MA – follow suit & eliminate cash bail

NEW YORK TIMES March 9, 2017.

HOUSTON — It was an awkward scene for officials of Harris County, Texas, who are defending themselves in federal court against a claim that they keep poor defendants locked up just because they cannot afford bail.

On Wednesday a judge and the county sheriff testified for the other side.

“When most of the people in my jail are there because they can’t afford to bond out, and when those people are disproportionately black and Hispanic, that’s not a rational system,” said Sheriff Ed Gonzalez, who was elected after the case was filed.

Both the judge and the sheriff are defendants in the suit. Their defections were yet another sign of the growing skepticism over the fairness of the long-used system of money bail, especially when it is applied to those who cannot afford it.

The class-action lawsuit contends that on any given night, several hundred people are in the Harris County jail on misdemeanor charges solely because they cannot make bail. If defendants with bail bond amounts of $500 or less had simply been released, the county would have saved $20 million over six years, according to a “very conservative” estimate by scholars at the University of Pennsylvania.

The practice of setting money bail, particularly for low-level offenses, has come under heavy criticism, and states like New Jersey and Maryland have sharply curtailed its use in recent months. A growing body of evidence shows that even a brief detention before trial can disrupt lives and livelihoods, make case outcomes worse and increase the likelihood that the defendant will commit future crimes. Putting a price on pretrial liberty can allow those with money to go free even if they are dangerous, and keep the poor in jail even if they are not.

Civil rights lawyers have mounted a series of lawsuits against bail practices like those in Harris County, where people without ready money can spend up to four days in jail before getting a chance to even contest their bond amount. Almost a dozen similar cases across the country have been settled with significant changes to the local bail system.

But two of the biggest challenges, in Houston and San Francisco, are still in play. And in both places, key officials have sided with the bail critics.

In San Francisco, the city attorney, Dennis Herrera, and the state attorney general at the time, Kamala Harris, declined to defend against the lawsuit, saying the bail system was unfair. In Houston the district attorney, Kim Ogg, weighed in with an impassioned friend-of-the-court brief, writing, “It makes no sense to spend public funds to house misdemeanor offenders in a high-security penal facility when the crimes themselves may not merit jail time.” Like Sheriff Gonzalez, Ms. Ogg is newly elected.

Those left to defend the system have had a lonely uphill fight. James Munisteri, a private lawyer hired by Harris County, faced calls for his removal after he told the court at an earlier hearing that misdemeanor defendants might be in jail not because they couldn’t afford to post bond, but because they “want” to be there. “If it’s a cold week,” he added.

The judge, Lee H. Rosenthal of Federal District Court, was skeptical of that contention, calling it “uncomfortably reminiscent of the historical argument that used to be made that people enjoyed slavery, because they were afraid of the alternative.”

The case was filed last May on behalf of Maranda Lynn ODonnell, who was arrested on charges of driving with an invalid license. She spent over two days in jail because she couldn’t afford to pay her $2,500 bond. Civil Rights Corps, the organization whose director, Alec Karakatsanis, has led the legal attacks on unaffordable bail across the country, joined with the Texas Fair Defense Project, a nonprofit legal defense organization, and Susman Godfrey, a law firm, to bring the case.

So far, the county has spent $1.2 million on outside lawyers to defend itself.

The Supreme Court has held that liberty before trial should be the norm, and that bail conditions must be set based on the individual’s circumstances. Bail is not meant to be punitive; it is intended simply to ensure that defendants return to court. Texas law requires consideration of “the ability to make bail.”

But the videos made it clear that bail was routinely set with no inquiry into defendants’ ability to pay — or with the full knowledge that they could not. When suspects are first booked, their bail is set using a fee schedule based on the charge and on criminal history. At the probable cause hearing, where typically no lawyer is present, the hearing officer can raise or lower the bond, or grant a personal bond, which allows the defendant to go without an upfront payment.

The county argued that it began reforming its pretrial release system before the lawsuit was filed. It recently issued guidelines recommending the use of personal bonds for people accused of 12 low-level misdemeanors. Beginning on July 1, it plans to make public defenders available at the probable cause hearing. The bail fee schedule will disappear, to be replaced by a risk assessment, a more sophisticated method of determining an arrestee’s likelihood of fleeing or of committing a new crime.

Any injunction striking down parts of its pretrial release system would hamper these ongoing reforms, county lawyers argued. They also contended that a court order would tie judges’ hands, reducing their discretion and potentially allowing dangerous detainees back onto the streets. “There are a category of high-risk detainees who should not be released,” Melissa Lynn Spinks, a lawyer representing the county, said.

Besides the sheriff, another star witness for the plaintiffs was Darrell Jordan, elected as a Harris County criminal court judge last November. At first, Mr. Jordan said, he followed the bail practices of his 15 fellow judges. But he radically changed his approach after learning of research showing that locking people up makes them more likely to be repeat offenders.

Mr. Jordan began releasing nearly all defendants, either on a personal bond or on one they could afford. .

A homeless man who recently came before Mr. Jordan was prepared to plead guilty to a misdemeanor charge just to gain release, but changed his mind when he realized that the judge was willing to let him out of jail immediately.

”He had never heard of a personal bond,” the judge remembered. “He started crying when I told him he could go home.”

MA State Senators are listening to us

State senators and the ACLU held their first Commonwealth Conversation on Feb. 28. in Canton. Thanks to Peter Panov of Needham for this report.

The Commonwealth Conversations South Shore Town Hall on Tuesday, February 28th showed widespread interest in justice and corrections systems reform. This Town Hall was for Senators Keenan, O’Connor, Ross, Rush, and Timilty’s districts, however half of the Senate’s 40 members were present.

They explained these meetings represent a portion of setting the Senate’s agenda for the 2017-2018 legislative session. Among several of the frequently repeated themes such as the Safe Communities Act and the planned Weymouth gas compressor station was justice and corrections system reform in the Commonwealth.

Six of the 54 statements (by about 50 citizens attending the meeting) addressed Criminal Justice reform, from: ending mass incarceration in general and mandatory sentencing; to mandatory minimums, solitary confinement, and reducing recidivism; to unnecessary imprisonment, rehabilitation, and the example of a traffic fine becoming a license suspension becoming imprisonment.

From the ACLU Freedom Agenda (which includes “Smart Justice” — shifting from incarceration to rehabilitation) reflecting the speaker’s values; to 60% of our jailed being held pre-trial & 70 percent of those held because they can’t afford bail; to raising the felony larceny threshold, with the remark that Texas’s felony larceny at $2500 required to constitute a felony versus a misdemeanor, is TEN times ours, but Texans are not ten times better!

This is a clear message that moving Massachusetts away from mass incarceration is a priority for many Commonweawlth citizens, who are passionate about some several solutions we need to the many aspects of the problem.

More ACLU/Senator meetings are scheduled in March and April: March 7 in the Southeast; March 14 in Central; March 21 in Northeast; March 28 in Western; April 4 in Metrowest; and April 11 in Northshore.

End the criminalization of poverty

We have the opportunity to end the criminalization of poverty and “Fine Time” curing the 2017-18 session of the Massachusetts State Legislature.  Sen. William Brownsberger has introduced a comprehensive bill to prevent people from imprisonment because of inability to pay fines.

Read more in this opinion column published in USA Today.

Suspending driver’s licenses creates a vicious cycle: Column

Some states are recognizing the injustice of linking to the ability to pay court-imposed fines and fees.

2936 41LINKEDIN 25COMMENTMORE

Though our nation feels more divided than ever, there is a common concern that cuts across party lines and entrenched ideological silos: a pervasive sense that we have failed to give all Americans an equal opportunity to attain the American dream.

Despite our best efforts, government policies too often create obstacles that prevent Americans from climbing the ladder of opportunity. Nowhere is this disparity more evident than in the criminal justice system.

It is universally understood that the justice system should be fair — and that those who violate the law should be held accountable, pay their dues, and move on. But too often, justice comes only for those who can afford it. And all of us pay the price.

Consider the case of Damian Stinnie. A product of Virginia’s foster care system, Damian graduated from high school with a 3.9 grade point average and went right to work, making close to minimum wage. Then he lost his job. In the four months it took for him to find a new position — another low-paying job in retail — he received four traffic citations. The total owed on the resulting fines and four sets of court costs was just over $1,000.

Making only about $300 a week, Damian could not pay his fines and fees in 30 days. The court gave him no other payment options. Instead, with no notice and no inquiry into his ability to pay, his driver’s license was automatically suspended by the Department of Motor Vehicles.

As a result, Damian was caught between two untenable choices: risking more fines and possible jail time if caught driving with a suspended license, or losing his job because he didn’t have a way to get to work. Months later, when he was diagnosed with lymphoma, he then had to choose between breaking the law and making his doctors’ appointments.

Second, license suspension for conduct other than drunken driving makes us less safe by diverting resources from critical public safety concerns to arresting, prosecuting, adjudicating and sometimes incarcerating defendants for license suspension cases.

How can we stop this troubling and growing trend?

 

This type of commonsense criminal justice reform has strong bipartisan support. Even in a divided nation, we can agree that our criminal justice system must dispense justice fairly and equally, and that policies disproportionately punishing the poorest among us have no place in our courts.

Marc Levin is policy director of Right on Crime. Joanna Weiss is director of Criminal Justice Reform, The Laura and John Arnold Foundation.

You can read diverse opinions from our Board of Contributors and other writers on the Opinion front page, on Twitter @USATOpinion and in our daily Opinion newsletter. To submit a letter, comment or column, check our submission guidelines.

Add your voice to this letter

The “Big 4” Gov. Baker, Chief Justice Gants, Senate Pres. Rosenberg and House Speaker DeLeo received a 9-page letter from the Coalition for Effective Public Safety on justice reform for the 2017-18 legislative session, signed by 70-plus advocacy groups.
 
 
The deadline is Feb. 14, 2017. Sign today, add your comments and ask friends to join in this simple action. Post it on Facebook, and forward the invitation to your networks. CLICK HERE to sign.
Below are links to the one-page summary and the 9 page letter. This is a huge statewide effort. Please join us. THANK YOU.

Connect to Correctional Officers to gain understanding

This article published in Mother Jones gives excellent insight into the job of a private prison guard. The book, “NewJack: Guarding Sing Sing” by Ted Conover, is another excellent accoung by an undercover journalist. I found “NewJack” at my public library. It is well-written, informative and interesting.

To succeed in our movement to reform our police, justice and corrections systems, we must reach out to those responsible for enforcing our policies — the correctional officers and departments of corrections. These are worth reading.

My four months as a private prison guard
Shane Bauer, Mother Jones

This blockbuster first-person piece details Bauer’s undercover job as a guard in a Louisiana penitentiary run by Corrections Corporation of America, the largest private prison company in the U.S. (It has since rebranded as CoreCivic.) Bauer witnessed violence and cost-cutting at every turn, and — as journalist Ted Conover did in his similar 2000 book, “New Jack” — examined his own evolving reaction to a job spent keeping other people locked up.

— submitted to The Marshall Project by Beth Schwarztapfel

Digging for Truth on the Dookhan atrocity of justice

My Conversation With The Suffolk County assistant district attorney About Annie Dookhan

By Jamie Folk

Four the past four years, I’ve been investigating former Massachusetts state drug laboratory chemist Annie Dookhan, and her relationship with district attorneys across Massachusetts.  According to the Inspector General, Dookhan was the “lone bad actor” in the drug lab scandal.  They only wrote two sentences about her motive for what she did and her relationship with the state district attorneys in their report:

“The OIG did not determine Dookhan’s motive for tampering with her aliquots. However, the OIG finds that Dookhan’s motive was not based on a zealous desire to convict criminal defendants”

When that report was released in 2014, I already knew that statement was false.  I knew that because of this article that was released four days before Christmas in 2012:

http://archive.boston.com/news/local/massachusetts/2012/12/20/indicted-drug-analyst-annie-dookhan-mails-reveal-her-close-personal-ties-prosecutors/A37GaatHLKfW1kphDjxLXJ/story.html

Dookhan’s email trail proved she LOVED the district attorneys of our state, and they loved her.  She was their white knight, the chemist who always gave them what they wanted: sufficient evidence for convictions.  This reality flies in the face of everything the Massachusetts inspector general, district Attorneys and media have asserted about what happened with Dookhan at the Hinton lab.

I found this reality very curious and have had several conversations about it with my elected officials.  They were all shocked and outraged over what I showed them. I encouraged them to go to the Attorney General and demand they drop all charges against the thousands of Dookhan defendants.  None of them followed up or went to the Attorney General so I decided to talk to the people prosecuting the case.

I first spoke with John Verner from the Attorney General’s office in September 2015.  He prosecuted Dookhan for the attorney general’s office.  He is a nice guy.  I told him I knew Dookhan was in love with Norfolk County Assistant District Attorney [ADA] George Papachristos and was friends with several ADAs.  He said he was aware of that but didn’t think she was rigging drug evidence to get convictions for her friends in the DAs office.  I then showed him this email:

Verner had no answer to this email.  He promised me he would bring this up with his supervisors and get back to me.  He never got back to me and was later transferred to the Suffolk County ADAs office to work on cold cases.

The Suffolk County DAs office is fighting to uphold 24,000 convictions that were obtained, at least partially, through evidence tested by Annie Dookhan.  The State Supreme Court is now deliberating on what to do with all these cases. I then called the Suffolk County DA to see if they knew about Dookhan’s motives.

On Dec. 19, 2016 I called the Suffolk County District Attorney’s office and left a voicemail asking ADA Ian Leser (who is prosecuting the Dookhan case in front of the state Supreme Judicial Court) to call me back and discuss concerns I had about his office’s prosecution of cases where Annie Dookhan provided drug evidence.  He called back a few hours later and we talked for approximately 30 minutes about Dookhan, the drug testing facility and the state’s criminal justice system in general.

During the course of the conversation, I said, “Dookhan was in love with former Norfolk County ADA George Papachristos.”  Leser said he was well aware of that and that he met Papachristos in court once when Papachristos was a defense attorney defending a client.  Leser said Papachristos introduced himself as “Annie Dookhan’s George Papchristos.”

I said, “Papachristos reported Dookhan’s inappropriate behavior to his supervisors at Norfolk County in 2009 and nothing was done about it,” and “He later leveraged Dookhan’s feelings for him for favors in testing drug evidence.” Leser agreed with that statement and said he was aware Papchristos reported Dookhan’s inappropriate behavior in 2009.

I then said, “Dookhan was friends with several DAs including some that worked in his office.”  Lesser replied that he saw emails between Dookhan and DAs that revealed their friendly relationships. I asked if he saw emails that made it obvious that Dookhan wanted DAs to win cases and he said “Yes.”

I said, “She was clearly rigging evidence to help DAs win cases,” and Lesser agreed.  I asked, “If you and your office knew all that information, then why are you fighting to uphold convictions they knew were made by a completely biased chemist who routinely rigged evidence?”

Lesser said they retested some of the evidence in these cases and it came back as true to what Dookhan tested.  I said that didn’t matter because Dookhan would routinely add evidence to samples to ensure a defendant was convicted. Lesser didn’t have an answer for that.

I inquired about Sonja Farak, a chemist at an Amherst, Mass., lab who pleaded guilty in 2014 of stealing drugs and tampering with evidence, setting off a second scandal after she revealed she was using crack cocaine and other drugs while analyzing evidence at the lab. with  where they conspired to give false testimony to classify a drug (Ecstasy Knockoff BZP) as Class E when it had yet to be scheduled by Massachusetts.

Lesser said he saw emails between Dookhan and Farak, and knew that Farak and Dookhan were both trying to convict people to help DAs.  I said, “This was the biggest violation of constitutional rights in the history of the Commonwealth,” and Lesser agreed.

I said, “As a citizen, it scared me that people who work for the state and the DAs office could and did rig evidence to convict tens of thousands of people and violate their constitutional rights without seeming to care about the damage they did to these people’s lives.”

Lesser said he would bring my concerns to his boss.

Jamie Folk is a volunteer activist based in the MetroWest Boston area. He has written, spoken and organized events to express outrage over the gross injustice of tainted evidence provided by Annie Dookhan, who is out of prison after serving 2.5 years of a 5 year sentence.

 

Send holiday REFORM greetings

EMIT doesn’t ask for money [we are all-volunteer] during the holidays. Instead, all year round, we ask for a thin slice of your time to add to the chorus in the wave of justice & corrections systems reform in Massachusetts.
With the CSG report due out imminently, take a minute to contact Gov. Charlie Baker and/or Speaker Robert DeLeo and encourage them to adopt  justice reinvestment — which means investing in jobs, education, job training and support for small business startups in urban communities hardest hit by mass incarceration.
The theory is to roll over money saved by fewer people behind bars and use it productively to start a new life for formerly incarcerated people.
See more info here in this Globe story from yesterday on the outdated state of our justice and corrections systems.  Here’s Speaker DeLeo’s and Gov. Baker’s contact info. My sample email follows- feel free to copy and paste and edit in your correspondence.
Dear Speaker DeLeo:
During this time of hope and celebration, I urge you to think of the 10,000 people in free public housing in our state’s prisons and jails. 
We are not the worst offender in the Union for lack of justice, however, there are MANY more reforms possible than covered by the CSG. I urge you to go further and rollover the money saved by incarcerating fewer people, getting rid of the bail system that favors the rich and guilty, and reinvesting it in urban communities hardest hit by incarceration. Please do everything in your power to adopt justice re-investment in the coming legislative session.
THANKS AND Happy Holidays from the EMIT team.