How some red state prosecutors could circumvent the criminalization of abortion in a post-Roe world

The year is 2022. The Supreme Court just issued its ruling in Dobbs v. Jackson Women’s Health Organization, a majority holding that some pre-viability prohibitions on abortions are legally permissible. Roe v. Wade is effectively no more.

That is a likely near future, according to legal experts.

Reproductive rights advocates have vowed to continue the fight for abortion rights in statehouses and lower courts if this comes to pass.

Meanwhile, former President Donald Trump, whose Supreme Court nominations got us here, said that people who don’t want to continue a pregnancy may have to “go to another state” to obtain abortions. The anticipated Supreme Court decision would create no federal criminal law against abortion, but would enable states to criminalize it—and there are clearly some that would, and others that would not.

But what about the possibility of going to another county?

The incredibly broad discretionary authority of local prosecutors means that in anti-abortion states, individual district attorneys could decline to enforce post-Roe abortion bans by not charging cases in their county.

But red-state DAs who count themselves part of the so-called progressive prosecutor movement might need to be publicly circumspect about their intentions. Some of their peers have drawn a heavy backlash by issuing broad reformist proclamations.

Recent history shows that conservatives angry about progressive prosecutors not enforcing oppressive criminal laws only have a few sturdy legal options for crackdowns.

They can pass a law or state constitutional amendment giving governors broad, unqualified power to force locally elected prosecutors to bend to their will or get out of office. New York has this, but it is virtually never used in practice, likely due to the political firestorm it would create.

They can also go the state attorney general route, giving simultaneous jurisdiction to that official when a local prosecutor refuses to prosecute. That’s a path that Attorney General-elect Jason Miyares of Virginia, for example, is currently pushing. But like the first option, such laws would provoke significant resistance.

Prosecutors’ associations, which heavily lobby many state legislatures, tend to fight tooth-and-nail against any new limits on their discretion. Despite being staunchly prohibitionist, the Indiana Prosecuting Attorneys Association, for example, went to bat for Indianapolis prosecutor Ryan Meares when the legislature wanted to give the state AG the ability to prosecute the marijuana possession cases he declined.

Based on recent court decisions, the strongest tool conservatives have is to allow governors to transfer cases to different prosecutors based on “good and sufficient reason.” That is how then-Florida Governor Rick Scott was able to rip away former Orlando State Attorney Aramis Ayala’s capital murder cases, after she declared she would never seek the death penalty.

But even that can be worked around, depending on how politically savvy the prosecutor is.

In 2017, when the Florida Supreme Court ruled on the dispute between Scott and Ayala, it noted that the courts can review governor’s actions under this statute for arbitrariness. In siding with Scott in the dispute, the majority opined that barring the death penalty, rather than “making case-specific determinations as to whether the facts of each death-penalty eligible case justify seeking the death penalty,” is equivalent to exercising “no discretion at all.”

However, there is no qualification of how detailed these “case-specific determinations” have to be, and no real way to evaluate a prosecutor’s good faith besides their own public statements.

In the abortion context, a post-Roe prosecutor could say they are open to prosecuting abortion cases, but that they have not come across a case that warrants prosecution under the law—in practice declining all such prosecutions on a “case-specific” basis.

In support of this idea, despite the decision in Ayala v. Scott, many elected prosecutors, including in Florida, seldom or never seek the death penalty. Palm Beach County State Attorney Dave Aronberg had two terms of office under his belt before he finally obtained a single death sentence at the end of 2020. But Palm Beach County has seen close to a hundred homicides each year for the past decade, and Florida law makes death penalty eligibility for murder extremely broad.

Yet no governor retaliated against Aronberg. It is even questionable whether such action would have been legal, so long as the prosecutor had not made a statement contradicting claims of individualized determinations based on the facts.

Of course, relying on county prosecutors to take this path can only be seen in terms of mitigating a disaster. Followed strategically, this plan could nonetheless impact many thousands of lives.

Prosecutors with a conscience will need to operate smartly if they’re to reduce the many harms of the likely end of Roe—in many cases probably eschewing grand announcements and media attention in order to achieve more. It could be the quietly progressive prosecutor’s time to shine.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

New York City to become first US city to offer sites for supervised injection drug use

On November 30, New York City authorized two safe consumption sites to begin operations as soon as possible. The decision, a hard-fought victory for harm reduction advocates, makes them the first government-sanctioned overdose prevention centers, as they are also known, to open in the United States.

“New York City has led the nation’s battle against COVID-19, and the fight to keep our community safe doesn’t stop there,” New York City Mayor Bill de Blasio said in a press statement. “After exhaustive study, we know the right path forward to protect the most vulnerable people in our city. And we will not hesitate to take it.”

In the past few weeks, there have been reports that de Blasio—perhaps eyeing a gubernatorial run—would make good on a longtime promise to launch a pilot program for safe consumption sites (SCS). But that bid endlessly stalled without approval from the governor’s office under former Governor Andrew Cuomo. De Blasio will depart as the city’s mayor by the new year. But Eric Adams, the incoming mayor, has signaled his support for SCS. And with district attorneys and police also reportedly onboard, the sites’ operations should be protected.

A pair of nonprofits—New York Harm Reduction Educators (NYHRE) and the Washington Heights Corner Project—are merging to create a new organization, OnePoint NYC, which will operate the sites in East Harlem and Washington Heights. There, people will be able to obtain sterile syringes and other safer-use supplies, access treatment options and other services, and bring their own drugs to use, with trained staff and naloxone on hand.

The two sites already run syringe service programs. Some harm reduction programs in the city have also been effectively operating SCS without government approval.

In the national context, New York City’s move arrives as overdose deaths have hit record highs during the coronavirus pandemic. Recent data showed that more than 100,000 people in the United States died during a 12-month period between April 2020 and April 2021, amid an increasingly adulterated illicit drug supply.

The Biden administration has indicated broad acceptance of harm reduction approaches to drug use, without, however, taking an explicit stance on SCS. Despite numerous other jurisdictions’ attempts to get similar programs off the ground—Rhode Island made history by passing a bill in the summer to authorize an SCS pilot program—none have yet gone as far as New York City.

“This is a watershed milestone in the fight to end overdose deaths in New York,” Melissa Moore, the director of civil systems reform at the Drug Policy Alliance, who previously led the DPA’s work in the state, said in a statement. “If we want to save lives, reduce criminalization, and curb racial disparities, we need comprehensive, innovative, and forward-thinking approaches like Overdose Prevention Centers.”

As DPA notes, approximately 120 sanctioned SCS already operate in 10 countries around the world, and “over 100 evidence-based, peer-reviewed studies have consistently proven the positive impacts of supervised consumption services.” The organization lists some of these demonstrated benefits as follows:

* Increasing entry into substance use disorder treatment

* Reducing the amount and frequency that clients use drugs

* Reducing public disorder and public injecting while increasing public safety

* Reducing HIV and Hepatitis C risk behavior (i.e. syringe sharing, unsafe sex)

* Successfully managing frequent on-site overdoses and reducing drug-related overdose death rates (there has not been a single overdose fatality at any SCS worldwide)

* Saving costs due to a reduction in disease, overdose deaths, and need for emergency medical services

* Increasing the delivery of medical and social services

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

What drugs, sex work and one key case mean for the Baltimore DA race

In 2018, attorney Ivan Bates ran against incumbent Baltimore State's Attorney Marilyn Mosby and performed terribly, receiving only 28 percent of the vote. Undeterred, he is now running again for June's Democratic primary—with an eye on undoing Mosby's policy, introduced amid the pandemic earlier this year, of not prosecuting simple drug possession and sex work charges.

Bates has claimed, falsely, that Mosby's non-prosecution of marijuana possession—a policy that is not radical in any way—is a threat to public safety. "What you have done is you have now created a marijuana turf war," he told the Intercept, "with these guys killing each other for control of the black market."

Out of 741 people whose possession cases Mosby declined to prosecute, the number later rearrested on "serious" charges—violent crimes, sex crimes or drug distribution—was six.

Bates believes that people charged with drug possession shouldn't necessarily be prosecuted, but that "we need to steer them to drug treatment." This oft-repeated political talking point belies the realities that most people found in possession of a state-banned substance do not have substance use disorder (SUD), and that compulsory treatment has never been shown to be effective—often causing, rather than reducing, harms.

In Baltimore, nearly half of participants in court-ordered treatment programs are "terminated for non-compliance," which means they are subsequently jailed anyway.

State's Attorney Mosby faces both Bates and her former employee Roya Hanna, who is also running to her right. But Mosby herself had a conservative record until recently. She campaigned as a typical "tough-on-crime" prosecutor, and has repeatedly demonstrated a penchant for overzealous sentencing. She gained widespread attention after she charged the six police officers who killed Freddie Gray, but the cases were a disaster, leading to acquittals and a trial court ruling that she committed prosecutorial misconduct.

However, Mosby has also demonstrated growth, and not only by introducing her non-prosecution policy. Once a proponent of drug courts, she now recognizes that they do not work. The vast majority of US prosecutors have not similarly evolved.

But many voters in the heavily Democratic city, especially progressives and anti-carceral organizers, might not consider whether Mosby is a net positive on drug criminalization to be the most important factor. What everyone does care about is the case of Keith Davis Jr.

Davis gained national attention this summer after he was shot by police, then charged by Mosby in an unrelated homicide case. Many nationally famous area activists believe he is innocent, and that Mosby has repeatedly charged him in order to save face with the Baltimore Police Department.

There seems a very real chance that left-leaning voters might abandon Mosby over her actions in Davis's case. But ousting her would likely only install a more punitive alternative, prosecuting marginalized residents for so-called crimes like possession and prostitution.

A cautionary tale: In the 2019 Delaware County, Pennsylvania district attorney race, the potential innocence case of Leroy Evans became a similar political lightning rod. Jack Stollsteimer, who successfully ran as a moderate reformer against tough-on-crime incumbent Katayoun Copeland, promised that he would reopen Evans's case.

Once his campaign was won, Stollsteimer seemed to forget that promise. Evans is still in prison, serving a de facto life sentence. This is despite another person confessing to the murder he was convicted of; the government has refused to test DNA evidence found on the scene.

And while Stollsteimer is less harmful than Copeland, who once convinced a trial judge of the existence of a nonexistent school to justify harsher punishment for a man who sold a little cannabis, he has had his own fair share of issues.

Stollsteimer cleared two white police officers who beat and tased a man for being publicly intoxicated. He also declined to prosecute officers who fatally shot an 8-year-old Black girl, in favor of charging two Black teenagers who were in the area.

Adjudicating an elected prosecutor on potential injustice in a single case can result in electoral outcomes that actually drive up incarceration overall. Similarly, when a candidate delivers a campaign promise to address potential injustice in a single, high-profile case, it could be nothing more than cynical politics.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

The right is using the Wisconsin parade tragedy to attack bail reform — but they need a fact-check

After an SUV plowed through a holiday parade in Waukesha, Wisconsin on November 21, killing five people and injuring 48, including many children, hard-right pundits treated the subsequent arrest of Darrell Brooks like a gift.

Jennifer Van Laar, the editor of popular conservative blog Red State, tweeted, "FIFTY PAGES in Darrell Brooks' criminal record. Drugs, violence, crimes of moral turpitude, sexual offenses. But hey, let's allow him to bond out on $1000 even though he's charged with jumping bail."

Alt-right troll Jack Posobiec and COVID-19 disinformation spreader Chuck Callesto echoed this idea. Turning Point USA's Benny Johnson went a step further, blaming Milwaukee District Attorney John Chisholm for the incident. So did Mike Cernovich, who ripped into Chisholm as a "Soros DA," despite Chisholm never receiving money from George Soros or his affiliated PACs.

DA Chisholm, as a writer at Red State put it, is allegedly a "radical leftist who has sought to institute 'criminal justice reform' via 'bail reform.'" It is insinuated that Chisholm quietly ushered Brooks out on a serious and recent domestic violence charge on $1,000 bail, then rolled it back in the media after the tragedy, claiming that his deputy prosecutor made a mistake (Chisholm has now launched an investigation into the Brooks bail decision).

Such commentators are in desperate need of a fact-check.

Wisconsin is not like California or New Jersey, which saw bail reform legislation pass in the last few years. It has not had a substantial amendment to its bail law in at least 10 years, according to the Wisconsin state legislature's website.

However, the current law does state that a judge can hold a person charged with a crime in jail pretrial "only upon a finding by the court that there is a reasonable basis to believe that bail is necessary to assure appearance in court."

Meanwhile, both chambers of the Wisconsin legislature have been dominated by Republicans every year in the last decade.

Besides which, if we look at bail reform on a statistical, rather than anecdotal, level, it does not reduce public safety. The vast majority of people facing charges return to court regardless of money bail. In addition, detaining people pretrial, effectively punishing poverty, is "criminogenic," because people lose their jobs and community ties are weakened.

"Money bail compromises public safety," according to analysis from the Prison Policy Initiative.

As Cernovich points out to support his cause, Chisholm has delivered criminal justice reform talking points. But Chisholm has rarely delivered anything on decarceration but talking points. The Democrat, first elected in 2006, has spent much of his career carefully avoiding policies that would make right-wing opponents angry.

In 2017, for example, Chisholm explained how he refuses to categorically drop marijuana possession cases, despite many of his peers elsewhere doing just that.

Chisholm is also the orchestrator of a national strategy to increase the use of drug-induced homicide prosecutions to people who sell drugs as murderers, despite people who have overdosed often not wanting this response. He has sent Assistant District Attorney Patricia Daughtery to national conferences to evangelize these prosecutions. Daughtery has gone so far as to advise officials to build cases using tactics that are disrespectful to the same people she is supposedly trying to protect, such as using the cell phones of people who overdosed.

Additionally, during Chisholm's tenure, Wisconsin had the highest rate of Black incarceration in the nation, with about 65 percent of Black Wisconsinites living in Milwaukee County. University of Wisconsin law professor Ion Meyn has raised concerns that part of this is due to higher prosecution rates and lower plea bargain rates for Black suspects.

Amid Chisholm's middle-of-the-road approach to his office, Milwaukee has one of the highest violent crime rates in the country, with 1,332 incidents for every 100,000 residents. His attempt to please everyone and incense no one has achieved little, and there are numerous progressive steps he should be taking. Chances are, the politicization of the Brooks case will increase the DA's timidity and push him in the opposite direction.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

Wyoming launched a system of humiliating, pervasive surveillance under the guise of fighting crime

Criminologists and, increasingly, local court systems love the idea of "swift, certain and fair" punishments for drug use (including alcohol) by people with criminal justice system involvement. They say that releasing people with strict anti-drug use conditions will curb mass incarceration, cut costs and assist in rehabilitation — a win for everyone.

Not only is this misleading, but the programs they are creating might be unconstitutional. That is what the ACLU contends of the 24/7 Sobriety Program in Wyoming, in a demand letter recently sent to Governor Mark Gordon, Attorney General Bridget Hill, the Teton County Sheriff's Office and others.

Its effectiveness as a public safety program is also in doubt.

The program, which was first created as a result of a 2014 law, creates stringent pretrial release conditions for people awaiting alcohol-related charges. Anyone caught drinking will be put back in jail. State lawmakers were inspired by a program created by former South Dakota Attorney General Larry Long in his state.

A training from the South Dakota Attorney General's Office illustrates what the program looks like, as well as some of the ideas behind it. The first slide tells the audience, "Why do we need the 24-7 Program? UNENFORCEABLE CONDITIONS," then lists examples of these conditions: Don't drink. Don't go to bars. Don't drive.

Later, it explains the program's two breathalyzer tests per day, which are mandated whether or not the person is driving. People who are convicted, but also those who are presumed innocent until proven guilty, can face these conditions. They also have to pay for the testing themselves.

A 2017 best practices manual from the National 24/7 Advisory Council shows another bad side to the program. Despite being billed as a personal-responsibility program that saves money and allows people to keep their jobs, South Dakota's in-person testing requirement "made it very difficult, if not impossible, for participants to obtain and keep jobs, attend school, or maintain a healthy family life." The state then introduced a transdermal patch as an alternative testing option.

In Wyoming, people are still coming in person for these tests. To be eligible for the program, the Teton County Sheriff demands an enrollment fee of $30, cash only, exact amount only.

Academic and think tank researchers bolstered the spread of the program, but their research has arguably been mischaracterized by the program's founder, Larry Long.

Sandwiched in between stories of drunk driving and domestic violence, Long wrote in 2017 that "RAND research, published in Lancet Psychiatry in 2016, showed that the implementation of a 24/7 Sobriety Program was followed by a 4.2% decrease in the state's mortality rate, equal to saving the lives of several hundred South Dakotans a year."

Yet Michael Farrell of the National Drug & Alcohol Research Centre in Australia, in summarizing that paper, stated: "In an analysis of cause-specific mortality, circulatory disorders but not digestive disorders or injuries (all proxies for alcohol-related mortality) were significantly reduced, whereas there was no association with cancer-related deaths (a falsification test)."

And the authors of the original paper themselves acknowledged that the decline in mortality was "most evident among circulatory disorders" amongst 24/7 Sobriety Program participants.

Thus, the program is not really about crime; rather, it is wielding public health concerns as a carceral weapon. The government has opted to subject the people it is allegedly trying to help to a humiliating, pervasive surveillance.

It is not surprising when you look at the founding members of the National 24/7 Advisory Council. Honolulu Prosecuting Attorney Steve Alm, the inventor of the ineffective and repressive HOPE probation program, is there. So is Stephen Talpins, the second-in-command to the fake-progressive Miami-Dade County State Attorney, Katherine Fernandez Rundle, who described the South Dakota program as "one of the most progressive programs in the country."

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

Legal professors’ lawsuit spotlights resistance to prosecutor accountability

A fight over law professors' free speech rights shows just how far state bars will go to protect prosecutors who lie in court, bar people from juries on account of their race, and commit other unlawful acts.

This March, a group of law professors teamed up with nonprofit Civil Rights Corps to file long-overdue bar complaints against 21 prosecutors in Queens, New York. Each complaint stemmed from an ethics violation previously verified by an appellate court. They also created a website for the new project, dubbed Accountability NY. There, they posted the bar complaints, along with the names of the errant prosecutors.

That is all it takes to twist New York City's giant criminal justice bureaucracy into a hernia, according to a new First Amendment lawsuit filed by Patterson Belknap Webb & Tyler LLP on behalf of the professors and Civil Rights Corps in Manhattan federal court on November 4.

Melinda Katz, who beat out reform candidate Tiffany Cabán to become the Queens district attorney after a contentious recount in 2019, complained to the New York City Law Department, which defends the city from lawsuits. The Law Department then sent a letter to the law professors, accusing them of "misus[ing] and indeed abus[ing] the grievance process to promote a political agenda."

On the urging of the Law Department, the state bar's Grievance Committee, which investigates accusations of attorney misconduct, severed the professors' rights to receive updates on the cases, as well as their right to appeal unfavorable decisions made against them. Objections to this action form the core of the suit, as some of the professors explained to Filter on background.

"Were [the state bar] motivated by the fact that the complaints were filed publicly so that a failure to act expeditiously would look bad?" Bruce Green, a Fordham Law professor not involved in filing the complaints, rhetorically asked.

The answer is likely yes. It is well known that disciplinary boards at state bars typically sit on their hands in response to complaints against prosecutors. Only a handful of prosecutors nationwide have ever been formally disciplined for ethical misconduct, and it usually occurs years, if not decades, after the fact.

Yet, transparency is a strong taboo when it comes to attorney misconduct investigations. All state bars prevent the public from accessing at least some of the pertinent materials, something the American Bar Association's Special Committee on Evaluation of Disciplinary Enforcement called "scandalous" as early as 1970. In New York, there is a legal presumption against disclosure, including of the complaints themselves, though the appellate judges in charge of discipline can formalize a release if they decide there is "good cause" to do so. (The lawsuit is also challenging the constitutionality of this statute.)

To be clear, law is a self-governing profession, and people's bizarre expectations of lawyers contribute to an ongoing problem of frivolous complaints. One example is a client filing a complaint against his lawyer for not being in contact as much as he would like, even though the lawyer is following a normal standard for frequency of client communications. Even a frivolous bar complaint can harm an attorney's reputation, something Justice Benjamin Cardozo of the New York Court of Appeals expressed in a 1928 opinion.

But every single one of the complaints against the Queens prosecutors filed by the law professors was based on already-verified findings of misconduct by appellate courts.

Ironically, in virtually all the cases, the appellate court that found misconduct by each of these prosecutors is the same court responsible for disciplining errant prosecutors in Queens. For example, in 2018, the Second Appellate Division of the New York Supreme Court found that Queens prosecutor Christopher Dooley improperly elicited "bolstering testimony" from a detective in a robbery case against a man named Miguel Ramirez. Accountability NY's bar complaint against Dooley was directed to the Grievance Committee for the Tenth Judicial District, which is part of the Second Appellate Division of the New York Supreme Court.

It is altogether possible that the Law Department and the Grievance Committee simply teamed up to protect the dignity of errant prosecutors. After all, they are esteemed members of the community, the logic goes, and the people they harm when they commit misconduct are suspected criminals.

Backing this theory is the fact that the names of line prosecutors who try cases are virtually never listed on judicial opinions, regardless of the extent of ethical violations. It is easy, however, to look at the 21 bar complaints on the Accountability NY website, pull the cases where these Queens prosecutors committed misconduct on an internet search engine, and do an in-text word search for the prosecutors' names. In State v. Ramirez, the name "Christopher Dooley" does not pop up once. That is true for virtually all of the appellate opinions giving rise to the misconduct complaints. In those cases, the law professors had to personally investigate to find out which prosecutor handled which case.

Some commentators, such as Professor Megan Stevenson at the University of Virginia School of Law, have opined that the law professors here misused their credentials to "advocate for change." Stevenson said that academics should not be advocates, except when it comes to areas where there is "certainty and unity."

But again, each complaint was based on already-verified findings of misconduct by appellate courts. There is certainty and unity here, by merit of the fact that these decisions were not appealed before the applicable deadline and thus became legally indisputable. Because people like Stevenson, as well as the figures named in this suit, might dismiss any non-partisan good-government efforts in this space as political advocacy, there is categorical "good cause" for making all grievance filings against prosecutors public.

Named as defendants in the lawsuit are Georgia Pestana, the Corporation Counsel of the Law Department; Queens District Attorney Melinda Katz; Diana Maxfield Kearse, the attorney for the same; Justice Hector D. LaSalle of the Second Appellate Division of the New York Supreme Court; and Andrea Bonina, the chair of the State of New York Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, who is also on the board of directors of the Brooklyn Defender Services.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

The exit of a draconian Fort Worth DA will leave an opening for reform

Just a few years back, Tarrant County, Texas, which includes Fort Worth, was dubbed a "bright-red anomaly"—a highly populated urban county that reliably voted Republican. Even in its urban core, voters have tended to choose leaders of that party. However, at a time when Tarrant County is growing more competitive for Democrats, Republican District Attorney Sharen Wilson announced on November 9 that she will not run for re-election when her term expires next year.

That could mark an opening for progressive advocates, who have successfully worked to flip down-ballot municipal elections in many of Texas's big cities since 2016.

In many ways, Sharen Wilson is an emblem of a bygone era: a time when the Lone Star State was the "buckle of the death belt" and its urban DAs still lauded mass incarceration as best practice. She started her legal career in 1981 as an assistant district attorney in the same office she now leads. Running for DA in 2014, Wilson's campaign touted her as "Tarrant County's toughest criminal court judge," a job she held for 23 years. Her presently available campaign website still uses that descriptor.

Unsurprisingly, her tenure as DA has been defined by a resistance to criminal justice reform.

In 2017, after Harris County (Houston) DA Kim Ogg announced that she would divert all drug possession cases involving under 4 ounces of cannabis, Wilson refused to comment about the reform. Ogg's policy itself was far from perfect, given that it was a diversion program that thousands of people failed due to the requirement of a $150 fee for a "four-hour cognitive decision-making class." But in Tarrant County, there was not even a token attempt to mitigate the fact that the DA Office's most frequent charge issued was possession of under 2 ounces of cannabis.

Wilson's harshness compared with Ogg is not just a Republican versus Democrat issue, either. According to data from the Texas Office of Court Administration, Wilson's per capita indictment rate from September 1, 2015 to August 31, 2016 was even higher than that of Harris County DA Ogg's Republican predecessor, Devon Anderson.

During the same period, Tarrant County also filed approximately 25 percent more juvenile delinquency petitions than Dallas County under Republican DA Susan Hawk, despite Dallas County having over 500,000 more people. (Former DA Hawk has since been replaced by District Attorney John Creuzot, a Democrat who has been broadly identified with the progressive prosecutor movement.)

Wilson has stated on her campaign materials that she balances toughness with fairness, but her record as both a DA and judge casts doubt on that claim.

In 1997, Wilson, then a judge, sentenced a 14-year-old girl to 35 years in prison for a botched robbery-turned-homicide. National news media latched onto the case, with Associated Press describing the girl as "a prostitute and drug dealer." She was reportedly the youngest child prosecuted as an adult in the county's history.

After taking office as DA in 2015, Wilson said she would "never apologize for following the letter of the law"—a promise she has kept when it comes to the most trifling of "criminal offenses" like cannabis possession.

But ironically, she has repeatedly been rebuked for failing to follow the law herself.

In 2014, electoral opponents found that Wilson, as the Fort Worth Star-Telegram explained, was "once disciplined for wrongfully incarcerating a defendant and improperly talking with jurors during a trial." In 2015, the Texas Court of Appeals reversed a man's conviction because then-Judge Sharen Wilson had refused to let his defense attorney make a closing argument.

In 2016, she also solicited campaign donations from her staffers using public property, a misdemeanor under Texas state law. A special prosecutor determined that Wilson should not be indicted, due to a lack of "criminal intent"—only for Wilson to use her authority to obtain a five-year prison sentence against Crystal Mason for voting while on felony probation.

As DA, she also failed in 2017 to obtain a conviction for white former police officer Courtney Johnson, who shot Craig Adams, a Black man, for holding a barbeque fork in his own yard. Johnson claimed Adams was holding a knife and that it "took him so long" to drop the object, but also that firing his service weapon was an accident. Wilson opted to not try the case a second time, stating instead that "We will consider the jury's inability to reach a verdict and the evidence presented at trial to decide whether a retrial is justified."

So what are the prospects for a reform DA candidate in Tarrant County next year?

In 2018, Albert John Roberts, a reform-minded Democrat who previously worked as a prosecutor in Dallas, ran against Wilson. He lost, but Wilson's margin of victory was less than 7 percentage points (Wilson had no challenger in the 2014 general election). In the 2022 Democratic primary, Roberts will face off against Tiffany Burks, who until recently served as Wilson's chief deputy. It is currently unclear who, if anyone, will run for the seat on the Republican side.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

After the GOP's sweep, Virginia’s AG-elect takes aim at reform prosecutors

The impact of the Republican sweep in Virginia on November 2 won't be limited to Glenn Youngkin's winning his dog-whistle gubernatorial campaign.

Attorney General-elect Jason Miyares, an ardent opponent of gun control and abortion, similarly squeaked home against his Democratic opponent with under 51 percent of the vote. And he has immediately signaled that he will pursue new legislation to usurp prosecutorial discretion from Virginia's locally elected county prosecutors, known as commonwealth's attorneys. His clear purpose echoes Youngkin's fear-mongering against so-called "progressive prosecutors."

In recent years, several reform candidates have trounced conservative Democrats in Commonwealth's Attorney elections across the state. Their jurisdictions tend to be heavily Democratic-leaning areas — like Arlington, where Commonwealth's Attorney Parisa Dehghani-Tafti has made moves to grant leniency in even large-scale cannabis cases; and Portsmouth, where Commonwealth's Attorney Stephanie Morales became one of the rare top local prosecutors to successfully prosecute an on-duty police officer for killing a civilian.

As Miyares has explained, the proposed bill would give the state attorney general concurrent jurisdiction to prosecute local cases where the commonwealth's attorney refuses to charge. By launching an attack on these prosecutors' autonomy, Miyares can gratify both the law-and-order fanatics of his base and those who generally want to see Democrats punished.

"Tough-on-crime" leaders in other states, including Pennsylvania Attorney General Josh Shapiro, a conservative Democrat, have also taken this approach as a way to undercut the gains of the progressive prosecutor movement. But even those who don't share the view that reducing arrests and incarceration is a good thing may have qualms about removing the discretion of prosecutors who were, after all, elected.

In Indiana, for example, controversy brewed when Marion County Prosecuting Attorney Ryan Mears announced he would no longer prosecute low-level cannabis possession cases. The Indiana Prosecuting Attorneys Council, which represents the state's elected prosecutors, is so conservative as a whole that it opposes even medical cannabis programs. But the association also continues to oppose efforts to strip prosecutorial discretion, with IPAC Senior Counsel Dave Powelll even calling it the profession's "holy grail."

Back in Virginia, the legality of stripping a Commonwealth's Attorney of discretion over their cases is also unclear. When Norfolk Commonwealth's Attorney Greg Underwood attempted to dismiss misdemeanor cannabis cases in bulk in 2019, trial court judges opposed the move. The Virginia Supreme Court then sided with the local judges. But legislation to abrogate that decision and give dismissal authority back to prosecutors was signed by the governor the following year.

On top of that, the Virginia Supreme Court's analysis could have been wrong; it simply relied on state common law tradition from as early as 1803. In contrast, when the Massachusetts Supreme Judicial Court heard a similar case in 2021, it came to the opposite conclusion. This was essentially due to the Consitution's separation of powers doctrine. To that court, the ability to decide to prosecute cases exists solely in prosecutors, who are officials located in the executive branch.

The fact that none of this would give Miyares pause is little surprise. He used to work as a prosecutor in Virginia Beach, and Colin Stolle, the commonwealth's attorney there, has received his political endorsement.

Stolle is notoriously draconian toward the pettiest forms of lawbreaking. When Virginia still had a "habitual drunkard" statute that allowed commonwealth's attorneys to petition to put homeless people with alcohol use disorder on a registry, making it a crime for them to even possess alcohol, the Virginia Beach Commonwealth's Attorney Office used the statute more than any otherfour times more often than the second-placed office. The law was later ruled unconstitutional by the Fourth Circuit Court of Appeals.

Miyares' transition team is also troubling. One of its members, Lynchburg Commonwealth's Attorney Bethany Harrison, worked for the Family Foundation, a nonprofit that seeks to "advocate for policies based on Biblical principles that enable families to flourish at the state and local level." It works to ban abortion, and also trafficks in anti-transgender hate. As an assistant prosecutor, Harrison led a program to train local residents as "citizen-informants" to ensure more drug crimes got reported.

Another team member is Loudoun County Sheriff Mike Chapman, who staved off progressive Democrat Justin Hannah in 2019. Rather than focusing on crime, Chapman flings himself into culture wars (sound familiar?). Earlier this year, after some people complained about a local anti-racist parent group on Facebook, he launched a formal criminal probe for evidence of "racketeering" by the activists. It was also Chapman's deputies who, at a recent school board meeting, decided to arrest and recommend the prosecution of the father of a student who was allegedly sexually assaulted—though it was Buta Biberaj, the district's progressive prosecutor, who received death threats for the decision.

Virginia's under-fire elected prosecutors have already announced their intent to resist the brazen moves of the Miyares administration.

Ramin Fatehi, the new Norfolk commonwealth's attorney-elect, tweeted in response that "we are not going to let Jason Miyares feed mass incarceration for political points." And after Tom Cotton, the hyperconservative US senator from Arkansas, praised Miyares for trying to strip the discretion of "pro-criminal Soros 'prosecutors,'" Fairfax County Commonwealth's Attorney Steve Descano tweeted that "we're gonna keep building a system that treats working folks & communities of color fairly."

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

FDA memos reveal its 'fatal flaw' rejection plan for flavored vapes

There's an ongoing theory about the Food and Drug Administration (FDA) within the vaping community: The agency did not anticipate the onslaught of 6 million-plus premarket tobacco product applications (PMTAs) it received by a September 2020 deadline, and had to devise some way to try to sort through them all by the following year. It would be no easy feat, but the bar for authorization would be set incredibly high—and that, in the FDA's view, would help.

Documents obtained by Filter shed new light on how this murky process has looked from the heavily criticized agency's perspective. For the first time, they also give an indication, from the agency itself, of something else the vaping community has long inferred: that the FDA—despite some protestations to the contrary—has taken a systemically different approach to PMTA applications for the flavored products on which so many former smokers depend.

The agency previously signaled the threshold to be met—being "appropriate for the protection of public health"—would largely involve a tricky balancing act. Reviewers at the FDA's Center for Tobacco Products (CTP) would weigh the likelihood of a given product facilitating adult smokers to switch to a safer alternative versus its perceived potential to attract a new generation of nicotine users.

The FDA also made clear—even if many in the industry can argue it did so only after the September 2020 submission deadline—that tipping the scales toward authorization would likely require at least one of two types of studies: longitudinal cohort studies, which track large groups of people over an extended period of time, or randomized controlled trials (RCTs), another type of study that examines a specific group of people through intervals of time. Both are costly and require high levels of skill.

On September 9, however, Mitch Zeller stated in an update to the agency's PMTA process that the FDA "does not foreclose the possibility that other types of evidence could be adequate if sufficiently robust and reliable." But the agency has never really expanded on what kind of other evidence that would be.

FDA memos reviewed by Filter provide an inside look into the procedure, establishing explicitly how the agency handled the heavy volume of applications for flavored vaping products.

"Office of Science has been tasked with developing a new plan to effectively manage the remaining non-tobacco flavored ENDS PMTAs not in Phase III, substantive scientific review," reads a memorandum signed on July 9 by Matthew Holman, the director of CTP's Office of Science. "This task has been assigned by the Acting Commissioner given the likely impact on the marketplace on September 10, 2021 (the end of the enforcement discretion period for deemed tobacco products) and in order to take final action on as many applications as possible by September 10, 2021."

"Considering the large number of applications that remain to be reviewed by the September 9, 2021 deadline, OS [Office of Science] will conduct a Fatal Flaw review of PMTAs not in Phase III for non-tobacco-flavored ENDS products," the memo goes on. "The Fatal Flaw review is a simple review in which the reviewer examines the submission to identify whether or not it contains the necessary type of studies."

Critically, the memo continues: "The Fatal Flaw review will be limited to determining presence or absence of such studies; it will not evaluate the merits of the studies."

According to the FDA, there are three "phases" of the PMTA review: Phase I (Acceptance), which essentially means an application has been received; Phase II (Notification or Filing), which entails acknowledging a company had enough information for its applications to be formally filed; and Phase III (Review), which involves a substantive scientific evaluation, followed by a marketing granted order (MGO) or MDO. (In August, the agency refused to file—that is, move to Phase II—about 4.5 million vapor product applications filed by a single manufacturer, JD Nova, because an environmental assessment was not included.)

The memo continues to explain that CTP used "a database query to identify the top twelve manufacturers with the largest number of pending PMTAs not in Phase III for non-tobacco flavored e-liquid products," which then represented 85 precent of all pending PMTA applications. The agency pulled these applications "out of their respective place in the PMTA priority list," and once "Phase II filing was initiated," they underwent the "Fatal Flaw" review.

"Manufacturers are responsible for making their case within their application," Eric Lindblom, a senior scholar at Georgetown's O'Neill Institute for National and Global Health Law and a former director of the CTP's Office of Policy, told Filter. "And the FDA is under no legal obligation to fill in any missing gaps or apply external studies or evidence to make the application fulfill application requirements … to make the application worthy of getting an order allowing marketing—to make a PMTA product's marketing appropriate for the protection of the public health."

Still, the Fatal Flaw standard appears to be new; it does not seem to have been employed by CTP in the past. A former CTP employee, speaking to Filter on condition of anonymity, said that they had never heard of the "Fatal Flaw" standard until now.

The FDA has denied the applications of most small- and medium-size producers, issuing identical marketing denial orders (MDOs) for their mostly flavored products, while indicating more time was needed to evaluate the players with the largest market share. (It has authorized just one vape, along with two tobacco-flavored cartridges.)

So the way this happened, previously shrouded in mystery, just became a whole lot clearer: CTP reviewers created what's probably a new method to get through a backlog of millions of PMTAs, searched those applications for longitudinal cohort studies and RCTs without evaluating any other evidence, and for applications lacking them, did not advance them beyond Phase II and just sent out templated MDOs.

Some in the vapor industry wonder if the "Fatal Flaw" review emerged after Janet Woodcock, the agency's acting commissioner, testified at a congressional hearing at the end of June. Many leading Democrats—including two of the most vocal vaping critics, Senator Dick Durbin and Congressman Raja Krishnamoorthi—scolded Woodcock and her agency for not doing enough to address youth vaping rates. There may have been, in other words, political pressure to act, even as youth vaping has fallen. Holman signed the memo a little over two weeks after the hearing.

"The 'Fatal Flaw' standard was created out of a sense of embarrassment on the Hill by the acting commissioner," an industry insider, speaking on condition of anonymity given a pending PMTA application, told Filter.

"Janet Woodcock's legacy won't be vaccines or drug approvals," they continued. "It will be involving herself politically in the vaping market and making it harder for products that adults use to quit smoking to remain on the market. She has politicized the FDA more than any of her recent predecessors, by far."

Through a spokesperson, the FDA declined to comment, as the agency does not do so "on possible, pending or ongoing litigation."

In the meantime, dozens of vapor companies have sued the FDA, mainly for acting in an "arbitrary and capricious manner," and two so far have received full-blown rescissions, with the agency citing that the "FDA found relevant information that was not adequately assessed."

Another company, Triton, which at the end of October received a full stay from a federal court of appeals to continue selling its products as its lawsuit made its way through the court system, revealed that at least some judges agree with the industry's logic: The FDA did not adequately inform manufacturers that long-term data, in the form of longitudinal cohort studies or RCTs, would be totally necessary.

The new evidence of the FDA's cut-and-paste methodology, which emerged through these lawsuits, further substantiates vaping advocates' portrayal of the process as not only chaotic, but stacked against smaller companies and flavors.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.

It was a bad election night for criminal justice reform — but there were a few bright spots

The future of criminal justice was on the ballot across the United States on November 2. The theme ran through electoral contests as varied as the gubernatorial election in Virginia and the mayoral race in Minneapolis, Minnesota. In several cities, firebrand leftist candidates ran on reconceptualizing public safety, up to and including prison and police abolition.

It did not work out so well in the end.

Nonetheless, it would be a stretch to read the results as a decisive referendum on the popularity of criminal justice reform and/or abolition. Many other variables were at play in most of these votes, not least politics-as-usual—the so-called "thermostatic" effect whereby voters of the party that doesn't hold the White House are energized, leading in this case to a backlash against a Democratic party split between its centrist and progressive wings. The issues aren't going away, but here's how some of the key races just went.

Youngkin Is the Next Virginia Governor

This race, pitting former Democratic Governor Terry McAuliffe against Republican and political newcomer Glenn Youngkin in a blue-leaning state, was perceived as a national barometer and was always going to be close.

But Youngkin narrowly came out on top, spelling a likely halt for ongoing legislative initiatives to reform Virginia's justice system. Youngkin has claimed that Democrats have made Virginia less safe, and has promised a police officer in every school, among other changes.

Youngkin also has his eyes on the newly elected set of progressive prosecutors in Virginia. During the campaign, he publicly targeted Loudoun County Commonwealth's Attorney Buta Biberaj, after she charged the father of a student who was allegedly sexually assaulted for disrupting a school board event. It was part of Youngkin's tactic of aiming culture-war messaging (especially against critical race theory, which isn't even taught in Virginia's schools) at parents.

However, Biberaj reportedly did not know who the man was; she simply accepted a referral for prosecution from the sheriff's deputies who arrested him.

Nonetheless, Youngkin's placing blame for the incident on Biberaj led to multiple death threats against the prosecutor, as well as a deluge of articles from far-right hate sites due to her identity as a Muslim first-generation immigrant.

In a sign of national momentum, the New Jersey gubernatorial race, which incumbent Democrat Phil Murphy had been expected to win comfortably, was still in a knife-edge count at publication time.

Minneapolis Keeps Its Police Department

Despite the murder of George Floyd, Minneapolis residents voted to keep the Minneapolis Police Department the way it is, instead of creating a Department of Public Safety that would have included policing under its purview.

This move would not have "abolished" the police, but would have been more similar to the rebranding measure that happened in Camden, New Jersey almost a decade ago. In theory, at least, it would have increased support for the unarmed alternative responder model for nonviolent emergency calls and community violence prevention efforts. Nonetheless, the result is a clear setback for the defund/abolition movement.

Mayor Jacob Frey, who opposed disbanding the police department, gloated after he was seemingly re-elected last night, stating, "I think all of us can now stop with the hashtags and the slogans and the simplicity, and say let's all unite around things that we all agree on."

Unfortunately, the moderate police reforms he has supported while in office, like the DOJ-sponsored National Initiative for Building Community Trust and Justice to improve police-community relations, have failed to make a substantial difference in the city.

Radical Bids Fall in Buffalo, Seattle

In Buffalo, New York, self-identified democratic socialist India Walton defeated the incumbent mayor in the primary earlier this year. But that mayor, Byron Brown, staged a write-in campaign that apparently defeated Walton last night. Walton made public safety reform a major part of her campaign, and during the primary season she said she would "absolutely" support defunding the police.

Across the country in Seattle, Republican Ann Davison bested Nicole Thomas-Kennedy, a former public defender who supports prison and police abolition, in the city attorney race. Leading up to the election, the city's largest newspaper all but declared war on Thomas-Kennedy due to her inflammatory tweets about police officers.

Progressives See Bright Spots in Philly, NYC, Austin

All of these outcomes sent shockwaves down the spines of Democrats, as well as spreading doubts on whether a large enough constituency supports substantial changes to the way criminal justice operates—at least in the way that such changes are currently being framed. But there were bright spots for progressives, even if they were mostly about not losing—rather than gaining—ground.

In Philadelphia, for example, reformist District Attorney Larry Krasner staved off Charles Peruto, the Republican longshot in the heavily Democratic city. Peruto entered the race with the specific objective of ousting Krasner, and was less interested in actually becoming the new DA. The candidate was a registered Democrat who voted for Krasner in 2017, but he said he had "no idea he would turn out to be this liberal."

Meanwhile in New York City, Tiffany Caban, the abolitionist who nearly became Queens district attorney in 2019, won a city council seat. She hit the news just days ago for handing out "Defund the NYPD" merchandise.

And while voters in Austin, Texas did not see defund or abolish the police on the ballot, they overwhelmingly rejected a measure to increase staffing at the Austin Police Department.

This article was originally published by Filter, a magazine covering drug use, drug policy and human rights. Follow Filter on Facebook or Twitter.


Happy Holidays!