After this week’s deadly prison riot at the Lee Correctional Institution, inmate deaths in the state have reached 13 so far this year—already close to last year’s count. It’s a sign that South Carolina’s vaunted justice reforms still leave much to be desired, says a local columnist.
Seven dead bodies tend to focus the attention. But don’t count on it — not if they are dead men behind bars.
Even as the inmate population has declined, a product of the much-ballyhooed prison reform, violence behind the prison walls has exploded.
And Gov. Henry McMaster, facing a tough primary fight against a gaggle of Republicans each trying to out-Trump the other, was not about to sound soft on crime or criminals in the wake of the mayhem.
He declared: “It is not a surprise when we have violent events take place inside the prison—any prison in this country.”
If only inmates could vote.
The massacre at Lee Correctional, a maximum security prison in tiny Bishopville, puts South Carolina well ahead of 2017’s pace, which was the deadliest year on record. Eighteen inmates died in the state prisons last year—12 of them murdered by other inmates, six by suicide — according the state Department of Corrections.
The body count, which has risen four years in a row, is at 13 so far this year. In 2009, there were two deaths.
These are inconvenient numbers for the Legislature and the prison system. (And it took a Freedom of Information filing to extract the basic information about how many people are dying in the prisons.) That is because it detracts from the state’s preferred narrative that it is cutting the inmate population—and costs—through reform.
“South Carolina has led the nation in criminal justice reform,” state Sen. Chip Campsen, a co-author of 2010 prison reform legislation, wrote in a commentary for the Post and Courier last year. He said he was inspired to act by his faith.
The inmate count is, in fact, down 14 percent in five years, dropping the state’s incarceration rate to 19th in the nation from 11th as it has expanded alternatives to prison for non-violent offenders. But the violence has spiked, too, as the percentage of violent prisoners left behind has risen.
Consider: There were more than 250 inmate-on-inmate assaults that required taking prisoners to outside hospitals in 2016 and 2017, double the previous two years. Attacks on correctional officers also increased. Shivs are the weapon of choice.
Prison officials, as always, attributed the growing violence to contraband cell phones, which allow inmates to continue to fight over turf and money on both the inside and the outside.
Getting cell phones out would help stem the violence—in South Carolina and in prisons across the country.
But getting more correctional officers in the prisons would help even more. That costs money the Legislature is unwilling to spend. One in four jobs are vacant, leaving the gangs to fill the vacuum.
Willie McCray knows this all too well.
“Gangs run the prisons,” McCray, who qualifies as an expert, having spent four years in prison on drug charges, told me last year.
McCray was playing checkers in his dorm at Evans Correctional, a medium-security prison in Bennettsville, when he was leveled from behind by an inmate wielding a so-called “lock-in-a-sock,” which is every bit as brutal as it sounds. He suffered a ruptured eye socket, a fractured cheek bone and a concussion. He still wears special glasses and suffers from headaches and memory loss.
“There just aren’t enough guards,” said McCray, who is now out of prison. There was a single officer overseeing 60 inmates that day, and she was nowhere in sight. No one, as usual, was charged.
South Carolina’s prisons, like prisons everywhere, are also filled with the mentally ill. In 2016, the Department of Corrections settled a decade-old class-action suit that committed the state to upgrade mental health treatment. It has made progress, but has far to go to meet the court-ordered requirements. The recent spike in suicides—one 22-year-old died by swallowing paper clips—indicates there is much work to be done.
Last year, South Carolina prison violence became national news when four inmates at Kirkland Correctional in Columbia, the state capital, were strangled and beaten to death. Denver Simmons, convicted of the cold-blooded killing of a mother and her teenaged son, later said he and another prisoner killed the four to get the death penalty rather than spend a lifetime in prison.
Lee Correctional Institution. Photo courtesy South Carolina Department of Corrections
This year, it’s Lee Correctional.
With almost 1,600 inmates, Lee was the scene of inmate takeovers in 2012 and 2013. It has recorded 11 murders in the last three years and more serious assaults than any prison in the system. It had two suicides in two months last year.
Lee is located in Bishopville, a dirt-poor speck of a town best known as the home of “The Lizard Man,” an alleged seven-foot reptile monster that locals say rose up from Scape Ore Swamp. After Lizard Man’s first sighting in 1988, the town’s chamber of commerce was thrilled with the national attention. I’m betting it’s not so thrilled with the new headlines.
On Tuesday, the South Carolina House of Representatives had a moment of silence for the seven dead inmates at Lee. It was a nice gesture, but the state’s prisoners need more than gestures. It’s past time for the Legislature to launch a real investigation — independent of the corrections department — into the causes and cures for the mounting death toll.
Managing some of society’s most violent misfits, many of them mentally ill, is a thankless job. But when the state takes someone’s freedom, it also assumes the responsibility for their safety.
Evidence-based reforms could make them more effective, writes an addiction expert. He offers one example: stop limiting approved medication-assisted treatment to Vivitrol.
When both sides of an issue agree on something, it can suggest a sensible consensus has emerged. But it could also mean that everybody’s trying to do the minimum without expending more energy on thinking clearly about the subject.
I believe that when it comes to drug abuse, the latter holds true.
Here’s one glaring example: As the nation’s opioid crisis continues to accelerate, liberals and conservatives both seem to have fixated on using drug courts as an alternative to punishment.
The fact is, drug courts are not a panacea—at least as currently implemented.
In general, drug courts or drug treatment courts (DTC) divert individuals arrested for drug offenses to court-monitored drug treatment programs instead of prison. Eligibility varies. Usually, drug dealers or drug traffickers are not allowed in; nor are “violent” offenders.
Sometimes the crime for which an individual is arrested is not directly connected to drug use, although stealing to support a drug habit is. Failure to complete drug treatment or drug use within treatment under the court order can result in imprisonment.
Drug courts, we’re told, can fix a lot more of our justice system problems than the rising rate of substance abuse. They supposedly will reduce our bulging prison populations by removing many of the nonviolent drug offenders who have been subject to the tough mandatory-minimum sentencing that was a component of the “war on drugs.”
“Drug courts are known to be significantly more effective than incarceration,” declared the commission, adding, “For many people, being arrested and sent to a drug court is what saved their lives, allowed them to get treatment, and gave them a second chance.”
But one crucial, and largely unexplored, issue is what kind of “treatment” the individual substance abuser is mandated to receive as part of the diversion process. Some argue that the current paradigm of medication-assisted treatment (MAT) is badly conceived.
For example, In response to the president’s endorsement, addiction journalist Maia Szalavitz tweeted: “right, drug courts, ~2/3 of which ban meds proven to reduce mortality, that’s what we need.”
Although Trump’s initiative also calls for increased support for MAT, he only endorses one such medication-assisted treatment, which most experts consider the least effective.
There are three medications commonly used in MAT: are methadone, buprenorphine (usually in its Suboxone formulation with naloxone), and naltrexone in its once-monthly injectable Vivitrol formulation.
Most drug courts only allow the use of Vivitrol in MAT because it is the only one of the three commonly used anti-abuse medications that is not itself an opioid. Instead, it is what’s called an “opioid antagonist.”
That means it will prevent offenders from getting high on opioids even if they relapse. Because of this, it can’t be initiated before the patient has been weaned off opioids completely, or they will go through instant, painful, and possibly fatal withdrawal.
HHS Secretary Alex Azar via Wikipedia
A directive from the Substance Abuse and Mental Health Services Administration mandates Vivitrol for those entering MAT after detox, even though the new US Health and Human Services Secretary Alex Azar has acknowledged to STATnews “that doesn’t mean it’s the best form for all populations.”
However, methadone and buprenorphine (which are, respectively, an opioid agonist or partial agonist) are now largely regarded as more effective. Although when taken in large-enough doses, they can produce a high, when taken as prescribed, they just prevent withdrawal. They may be started sooner than Vivitrol, and allow a patient to resume normal life and responsibilities, such as holding down a job.
Methadone is normally dispensed only one dose at a time at a doctor’s office or clinic to prevent abuse. Buprenorphine can be prescribed as a multi-month implant, and may soon be available as a monthly injection, too.
Of course, the patient offender could still take an additional opioid to get high. That’s why it’s called medication-assisted treatment, not medication-only treatment. Additional treatment, inpatient at a luxury executive rehab or outpatient at a community clinic is necessary.
So why do drug courts limit the use of methadone and buprenorphine? The problem here is one of perception, prejudice and morality.
Many still feel people with a substance abuse disorder are morally deficient or weak, not sick. The idea of giving these people drugs to combat their addiction is seen as wrong, as substituting one drug for another. (Similarly, safe injection sites are opposed because they might make drug use seem “acceptable,” although the evidence is that they save lives and prevent the spread of HIV and hepatitis.)
Methadone use, in particular, can last years.
Even some addicts share this prejudice and refuse MAT that uses methadone or buprenorphine.
In a 2016 article for The Huffington Post, Maia Szalavitz wrote the following:
Research shows that people who stay on methadone or buprenorphine long term have half the death rate of those who detox from these medications or participate in abstinence-only treatment. (There is no similar data for antagonist medications, including Vivitrol).
Another problem is that the maker of Vivitrol, Alkermes, has lobbied intensively for its product over all others, including to politicians and drug court judges. According to ProPublica, Alkermes adopted this strategy when the usual approach to doctors and patients encountered resistance.
Having judges without medical training in effect prescribing medical treatment is unsettling to some addiction specialists and civil rights advocates.
But the lack of medical expertise associated with drug courts is only one of the issues that merit skepticism about their use.
Their overall effectiveness can be questioned. The available data don’t always account for people who drop out of the program before completion. (The same is true of 12-step programs, such as Alcoholics Anonymous and Narcotics Anonymous, which many of these courts also mandate.)
Worse, some studies show that some populations do worse after drug court than before.
According to a 2013 study of New York adult drug courts, the success rate for drug courts— i.e. fewer re-arrests— varied based on whether the cases were felony drug (better) or felony property (worse), or whether the patient offender had three or more prior arrests (one to 5 percent better) or no priors (10 percent worse).
Drug treatment vs. incarceration shouldn’t be an either-or choice.
An addict in prison may still have access to drugs, and hence to the risk of overdose. If substance abusers stay drug-free, but still remains addicted, upon release they are likely to be more vulnerable to a fatal overdose, because they no longer have the tolerance for the drug that they had prior to incarceration.
Beond the problem of how to treat substance abusers in drug courts is the question of who should be tried in them.
Some judges have sentenced offenders guilty of an offense that would normally result in a suspended sentence or parole to drug court, and then locked them up when they almost inevitably failed the program. Recovery is far less likely if participation is coerced rather than voluntary if the offender doesn’t want to quit using.
Some judges also sentence non-addicts to drug court based on a false positive test (confirmed by multiple negative tests), forcing the defendant to plead guilty to a false drug charge or face harsher sentencing. Not even the National Association of Drug Court Professionals thinks non-addicts arrested for drug crimes should qualify.
And while most drug courts only accept non-violent offender addicts, they may not be the ones who need the help the most. According to a CASAColumbia study, the majority of prisoners who committed property crimes (77 percent) and violent crimes (65 percent) either had a history of or were under the influence of alcohol and drugs when they committed their crimes. Reducing violent crimes and drug abuse seems a worthwhile goal.
Drug courts may be more cost-effective—financially and socially—than prison time, but as currently constituted they have some serious flaws. Evidence-based reform is needed, not the purely punitive solutions of the past.
Stephen Bitsoli, a Michigan-based freelancer, writes about addiction, politics and related matters for several blogs. He welcomes readers’ comments.
Deprivation of liberty is a “last resort” in the German juvenile justice system. Instead, as two US researchers discovered on the last leg of their fact-finding trip in Europe, the priorities are diversion, rehabilitation and minimized interventions for emerging adults under 21 who run afoul of the law.
Germany is probably the “grandfather” of special treatment for emerging adults in all of Europe. In 1953, German law was changed to allow youth up to age 21 when they committed their offense to be tried as juveniles.
Responding to the “fatherless generation” of young people following World War II, German leaders decided not to institutionalize youth in great numbers; but rather to rehabilitate and shield them from some of the harsher aspects of their adult system.
But the most far-reaching changes have emerged slowly.
Initially, the percentage of youth ages 18, 19 and 20 retained in juvenile court hovered at around 20 percent, while the rest were sentenced as adults. That was similar to today’s figures in the Netherlands and Croatia—the two other nations we visited on our European tour.
But steadily, over the years, as German judges and prosecutors gained more faith in this approach, they used the juvenile system more and more frequently for emerging adults who had committed more serious offenses.
By the time we visited, 66 percent of emerging adults who ran afoul of the law were sentenced as juveniles, including over 90 percent of those who had committed homicide and rape. The highest rate of sentencing these young people as adults was for traffic offenses, which often result in fines.
Under the juvenile law, young people can receive sentences of up to 10 years. But they rarely do. Fewer than one percent receive sentences of five to 10 years; fewer than five percent receive sentences of between three and five years.
Parenthetically, Germany’s adult system is still a moderate one by comparison to the US, both in terms of their incarceration rate (76 per 100,000 vs. 693 per 100,000) and prison conditions.
Youth under age 14 are not considered criminally responsible and, prior to age 18, youth can never be tried or sentenced under adult law. This higher minimum age is not unusual in Europe. Age 12 is the international standard and is the Dutch age of responsibility, while in Croatia, the minimum age is 14 like Germany.
Interestingly, the Massachusetts minimum age will rise to 12 if pending legislation (see below) is signed by Gov. Charlie Baker, making it the highest minimum juvenile court age in the US.
This combination of factors essentially pushes the entire German youth justice system upward to be more of an older juvenile/young adult system, with younger youth either diverted or handled by lighter touches administered by social services.
The working farm in Neustrelitz youth prison, Photo courtesy the Ministry of Justice, Mecklenburg-Western Pomerania
For example, in one of the youth prisons we visited, the vast majority of youth were older than 18. While it is technically possible for 14- or 15-year-olds to be sentenced there, everyone we interviewed said they are a rare sight. Their mixing with the older adolescents was not considered a problem, even among the youth we spoke to.
The German system prioritizes diversion and minimized interventions, mediation and restorative practices, and educational community sanctions. Community service and direct payments can be geared to repaying victims through labor or even direct compensation. Deprivation of liberty is a last resort.
In a hearing our delegation witnessed, a young adult with several prior involvements with the law fired a realistic-looking starter pistol while drunk in the Berlin subway system on New Year’s Eve around 15 months ago. The courts attempted mediation with the victim—a woman who was nearby when he fired the shot which halted her train—but she had moved her residence and was unavailable.
This took time, during which the youth was at liberty getting his life together and staying on the straight and narrow.
The victim attended the hearing, a combination of trial and sentencing, during which she testified. The youth had no representation. In cases unlikely to result in youth imprisonment, representation is not required.
The youth was convicted and fined several hundred Euro; the judge took his income into account in setting the fine. The victim was offered, but turned down, 100 Euro in compensation for pain and suffering. By all appearances, she harbored no ill will towards the youth being tried; they actually entered the courtroom together chatting in a friendly manner. Instead of directly compensating the victim, the judge ordered a portion of the youth’s fine to go to a victims’ compensation fund.
The mission of the German system is clear.
Children (under 14 years), juveniles (14-17) and young adults (18-20) have the right to support and education and to be protected in their personal development by the child and youth welfare agencies. Youth services are established at the local community level, where priority is given to private non-profit organizations which must be accredited by the state-level youth welfare departments of the ministries of social affairs⸺analogous to our state child welfare agencies.
The data and relevant legal codes above were provided to us by our gracious host, Prof. Frieder Dünkel of Greifswald University. Dr. Dünkel arranged meetings with judicial, correctional, legal and community officials and was our guide, interpreter and source of information throughout the trip.
He also co-authored an excellent article about European approaches to working with emerging adults, a must-read for anyone interested in this subject.
The Neustrelitz Youth Prison
The German system’s educational and rehabilitative ethic also holds true when youth are incarcerated. According to Germany’s Youth Courts Law, when a youth is confined, it should “arouse the youth’s sense of self respect,” “be structured in an educational manner” and “help the youth to overcome those difficulties which contributed to his commission of the criminal offense”.
The Young Offender Institution of Neustrelitz (Prison) Photo from the Ministry of Justice, Mecklenburg-Western Pomerania
The rehabilitative ethic of Germany’s youth system was on full display when we toured the Neustrelitz Youth Prison accompanied by Joerg Jesse, Director General of Prisons and Probation for Mecklenburg-Western Pomerania.
Director General Jesse can be seen on this 60 Minutes segment discussing the adult prisons he manages.
Staff there and throughout the German system are required to undergo two years of training prior to working as correctional officers.
As noted above, the population of the facility was the rough equivalent of a US prison incarcerating young adults, rather than a juvenile facility, even though the youth in it were all incarcerated pursuant to juvenile law. Eighty-five percent of the youth were older than 18 and their average age was 20.
Since it’s not easy for a youth to get a prison term in Germany, young people tended to be incarcerated for more violent offenses than youth in U.S. juvenile facilities. Care needs to be taken in cross-national comparisons; violence, particularly gun violence, is far less prevalent in Germany than in the US, for example.
The staff were highly professional, and treatment of the young people was very much normalized, particularly when compared to US adult prisons where many of these young people would likely be if they similarly offended in America. The level of vocational programming was astonishing, with professional woodworking, metal working, culinary instruction and farming (including award-winning rabbit husbandry) dominating the youths’ daily programming.
The level of freedom offered young people was extraordinary by US standards. For example, youth in the facility served us a tasty meal shortly after arrival with real knives and forks. Sharp equipment in the vocational shops was everywhere; and nowhere was there the sense of fear and heavy correctional hardware, such as pepper spray, solitary confinement, and strip searching, that dominates the US correctional landscape.
Room/Cell at Neustrelitz Photo courtesy the Ministry of Justice, Mecklenburg-Western Pomerania
Clearly, not only were the Germans incarcerating fewer of their young adults, but they were incarcerating them in better conditions than our adult systems.
What was remarkable to me was how much these predominantly young adult facilities resembled some of the more well-run juvenile systems in the US. The Massachusetts system, for example, has a long history of running decent and rehabilitative juvenile facilities, reserving secure care for youth with the most serious offenses and a continuum of community programs for those with less serious offenses/prior records.
Massachusetts Department of Youth Services (DYS) Commissioner Forbes, a member of our delegation, informed us that the state had about 100 youth in locked secure custody—in a state of 6.9 million—mostly in small living units, at the time of our delegation.
Having toured the Massachusetts system and Neustrelitz, the culture and rehabilitative ethic were strong in both. I have little problem imagining DYS being able to work with emerging adults in Massachusetts either in community programming or secure care, especially since they already have youth up to age 21 in their custody. Having the capacity to beef up their vocational programming would be important, as the numbers of older youth would grow.
Emerging adults are more immature than their older counterparts. They’re greater risk-takers, less future-oriented, and are more volatile in emotionally charged settings, especially around their peers. Putting further strain on their developmental immaturity, adult roles that help young people, particularly young males, mature out of criminality–through marriage and steady work–are available much later than they were for previous generations; certainly much later than they were for my generation in the late 1970s.
About one out of every five people entering US prisons are young adults. They have the worst outcomes. Racial disparities in prison roles for them exceed even the outrageous disparities that plague U.S. incarceration overall.
This is a population that needs special attention.
Perhaps that’s why the Council of Europe recommends to its constituent nations:
Reflecting the extended transition to adulthood, it should be possible for young adults under the age of 21 to be treated in a way comparable to juveniles and to be subject to the same interventions.
Several jurisdictions, including and perhaps especially Massachusetts, are looking into special treatment for emerging adults when they break the law, ranging from raising the juvenile court age; to special facilities, courts and caseloads; to special programming.
Clearly, there are substantial cultural differences between the US and Europe, just as there are substantial differences between US states. No one expects to go to Croatia, Germany and the Netherlands and borrow their systems wholesale, any more than people expect the systems in Massachusetts, Texas and Wisconsin to be the same.
But that doesn’t mean that such delegations have nothing to teach their visitors.
When we debriefed at the end of our journey and participants were asked to give their thoughts on what we had witnessed, one respondent said simply, “possibilities.” By this, he explained that while no system could be adopted whole cloth, the tour had opened his eyes to possibilities that we need to explore for this population, a population that is both challenging and full of opportunities.
I hope this series has opened up similar possibilities to those who have read through it. I’m happy to answer any questions, if I’m able.
A Note About Massachusetts
When Lael Chester and I completed our three-country tour, we did so with a delegation of 20 representatives from the Massachusetts legislature, judiciary, prosecution, defense, law enforcement, executive branch, youth corrections, advocacy and treatment community.
Interestingly, they are busy positioning the Commonwealth to become the “grandmother” of emerging adult reforms in the US, although they’re vying with several other jurisdictions in doing so.
Visiting Massachusetts delegation with Judge Tobias Kaehne, Director of the Berlin Youth Court, at the courthouse in Berlin: Photo courtesy the Justice Lab at Columbia University
This was as smart, hard-working and decent a group of officials as one could ask for. They were and are involved in innovating with this population of young people in myriad ways. Since 2015, after the Harvard Kennedy School Program in Criminal Justice issued a report I co-authored with Bruce Western examining the US response to emerging adults, Roca’s CEO Molly Baldwin and I have been convening key stakeholders to foment innovation in this space, many of whom came on the Germany trip.
Also in 2015, MassINC issued a report on emerging adults and held a forum I spoke at along with Sen. Will Brownsberger, who co-chairs the Judiciary Joint Committee. Senator Brownsberger joined us in Germany; check out his excellent blog post about Germany’s approach. The Senator and I have had ongoing conversations about this population each time we’ve run into one another since the MassINC event.
A host of potential reforms have flowed from—or at least corresponded with—this vibrant set of convenings, as well as from Mass leaders’ own creativity:
the Chief Justice of the Massachusetts Supreme Judicial Court Ralph Gants announced at a MassINC event last year plans to create specialized court sessions in the District Courts for emerging adults (Paula Carey, Chief Justice of the Mass Trial Court, joined the Germany delegation);
Middlesex County Sheriff, Peter Koutoujian recently opened a specialized living unit in the Billerica House of Correction in consultation with the Vera Institute of Justice, and Suffolk County Sheriff Steve Tompkins (who was on this trip) is also planning to open a specialized unit in his jail later this spring; and
The non-profit Citizens for Juvenile Justice (whose executive director, Naoka Carey, joined the trip) has a state-wide advocacy campaign geared towards raising the age of juvenile court to 21. Meanwhile, the Commonwealth’s Department of Youth Services, or DYS, (whose Commissioner, Peter Forbes, participated in the trip) already allows youth who “age out” to voluntarily continue receiving services beyond the expiration of their terms. Programs like Roca and UTEC (Yotem Zeira and Gregg Croteau, respectively, represented those organizations on the trip) exclusively service an emerging adult population.
This year, the Massachusetts Legislature, six of whose members joined the Germany tour, grappled with several bills to raise the age of juvenile court to either 19 or 21. Literally the day before leaving for Germany, a conference committee of the Massachusetts House and Senate announced a 121-page criminal justice bill, the most sweeping reforms in Massachusetts in decades, which they passed overwhelmingly the week after returning from Germany!
While raising the upper age of juvenile court past 18 did not make it out of committee (although it had passed the Senate), the committee’s provisions affecting emerging adults included allowing youth up to age 21 to expunge their felony and misdemeanor records if they remain crime-free for 7 or 3 years, respectively.
The committee also formed a task force to study and make recommendations specific to emerging adults – an age cohort with whom a recent report found the Massachusetts criminal justice system has its worst outcomes (for more about that bill, check out this Boston Globe editorial which ran while we were in Germany and which mentions the trip).
To say that this group was focused on this issue is a gross understatement.
Vincent Schiraldi is senior research scientist at the Columbia University Justice Lab. He has served as New York City Probation Commissioner and director of juvenile corrections for Washington, DC.This is the final installment of a series of columns reporting on a trip taken with his colleague to explore the innovative ways three European countries–Croatia, the Netherlands and Germany–respond to offending by emerging adults. To read his earlier columns, please click here. Readers’ comments are welcome.
When police kill unarmed civilians, the path towards accountability begins with prosecutors. Elected to serve their communities as the chief law enforcement official, they have the means and mandate to confront the injustices that arise from systemic racism, writes the director of John Jay’s Institute for Innovation in Prosecution.
As California Attorney General Xavier Becerra begins overseeing the investigation of the killing of Stephon Clark, the 22-year-old African-American father of two shot by police in his grandmother’s backyard in Sacramento, Ca., nearly two weeks ago, an important question should be on the minds of every American.
If the investigation finds evidence of misconduct, how likely is there to be a charge, let alone a conviction?
The track record of officer-involved fatalities in the United States suggests the answer: Not likely.
And still, over the course of a decade, from 2005 to 2015, only 54 officers nationwide were criminally charged, with nearly half of these cases resulting in acquittals or dismissals.
How can that be when, in most of these cases, there is ample evidence—hard data, and even live video—of the extent of force used?
This paradox was addressed recently by 35 experts participating in the launch of a new working group on officer-involved fatalities at the Institute for Innovation in Prosecution (IIP) at John Jay College of Criminal Justice. Comprised of prosecutors, directly impacted individuals, police, academics, and activists from around the nation, the group was formed to address the prosecutor’s role in dealing with these incidents—and in particular to devise and implement mechanisms of accountability.
Such an effort couldn’t be more crucial.
Prosecutors wield significant power in the criminal justice system. They have discretion over charging, pre-trial recommendations and plea conditions, and their decisions affect a case at nearly every stage of the criminal justice process. Yet, as the figures cited above demonstrate, even with this significant power, prosecutors have found it challenging to charge and convict police officers for excessive use of force.
The working group identified various obstacles to accountability. For example, most state statutes require a “standard of reasonableness” when evaluating the use of force by law enforcement. Another example: the public, the media and, often, jury pools are inclined to offer the benefit of the doubt to law enforcement while criminalizing those killed. Moreover, the process is stymied by systemically racist policies and practices, and a culture that impedes transparency.
The working group—including the prosecutors and police who participated—took these challenges as opportunities for reform, rather than as excuses.
There was widespread consensus that, as communities demand justice for the victims and families of police violence, prosecutors—as democratically elected officials directly accountable to the communities they serve—have the opportunity and the mandate to use their platform to demand accountability, both within the legal system and beyond it.
To do this, prosecutors must partner with those whose deep awareness of the absence of accountability can show the path forward. In other words, those who have lost loved ones to police violence.
As one directly impacted family member said during the working group discussions, “We become the experts unwillingly …We study this because we can’t sleep at night.”
That tragic “expertise” has motivated the victims of police violence to address the systemic inequities of the criminal justice system. We should join them.
Communities, particularly communities of color, that are disproportionately affected by excessive police use-of-force tend also to be those bearing the brunt of policies and practices that contribute to mass incarceration. The over-criminalization of communities of color cannot be separated from the disproportionately high rate of force that these communities experience at the hands of law enforcement.
Philando Castile was stopped in his car nearly 50 times before July 6, 2016. Eric Garner was reported to have been selling individual cigarettes when the police were called on July 17, 2014, though the cigarettes were never found.
According to Baltimore Police Department (BPD) data from January 2010 to May 2015 that the U.S. Department of Justice examined, BPD officers stopped 410 pedestrians at least 10 times. Some 95 percent of these pedestrians were black, although just 60 percent of the city’s population is black.
If officers did not routinely stop—and if prosecutors did not routinely charge—people of color for crimes that arguably pose no significant risk to public safety, perhaps we could expect fewer fateful encounters.
And if law enforcement did not routinely stop and prosecute people of color, perhaps they would stop feeding the myth of the “inherent danger” that people of color pose to public safety.
The belief in this inherent danger is tied to an implicit bias that is manifested in a variety of ways.
“Black male, maybe 20,” is how the Cleveland officer referred to Tamir Rice after he arrived at the playground and shot the 12-year-old within seconds of seeing him brandish what later proved to be a toy gun.
The racial stereotyping that leads police to automatically assume the worst when they are involved in a tense confrontation with individuals of color surprised none of the members of the working group.
As a directly impacted family member observed during the working group discussion, “We have to say Black Lives Matter today because of this country’s history … The legacy of the Three-Fifths rule is [evident] in how we are [criminalized, and how no one is held accountable] when our lives are taken.”
One conclusion seems inescapable: The path towards accountability for officer-involved fatalities and excessive police use of force must move beyond body cameras and de-escalation training to confront the injustices that arise from systematic racism, both past and present.
As the chief local law enforcement and democratically elected official, a prosecutor has both the means and the mandate to do just that.
There already are instructive examples around the nation:
In Washington State and California, prosecutors are using their platforms to support calls for reform of the “standard of reasonableness” statutes.
Campaign Zero, whose website describes it as a “research collaborative collecting comprehensive data on police killings nationwide to quantify the impact of police violence in communities,” harnesses the power of data science to develop new policies and practices in partnership with police departments.
Leaders of a Beautiful Struggle, in Baltimore, offers useful suggestions for exploring alternative paths to accountability by using independent community-centered tools.
And lessons are being learned even in those cases where justice has yet to be found.
The jury in the Philando Castile case did not convict the officer who was charged with killing him. But the investigation and prosecution, led by County Attorney John Choi of Minnesota’s Ramsey County, provided vital lessons for the field.
Choi, who participated in the working group discussion, was asked by the mother of a victim of police violence about his continuing relationship with Castile’s family. He responded with an anecdote.
After the trial, Castile’s mother presented Choi with her son’s “Certificate of Class Completion” for a driving-diversion program established to help those whose licenses had been suspended due to unpaid fines and fees drive legally again. The program was launched when Choi had been Saint Paul’s City Attorney.
Showing the group a picture of the driving certificate, Choi said he lamented the fact that, while he had been able to help Castile in one aspect of the justice system, he was ultimately unable to achieve justice for him, his family, and his community in his death.
It’s the kind of humility and compassion that can help prosecutors build–and fight for–means of accountability that recognize the humanity and dignity of victims, families, and communities directly affected by police violence.
Prosecutors have the platform. And they are starting to use it.
Two-thirds of the people who cycle in and out of jails also cycle in and out of hospitals in this resource-starved New Jersey city. The connection led authorities to try an experiment that focused on the needs of individuals poorly served by both systems. Here’s what happened.
It’s no secret that both our criminal justice system and our health care system are failing.
Yet there is a growing awareness among social policy experts and scholars that something surprising happens when you look at these two systems together: Opportunities for meaningful solutions emerge because the majority of individuals cycling through the criminal justice system are also frequent users of the health care system.
Consider the story of Abe. (We’ve kept his real name private.)
In 2010, he arrived at the emergency room covered with cuts and bruises. Abe had been living in the streets in Camden, New Jersey, and got into a fight with a friend. At the hospital, the doctors noted that he was suffering from chronic illnesses, including severe depression, alcoholism, and drug addiction.
The treatment? The doctors gave him antibiotics to prevent infection of his cuts and discharged him that day.
He returned to the emergency room two weeks later. Because he was homeless, Abe had difficulty taking the antibiotics, and his cuts became infected. A few months after that, Abe was hit by a car, and treated at the hospital for three days. This was only the beginning of a long pattern. Over the next five years, Abe visited Camden emergency rooms 24 times, spending roughly forty-five days in the hospital. In short, ambulances became all-too familiar for Abe.
So did police cars.
From 2010 to 2014, Abe was arrested more than 15 times, mostly for low-level offenses. He was picked up several times by police for shoplifting from a store outside the hospital, just moments after he had walked out of the emergency room.
In between, Abe was also commonly booked for being intoxicated in front of the same handful of liquor stores. Each time, he was booked by police, given a summons to appear in court, and then released. After failing to show up in court and pay fees, a warrant was put out for his arrest, and the next time Abe was picked up, he spent a month in the Camden County Jail. Over that five-year period, Camden police officers spent over 120 hours handling Abe’s criminal violations.
Camden Police Chief J. Scott Thomson. Courtesy Camden Police Dept.
Three years ago, we set up a meeting with Camden County Chief of Police J. Scott Thomson. We had an idea. One of us (Anne Milgram) had been the New Jersey Attorney General, where she was in charge of overseeing the Camden Police Department. The other (Dr. Brenner) was running the Camden Coalition of Healthcare Providers.
The Coalition had already discovered that frequent users took up an extremely high amount of medical professionals’ time and accounted for the majority of the costs in the Camden health care system. We wondered: was this the same population that interacted so frequently with the police?
By integrating existing healthcare, police, and jail data sets, the Coalition broke down the traditional information silos that isolate the health care and criminal justice systems. What they found surprised all of us.
Sixty-seven percent of the frequent users of the criminal justice system were also frequent users of the health care system. Two-thirds of the people who cycled in and out of jails also cycled in and out of hospitals. The data also showed that a small percentage of the population accounted for a disproportionate amount of interactions with police and hospitals.
Normally, health care and criminal justice professionals do not compare notes or combine data, but when we did, a clear pattern emerged. We found Abe, and others just like him who are caught in a revolving door in which their immediate, acute symptoms are treated while their underlying struggles, such as mental illness, substance abuse and homelessness, remain untouched.
As a result, they return time and time again.
The Camden study taught us a simple lesson: people do not experience the health care and criminal justice systems in isolation. It should not be surprising, then, that when we work in, study and reform these systems in isolation, we miss a lot.
In short, Abe teaches us that we must move upstream and focus on individuals, not institutions. We draw from this and other lessons in a new report we have co-authored on the integration of health and criminal justice data, published by the Program in Criminal Justice Policy at Harvard Kennedy School.
Dr. Jeffrey Brenner
Integrating health care and criminal justice data has enormous potential for tracking underlying issues and addressing them head on. By viewing individuals’ data holistically, we are able to shift the focus of analysis from system providers to system users. Doing so provides more opportunities to develop programs that will prevent medical and criminal problems before they occur.
We have only begun to scratch the surface of how to prevent crime and unnecessary hospitalizations by integrating data. There is much more to be learned about when and how we should intervene to detect underlying issues causing individuals to end up in jail or an emergency room.
These areas of research could have a transformative impact on the many Americans revolving in and out of jails and hospitals and, ultimately, could save countless lives.
It may be that the criminal justice and health care systems pose overwhelming challenges on their own, but when you put these two challenging problems together, a new set of solutions emerges.
Anne Milgram is a former New Jersey Attorney General and Distinguished Scholar in Residence at NYU School of Law. Dr. Jeffrey Brenner is the Senior VP of Integrated Health and Social Services at UnitedHealth Group and the former Executive Director of the Camden Coalition of Healthcare Providers. Together, they are co-authors of a new report on the intersection of health and criminal justice published by the Program in Criminal Justice Policy at Harvard Kennedy School.
Fifty years after the Kerner Commission set in motion a national effort to fix racial inequities in the justice system, a draft strategic plan crafted by the Attorney General threatens to reopen all our old wounds—and perhaps create new ones, say two reform advocates.
It has been difficult to keep track of an administration that cut its teeth on reality TV—an administration that seems to have an endless supply of daily distractions and made-for-TV scandals.
In addition to degrading the office of the president, these distractions draw our attention away from misguided, consequential policy that can impact millions. A draft version of Attorney General Jeff Sessions’ five-year strategic plan for the Department of Justice (DOJ), obtained by the Huffington Post, is one example.
Pivoting away from civil rights, human rights and criminal justice reform, all of which were central to former Attorney General Eric Holder’s previous plan, the DOJ under Sessions will focus on aggressive counterterrorism, securing the borders and enhancing immigration enforcement, and promoting respect for First Amendment rights.
Sessions’ strategy is based on the false premises that violent crime is rising, that conservatives aren’t allowed to freely peddle hate speech on college campuses, and that immigrants are dangerous.
His plan would force federal prosecutors to seek maximum penalties for non-violent drug offenses, unnecessarily increase the federal prison population, and lead to increased criminalization of immigrants and more deportations.
These are all strategies that tear families apart. They won’t do anything to make our communities safer.
And they will inevitably lead to people of color being even more disproportionately harmed by the criminal justice system.
In order to compensate for the inevitable increases of mass incarceration, one of the very first orders of business for Sessions’ DOJ was repealing a directive by then-President Barack Obama to decrease the Bureau of Prisons’ reliance on privately run prisons.
In many ways Sessions’ wish list is already being carried out. Immigration and Customs Enforcement arrests of immigrants with no previous criminal conviction increased by 146 percent last year.
Moreover, Sessions is trumpeting a blatantly misleading narrative that claims undocumented immigrants are causing a so-called ‘spike’ in violent crime.
It is a painful historic irony that Sessions is leading a contemporary assault on civil rights on the 50th anniversary of the Kerner Commission, which President Lyndon Baines Johnson established in the wake of Dr. Martin Luther King’s assassination to examine and provide recommendations for addressing the discrimination and violence facing black Americans.
The appointment of Jefferson Sessions to the federal bench would irreparably damage the work of my husband…and countless others who risked their lives and freedom over the past twenty years to ensure equal participation in our democratic system.
Sessions was rightfully kept off the bench back then, but is now threatening to undo the critical and hard-fought civil rights progress achieved over the last 50 years, and particularly the gains made under the Obama administration.
After decades of advocacy, including by people directly impacted by the justice system, the federal prison population fell under Obama for the first time since Jimmy Carter was in office.
Under Sessions’ directives, the federal prison population will certainly begin to grow again.
Americans concerned about justice and fairness must cut through the noise to protect the civil rights advances of recent years—and not let this administration turn back the clock by pressing forward this type of strategic plan under the radar.
Brent Cohen is Interim CEO and Vice President of JustLeadershipUSA. He previously served as Senior Advisor to the Assistant Attorney General in the Office of Justice Programs at the U.S. Department of Justice. Marc Schindler is Executive Director of the Justice Policy Institute. He previously served as General Counsel and Interim Director of the DC Department of Youth Rehabilitation Services. They welcome readers’ comments.
Thanks to a juvenile justice strategy that prioritizes education over incarceration, the tiny Balkan nation holds less than 30 young people behind bars. Two American researchers say the US could profit from a similar approach.
For a nation that is struggling economically, Croatia has still managed to fund and create a decent continuum of options for its juveniles and youth, including emerging adults up to age 21, perhaps because it spends so little on incarceration.
As part of our three-nation study tour of European approaches to working with young, court-involved adults, I traveled with Lael Chester, director of Columbia University’s Emerging Adult Project at the Justice Lab, from the Netherlands to Zagreb, Croatia where we had the opportunity to meet with many of the key stakeholders involved in the juvenile and young adult systems there.
Once again, people were enormously generous with their time and, as in the Netherlands, their coffee, tea and pastries too.
We visited the Dugave Center, a seemingly decent and caring government-run program in Zagreb that had in it several elements of a continuum of care either in its headquarters or nearby, ranging from before- or after-school day treatment, counseling and small-scale group care to tutoring and educational programming.
That said, they still seem to be working out issues that many Americans are grappling with as they think through the possibility of allowing youth older than 18 to be tried as juveniles.
Service providers and some legal professionals were not comfortable including youth older than 18 in group or residential settings with youth under 18. So, while it was technically possible for youth over 18 to be ordered to the Dugave Center, staff there indicated it rarely happens.
While program staff members were very supportive of including youth over age 18 in juvenile law, they did not think they should be mixed in either residential or non-residential group programming with younger individuals. Other programs existed in Croatia which did mix juveniles with young adults, but we were unable to visit them because of time constraints.
Map of Croatia by Captain Blood via Wikkipedia
Zagreb is by far the largest city in Croatia, with a population of around 790,000 residents (more in the metro area) in a nation of 4.2 million. By comparison, the next largest city, Split, has 180,000 residents.
Since its inception in 1918, juvenile law in Croatia has focused on what in Europe are dubbed “educational measures,” which roughly translates into what Americans would call a rehabilitative mission.
In 1959, special provisions were included in Croatian law for emerging adults ages 18 to 21, making additional rehabilitative measures available and reducing sentence lengths for them (while otherwise trying, sentencing and incarcerating them as adults).
During the Croatian war for independence from 1991 to 1995, there was an increase in juvenile crime. But that didn’t result in tougher juvenile crime measures. Quite the contrary: In 1993, a national commission looked into other countries’ juvenile justice approaches (including Germany’s) and recommended reforms to Croatia’s juvenile law.
This resulted in the passage of the Croatian Juvenile Courts Act (JCA) in 1997.
Among other things, the JCA prohibits trying youth under age 18 in adult court and allows youth up to age 21 to be sentenced as juveniles; increases and codifies diversion (which now happens in slightly more than half of all indicted cases); and creates a range of juvenile “educational” measures. Youth are rarely sanctioned with confinement in a youth prison as the main goal of the JCA is youth rehabilitation.
The JCA, of which a dated English-language version is available on line, nicely lays out the Croatian system in one, easy-to-understand code. While it is a code unique to this small Balkan nation’s circumstances, it’s a must-read for any policy wonks considering revising their approach to justice for emerging adults (or juveniles, for that matter).
The JCA is based on Croatian stakeholders’ interpretation of the research that indicates that youth and emerging adults are developmentally and neurologically different than more mature adults. It lays out a series of “off ramps”, first to prosecution through diversion, followed by alternatives to confinement through educational measures like counseling, community service, juvenile probation, special “orders” (conditions), day treatment, placement in open community settings (like group homes), or short term confinement.
Under the JCA, imprisonment is used very rarely. Youth under age 14 cannot be prosecuted at all; youth under 16 cannot be sent to youth prisons; and those under age 18 cannot be tried as adults. University of Zagreb Professor Neven Ricijaš, PhD, estimates that there are only about 20-30 juveniles and young adults in youth prisons in all of Croatia.
Records of youth handled under juvenile law are always confidential in Croatia. Even adult records are more difficult to publicly access than in the U.S. Adults in Croatia often have opportunities to expunge their records after a time, even if they have been to prison.
Zagreb. Photo by Mario Fajt via Flickr
In general, criminal records for adults in the Netherlands, Croatia and Germany are far less publicly available than they are in the U.S.
In some ways, this strengthens the argument for treating young adults in America as juveniles. It would generally increase confidentiality protections if emerging adults were tried and sentenced under juvenile law. Because of the more open approach to adult criminal records in the U.S., if emerging adults were sentenced as juveniles, it would be an even greater shield from the harsh collateral consequences of U.S. adult court convictions than in Europe, where the consequences of an adult conviction are either less severe, the records less publicly available, or both.
As with Germany and the Netherlands, the Croatians attached a network of non-legal professionals—social pedagogues, social workers and psychologists—to their court systems to advise courts and prosecutors on developmental issues pertaining to juveniles and young adults. These non-legal professionals not only interview and provide recommendations to the courts/prosecutors, but they also stay with cases post-sentencing to check up on whether the court’s orders are being followed and to arrange for post-sentencing follow-up hearings, if necessary.
As with the Dutch, Croatian officials found this assessing, advising and follow-up function enormously helpful.
Like the Netherlands, we were fortunate to be able to speak with Professor Ricijaš, a judge (Lana Peto Kujundžić, PhD), a prosecutor (Mirta Kuharić), a social pedagogue (Matea Babić), and Zagreb’s probation director (Matea Srsen).
The people we spoke with were very supportive of having the option to sentence young adults under juvenile law, largely to be able to provide educational opportunities and mitigated sentencing to a population they still considered to be immature and capable of change.
We are very thankful for their generosity of time and expertise.
On to Berlin next, where we will take a similar tour of the German system with around 20 legislators, judges, prosecutors, defense attorneys, law enforcement officials, juvenile justice officials, advocates, and service providers from Massachusetts—a state that this year has seen numerous legislative proposals to raise the age of its juvenile court to 21 or 19.
In a recently released 100-page justice reform bill, a House and Senate conference committee did not include a provision raising the court’s jurisdiction past 18, but proposed several provisions specific to emerging adults, including enhanced expungement opportunities for youth up to age 21 and a task force to study approaches to working with court-involved emerging adults.
Vincent Schiraldi is senior research scientist at the Columbia University Justice Lab. He has served as New York City Probation Commissioner and director of juvenile corrections for Washington, DC. An earlier blog describing his European trip can be accessed here. He welcomes comments from readers.
Three inmates whose life sentences were commuted in Washington state separately went on to commit crimes after their release. The incidents should have prodded officials to tackle the structural justice reforms that would prevent them from recurring, writes an inmate in one of the state’s correctional institutions.
Imagine the public outcry in your state if the following, based on real-life incidents in Washington State, were to take place.
Three recidivists manage to get their sentences of life without parole commuted. One of them proceeds to smoke methamphetamines in a drug rehab facility and is swiftly sent back to the penitentiary. The second goes on a robbery spree while residing in a work release facility where he was supposed to be preparing to successfully rejoin society.
Of course, it is safe to assume that anyone involved in setting these three individuals free would pay a high price, politically.
Not in the State of Washington.
In the cases mentioned above, the elected officials and political appointees involved in these men’s release have somehow skated by with impunity.
There has been no public backlash against them. There have been no sensational stories on official negligence or incompetence.
I find that amazing.
It is also disappointing—at least insofar as it has enabled those invested in maintaining the status quo to proceed as if there are no systemic problems with the clemency process that enabled these men to be freed.
There is, indeed, a problem.
Behind the pretense that all is well, these three outcomes highlight the wrongheadedness of an evaluation process that gives more credence to the recommendations of prosecutors and judges over any other piece of evidence.
Simply review these men’s paths to freedom and you will probably come to agree that there is something quite wrong with this sort of extraordinary release.
Yet when Longworth went before Washington State’s Board of Pardons and Parole (Board) seeking a recommendation for a sentence commutation after having served 27 years, prosecutors maintained that his petition should be denied because the circumstances did not meet the “extraordinary” standard necessary to merit a recommendation for the governor to commute a prisoner’s sentence.
The Board agreed.
The reason for denying Longworth’s petition, which can be gleaned by watching several of such hearings, is that the meaning of “extraordinary” is not simply very unusual and remarkable as the term is defined in a dictionary. Rather, it has come to mean a very unusual and remarkable case.
Quite simply, the meaning has been restricted in practice so that it has nothing to do with the person seeking relief. As I have previously written in The Crime Report, with respect to the clemency process:
There is nothing extraordinary about reform in the eyes of this Board. What is deemed to be extraordinary is when a prosecutor or sentencing judge supports granting clemency.
In fact, this is how Scott Worton, David Conyers and Stony Rivers gained their liberty after being “Struck Out” in the 1990s.
Scott Worton was fortunate enough to have a judge afflicted by judicial regret. Upon retiring 20 years after imposing Worton’s mandatory sentence of life without parole, he enlisted high-powered attorneys to bring Worton’s case before the Board and, more importantly, personally advocated that Worton be set free.
Upon taking office, Dan Satterberg reviewed those that were successfully prosecuted during his predecessor’s tenure, and eventually concluded that a handful of the men had suffered an injustice. Conyers and Rivers were among the fortunate few whose criminal histories were no longer believed to be egregious enough to merit dying in prison.
Therefore, when these men went before the Board seeking relief, the King County Prosecutor’s Office did not dispute that their cases were extraordinary.
As for all three men, neither of them was in the least “extraordinary.”
In truth, Worton, Conyers and Rivers each fit the prototype of a middle-aged prisoner who had been whiling away for decades doing what was necessary to get through their “time” drama free.
They were as ordinary as can be: Nothing was unusual or remarkable about them, other than that one day a criminal justice official with prestige agreed that they should be set free to undo what time has revealed to be an inequity.
Call it official soul cleansing; or rather, the enema that can set the most ordinary of prisoners free.
Objectively, were one to assess the likelihood that these three-strikers would take another swing versus Arthur Longworth’s prospects for success if released, nobody who takes public safety seriously would recommend keeping Longworth confined and setting these three men free.
But this does not seem to trouble anybody.
In fact, while prosecutors and tough-on-crime advocates usually turn such incidents into a call for wholesale action to lock people up or keep offenders imprisoned for increasingly longer durations—this “law and order” contingent has been curiously quiet.
Prior to this judicial decision, there had been a nascent movement championing comprehensive criminal justice reform, especially as it relates to providing long-term offenders an opportunity for early release.
Lawmakers and officials were slow to jump on board. However, as this deadline has approached and neither political party has been able to agree on the best way to meet the Court’s mandate to adequately fund basic education, there has been a growing realization that a substantial portion of the budget will have to be redirected if Washingtonians, true to form, reject tax increases.
Ergo—reform is on the horizon for the Department of Corrections.
Advocates for prison reform have thus been pushing for the passage of legislation known colloquially as “Second Chance”, which would give prisoners who have served lengthy terms of confinement an opportunity to be released by a parole board or a new Community Review Committee.
For years, these bills could not even garner a subcommittee hearing.
These days, it is clear the momentum is on the side of those who are threading the needle between fiscal responsibility and mercy, and thus argue that releasing prisoners who are believed to no longer pose a serious threat to public safety is a sound public policy.
This is where the “law and order” contingent comes in. They see where things are heading. So, rather than oppose such efforts they propose an alternative.
A robust clemency process.
As conceived, the Board would be expanded so that a greater number of cases could be reviewed. In so doing, the Second Chance that reformers are advocating would be achieved without the necessity of structural reform within the criminal justice system.
It is pure trickery.
In reality, this alternative approach is simply a means to ensure that the gates of Washington prisons do not swing open too widely, for only a small minority of prisoners can afford the legal representation necessary to garner a clemency hearing.
Moreover, prosecutors are in the driver’s seat with respect to recommendations for clemency because their opinions are tantamount to declarations from the burning bush.
Like Moses, the Board obeys.
It is this type of reform that they are willing to get behind: A review process that enables prosecutors to determine what should be deemed extraordinary enough to merit relief, and that leaves the prospects of clemency nothing but a fantasy to most prisoners due to their indigency.
In the end, it would be more of the same—with a different veneer.
Yet no matter the review process, the ultimate objective is to accurately determine if a prisoner would be likely to reoffend if set free. This is a difficult task, undoubtedly.
But if I had to choose among the lifers who have served time with me, I would surely free an Arthur Longworth before a prisoner whose extraordinary nature amounts to nothing more than a public official’s belief that a prisoner is worthy of mercy.
Jeremiah Bourgeois is a regular contributor to TCR, and an inmate in Washington State, where he has been serving a life sentence since the age of 14. He welcomes comments from readers. Those who wish to express their opinion regarding the decision to deny his release can contact the Indeterminate Sentence Review Board. A recent article on his case is also available here. Readers’ comments are welcome.
The reflex reaction to cops caught lying on the witness stand is punishment. But if we really want to curb “testilying,” we need to look deeper at the systemic factors that make the practice all too common, says a Boston attorney.
Whenever there is misconduct revealed in a justice system disaster—an assistant district attorney hides evidence, a cop lies in a report, or a forensic technician “dry labs” a test—reformers are transfixed like jack-lit deer by the chance to discipline or prosecute.
The punishment of individuals becomes the center of gravity in discussions of repairing the system.
Catch more of them, and punish more of them; punish those more harshly, and you will have the answer. Accountability means punishment; punishment will mean deterrence.
Our confidence in this approach is a little strange. After all, many reformers spend their days processing an endless parade of defendants who were arrested and charged because they were not deterred despite the threat of punishment.
But you can see the pull of the punishment solution operating even in Joseph Goldstein’s diligent exploration of “The Stubborn Problem of ‘Testilying’” in three carefully reported articles in The New York Times.
Goldstein identifies 25 specific cases of police lying that, he contends, “reveal an entrenched problem several decades in the making that shows little sign of fading.”
Some of Goldstein’s sources describe the absence of punishment as the cause of the police lying problem. Others see the increased likelihood of punishment (enhanced by ubiquitous body-camera and surveillance videos) as the solution to the problem.
But what if we widened the lens a little, and thought about “testilying” not just as a moral transgression (it is certainly that) that is often (when done under oath) a crime, but also as an unsafe practice?
What if we saw “testilying” not as an exotic artifact of the unique secret world of policing, but as one of the characteristic responses of normal people, doing normal work, in normal organizations, and reacting to acute pressure to produce?
There is no doubt that police lying creates dangers. Goldstein, for example, describes in detail one episode that would have convicted an innocent woman and let the actual criminals go free.
He reports other lies aimed at shielding unconstitutional searches and seizures from review by judges that are dangerous in another way. Those lies are “unsafe” because they undermine the public’s trust in the law and in the people who enforce the law, especially when they are seen in combination with an endemic failure to act against the liars when they are exposed.
(There’s some pretty robust social science showing that for ordinary citizens, trust in the law and its officers—more than fear of punishment—is what leads to law abiding behavior.)
The first thing that the safety perspective would teach us is that you can’t quarantine the toxin of “testilying” within the policing silo.
It might be enjoyable for prosecutors, defenders and journalists to preach from our ethical heights about police misconduct, but “testilying” is a system problem. If you want to attack it, you have to go not just “down and in” to deplore the character of individual liars, but also “up and out” to understand the forces that are acting on them.
Safety experts would say that a cop’s decision to lie doesn’t reflect an inbred delight in lying: it’s an attempt to make sense of the conflicting goals and demands that batter workers at the sharp end of any system.
Like the workers who painted over defects in the insulating foam on the fuel tanks of the space shuttle Columbia to present a nice smooth surface, *cops who bend their narratives are making a “locally rational” even if morally distasteful decision.
They zig when they should have zagged for reasons they think make sense.
Testi-liars aren’t shouting in defiance of the rules. They are covertly trying to tailor their work to the demands they feel. A cop’s lie is a “workaround,” and the decision to lie is the conclusion of an exercise in “sense-making.”
They are doing what they think is expected: evading inconvenient requirements to get on with what they have come to see as the “real” job.
The system’s other players shaped the demands that the cops are juggling.
It is easy to see how the “upstream” work of dishonest cops impacts the “downstream” work of prosecutors, defenders, and courts.
But the safety lens helps us to see that the ramshackle downstream inspection apparatus and the pressures on its operators also impact the upstream environment of the cops.
It is true, as Goldstein notes, that since hardly any case goes to trial, it is unlikely that an upstream lie will be exposed by cross-examination, and that fact reduces the risks of lying for police. (Goldstein’s own solutions to the problems include more suppression hearings and more transparency about credibility findings at those hearings.)
But it is also true that the downstream actors need the guilty pleas to meet their own production pressures.
Pleas aren’t frequent because they facilitate lying. Pleas are frequent because they clear overwhelmed dockets and maintain downstream system outputs.
Guilty pleas can promote lies, but lies can promote guilty pleas, especially when grudging local discovery rules and the caseloads of underfunded defender agencies make pretrial exposures of the lies practically impossible. These influences are circular—not linear and unidirectional.
For safety practitioners the statement “They lie because they can get away with it” just raises the question “Why did they want to lie in the first place?” Evading the Fourth Amendment’s search and seizure rules isn’t an end in itself.
What is the incentive for that evasion? Who creates it? Why?
What we confront here is not one big institutional policy decision to start lying.
As Goldstein points out, the problem has been “decades in the making.” Many cops never lie. No one lies all the time, but we have seen a long series of individual decisions to cut corners and bend the truth that slowly became, not admired, but “normal.”
We expect novices to follow the rules, but we also expect our expert veterans to avoid rule-bound paralysis, to be able to innovate and improvise, to fill in the spaces between the rules. The work as it is written down in the manuals and the work as it is actually performed are never exactly the same thing.
As policing scholar Egon Bittner pointed out years ago, “legality” and “workmanship” are two different standards, and police culture is attuned to the latter.
The process of drift under pressure, one small decision at a time, having been set in motion where truthfulness is concerned, the criteria of legality and workmanship have landed pretty far apart.
Most departments plainly state that untruthfulness in a cop is a fireable offense. That’s the rule.
But maybe it shouldn’t be surprising that the people operating the police disciplinary system, because they know that lying has become “normal” (and probably know that their organizations have been complicit in the “normalization of deviance”), see it as disproportionate to ruin the career of someone who—maybe just this once—stepped over the line.
The conduct rule for cops (“Don’t lie”) and the tacit disciplinary decision rule for departments (“Don’t fire for normal behavior”) have landed pretty far apart too.
No system can survive without disciplining its conscious rule-breakers. Perjury is a crime—a red line—and it has to be prosecuted.
But we ought to recognize that this is a complex problem that took a long time to develop. By now we need a culture change. There’s no quick fix available.
The ferocity of the discipline is not its most important quality.
As police leaders such as Darrel Stephens have suggested, the real question about discipline is whether anyone learns anything from it. For learning to happen we need to commit to a disciplinary system that is steady, consistent, and proportionate.
We need a system that treats first offenders differently from habitual liars, that encourages peer intervention instead of driving reports of violations underground with threats from On High, and that shows the public we care about the truth.
We might start by avoiding teaching the wrong lesson by promoting cops we know have lied. We could ask whether we are motivating lying because we do discipline for technical legal errors and missed quotas.
We might make it clear that a detective has already done part of his “real” job when he gets an illegal gun or a bag of drugs off the street, whether or not he gets the gun or drugs into evidence. (That seizure may not be a home run; it is a slip we can live with. But don’t do it again.) We can show that workmanship requires compliance with the Fourth Amendment that will get the items into evidence next time, while protecting citizen’s right.
Yes, we can discipline liars. But we should also dry up the market for lies, and the pressures that market exerts.
The safety of the communities will be enhanced. And so will the safety of officers.
Usually we react to revelations such as those in the Times’ “testilying” articles with the British Navy’s solution that Voltaire ridiculed in “Candide”:
In this country it is good from time to time to kill an admiral to encourage the others.
Ultimately, however sanctified it may make us feel, subjecting an occasional cop to a disciplinary lightning strike while we make the rest of them calculate that unlikely possibility on the street won’t promote the respect for the law we need.
Spasmodic discipline corrodes respect for the rules inside the police world. If we want cops to behave in a measured, honest fashion on the street, we’ll need to find a way to treat them that way too.
And the rest of the system will need to find a way to live without lies.
James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.
Last year was the deadliest year in the history of the state’s prison system, but a spike in suicides this year may top even that. Authorities blame rising violence inside the prisons. A writer for Charleston’s Post and Courier also points to inadequate mental health care for inmates—and a troubling lack of attention from officialdom.
The South Carolina Department of Corrections website is a wealth of information. You can track the inmate population over almost a half century. It slices and dices the data in dozens of ways: by gender, race, age, marital status, type of crime and length of sentence.
You can see the number of people on death row, the escapes, and the mentally ill.
But what the state does not want you to know is that 2017 may have been the deadliest year in the history of the prison system. And this year, so far, is even worse — including a dramatic spike in suicides.
Eighteen people died in state prisons last year — 12 of them murdered by other inmates and six by suicide, according to the Department of Corrections. It took a Freedom of Information Act filing by me to pry these basic numbers out of the prison system and compare them with previous years.
That shouldn’t have been necessary.
No previous year came close, the data the prison system finally coughed up show. The body count has risen four years in a row. The record in 2017 exceeded the record in 2016, when five inmates were murdered and six committed suicide. In 2009, there were two deaths total.
Keep in mind the prison population has fallen every year since 2010 as the state has diverted low-level offenders from the system, a good thing. But the rising death toll has been driven by a desperate shortage of correctional officers — one in four jobs are vacant — and by the power of the gangs, who increasingly run the prisons.
Mental health care remains woefully inadequate.
The corrections department blames the rising violence on contraband cellphones “and the illegal activity conducted with them.” South Carolina is pushing the Federal Communications Commission to allow the state to become the first in the nation to use cellphone jamming technology.
The last two years saw an explosion in inmate-on-inmate assaults. Put simply, anyone who can has a knife. There were 250 assaults that required taking inmates to outside hospitals in 2016 and 2017. That was more than double the previous two years. Attacks on correctional officers also spiked.
Overall, deaths and serious assaults are running at a record pace this year. In the first two months, there were two murders and a shocking four suicides. There were six suicides in the three months from December through February. That compares with six suicides in each of the last two years. This mirrors a rise in prison suicides nationally, suggesting this is less a bad patch and more a deadly trend.
And this does not even include what is going on in the county jails, which typically house about 12,000 inmates compared with 20,000 in the state prisons.
In 2016, the Department of Corrections settled a decade-old class-action suit that committed the state to upgrade mental health treatment. In a ruling, South Carolina Judge Michael Baxley wrote that the state’s care of mentally ill inmates amounted to cruel and unusual punishment.
“Evidence in this case has proved that inmates have died in the S.C. Department of Corrections for lack of basic mental health care,” Baxley said.
Gloria Prevost, executive director of South Carolina’s Protection & Advocacy, which brought the lawsuit, said the violence continues because of inadequate security and medical staff.
“Understaffing of security staff significantly impacts the mental health programs, causing increased lockdown time and lack of access to programs,” she said.
Without more funding for staff, “the problems will not diminish,” Prevost added.
There were three suicides alone in January. One of those was Travis Marshall Steffey, convicted of distribution of methamphetamines in Aiken, S.C.
Travis Steffey. Photo courtesy The Post and Courier
Steffey was kicked out of two Georgia high schools and had a series of minor scrapes with the law for things like petty larceny, public drunkenness and assault and battery. Then in the spring of 2015, at the age of 19, he was busted for dealing drugs.
In years of Facebook posts, Steffey is a profane, angry gangster-wannabe. He likes Confederate flags and doesn’t like cops or snitches. But by December 2015, facing real prison time, Steffey’s posts were changing:
“#GOD #Sobriety #Happiness #FAT #Leader #Positive Many more hashtags of new me,” he wrote five days before Christmas.
And later the same day:
Pray pray pray things will make changes not fast but they do — and it feels good to spend a lot of money on stuff I want besides dope it was a waste when I did that … love y’all goodnight and God bless u all who are in need and even the ones that ain’t.
It was too late.
That May, at the age of 20, Steffey was incarcerated in Columbia; his projected release date was June 2019. He never made it.
Twenty-one months after going in, Steffey killed himself at Kirkland Correctional, a maximum security prison, by swallowing paper clips, according to Richland County Coroner Gary Watts. It would not have been an easy death, Watts said.
Steffey was 22.
The question, of course: Does anyone care?
The state prisons are filled with poor, uneducated men — 93 percent are male — and there are no Boy Scouts in there. Sixty-one percent are black, twice the statewide population. The average inmate has a 10th-grade education; 17 percent are considered mentally ill. And if the tepid reaction to my previous prison columns is any measure, nobody cares.
We don’t care at our peril.
As Bryan Stirling, the state’s prison director, likes to say, we should care because more than 85 percent of current inmates will be back in our communities in less than five years. These people aren’t going away.
This article was published earlier in the Charleston (SC) Post and Courier, and reproduced with permission. Steve Bailey writes regularly for the Post and Courier’s Commentary page. He can be reached at firstname.lastname@example.org. Follow @sjbailey1060. He welcomes comments from readers.