Justice, said there were risks involved in removing people from their social supports.
“The people making decisions about removing folks, shunning folks, and excommunicating them from their homes are often not the same people who are in community with those committing crimes,” said Goff in a phone interview.
“That’s a fundamental flaw with the way that we handle the criminal-legal system right now.”
The system tends to be comprised of the poorest, most vulnerable, poorly educated, least advantaged and least connected to opportunities, and those prosecuting them do not tend to be of that demographic, he added.
Many begin as cases that would normally put them under state jurisdiction, even for acts committed with guns. But Hurst takes the cases when they can be shown to involve interstate commerce.
In example, three individuals charged with armed robbery used a stolen Grand Am car for their getaway. But the fact that the Grand Am had been transported, shipped and received through interstate commerce made them candidates for Project EJECT.
Similarly, two individuals who allegedly held up a store in October 2017 came under Hurst’s scrutiny because their offense involved a plan to steal a getaway car manufactured outside the state.
“Carjacking is a federal crime because the car was manufactured in interstate commerce,” Hurst said in his office in February.
Hurst’s goal to “eject” violent criminals into federal court and then prisons outside the state is much like Project Exile in Richmond, Va., in the 1990s, which sent felons into “exile” for firearm violations.
The FBI’s Freeze, who joined Hurst at his December press conference, in fact, worked for the agency in Richmond at the time, back when James Comey was the U.S. attorney leading the program there. Freeze started pushing a version of Exile in Mississippi soon after he arrived in late 2016.
“Project Exile was founded and based on the concept that if you’re a convicted felon, caught in commission of a crime, with a weapon, there’s a five-year automatic sentence to federal prison,” Freeze told WDAM in Hattiesburg in April 2017.
Under the program, special agents from both federal and state agencies join local law enforcement to identify crimes Hurst can prosecute. A task force determines if there is enough evidence to prosecute suspects in the federal system.
Authorities will lock suspects up immediately in detention without bond, and law enforcement will not cut a deal so the suspect could be out in a few months. Once convicted, the theory goes, the felon would spend time without parole in the federal system “far, far away from Mississippi so that they cannot continue their criminal activity behind bars,” Hurst said in December.
Nevertheless, Project EJECT won early praise from local police. Then-Jackson Police Chief Lee Vance, said at Hurst’s press conference that his “greatest wish” for the strategy is that a young man in Jackson rethinks a life of crime and will rethink his actions after watching others go to federal prison “for a long time, perhaps thousands of miles away from here.”
But some local critics have their doubts. One called it a “sinister law-and-order initiative aimed at criminalizing, victimizing and ethnically cleansing poor black people from Jackson while using violence and crime reduction as a way to cover its nefarious intent.”
The critics say they are also angered by the silence from Jackson Mayor Chokwe A. Lumumba, who has offered few public statements on Project EJECT.
Jacksonian Calandra Davis expressed her dissatisfaction with Project Eject in Jackson over the last year at a city council meeting on February 27, 2018. Photo by Stephen Wilson.
Meanwhile, citizens are forcing a public conversation about Project EJECT.
“And to realize that this program and these shootings affect African-Americans disproportionately should raise concern for all of us….”
Jackson Mayor Chokwe A. Lumumba has since put some distance between the program and city government.
“Project EJECT is (not) and has never been an initiative of the City,” Lumumba said at the council meeting. “… This administration has never said it is in favor of Project EJECT.”
Jackson Mayor Chokwe A. Lumumba has both distanced himself and the City from Project EJECT and criticized it. Photo by Stephen Wilson
But he added: “I will say that some of the comments that were made during the (Hurst) press conference where it talked about people not getting bonds and everything else was inappropriate.”
Hurst insisted in an interview with the Jackson Free Press that his initial statement had been “misconstrued.”
“We are only a part of the judicial process, and our part will be to move for detention,” he said.
He pushed back on the suggestion that his promises meant violating people’s rights to bond; prosecutors will not suggest bond, he said.
“We’re moving for detention, and the judge makes a decision based upon the facts.”
He argued that the program was really part of the federal government’s “reboot” of Project Safe Neighborhoods, a pre-Obama-era program that Attorney General Jeff Sessions said he was re-invigorating, according to an October, 2017 statement, to “reduce the rising tide of violent crime in America.” He announced that he was allocating 40 new prosecutors to approximately 20 United States Attorney’s Offices to focus on violent crime reduction.
Davis said in an interview that his program did not specifically threaten to send convicted criminals far away from Mississippi.
“Our issue was more so that violent people need to be prosecuted, the law needs to be enforced, and once they’re sentenced, they will be sent to a prison,” he said. “More than likely, that would be at a different location other than a local area.”
Some of those convicted were imprisoned in state. Others went to Arkansas, West Virginia, Florida or Georgia, but Davis made clear he did not set out to have people who commit violent crimes sent far away like Hurst; that is where they landed.
Ceasefire Fires Back
What rankles many observers is Hurst’s insistence that the program is a natural continuation of violence intervention programs like Richmond’s Project Exile or Operation Ceasefire in Boston.
“On the prosecution side, we’re not reinventing the wheel,” he explained. “We’re taking a lot of what has been done in other cities.”
But David Kennedy, the violence expert who helped design Operation Ceasefire—which launched as the Boston Gun Project in 1996—did not mince words when asked about Project EJECT and its earlier models in Richmond, Va., Rochester, N.Y., and other cities in the U.S.
Kennedy calls Sessions’ crime strategies “evidence-free”, despite violence statistics its proponents cite to prove otherwise. Not to mention, he said, strategies like EJECT and Exile have little to do with his Ceasefire approach, which is often referred to as the “Kennedy model” of violence deterrence.
“One of the innumerable mistakes is to say that Project Safe Neighborhood was built on Kennedy’s work,” Kennedy said in his office at John Jay College of Criminal Justice in New York where he is a professor.
“… That’s not right. It was in a small way based on my stuff. … We produced the first research that really showed there was such a thing as illicit markets in firearms.”
“The other (approach) was Exile, which actually has its roots in opposition to my work,” Kennedy added.
Unlike Operation Ceasefire, Project Safe Neighborhoods declined to focus on how violent people get firearms, whether legally or illegally. The Exile approach, which was also endorsed by the National Rifle Association, puts the prosecutorial onus on the street-level shooters with little attention to where the supply of weapons came from or how to stop it. That led to charges of racial disparities, and contributed to increased distrust between police and communities of color, Kennedy said.
The Operation Ceasefire approach, which Kennedy’s team now brings to cities through the National Network for Safe Communities, is about prior engagement with those believed likely to commit gun violence, offering them help and services, and also threatening them with arrest on the state or federal levels if they or their associates commit violence. It is also about identifying illicit markets for weapons. And those who traffick the weapons aren’t usually the young black people who get caught up in federal Exile-type enforcement.
Initially, the NRA liked his approach, Kennedy said, but redirected its support away from a program that identified illicit markets to supporting the street-level federal arrests the Bush administration adopted.
Those arrests sent a disparate number of people of color to a gang-packed prison thousands of miles away for additional years, while not bothering to also focus on how they got the guns in the first place. Kennedy also said the federal prosecutions were brought unevenly, deepening distrust in communities toward law enforcement.
In his office, Hurst backed away from Ceasefire when asked if his alliance was also including the services and prevention side of the strategy, as Kennedy’s approach requires.
“It’s really not something, that aspect of Ceasefire, we have not really considered. (EJECT is) really going to be more in line with Exile. It’s almost Exile Plus in the sense of Exile was very strong. But I don’t know how much of the prevention and, yeah, re-entry they did, but it’s hard to argue with their numbers during the time.”
“The reason we know Exile doesn’t work is … because there’s a small body of really good formal evaluations … that say it doesn’t work,” Kennedy said. “I’m not aware of any place where (Exile) was associated with violent crime reduction.”
Juan Cloy, a former Jackson police officer who was assigned to the FBI’s Safe Streets Task Force, is the Mississippi project director of Fight Crime, a nonprofit to help prevent youth crime.
In a perfect world, Cloy said, no one would need to go to prison. He wants to approach the justice system with the kind of equilibrium David Kennedy talks about—balancing the stick of arrest with compassion and programs that preempt people from entering the system, especially kids.
“So what we’re trying to do is keep young people from even being introduced into the federal system or into the local or state system…,” Cloy said.
“That way we don’t have to worry about any acronyms at all, right?”
Former U.S. Attorney Gregory Davis said Project EJECT differs somewhat from his violent-crime initiative. Photo by Imani Khayyam.
Greg Davis agrees. While in office, the former U.S. attorney had an initiative called LEAD: Mississippi’s Legal Enrichment and Decision Making Program. Through it, he spoke to students around the state about staying on the right path—but still focusing on what would happen if they did not.
“One of my primary goals as a prosecutor is to prevent crimes from happening in the first place,” Davis told a group of students at N.R. Burger Middle School in Hattiesburg in October 2014.
“Educating students about the social and legal consequences of their decisions is essential to reducing negative behavior and making our communities safe,” he added.
Does “Tough Love” Work?
When Hurst announced Project EJECT, he grinned as he drew connections between his initiative and basketball—particularly what happens when you commit a foul against another player.
“Goodness knows, I had my fair share of fouls,” Hurst said in December. “But, if you intentionally, flagrantly violate the rules, you will be ejected. That’s the consequence. What we’re announcing today with Project EJECT are consequences, but also hope.”
Hurst added that even if you get ejected from a basketball game, you don’t have to leave the sport for life. Rather, you can come back the next game and abide by the rules. He sees the same thing happening for people sentenced far from home under Project EJECT.
“Come back after you serve your sentence, be rehabilitated, abide by our rules, and we will welcome you back with open arms in our community,” Hurst said.
Hurst maintains that the threat of being shipped away can have a “deterrent effect.”
“I know that’s tough love, but it’s combined with the fact that if you want to come back and follow along, we really will help you re-enter society. It can’t just be tough love; it’s got to be that (promise of help).”
The non-law enforcement piece of Project EJECT involves the faith-based community, nonprofits, neighborhood associations and businesses, Hurst said.
In fact, local stakeholders represent the “T” in EJECT—together. Hurst wants business owners to give people a second chance once they have served their time and returned.
He does talk about getting to the root cause of crime through prevention, education, rehabilitation, communication and collaboration, but it is not built into Project EJECT with federal resources and strategies behind it. Hurst made his limitations clear, and leaned on the community behind him instead to achieve better communities.
“We don’t have all the answers, guys,” Hurst said in December. “Project EJECT is fluid, flexible for a reason so we can adapt to the changes and circumstances, and frankly rely upon the expertise of these men and women standing behind me.”
However, Attorney General Jeff Sessions has been less clear—quiet even—on re-entry, especially when compared to his predecessors. In his October 2017 Safe Neighborhoods memo, Sessions promised a “comprehensive approach” to public safety, including prevention, enforcement and re-entry efforts.
But he mentions re-entry only twice, and suggested supporting locally based groups’ re-entry efforts, as Hurst later echoed.
That is, the feds bring the big stick, and locals fund the prevention carrot.
Former attorneys general Eric Holder and Loretta Lynch had zeroed in on re-entry efforts as well. Lynch, in particular, had a National Re-entry Week that Davis implemented in Jackson.
Davis stressed the importance of re-entry efforts for both the offender and the citizens in community.
“Re-entry is important because what happens is this,” he said before pausing and releasing a long sigh. “Once someone has paid their debt to society, they need to have an opportunity to re-enter society and be a productive member.
“If they re-enter society and they’re not prepared, unable to get a job, unable to have a driver’s license, unable to get health care needs, unable to get whatever services that they should have to allow them to be productive, then they run the risk of re-offending.”
“If somebody re-offends, they have another victim …” Davis said. “And that’s one way you reduce crime, by not having people who get out re-offend.”
Phillip Goff of the Center for Policing Equity does not consider programs like EJECT, which hat remove people from their support networks, to be forward-looking. In fact, he argued, they make re-integration more problematic.
“What are the chances of when that person gets out, their lives can be transformed?” Goff said.
“Who among us … can be removed from social networks and become better for it? Any policy that removes someone from their social support is not a policy that is aimed at making them more likely to succeed when they re-enter….”
This is a condensed and edited version of a story published earlier in the Jackson Free Press. The complete story is available here. Donna Ladd, founder and editor of the Free Press, is a 2018 John Jay/Quattrone Justice Reporting Fellow. The Quattrone Center for the Fair Administration of Justice at Penn Law School assisted with research. Readers’ comments are welcome.