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Boston and Baltimore’s non-prosecution policies are now at grave risk

Two of the most significant figures in the so-called “progressive prosecutor” movement now seem to be off the table as local top prosecutors. Despite very different circumstances in Baltimore and Boston, where they each presided over groundbreaking non-prosecution policies, these developments should concern anyone who wants to see drug use decriminalized.

In Baltimore, the elected top prosecutor, State’s Attorney Marilyn Mosby, issued a broad non-prosecution policy for drug possession, drug paraphernalia and “prostitution” charges in March 2020, as the COVID-19 pandemic kicked in. She announced her intention to maintain the policy post-pandemic, and a 2021 Johns Hopkins University study found that it had averted many arrests without reducing public safety.

But Mosby just got federally indicted on two perjury counts and two counts of making a false statement on a mortgage loan application. The charges are related to Mosby’s alleged claims of financial hardship during the COVID-19 pandemic, as well as allegedly fraudulent real estate dealings.

Whether Mosby will resign, either willfully or by force, is not presently known. David Jaros, a University of Baltimore law professor, told a local news station that under Maryland law, Mosby “can be removed from her position if the attorney general files a petition and two thirds of the Senate vote to remove her.”

In Boston meanwhile, Rachael Rollins, who until recently was Suffolk County’s district attorney, has now become the US attorney of Massachusetts instead, after the state Senate confirmed the Biden administration’s pick. As DA, Rollins had made progress on her campaign pledge to default to non-prosecution for 14 low-level misdemeanors.

That switch meant that Governor Charlie Baker, a Republican whose administration was highly critical of Rollins’ policies, got to nominate a successor to hold the Suffolk County DA seat until the November 2022 election. He chose Kevin Hayden, a prosecutor with a more middle-of-the-road track record, as Rollins’ replacement.

Despite a National Bureau of Economic Research study confirming that Rollins’ non-prosecution policies decreased justice involvement without increasing local crime rates, whether they will be continued by the new administration is an open question.

Several insiders, speaking to Filter on condition of anonymity, suggested that Hayden himself does not know yet what he plans to do regarding Rollins’ declination policies. One suggested that Hayden plans to keep the policies in place, while cautioning that actions speak louder than words.

On the other hand, Hayden may already be showing why he was Gov. Baker’s pick. Bobby Constantino, who served in the key role of Suffolk County director of innovation and strategy in the Rollins administration, tweeted on January 13: “For those who are wondering how the transition is going, they reassigned my office yesterday without so much as a warning, and despite several requests to meet with the new team, they are forcing me to resign before I can hand off the office’s research and tech portfolio.”

Unlike in Massachusetts, Maryland top local prosecutors who for whatever reason don’t complete their terms are replaced by Circuit Court judges—who themselves are elected to 15-year terms. This has happened at least once before in Baltimore, back in the 1970s, when the Circuit Court bench elected Howard Cardin as state’s attorney in order to fill a vacancy.

However, that appointment was controversial—the bench’s chief judge was Meyer Cardin, Howard’s father—and the new state’s attorney was defeated in the next election cycle.

The timing of Mosby’s indictment makes things even more complicated, as the filing deadline for the June 2022 state’s attorney primary is only weeks away. No one has officially filed yet, though Mosby, as well as attorneys Ivan Bates and Roya Hanna, had expressed plans to do so.

Her indictment does not legally stop Mosby from running, even if her prospects for winning would now be slim. But if she won and was then sentenced to prison due to a conviction, an interim state’s attorney would have to be selected by the judges.

Alternatively, Mosby could resign, triggering the judges’ need to appoint a replacement immediately. It is unclear how long that process might take, and thus whether that person would be able to run in the primary with incumbency advantage.

However, Jaros told Filter that if it came to that, he would be surprised if the judges appointed someone who would radically alter the non-prosecution status quo.

“I think the more likely and smarter play by the judges would be to choose someone who is currently in the office who will serve as a caretaker of the office’s work as the election plays out,” the professor said, “rather than stepping in to anoint a successor who is not currently there.”

Still, it is entirely possible that a change of guard, aided by the political ammunition the indictment provides, will ultimately mean a reversal of Mosby’s non-prosecution policies toward drugs and sex work.

If Mosby’s exit is confirmed alongside that of Rollins, it would be rather devastating to the progressive prosecutor movement nationally, which is already in a tough spot. Progressive district attorneys in Los Angeles and San Francisco face recall battles this year, while the new state attorney general of Virginia, Jason Miyares, was elected after engaging in scorched-earth political warfare against progressive prosecutors. The safest progressive DA seat is undeniably Philadelphia DA Larry Krasner’s, since he won re-election in 2021 by a large margin against both primary and general election challengers.

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

As anti-reform prosecutors depart, Massachusetts has a real opportunity for progress

The landscape of the criminal-legal system in one of the nation’s most progressive states is changing.

Two of 11 elected district attorneys in Massachusetts—DA Jonathan Blodgett of Essex County, with a population over 800,000, as well as Cape and Islands DA Michael O’Keefe—have opted to not run for re-election in November this year.

Both men have fought even mild decarceration efforts in the legislature.

A third conservative top prosecutor, Plymouth County DA Timothy Cruz, whose jurisdiction has over half a million residents, has said he will be running in 2022. But he may face the fight of his political life if he comes up against Rahsaan Hall, who led ACLU Massachusetts’ public education campaign about the power of prosecutors. Despite mounting rumors, Hall has not yet fully committed to the race.

But the most immediate change—and one that could point in the opposite direction—is coming in Boston. Former Suffolk County DA Rachael Rollins has just been sworn in as US attorney, the state’s top federal prosecutor. While President Biden’s choice of Rollins might spell a less carceral approach to more serious crimes, the nature of her new role will remove her capacity to drop whole categories of lesser charges.

As DA, Rollins received progressive accolades for her campaign promise to default to non-prosecution for 14 low-level misdemeanors. She made progress in this regard, though critics pointed out that she still prosecuted these cases on occasion.

Governor Charlie Baker, a Republican, appointed Kevin Hayden as Rollins’ replacement on the local level. Rollins then stated in a press release that “Governor Baker took great care to choose an individual with subject matter expertise, leadership experience and a respect for and fluency in the different concerns and needs of each of the neighborhoods that make up Suffolk County.”

However, there is no confirmation that Hayden, who would enjoy an incumbency advantage if he decided to fight the November 2022 election, plans to continue the data-backed declination policies that made Rollins a national figure. And there are reasons to be skeptical that Hayden is cut from the same cloth as Rollins, beyond the fact that Gov. Baker picked him.

In the 1990s, Shannon Booker was one of eight women profiled in a film about domestic violence survivors killing their abusers. She became a prominent domestic violence advocate after her release on parole. However, several years later, her mental health worsened, and under the control of a new abusive partner, she stole a tourist’s wallet. It was Hayden who aggressively pursued a conviction for the theft. The judge acquitted her anyway.

In 2001, Hayden joined former Suffolk County DA Dan Conley’s Gang Unit, where he spent several years. Hayden’s experience there was similar to Greg Henning, whose unsuccessful 2018 election bid to become Suffolk County DA saw him tagged as the “law-and-order” candidate that year. Both men complemented day jobs as hard-nosed gang prosecutors with community service in neighborhoods of color heavily impacted by crime and violence.

At least in the case of Henning, the people who lived in these neighborhoods saw through the optics. Prior to serving as the head of Innovation & Strategy for DAl Rollins, Bobby Constantino mapped out campaign contributions to the five Democratic contenders in the 2018 DA race. He found that Henning received the fewest contributions from residents of two of Boston’s most heavily prosecuted areas. Rollins received the most.

Taken altogether, it is still unclear whether Massachusetts’ changing of the prosecutorial guard will result in a significant change of direction for the state.

While Blodgett and O’Keefe are retiring—removing the prospect of anti-reform incumbents seeking re-election in Essex County or Cape and Islands—no reform-minded candidates for these jurisdictions have yet surfaced. And these districts are not bastions of the Democratic Party’s left flank like Boston is.

Similarly in Plymouth County, where Rahsaan Hall may run as a full-on reformer, Trump received 40 percent of the vote in 2020.

Meanwhile Hayden has not yet submitted nomination papers for a re-election bid, though he has until May 5 to do so. No reform candidates have surfaced in Boston to date.

Thus, the changing landscape is no guarantee. But if strong reform candidates emerge in time, it could still be an opportunity.

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

New Manhattan prosecutor sparks a right-wing backlash — but the critics don't understand the reality

On the campaign trail for Manhattan district attorney in 2021, Alvin Bragg was seen by many observers as unlikely to deliver on the reforms he promised. Now that he has been sworn in, he is already planning big moves that could revolutionize the system—unless it destroys him first.

In a memorandum published January 3, DA Bragg states to line prosecutors working under him that they will no longer prosecute “marijuana misdemeanors,” most trespassing charges, turnstile jumping, most resisting arrest charges, and more. “Prostitution” is not specifically named, but a prosecutor must ask a supervisor before charging a client with patronizing. For felonies that are not homicides, high-grade felonies involving serious physical injury with a weapon, most sex offenses, felony domestic violence or major economic crimes, the new default policy is for prosecutors to “not seek a carceral sentence.” The memo also tells line prosecutors that they “shall not seek a sentence of life without parole,” at least under most ordinary circumstances.

Bragg additionally ordered that Manhattan prosecutors should seek to downgrade certain serious charges if mitigating factors are present. For example, a robbery suspect who threatens a clerk with a fake weapon will face larceny charges, not armed robbery charges, so long as no one was hurt and there was no “genuine risk of physical harm.”

This all makes sense in a system that has long abandoned rehabilitation as a genuine goal while failing to demonstrate effective deterrence. Recognizing this, when the elite American Law Institute sought to revise the sentencing provisions of its Model Penal Code, it stated its goal as “limiting retributivism,” nothing less or more. If no one was actually hurt, any legal consequences should be about deterring or incapacitating the person who did the crime, it held—revenge is simply inapplicable.

New York City criminal justice practices get more attention than those of any other city, and have often spread as a model for the rest of the nation. So it did not take long for some of the usual rightwing critics of decarceration to find their soapbox.

Political commentator David French wrote that “This is an extraordinary assertion of prosecutorial authority that’s inconsistent with the rule of law. There’s a difference between prosecutorial discretion (which is already routinely abused) and the wholesale usurpation of the criminal code.” A critical tweet from Peter Moskos, a John Jay College of Criminal Justice professor who once advocated the introduction of flogging as an alternative to incarceration, was retweeted by Donald Trump, Jr. The former president’s son responded, “As if New York wasn’t already doing everything in its power to push people to Florida.”

However, several other commentators recognized that Bragg’s announcement is not as radical as it seems on first blush. For example, while Bragg announced that his prosecutors are expected to request “non-carceral” sentences for most crimes, more serious felonies in New York will still require at least a year of prison time. Considering this, and the memo’s numerous exceptions to ensure the office abides by state law—for example, the non-carceral sentence recommendation piece applies “unless required by law”—Fordham Law Professor John Pfaff said, “This isn’t the ‘jailbreak’ critics are relatively claiming it to be.”

There is also the inconvenient issue of local judges. Judges in New York are elected. With rare exceptions, cities have not seen a “progressive judge” movement to match the “progressive prosecutor” movement. Judges ultimately decide how to sentence cases, and there is evidence they disagree with reform prosecutors much more than they do with traditional “tough-on-crime” prosecutors. Judges also have to sign off on plea bargains to lesser charges, and they may not do so if they think the arrangement is too lenient.

So how much Bragg’s memo translates to actual decreases in the number of Manhattan residents sent to the Rikers Island jail or an upstate prison remains to be seen. Implementation is also likely to present a number of challenges. For example, Bragg’s plans to downgrade certain charges and recommend lower sentences for others may place a greater burden on probation and parole officials, when some people who would usually go to prison will now be put on probation. And figuring out how to reduce incarceration and (unnecessary) court supervision without risking further harms to victims—which would be both inherently bad and politically dangerous for the decarceration project—will take careful analytical work that has not really been done before. This may help to explain why other progressive DAs have largely resisted reforming criminal-legal responses to more serious crimes—beyond obvious or perceived political barriers.

Interestingly, Bragg simultaneously seems to be listening to the local victims’ rights community, which charged that his predecessor, DA Cy Vance, did not take sexual assault and related crimes seriously enough. Bragg told his prosecutors were told that sex crimes involving physical contact are not eligible for the blanket non-carceral sentence recommendation.

Yet that also may create some arguably bizarre results. For example, a 21-year-old who has sex with a 16-year-old girlfriend can be charged with a felony carrying a maximum of four years in prison. So long as there is no “serious” injury, Bragg’s prosecutors will seemingly both argue that the person convicted of armed robbery, a felony that carries up to 25 years in prison under state law, deserves no prison time, while that 21-year-old deserves up to four years behind bars, in addition to the civic death of the sex offender registry, for an act that is not a crime in several surrounding states.

Yet for all the caveats, Alvin Bragg’s announcement carries great significance. We are officially in new territory with a man who has already shown himself willing to go further toward a downsized criminal justice system, at least in theory, than any district attorney before him. Whether he is all talk, all-action or something in between, we’ll soon find out.

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

The lack of accountability behind a trucker’s egregious 110-year sentence

By now, much of the world has heard of Kayla Wildeman, the deputy prosecutor in Golden, Colorado who boasted on social media that she received a ghoulish trophy for obtaining 110 years in prison for Rogel Aguilera-Mederos, a Cuban-American immigrant who crashed his truck after his brakes failed. That is what happens when Kim Kardashian condemns your name to her 271 million Instagram followers.

The name Trevor Moritzky may also be familiar, since he is the more senior prosecutor who gave Wildeman the macabre token: one of the brakes from Aguilera-Mederos’s truck that had failed, leading to a huge crash that killed four people and injured 28.

But far less has been said about District Attorney Alexis King, the elected top prosecutor of Jefferson County who made this travesty possible. While it was the previous DA (and her former boss) Pete Weir who originally filed the stacked charges against Aguilera-Mederos, King could have dismissed the case, or drastically reduced the charges. Instead, King openly conceded she kept all the charges in place to try to coerce him into a plea bargain.

When he refused, she opted to punish him for exercising his constitutional right to trial, as she recently admitted. Only after mass outrage has King asked the court to reconsider the disproportionately harsh sentence.

King, who was first elected in 2020, does not have a reputation as an anti-immigrant activist. She did not run as a caricature of a racist law enforcer in the mold of Joe Arpaio.

On the contrary, King claimed to be a criminal justice reformer on the campaign trail, with the caveat that she is also “a prosecutor’s prosecutor.” When she won the race, she said, “We’re all fighting for a criminal justice system that we can believe in; that everyone feels confident in.”

And her endorsers included Democratic Party mainstays like Emily’s List, which seeks to get more liberal women into office, as well as further-left organizations such as Our Revolution and the Working Families Party.

Could such endorsements suggest a failure of due diligence?

According to her LinkedIn profile, King served as a deputy district attorney in Jefferson County from January 2007 to June 2017. In this capacity, she once urged prison for a man in an animal cruelty case by comparing the condition of a horse to a concentration camp victim.

King also frequently took charge of juvenile justice matters, including teen sexting situations. She teamed up with clinical therapist Cheryl Kosmerl to create Sexting Solutions, a therapeutic intervention that formed part of a diversion program involving a $250, five-week course for teen sexters. While that may sound like a humane alternative to child pornography charges for relatively normal teenage behavior in the 21st century, it isn’t hard to detect an element of shaming.

On her website, Kosmerl writes, “Through my work with the District Attorney’s office and the offense-specific population I have come to recognize the patterns of low self-esteem, lack of empathy and poor relationship skills occurring not only with the perpetrators but the victim as well.”

King also made the choice, of course, to work for former DA Pete Weir, who was on the wrong side of several international human rights issues. After state senator Cheri Jahn filed a bill to put Colorado in line with a Supreme Court decision banning mandatory life-without-parole sentences for children, then-DA Weir said, “District attorneys were not consulted during the creation of this legislation. I believe they give inordinate benefits to murderers.” Weir is also a long-time defender of the death penalty in a state where the public has repeatedly refused its use, even in the most heinous cases. In 2020, Governor Jared Polis signed the death penalty’s abolition into law, commuting the sentences of the state’s three death-row prisoners—all of whom are Black.

Most pertinently to the Aguilera-Mederos case, there’s also the question of DA King’s staffing decisions immediately after she took office.

Trevor Moritzky only started working in Jefferson County at the beginning of this year. It isn’t fully clear whether it was DA King or her predecessor who made the decision to hire him. But King— who fired 10 other prosecutors in the office before her swearing in—decided to keep him.

By several accounts, Moritzky appears to be a classic “tough on crime” prosecutor. Only not so much when women are subjected to rape or domestic violence.

Former Westminster police officer Curtis Lee Arganbright was accused of brutally raping a woman he was driving home from the hospital while on duty in 2017. As the chief deputy district attorney in Adams County, Colorado, Moritzky approved a deal whereby Arganbright would plead guilty to two misdemeanors and serve 90 days in jail. Only one of those convictions—unlawful sexual contact—is for a sex crime, and it does not reflect what the former officer was accused of: rape.

Additionally, Moritzky was the deputy prosecutor who handled the domestic violence case against former University of Colorado assistant football coach Joe Tumpkin. His victim, Pamela Fine, excoriated Moritzky and his boss, then-DA Dave Young, for accepting a plea to one misdemeanor domestic violence charge after originally charging him with five felonies. Fine described being assaulted more than 100 times, including beatings and chokings.

Moritzky, who so crudely celebrated the 110-year sentence for Aguilera-Mederos, did not ask for jail time on Tumpkin’s misdemeanor conviction.

Earlier this year, Fine protested on social media when Moritzky was briefly being considered for a judgeship in another county. Governor Polis ultimately turned him down for the job.

As national pressure grows, it could be worth Coloradans lookin into ways to strip bad DAs of their power. For example, in New York, the state constitution actually gives the governor the power to fire a DA. But they should also be mindful that this sort of power can be used for unjust purposes, such as when then-Florida Governor Rick Scott successfully stripped former Orlando State Attorney Aramis Ayala of her first-degree murder cases in an attempt to force the application of the death penalty.

Nearly five million people have already signed a Change.org petition asking for the Governor Polis to shorten Aguilera-Mederos’s sentence, which he already has the power to do.

Colorado’s law that mandated Aguilera-Mederos’s sentences be served consecutively is another culprit that legislators should address—even if the judge’s courtroom claim that his hands were tied was only half-true, given he determined the length of each sentence. There is no mandatory minimum for many of the charges in the case.

But another lesson of this injustice must surely be that district attorney candidates should be subjected to far greater scrutiny—including by the hugely influential organizations that endorse them. The Aguilera-Medero case shows that the consequences of failing to apply this are all too real.

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

San Francisco mayor ramps up aggressive policing after city is targeted by right-wing media

Declaring that “We need to take back our Tenderloin,” a hip, mixed-income neighborhood in San Francisco with a large unhoused population, Mayor London Breed announced a new plan in a Medium blog post on December 15.

Its focus is on “interrupting” open-air drug sales and public drug use. Interrupting refers to making arrests, as Breed acknowledged by citing a recent felony arrest warrant sweep. Only after that will social service providers “work in concert” with the police for the second phase of her plan.

Using rhetoric that harkens back to the heyday of the War on Drugs, Breed wrote that police “will continue targeting the criminals—the drug dealers—who prey on people struggling with addiction and poverty and other issues.”

Ignoring the harms and racial injustice inherent to such crackdowns, Breed even acknowledged that ramping up policing will cost more money. In bold letters, she wrote that “we will need a budget supplemental to help fund SFPD overtime.” She stated that she plans to introduce that request in January 2022.

These proposed policies may surprise some people who live in other parts of the United States. San Francisco is widely seen as the nation’s most progressive city—decidedly not a city governed by centrist Democrats. But that common view from non-locals does not describe the politics on the ground.

It is notable that Mayor Breed’s announcement comes on the heels of national publicity for the recall against the San Francisco’s top law enforcement officer, reformist District Attorney Chesa Boudin.

While Boudin’s policies of reducing prosecutions seem little different to those embraced in cities as diverse as Baltimore, Boston and Tucson, his tenure has attracted exceptionally vitriolic criticism from segments of the community. Some of this has been fueled by national-level conservative media, which frequently ties the DA to his parents’ Weather Underground convictions.

John Hamasaki, a reform-minded member of the San Francisco Police Commission who was appointed by the Board of Supervisors in 2018, is skeptical of Breed’s plan. He attributed the change to the mayor, too, feeling the heat from what he characterized as right-wing recalls and the targeting of San Francisco by media outlets like Fox News.

“We all know that substance use, mental health, and homelessness are not policing matters,” he told Filter. “We can address crime, while requiring the proper non-police professionals to address poverty, mental health, or substance use.”

While some have called Breed progressive, her record has been complicated since she first got into politics. Breed served as a member of the city’s Board of Supervisors from 2013 until 2017, where she was pointedly accused of standing with real estate developers over local residents struggling with poverty. She also developed an antagonistic relationship with the press, calling one significant media outlet a “bullshit ass blog” because she was upset by some of its coverage.

In late 2017, former mayor Ed Lee unexpectedly died, and Breed was appointed acting mayor. During the weeks leading up to the June 2018 special mayoral election which saw Breed elected to the office, city residents received letters from George Shultz, a Republican superstar who served on the presidential cabinets of Richard Nixon and Ronald Reagan. One of Breed’s staffers also attempted to garner a second-choice endorsement from the Republican Party Central Committee after the local Democratic Party refused to endorse her, selecting Supervisor Jane Kim instead. (San Francisco has ranked-choice voting, and the mayoral seat is nominally nonpartisan.)

As mayor, Breed has repeatedly shown herself to believe more policing and prosecution is the solution to myriad social issues her city faces.

In 2020, a public records request suggested that the mayor used the police department as her personal anti-homelessness squad. “Man sleeping on bench on Hayes st near gough,” Breed texted the police chief, Bill Scott. “Can someone come ASAP. I’m in the area having lunch.”

That same year, when activists holding Black Lives Matter signs came to her house to protest her inaction on more ambitious police reforms, she denounced them as “all white” and even compared them to the Ku Klux Klan.

And back in 2019, when former San Francisco DA George Gascón announced that he would retire from the seat a month early, Breed appointed Suzy Loftus, an old-guard prosecutor who made a crackdown on property crimes the cornerstone of her subsequent election campaign, as his replacement.

Tucked away in Breed’s latest announcement was a pledge to reverse the city’s pioneering stance on new surveillance technologies that undermine residents’ right to privacy. In 2019, the San Francisco Board of Supervisors voted 8-1 to largely ban facial recognition technology by law enforcement. That move was seen as having particular salience since it came out of a city often defined by tech growth.

The mayor claimed that this policy “hobbled law enforcement when confronting life-threatening incidents like active shooters, suspected terrorist events, hostage taking, kidnapping, natural disasters, or looting.” She did not provide evidence or examples.

Shahid Buttar, an attorney who worked as the Electronic Frontier Foundation’s director of grassroots advocacy, was one of many advocates who successfully pushed for the city’s groundbreaking ordinance. He told Filter that this claim was “disinformation from the mayor, parroting police talking points in order to insulate the police-industrial corruption from civilian oversight.”

Mayor Breed’s office declined Filter’s request for comment.

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

Progressive candidate wins a high-stakes sheriff's race — showing a potential frontier for reform

Since 2015, both Big Philanthropy funders and progressive grassroots activists have targeted local district attorney elections, seeing these once-sleepy affairs as an efficient way to cut carceral law enforcement practices without dealing with state legislators’ political cowardice on crime policy. Enemies of these efforts are currently seizing upon an increase in homicide rates in most cities around the country.

But while the future of the so-called progressive prosecutor movement is in question, sheriff’s offices could become the next frontier for reformers. The potential value of focusing on sheriff races has perhaps never seemed more palpable than when progressive candidate Susan Hutson defeated incumbent New Orleans Sheriff Marlin Gusman in a runoff election on December 11.

The stakes of the race were high. In 2012, Sheriff Gusman’s office was placed under a federal consent decree, due to “dangerous and unacceptable” conditions he maintained in the Orleans Parish Prison. The original OPP building was shuttered after the city spent $150 million on a new jail, the Orleans Justice Center. Yet less than a half a year later, experts contended that many of the same problems at the original facility were present in the new one, and it would still be recognized as the third-deadliest jail in the state. Nominally to address the issues that brought his jail under the consent decree, Gusman has been a major proponent of what he called Phase III of the Orleans Justice Center—an expansion project that would let the facility house more people with mental health issues.

Hutson was unequivocal about opposing the expansion project. Originally an attorney by trade, she has also built a career in law enforcement oversight. She served as the independent police monitor over the federal consent decree signed by the New Orleans Police Department, leading to positive evaluations from reformers. Before that, she worked as the acting police monitor in Austin, Texas and as an assistant inspector general monitoring the Los Angeles Police Department.

In many ways, a new sheriff determined to try to mitigate severe problems in the New Orleans criminal justice system could be exactly what the city needs. During a 2020 court hearing, Sheriff Gusman, a local Democratic Party establishment figure who has held his office for 17 years, quipped that court-appointed monitors did not want a fixed jail, but a “jail utopia.”

On her campaign website, Hutson announced her support for myriad other reforms aimed at reducing the suffering of incarcerated people. She signaled a desire to end phone call fees for poor prisoners, ensure gender-conforming housing, and more.

At least one news outlet has called Hutson the “first progressive sheriff.” That is arguably an exaggeration. In the last few years, seven Black sheriff candidates running on progressive positions—like protecting undocumented immigrants from unnecessary deportations—won elections in counties across North Carolina. Hennepin County Sheriff David Hutchinson, who serves in Minneapolis, Minnesota, was elected in 2018 on a similarly progressive platform, though his job is now in jeopardy due to a drunk driving crash.

There are some clear limits to Hutson’s desire to change the system. Asked about her stances on the issues, she said, “You’ve seen me say anything about defund or eliminating the jails? That’s my opponent saying that. If you are a person who is anti-law enforcement, that’s not me. As a police auditor for 17 years, we help our police departments serve our communities better.”

And beyond Hutson, there are broader reasons for reform advocates to temper their expectations of a “progressive sheriffs” movement.

The power of sheriffs is quite limited compared to that of elected local prosecutors. They have no control over who is charged with crimes, which crimes people are charged with, or the sentences people receive after they are convicted. Sheriffs’ band of influence is sharp and narrow like a scalpel: They have a say over jail conditions, a handful of property rights issues, and the behavior of sheriff’s deputies, who share the power to arrest with police officers and federal law enforcement agents.

In the Trump era, some scholar-advocates sounded the bell on how sheriffs could help push back against the president’s anti-immigrant agenda. Some sheriffs have so-called 287(g) agreements with the federal government, for example, which are named after Section 287(g) of the Immigration and Nationality Act. These agreements allow sheriffs to notify ICE whenever an undocumented immigrant is booked into the jail, regardless of the charge.

However, the Biden administration issued guidance to ICE agents, who are now only authorized to make civil immigration arrests at courthouses under special circumstances, such as a national security threat, a risk of imminent death or harm to anyone, or a hot pursuit involving a public safety threat. But the return of Trump or a similar figure in 2024 would make sheriffs a key conduit of immigration policy one again—increasing focus on their election campaigns.

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

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.

The real reason an abolitionist Seattle city attorney candidate is taking heat

Nicole Thomas-Kennedy, a Seattle candidate for city attorney and self-identified prison and police abolitionist, can be characterized as a member of the "extremely online" left. She's tweeted about her "rabid hatred" of the police, and in a now-deleted tweet from last winter replied to a holiday message from Seattle Police Chief Adrian Diaz with: "Eat some covid laced shit & quit ur jobs."

Tweets of that nature were bound to surface once she announced she was running for office—this office in particular. The city attorney—the nominally nonpartisan official in charge of all misdemeanor prosecutions and a smattering of civil legal disputes—must cooperate with the city police to prosecute misdemeanor cases. The election is taking place November 2.

In October, the Seattle Times editorial board authored an op-ed declaring that Thomas-Kennedy's tweets made her unfit to serve.

In the field of criminal justice reform, abolitionist and anti-carceral law professors usually have productive things to say. Due to their overall calm, balanced tone, they usually don't get that much attention.

Twitter, which for both better and worse is the platform where a large proportion of journalists and public officials spend their time, rewards and amplifies anger. People are often their loudest, angriest selves on Twitter. It doesn't necessarily mean they aren't capable of nuance, or of upholding the ethics of public office.

Outside the powder keg of Twitter, Thomas-Kennedy can make a very different impression.

"[Abolition has] never been about letting everyone out overnight and having a crime fest à la The Purge," Thomas-Kennedy told Filter. "It is about scaling up community-based support, services and accountability programs that eventually take the place of policing and prisons. It's a goal and a process."

She emphasized that "traditional prosecution must remain an option while we scale up those programs, but it's not a one-size-fits-all approach."

Thomas-Kennedy voiced concern with ending the criminalization of poverty and listening to the voices of anti-carceral crime survivors—while still prosecuting cases she deems appropriate.

"If you live in a neighborhood that is resourced and where you can get help if you need it—good schools and after-school programs, access to necessary health care, available addiction and treatment services—then you already live in the neighborhood that I want for everyone," she said. "It's the healthiest communities that are the safest, not the ones that are over-policed or over-incarcerated."

Opponent Ann Davison, a perennial candidate who unsuccessfully ran for Washington lieutenant governor as a Republican last year, appears much more concerned with so-called under-prosecution of crimes, especially by people with past convictions. Davison did not respond to Filter's request for an interview.

The same day it ran its op-ed on Thomas-Kennedy's tweets, the Seattle Times editorial board ran a second op-ed reaffirming its support for Davison, whom it had already endorsed in July.

Thomas-Kennedy described the editorials as lacking in "both context and an analysis of power." Although she stood by her tweets as a private citizen, since becoming a candidate for public office she's deleted the more controversial ones and taken a more tempered approach to social media.

While the Seattle Times board frames its objection as a call for "civility," it also warns readers in horrified tones of her quest for abolition and her support of "riots." And—in a prime example of saying the quiet part out loud—her intention to decline prosecuting "most, or all, of the misdemeanor cases officers bring in."

One of the editorial board's seven bylines belongs to Frank Blethen, who is also the Seattle Times Company CEO and who once bought a Republican candidate for governor $75,000 in ads. It seems clear that what has the board members aghast is less the candidate's social media presence and more her policies.

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

A California district attorney claims to be a reformer — but he just said the quiet part out loud

Despite claims at being a "reformer," Jeff Reisig, the Yolo County, California, district attorney since 2003, is jumping on the drug-induced homicide bandwagon. In a summer press release, DA Reisig announced that defendants accused of selling drugs will now receive a warning that the substances "could very well contain lethal fentanyl."

By way of explanation, he noted that "When people get a DUI, we give a warning that DUIs can cause death, which becomes evidence if they later kill someone in a DUI."

Reisig just said the quiet part out loud. The operative function of such warnings is not deterrence, but to shore up potential criminal cases against people in the future.

Drug-induced homicide prosecutions are usually a bad idea for prosecutors who care about their conviction rates, as most do, including Reisig himself. They are hard to prove, both in terms of causation and the defendant's intent, and thus hard to win. At least in the federal context, even the Supreme Court has green-lit making these convictions harder to obtain.

But by giving a person the warning, Reisig can now use the fact that they were warned to "prove" that they had a necessary intent to commit a drug-induced homicide, if a buyer later overdoses.

Where specific drug-induced homicide statutes don't exist, like in California, prosecutors can choose to use preexisting murder or manslaughter statutes in these cases. It is almost unheard of for prosecutors to use first-degree murder statutes, because fatal overdoses are virtually never the result of someone's "willlful and premeditated" plot to kill. So they use second-degree murder and manslaughter charges, for which a person's recklessness or negligence is enough proof.

If using one of those statutes, Reisig's introduction of evidence that the defendant received one of his notes could make the case a slam dunk, since the defendant would be presumed on notice of the risk of a potential buyer's death.

Despite Reisig reportedly hoping that this initiative will help put an end to the overdose crisis, he seems oblivious to the harm reduction saying, "Every overdose death is a policy failure."

A recent training slideshow made by the Yolo County Health and Human Services Agency and DA Reisig's office shows the names and photos of 16 local fatal overdose victims, then ominously states, "There will be more"—as if it's an inevitability over which these departments have no control. The experiences of Portugal, for example, show that if Reisig declined to prosecute drug possession and if Yolo County beefed up its public health response with harm reduction resources, deaths could be drastically reduced.

We don't know how Yolo County residents collectively feel about drug-induced homicide prosecutions, but it's unlikely that Reisig would care one way or the other. According to information from the ACLU of California, he did not stand united with his voters on any of the state's major criminal justice reform ballot initiatives in the 2010s.

While locals approved measures to reform the state's draconian "three strikes" sentencing law, reduce some crimes to misdemeanors, legalize cannabis, and increase parole access for some prisoners, Reisig supported none of these and actively opposed the latter three.

More recently, he called the state's death penalty moratorium a "leniency for mass murderers," despite a majority of his voters supporting its abolition.

What's more, back in 2005, DA Reisig was the first prosecutor in Northern California to obtain a "gang injunction"—a type of civil legal action that in effect criminally bans loitering in certain areas and fraternizing with certain people because of supposed gang membership. Not only have these injunctions been generally condemned as racist in recent years, but Reisig also failed to notify people they could be placed on this list. By doing so, he violated people's constitutional rights, leading to the injunction's reversal in court.

Astonishingly, none of this has stopped local power players from falling for Reisig's rhetoric that he is some sort of reasonable moderate. In 2018, when deputy public defender Dean Johansson challenged Reisig as part of the progressive prosecutor movement, the Sacramento Bee's editorial board backed Reisig.

The publication specifically cited Reisig's promises to "double the size of mental health court and add more beds to the county's addiction intervention court." But as many advocates have pointed out, those "reforms" hurt just as many as they help, often leading to jailing people in the name of supposedly "saving" them.

The Bee also favorably marked Reisig's supporting "a push at the state Capitol to require the California Attorney General's Office to investigate all officer-involved shootings," and requiring his deputies do implicit bias training. But both reforms do more to shield the DA from political criticism than to reduce incarceration rates or police impunity. If the state's AG is the one who decides not to indict a killer cop, it will be the AG's office that angry protesters will travel to, not Reisig's.

National criminal justice reform organizations also flock to Reisig to engage in partnerships. Earlier this year, Measures for Justice, a prominent nonprofit dedicated to collecting local criminal justice data nationwide, launched a first-of-its-kind criminal justice data portal, called Commons, with the Yolo County DA Office. According to Reisig's campaign website, this collaboration means that "all criminal case data from the office is validated and published by a neutral third party and available for public inspection, media review and research." Currently, Commons is helping Reisig keep accountable to his stated goal of increasing the office's felony diversion rate to 10 percent by September 2022.

The fact that Reisig notes his collaboration with Measures for Justice not just on a governmental page, but on his own campaign website, shows he understands the political capital the link will earn him amongst his liberal, college town constituency. (Yolo County is home to the massive UC-Davis campus.)

It begs the question of whether Measures for Justice knew about Reisig's record when it entered this collaboration, and if the organization considered how a "tough-on-crime" conservative could use this as a campaign tool. Many will give Measures for Justice the benefit of the doubt: The project perhaps shows that just about any prosecutor can make incremental reforms if praised enough for doing so.

Still, a broken clock is right twice a day only. DA Reisig's drug-induced homicide policy is just one of many times when he is badly wrong.

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

New study boosts movements to decriminalize drugs and sex work

Replication is of paramount importance, in the sciences, in determining whether earlier research was a fluke or says something generally true about the world. As a textbook from the National Academies of Sciences, Engineering, and Medicine puts it, "When the result from one study is found to be consistent by another study, it is more likely to represent a reliable claim to new knowledge."

Earlier this year, three professors working with the National Bureau of Economic Research (NBER) published their study on Suffolk County (Boston) District Attorney Rachael Rollins' default policy of declining to charge a slew of misdemeanor offenses. Their conclusion was that "the likelihood of future criminal justice involvement fell, with no apparent increase in local crime rates."

It was a finding that "tough-on-crime" adherents naturally attempted to minimize. But taking that line just became a whole lot harder.

A new report is the cumulation of a 14-month study on Baltimore State's Attorney Marilyn Mosby's March 2020 decision to no longer prosecute low-level drug possession and drug paraphernalia charges, as well as "prostitution" charges. Mosby has already announced her intention for this COVID-era policy to remain in place, even after the pandemic slows or halts.

The results of the research, conducted by the Johns Hopkins University's Bloomberg School of Public Health (JHU), fit squarely with NBER's findings. Mosby's new policy emphatically did not jeopardize public safety, while significantly reducing harmful and racist criminalization.

An estimated 443 arrests were averted in the 14-month period after the policy was adopted in Baltimore. Seventy-eight percent of the people whose arrests were prevented were Black, in a city that is 63 percent Black according to the 2010 census. And only six out of 741 people whose charges were dropped under Mosby's policy were later rearrested for "serious crimes, such as robbery and assault," the authors found—less than 1 percent.

"Though causality cannot be established," the report summarizes, "these preliminary findings suggest that declining to prosecute low level drug and prostitution offenses may avert arrests among individuals with intersecting vulnerabilities without posing a threat to public safety or resulting in increased public complaints. Ensuring that these individuals can access health and social service instead of criminal punishment is a public health priority."

State's Attorney Mosby applauded these conclusions, even if they're unlikely to have surprised her.

"This report demonstrates what we have set out to do as an office—reimagine the criminal justice system, by promoting healthy communities and no longer criminalizing behavioral health issues that do not pose a public safety threat," she told Filter. "The data proves that we must continue to move past the era of tough-on-crime prosecution and zero tolerance policing and no longer just default to the status quo of criminalizing mostly people of color for addiction. I appreciate the hard work and detailed analysis by the Johns Hopkins research team."

Interestingly, unlike the NBER report, the JHU report examines the impact of the DA's announcement on the police, rather than focusing mainly on the decision of whether to charge. There is significant debate about who are the most powerful actors in the criminal-legal system, with the main contenders being police, judges and prosecutors. In some jurisdictions, the DA announcing a plan to use discretion to decriminalize a specific offense has not led to police responding in kind. For instance, in Harris County, which covers the Houston, Texas metro area, many in-county police departments continued to arrest people for low-level cannabis possession without offering DA Kim Ogg's new diversion program.

However, in Baltimore, arrests for the offenses Mosby said she would no longer prosecute plummeted, as did complaints relating to these offenses. The police chief, Michael Harrison, even worked to "socialize" his officers to this approach, making the case for why they should follow the policy even if they did not agree with it.

There is no doubt that the JHU study's findings will help the movement to decriminalize drugs—which won its biggest US victory so far in Oregon last November—and the related movement to decriminalize sex work. The findings also lend support to the so-called "progressive prosecutor" movement, of which decriminalizing low-level, non-violent charges is an important part. When it comes to these issues, public safety data, like ethics, are firmly on the side of progress.

The findings also represent a moral victory for Mosby and Rollins, who are both Black women seeking to transform a racist justice system. Mosby cited racial justice concerns as an important reason for the new policy, because people of color are disproportionately targeted by police and prosecutors, and JHU's findings about Black arrests averted underlined her pont.

Black women are vastly underrepresented in the ranks of the nation's elected prosecutors. A 2014 report from the Women Donors Network found that 94 percent of DAs were white, and 79 percent were white men. While blazing trails, Mosby and Rollins have been targeted for even worse vitriol than other progressive prosecutors, who get plenty of scorching unfair criticism. Mosby herself has publicly shared evidence of the hateful, racist backlash she has received.

The release of the JHU report should bring hope to all who campaign for decriminalization (or legalization)—and, therefore, to millions who have been subjected to vindictive, targeted law enforcement for so long.

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

Prosecutors who flout basic ethics are out of control

The KKK-adjacent Louisiana district attorney. The alleged "sexual predator" Louisiana district attorney, convicted of obstructing justice. And, unsurprisingly, the corrupt Louisiana district attorney.

That the ranks of elected top local prosecutors in the state have included such men is less shocking than it should be, when Louisiana ranks first for the number of federal convictions for public officials.

Corruption in the state is a trope, though it is not a badge worn with pride. Residents can and do try to recall their elected officials, sometimes for substantive reasons like ethical issues, sometimes because of politics.

But a soul-wrenching case out of Jackson, Louisiana shows once again that the recall procedure is not enough. Meet District Attorney Samuel D'Aquilla, who serves East and West Feliciana Parishes.

Holding the office since 2003, DA D'Aquilla has been a lightning rod for controversy and scandal. He has been disciplined by the Louisiana Supreme Court after he sued the West Feliciana Parish Council and some of its members for alleged violations of open records laws; the court decided he had an impermissible conflict of interest, since he had previously represented the parish council.

According to a 2018 court filing, the local Democratic Party endorsed his opponent in 2014 because "[w]e do not want a district attorney who will use his office for personal gain or one who will target his enemies for prosecution and let his political friends escape accountability."

In one strange saga, DA D'Aquilla cheated on his wife with the former county coroner, who ended up getting prosecuted for corruption. The FBI was reportedly investigating the DA's involvement, as well as alleged domestic abuse, at the bequest of his wife's divorce attorney. So the DA attempted to prosecute the divorce attorney—who previously ran against him for the DA seat—with child molestation. (The allegation had enough merit for a grand jury to indict the divorce attorney at the request of the state attorney general's office—but DA D'Aquilla should not have been in charge of the case in the first place because of his conflict of interest.)

D'Aquilla was also accused in a court filing of "destroying DNA that ties his bloodline to a man convicted of sexual crimes against children," WBRZ reported in 2018.

But it is DA D'Aquilla's most recent reported conduct that Judge James C. Ho—a Trump appointee on the United States Court of Appeals for the Fifth Circuit who once defended the legality of torture at the Justice Department—described as "sickening."

According to a new lawsuit, an assistant warden at Louisiana State Penitentiary (Angola), where prisoners are still forced to farm cotton on plantations like slaves, repeatedly raped his cousin-in-law on the prison's grounds. DA D'Aquilla then allegedly sabotaged his office's case against the man in various ways—such as refusing to examine the rape kit, contradicting the victim's narrative to the grand jury, and more.

Because of the legal doctrine of "absolute immunity," prosecutors cannot be sued on a personal level for conduct on the job, so Judge Ho ordered the lower court to throw out the suit against the DA.

But the Fifth Circuit did not deny that D'Aquilla "for whatever reason declined to help her." And Judge Ho's colleague, Judge James E. Graves, Jr., noted that if the rest of the allegations are true, the DA has done "inestimable harm to the public's perception of the legal profession."

So what recourse do concerned members of the public have? Waiting for an opponent to possibly dispatch D'Aquilla electorally in 2026 is inadequate. So, too, is relying on the Louisiana state bar to investigate—sitting DAs are rarely disciplined, and virtually never hit with an actual suspension from legal practice. It all points to the need for an emergency tool for state governments to neutralize the tenure of elected prosecutors who go this far off the rails.

Some states already give this power to governors, which makes sense. Prosecutors are appropriately understood as part of the executive branch, and, on the state level, the governor is the chief executive.

But in New York, for example, that power is broad, vague and basically never used. The state's constitution says that "The governor may remove any elective sheriff, county clerk, district attorney or register within the term for which he or she shall have been elected; but before so doing the governor shall give to such officer a copy of the charges against him or her and an opportunity of being heard in his or her defense."

The removal power granted the Florida governor is also found in the state's constitution, and it is narrower and better defined, if a bit antiquated. Specifically, "the governor may suspend from office any state officer not subject to impeachment . . . for malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony."

Ideally, a governor's removal power must be limited so as to not invite its over-politicization or encroachment on legitimate criminal justice policy debates. For example, it should not have been possible for Florida's governor to use this power to force a prosecutor to seek the death penalty: not seeking the death penalty is not the same as refusing to hold people who commit murder accountable.

On the other hand, former Rensselaer County, New York, DA Joel Abelove repeatedly dismissed cases against political allies under shady circumstances, for crimes ranging from political corruption to beating their kids. To protect a killer cop, he also refused to comply with the governor's 2015 executive order that allowed the state attorney general to handle local police shooting cases.

Abelove ending up leaving office because he lost re-election, not because of state action. He was prosecuted then acquitted of official misconduct and perjury charges. Instead of enduring the unreliability of juries, the governor could have avoided local injustice and embarrassment by giving Abelove the professional snip.

We are supposed to be able to count on prosecutors to uphold the rights of victimized people, and not to insulate their friends from the consequences of serious wrongdoing. Putting prosecutors back in a chain of command, with some sensible and limited powers for governors to remove them, is needed when we're faced with acute crises of trust.

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

New report finds Charleston prosecutors treat Black and white men equally. Really?

How many former prosecutors does it take to give a white elected prosecutor in the Deep South a glowing reference on racial equality? A couple—so long as they convince Big Philanthropy funders that they are doing more than handing out undeserved positive PR.

That is what happened when Justice Innovation Lab, a New Venture Fund-backed nonprofit started by former federal prosecutor Jared Fishman, endeavored to study case outcomes from the Charleston, South Carolina, Solicitor's Office according to race.

As explained on the organization's website, Charleston is dear to Fishman. He prosecuted Michael Slager, the white police officer who in 2015 shot and killed Walter Scott, a Black man. He also seems to be on good terms with Charleston Solicitor Scarlett Wilson, the city's top prosecutor. Fishman says the two "worked together to secure justice in the case," when what transpired is that he locked the cop into a federal plea deal after Wilson failed to secure a conviction at the state level. (She even used her opening statement in court to victim-blame Scott.)

Teaming up with Prosecutorial Performance Indicators, another data-oriented think tank staffed by another former prosecutor (Melba Pearson, who ran as a reformist candidate for Miami-Dade County, Florida, State Attorney in 2020), the Justice Innovation Lab published a report this month: "Disparity and Prosecution in Charleston, SC."

Its major conclusion is that Black and white men face essentially the same treatment from Solicitor Wilson and her prosecutors, though Black people are arrested at five times the rate of white people. When discussing the report, the local press has even used the bold phrase "equality in court."

To come to this conclusion, researchers gathered data on various aspects of cases where prosecutors are in control, such as dismissals, plea negotiations and more.

While this is all well and good, the report is bound to create unduly generous depictions of the reality of Charleston's local prosecutor corps. Data is only as good as the metrics selected by researchers, and although this report is slated to be the first of a series, it does not address the very real ways trials are stacked against Black people in the city.

Setting aside the way Solicitor Wilson handled the Slager case, Black people basically cannot serve on juries in Charleston. Professors from Michigan State University College of Law found in 2016 that Wilson's prosecutors strike Black people without cause at least six times more often than white people.

These sorts of facts can cause Black people to plead guilty even when they know they did not commit the crime. The report doesn't weigh in on that phenomenon one way or the other, only acknowledging racial disparities in arrest rates and how that may translate to harsher sentences for Black men due to longer rap sheets. But the real risk of Black people pleading guilty regardless of guilt should not shock anyone. After all, how are they going to get a fair trial when accused in front of a jury that is all white or close to it, in a city economically reliant on a tourism industry that includes the romanticization of plantations and other remnants of slavery?

In his review of Carissa Byrne Hessick's Punishment Without Trial, a new book about the problems with plea bargaining, Washington University law professor Daniel Harawa recalls a conversation in the book between Hessick and Damian Mills, a Black man wrongfully convicted of murder and later exonerated in North Carolina. Hessick asked Mills if he regretted pleading guilty despite his innocence. Mills said he only regretted not getting a better plea deal.

While this surprised Hessick, Harawa, who is Black, said he understood. The people who ran law enforcement in the county were white. Prosecutors in North Carolina, like in Charleston, South Carolina, have long practiced how to avoid placing Black people on juries. When considering his decision, Mills may have also been exposed to recent cases, like one where a Black teen was sentenced to death.

The stories of people who plead guilty to crimes they have not committed, fearing a far heavier sentence if they go to trial, are left untold. They don't get reported on unless the people convicted are later exonerated, and work to exonerate the wrongfully convicted disproportionately focuses on the most serious criminal cases, like rape and murder. When the stakes of a conviction are lower, there may be less motivation from the convicted person to fight it, as well as less interest from the well-resourced nonprofits that could help.

That should cause us to question what it means when, for example, the Justice Innovation Lab reports that gun crime cases against Black defendants in Charleston are dismissed 26.3 percent of the time, while those against white defendants are dismissed only 23.5 percent of the time.

Perhaps the evidence in the proportionately smaller number of cases against white people is simply so airtight that dismissals are rare. And perhaps the evidence against Black people in the same cases is more often weaker, but prosecutors know most will plead guilty anyway, rather than go to trial, because they know the system is stacked against them.

In such scenarios, the right thing for Solicitor Wilson to do would be to dismiss more gun cases, and scrutinize police claims against Black people more closely. But the information provided by the Justice Innovation Lab does nothing to prompt such actions. It is actually unclear whether the philanthropy-funded work here has any purpose besides patting Solicitor Wilson on the back and keeping the world "exactly the way it is."

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

A judge jailed a witness for legal marijuana use — in the middle of testimony about her abuse

On September 7, a survivor of domestic violence in Virginia was testifying against the man accused of her abuse when she disclosed that she had smoked marijuana earlier that day. Marijuana is legal for adult use in the state, and prosecutors said she did not appear intoxicated. Loudoun County Circuit Court Judge James P. Fisher, however, had her physically removed from the stand and sentenced her to 10 days in jail for contempt of court.

Virginia has codified reasons for which a judge can jail someone for contempt, like making threats or disobeying a lawful order. Having smoked marijuana outside of court is not among them. Fisher nonetheless refused to rescind the contempt order, and declared a mistrial for the woman's alleged abuser, who was facing his third domestic violence charge.

"I have learned that it does no good to report domestic abuse because the system and the courts appear to have no real interest in protecting victims and punishing abusers," the woman said in a statement. "The judge has sent me a clear message."

Little stops judges like Fisher from doing whatever they please. In most states, at least some types of judges are elected by popular vote and can be ousted the same way. But in Virginia and South Carolina, judges are "elected" by legislators.

In January 2020, Fisher jailed divorce attorney Rachel Virk for contempt of court when she tried to get clarification of a ruling on a motion—an important part of the court process so litigants can be treated fairly when appealing a trial court's decision. Virk was booked in the local jail as a result, later detailing to reporters how she was strip-searched.

Fisher's arbitrary use of his power seem not limited to contempt law. As an elected prosecutor, Fisher only pushed for three years behind bars for a Culpeper police officer who fatally shot an unarmed woman. (A prosecutor does not determine the sentence, but is instrumental in making the case for it.) On September 17 of this year, Judge Fisher sentenced a man to 36 years in prison for nonviolent fraud offenses.

The only entity holding Fisher accountable is the Judicial Inquiry and Review Commission (JIRC), the state agency charged with investigating judicial misconduct. Such an investigation would need to be initiated by the Commission Counsel, who is effectively head of the agency and functions as the "gatekeeper" of complaints against judges in the state. Without a green light from the Counsel, the Virginia Supreme Court does not discipline judges for misconduct. The current Counsel is Raymond Morrogh—a man who appears to be Fisher's close friend.

Morrogh and Fisher have much in common, including a proclivity for harsh penalties around marijuana. Morrogh, a former elected prosecutor, lost re-election to progressive reformer Scott Descano in 2019. One of Descano's first moves as the new Fairfax County Commonwealth's Attorney was to announce that he would undo Morrogh's policy on simple possession charges and drop those cases. (This was prior to marijuana legalization in Virginia, which took effect in July of this year).

Before Fisher ascended to the bench in 2019, he was the Commonwealth's Attorney of Fauquier County. He was appointed by a body of local judges in 2011 after his predecessor became a family court judge, then was re-elected without opposition. As a top local prosecutor, Fisher bemoaned former Governor Terry McAuliffe's restoration of voting rights for people with felony convictions. So did Morrogh.

Morrogh, a "tough-on-crime" true believer who chastised US Attorney General Eric Holder for wanting to slightly reduce prison terms for federal drug defendants, seems to be another appointee in Harp's anti-accountability mold. Due to camaraderie fostered between Commonwealth's Attorneys when they lobby together for ever-harsher criminal laws, Morrogh's bias can be expected to especially benefit judges who once served as elected prosecutors.

JIRC was created as an alternative accountability mechanism to judicial impeachment, which was virtually never used. But it has for decades been a self-serving entity that protects its own and empowers judges to hand out arbitrary punishments. The culture was installed by Reno Harp, III, another former career prosecutor who served as Commission Counsel from 1977 to 1997 and famously liked to find informal ways to get around disciplining judges. When asked if judges commit misconduct in Virginia, Harp told reporters, "It's not happening. It's that simple."

This stunning lack of oversight leaves those unfortunate enough to appear in Virginia court with Fisher, or judges like him, essentially subject to his whims rather than to the law.

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

How the FBI's latest data on murders is being twisted to serve the whims of those in power

The FBI's annual Uniform Crime Report is severely limited. Although 85 percent of America's 15,875 police agencies send their local crime data for inclusion, participation is completely voluntary and several major cities—including New York, Chicago and New Orleans—are unrepresented.

Despite that, every time this report is released in late September, there is substantial fanfare. It is the closest thing that professional crime nerds have to an official holiday, as national reporters flock to them for a week before forgetting about them until next year.

Politicians, especially those on the right, also join in on the feigned excitement as an opportunity to flex their toughness. This year, Sen. Rick Scott (R-FL), who was still the Governor of Florida when it became the third-most murderous US state in 2018, grabbed his pitchfork and blamed the "radical Left's Defund The Police movement" for the increase in murders shown in the report.

Ironically, since the UCR consistently lags behind a year, this year's report is actually about 2020, when President Trump was still in office.

Nonetheless, the data are scary, showing a 30 percent murder increase from 2019 to 2020. (Important caveats include that year-to-year comparisons are not reliably indicative of trends; and also that overall crime fell, as it has been doing for many years.)

People are entitled to expect such numbers to be explained and interpreted by reasonable experts. Unfortunately, many figures whose reactions are often sought by the media are arguably neither reasonable nor experts.

For its coverage on the UCR, the New York Times published Jeff Asher of AH Datalytics, a non-credentialed "crime expert" who was previously caught concealing his employment with the Jefferson Parish Sheriff's Office, a police agency that inspired yet another media expose on its racism just days ago.

While being equivocal on some of the details, Asher simultaneously fed the Ferguson effect theory to the masses: the idea that police stop doing their jobs when criticized, which leads to more violence. Back in 2016, he went so far as to take two cherry-picked variables—shootings and drug arrests in Baltimore—then imply that shootings went up because drug arrests went down. He often uses year-to-date data in the same way many police departments do: to make crime trends look worse than they are. In 2021, he is lending credence to suggestions that people being angry about George Floyd's murder by the police is a factor behind the murder spike.

Not only are these arguments inflammatory and speculative, they serve the whims of those who hold power, such as the police. As the Drug Policy Alliance has explained, police by and large want to keep drugs illegal because larger numbers of arrests help justify the "increased hiring of officers, more overtime pay, more equipment, and more advanced technologies." Bolstering the argument that drugs need to be kept illegal so that officers are more proactive and inadvertently, indirectly stop shootings is a convenient work-around to the growing unpopularity of the drug war.

Asher's takeaway is not that different from those of other members of the crime-obsessed, justice-ambivalent criminologist cadre. Professor Justin Nix at the University of Nebraska-Omaha also sought to reanimate the corpse of the Ferguson effect so he could pin the murder rate on someone—read: those whose direct experiences or attention to events make them view policing negatively, and the "small group [who] felt emboldened as a result of the legitimacy crisis."

For all the talk of legitimacy that such talking heads harp on, there is little acknowledgment of how little police officers are willing to work to earn any sense of legitimacy in harmed communities. Very little has been made of the abject failure of the Obama administration's work on restoring legitimacy, for example. Under Obama, millions of dollars went to a program meant to teach police to treat members of marginalized Black and Brown communities with basic human respect; a comprehensive audit showed barely any progress. Before and after surveys showed that officers' negative views about the communities they police are highly entrenched.

John Roman, a senior fellow at the NORC think tank at the University of Chicago, offers a more intuitive explanation for the murder increase. In his analysis, it's not that people are mad at the cops or that cops are afraid to do their jobs: It's that boys and young men in distressed neighborhoods, often impacted by trauma and with access to guns, have been stuck at home without opportunities. Circumstances that practically invite a cycle of settling scores are not unknown to violence prevention professionals like David Kennedy, who invented the strategy of focused deterrence. It's just that the pandemic has almost certainly heightened these circumstances.

Yet even relatively erudite thinkers would rather talk about a culture war.

To blame protestors or people from impacted communities is cruel as well as wrong. Calls to defund the police come from frustration at a police reform-industrial complex that continuously fails to generate either safety or liberty.

And despite limited evidence—so far—to support the efficacy of some alternative safety proposals like violence interrupters, at least the people behind such programs are trying something new.

While the police as a whole are making no real effort to change a broken way of doing things, they have benefitted from false claims—proclaimed by the most performatively pro-police political figures—that there is a major police defunding happening in our cities, despite the opposite being true overall.

Too little ever changes when it comes to the police. That is why the "defund" movement is here to stay, even if the murder rate goes up another 30 percent next year.

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

The Influence Foundation, which operates Filter, previously receieved a restricted grant from the Drug Policy Alliance to support a Drug War Journalism Diversity Fellowship.

The Supreme Court may end Roe v. Wade — but there's another line of defense against anti-abortion laws

Ever since President Trump started nominating new Supreme Court justices, reproductive health activists and court observers have sounded the alarm that Roe v. Wade was in jeopardy. Conservative legislators also took note—passing laws that would contradict Roe in case it did fall.

On September 1, in the middle of the night, the five most conservative Supreme Court justices issued an unsigned order denying an injunction against a new Texas law that bans most abortions and deputizes the citizenry to enforce the ban.

There is no silver lining, but there may be a layer of defense that hasn't been fully explored by activists and reproductive justice organizers to explore: the new "progressive prosecutor" movement.

Prosecutors are granted a high level of discretion under US law, and they have the authority to simply not criminally charge people using laws they know to be unjust or unconstitutional. Progressive prosecutors have mostly focused on non-enforcement efforts on low-level drug charges. However, in 2019, four Atlanta-area prosecutors promised they would not use a new Georgia law criminalizing abortions to prosecute people for obtaining them, regardless of whether there was a legal challenge to that law.

Such promises are not legally binding. The consequences of going back on their word would essentially amount to some of their left-leaning constituency remembering the betrayal in the next election cycle. But this use of prosecutorial discretion—to not charge abortion patients or providers—could play a prominent role in our post-Roe society.

The inverse is also true. Enterprising right-wing prosecutors can turn to new interpretations of old laws to criminalize abortion, even without a specific statute. In the 1990s, former Pinellas County, Florida, State Attorney Bernie McCabe attempted to prosecute a young girl under homicide statutes for getting an abortion.

Prosecutorial discretion is also probably why conservative donors who oppose mass incarceration, such as Charles Koch, never got involved in bankrolling pro-reform candidates in prosecutor elections. A decarceral Republican candidate for district attorney is essentially a libertarian, and many libertarians adamantly support the right to abortion without governmental inference. But funding candidates who might not prosecute people for abortion would alienate GOP allies needed for other parts of conservative donors' political agenda. Relatively few Republicans think abortion should be legal.

Traveling from an abortion-ban state to get a legal abortion in a different state is still legal, because Congress never passed a federal law criminalizing abortion. Some Texas residents will be able to procure safe and legal abortions elsewhere; others who don't have the resources will not.

Groups like the ACLU and Color of Change have already been educating the public on the importance of district attorney races and knowing what one's DA stands for as a strategic lever for racial justice. Reproductive justice organizations might now consider doing the same.

A starting place is to establish where a county DA stands on abortion. Rarely have top prosecutors been asked to weigh in on the issue, and whether they run as Democrats or Republicans is not enough to know whether they support or oppose criminalization. Reproductive justice advocates should seek this information from as many DA offices as possible.

If the DAs refuse to not prosecute abortion, or glibly state that the law is the law—not just downplaying, but outright ignoring, their own power of discretion—that information should be advertised where it will be seen by constituents who might not otherwise be aware. And if any DAs promise outright that they will not prosecute abortion-related charges, that promise should be publicly platformed, too.

In 2020, multiple plaintiffs sued in Tennessee to block a new law that would force abortion providers to tell patients it may be possible to reverse a medication-induced abortion in the middle of the procedure, under the threat of felony charges, fines and incarceration. To guide his decision, US District Judge William Campbell invited the four DAs named in the suit—Memphis DA Amy Weirich, Davidson County (Nashville) DA Glenn R. Funk, Knox County DA Charme P. Allen and recently retired 15th District DA Tom Thompson—to state on-record that they would not prosecute providers for giving the required recitation but then stating they disagreed with it.

All of them filed the requested declaration except Nashville DA Funk, who filed a declaration that he would not enforce the new law because of his legal opinion that it is unconstitutional.

An October 2020 open letter from Fair and Just Prosecution also collected the signatures of dozens of locally elected prosecutors across the US who promised to not prosecute anyone who obtain abortions and health care professionals who provide them—"even if the protections of Roe v. Wade were to be eroded or overturned."

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

Evidence shows coerced drug treatment is harmful as well as wrong

A paper published by the International Journal of Drug Policy confirms what harm reductionists have been saying since the dawn of the movement: Coerced drug treatment causes more harm than good.

Researchers first executed a systematic review to locate all papers available on the PubMed, EBSCOhost and Sociological Abstract databases that investigated the impact of addiction treatment programs on HIV and overdose occurrence. Then, using the studies that employed research methods that help standardize differences in study design, the researchers conducted a meta-analysis to combine their results. (Of the remaining studies, only two reported an association between coerced treatment and HIV occurrence, and their findings were inconsistent.)

The analysis of combined studies—with subjects in China, Mexico, Thailand and Norway, as well as the United States—showed that people who underwent coerced treatment were much more likely to experience non-fatal overdoses than people who did not. People who received coercive treatment were over twice as likely to have a nonfatal overdose over the course of a lifetime, and almost four times likelier to have experienced one in the last six-to-12 months.

As National Recovery Month begins in the US, this finding should lead to soul-searching for the addiction treatment industry. But perhaps its heaviest implications in this country are for the attorneys, judges, and treatment providers who facilitate drug courts and give participants the "choice" between treatment (typically abstinence-based) or incarceration. It's well documented that people who return to drug use after periods of abstinence, including those released from incarceration, have heightened vulnerability to opioid-involved overdose because of their lowered tolerance.

"Countries including the United States continue to address substance use through compulsory abstinence-based 'drug treatment' with little consideration of the public health impact," Javier Cepeda, a professor at Johns Hopkins University Bloomberg School of Public Health and a co-author of the new research, told Filter. "This study will add to the growing body of knowledge that compulsory drug abstinence programs have limited, if any, public health benefit and should be replaced with evidence-based 'gold standard' interventions, such as methadone or buprenorphine maintenance treatment."

Anecdotes like more people dying of overdose in a single year in Delaware County, Pennsylvania than succeeding in its drug court over a decade abound, but this new paper contains far more than a single local story.

Confronted with the research, it is hard to imagine a counterargument from drug court proponents, except if they were to appeal to possible conflating variables. For instance, if drug courts were working with people who use drugs who have worse social determinants of health and are more psychosocially vulnerable, then perhaps greater nonfatal overdose rates would be expected.

However, such an argument is refuted by the fact that drug courts routinely exclude the most marginalized people who use drugs. They are designed with "low‐level, non‐violent offenders" in mind, as federal funding is contingent on not permitting people with convictions for "violent" crime, including mere gun possession, to participate.

And they are often exclusionary in other ways, like subjecting people to humiliating and racist conduct agreements.

In Leon County, Florida (which includes the state capital of Tallahassee), for example, drug court participants must sign a contract that tells them they "will NOT be permitted" to enter the treatment provider's facility (A Life Recovery Center, Inc.) if wearing pants with "underwear showing," "teeth covers" or other styles that have been the means of racist targeting.

The study is crying out to be read outside of the ivory tower. Because while coercive treatment is basically flat-earther territory in public health circles, it is sadly still the norm in most local court systems in the US.

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

Alabama parole board’s cruel and unprecedented increase in denials

Representative Chris England, the chairman of the Alabama Democrats, does not mince words when it comes to former prosecutor Leigh Gwathney, the president of the Alabama Board of Pardons and Paroles, who was appointed by Governor Kay Ivey in 2019.

"What I hope is becoming as clear to you as it is to me is that Leigh Gwathney must go," Rep. England tweeted August 28. "She has almost single-handedly destroyed all of the progress we have made over the last few years. We can not make this work as long as she is in the way."

The board has only three members, and whether they choose to release people on is up to their discretion without oversight—even from the board's staff. The other two members, Dwayne Spurlock and Darryl Littleton, have past careers as a chief federal probation officer and an Alabama State Trooper, respectively.

According to a new report from the Alabama ACLU's Smart Justice Project, grants of parole to people in low-security prisons have hit "historic lows," falling by 77 percent between 2017 and 2021. Paroles from work centers fell by a shocking 93 percent.

This occurred, the report noted, "despite the state's unconstitutional prison overcrowding and the elevated risk of infection and death that incarcerated populations face from coronavirus." And it was due to "an unprecedented increase in decisions to deny parole by Alabama's parole board."

Even when parole is granted, there are serious racial equity concerns with the process. This year, about 30 percent of white applicants are being released on parole, compared with only around 10 percent of Black applicants.

Those familiar with Gov. Ivey's history of criminal justice appointments should raise an eyebrow. Back in 2016, she replaced Charles Todd Henderson—the Jefferson County (Birmingham) district attorney-elect who couldn't take office because he was charged with felony perjury due to his conduct in a child custody case—with Mike Anderton.

While Henderson ran on curbing the death penalty, Anderton, who served as a deputy prosecutor in that office, once claimed that a man with an IQ score of 56 was "faking" his intellectual disability to avoid death row; a key witness in a wrongful murder conviction was also found to have been paid $5,000 from a "private fund" run through Anderton's office.

Gov. Ivey picked Anderton over interim DA Danny Carr, who ended up running as a reformer and beating Anderton in the next election.

Gwathney graduated from law school in 2000 and spent her legal career as a prosecutor—first as a deputy district attorney in Jefferson County and then as an assistant attorney general. She made the move to the AG's office in 2014, having worked in Birmingham during the bad old days when the DA was seeking the death penalty more than virtually any other in the country—and toward the end of her tenure, only for Black men.

After Anthony Lane, a 19-year-old Black man with an IQ of 70, committed a botched robbery that led to one man's death, Gwathney personally obtained the death penalty for him in 2011. After Lane spent years on death row, the Alabama Supreme Court ruled in 2018 that he could not be executed because he is intellectually disabled, commuting his sentence to life without parole.

There were other reasons that Gwathney should have seen that seeking the death penalty for Lane was grotesque. Like so many people who end up on death row, his early years were harrowing to even read about. His mother was murdered when he was 11. When he was 14, his uncle knocked him unconscious with the barrel of a shotgun.

Gwathney's inability to see the traumas and structural factors that influence marginalized people who commit crimes has historically extended to children. She fought against the possibility of release for Evan Miller, who remains incarcerated for beating a man to death in 2003, when he was 14. Miller, who endured a difficult childhood, has now spent the majority of his young life behind bars.

When she appointed Gwathney, Gov. Ivey described her as "a proven prosecutor with an expertise and passion for the justice system." Unfortunately, Gwathney's passion is really about maximum punishment, making her a poor fit for a job that is supposed to be about mercy. Ivey would have known this perfectly well.

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

Cuomo's last-minute clemency for an ex-Weather Underground member highlights deeper problems

The 1981 Brink's armored truck heist in Nanuet, New York is notorious. The botched robbery left two police officers and a security guard murdered in a shootout. But that doesn't explain why non-impacted people still talk about it 40 years later. Not in America, where mass shootings have become practically routine in the decades since.

No, the Brink's heist is still talked about today largely because of the groups involved. As well as the Black Liberation Army, it was plotted and carried out in part by four members of the May 19 Communist Organization—a splinter group of the defunct Weather Underground. These were among the very few militant leftist groups in the US that ever caused death.

When apologists for rising far-right violence in the United States want to deflect from the damage their preferred camp has wrought, they are always trying to tap into the collective conservative memory of the Weather Underground—even if that means conflating the window-breaking and Proud Boys-fighting of "Antifa" with actual murder.

But the Brink's bank robbery is currently being talked about for another reason. On his way out of office on August 23, following relevations he engaged in serial sexual harassment, former New York Governor Andrew Cuomo decided to commute a handful of prison sentences.

One of the people who received a commutation was David Gilbert, an unarmed getaway driver in the Brink's robbery. Gilbert killed no one, but as a participant, he received 75 years in prison without parole for three counts of second-degree murder and four of first-degree robbery. Now, he will be eligible to go before a parole board in the near future.

Gilbert happens to be the father of San Francisco's progressive district attorney, Chesa Boudin.

Altogether, it is hard to imagine a final gubernatorial act more certain to rile conservatives and the police lobby—especially when you consider that Boudin, who declines to prosecute various low-level offenses, lobbied for his father's release.

Boudin said his heart was "bursting" when he heard the news.

Even from a mainstream criminal justice perspective, releasing David Gilbert, who is now 76 years old, would be the right thing to do—tantamount to "geriatric parole" or even compassionate release. He entered prison as a young man and now he is frail and old. He won't commit another crime. His sentence was grossly disproportionate, largely because of the identities of the people killed.

Releasing Gilbert, who has been incarcerated for 40 years, can hardly be construed as telling would-be cop killers that it is now a low-risk crime. He didn't do the killing—California is one state that has dialed back the felony murder rule that allows such convictions—and people don't plan armored car heists with the objective of killing police. Gilbert would join other people who participated in the Brink's robbery—like Kathy Boudin, Chesa's mother—who have been free for years without incident.

While we can reject the right-wing reaction to the news, if there's one group of people who do have reason to be angry on hearing it, it's the prisoners who are bound to die in prison for similar or lesser crimes—mostly poor, mostly people of color, and lacking the name recognition or elite support to gain the attention of Gilbert's case.

Aside from Chesa's prominence, Kathy Boudin, who was paroled back in 2003, belongs to a storied family in legal circles: Her father was a famous civil rights attorney who represented the leaker of the Pentagon Papers, and her brother is a senior judge on the US Court of Appeals for the First Circuit.

Many would perceive this kind of privilege as the reason for commutation decisions like Cuomo's. It certainly has an impact, and that is wrong.

It is wrong not because compassion has been extended, however, but because compassion is not extended equally—and systemically, rather than on a governor's whim—to every person convicted of a crime.

The chance to go before a parole board after decades in prison, with a strong presumption of release, represents the most minimal of steps toward humanity. Instead of ratcheting up punishment for the sake of equality, it's time to ratchet down.

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

Judicial power grab: A Wisconsin judge defies the law by doubling as a 'probation officer'

In the opinion of Amanda Skorr, an attorney and former public defender, Outagamie County, Wisconsin Circuit Judge Vincent Biskupic acts as both judge and probation officer because he "wants to see people grow and change."

But according to state law, that isn't really a judge's job. The practice, which some local lawyers refer to as "probation to the court," consists of defendants being called to "review hearings" where judges personally question and evaluate the ongoing behavior of a person they sentenced, much like a probation officer usually does. It is authorized nowhere in Wisconsin statutes, which are available online. Legal opinions from both the Wisconsin Attorney General's office and the Wisconsin Court of Appeals also say it's illegal.

Harvard law professor Nancy Gertner recently recounted this norm of judge detachment. It was not until after she retired that she met with someone she had sentenced as a federal judge, with eyes on writing a book.

Thus, when Judge Biskupic met Christopher Kartsounes—a man with a few minor convictions related to substance use who just pled guilty to bail jumping—he threw both law and norms out the window.

The judge incessantly dangled freedom in front of Kartsounes, contingent on an ever-shifting set of demands given at "review hearings." According to Wisconsin Watch, he would repeatedly call Kartsounes into court and force him to update the judge on his "progress toward meeting Biskupic's conditions." When Kartsounes expressed concern that the judge was "harassing" him, he accused Kartsounes of drinking, asked whether a breathalyzer would detect alcohol—Kartsounes said he did not know—and sent him back to the county jail.

Originally, Judge Biskupic told Kartsounes to successfully complete an addiction treatment program at Mooring House, which he did. Later, he told Kartsounes to go to AA meetings, to live with his father, and to get his own apartment.

This all happened without Kartsounes being enrolled in drug court or any similar program.

Outagamie County, which includes the city of Appleton, is a relatively small and rural county with fewer than 200,000 residents. And since Judge Biskupic is "by far" the most prolific user of "probation to the court"—according to Wisconsin Watch, he ordered his "review hearings" more than twice as many times as any other judge between 2014 and 2020—it is a relatively rural practice.

Other state judges' opinions track with that. When the local story broke, judges from urban areas, such as Milwaukee County Circuit Judge Frederick Rosa and Dane County (Madison) Circuit Judge John Hyland, went on record saying they never heard of "probation to the court" and that they thought practice was illegal.

Meanwhile Judge Donald Zuidmulder, who believes that such an arrangement is an "inherent power of the court," serves in Brown County, which includes the much smaller city of Green Bay. And Judge Mitchell Metropulos, who serves with Judge Biskupic in Outagamie County, agreed with Judge Zuidmulder.

Judges in Wisconsin are elected in nonpartisan elections every six years.

When tough-on-crime conservatives, including politicians from rural areas, want to defend mass incarceration, the nebulous concept of the "rule of law"—which supposedly means governmental crackdowns on the arbitrary use of power—is often used as a shield. US Senator Tom Cotton (R-AR) recently used the phrase to criticize progressive prosecutors for not coming down more harshly on people arrested for protesting the killing of George Floyd by police.

But since the revelations about illegal probation schemes in Wisconsin came to light, there has been radio silence from the law-and-order set. It begs the question of whether the "rule of law" has become a fig leaf for supporting mass incarceration and criminalization in a political environment where those policies have become nominally unpopular.

Filter asked Jasmine Heiss, the director of the In Our Backyards project at the Vera Institute of Justice, what, if anything, Judge Biskupic's use of discretion means for rural criminal justice more generally.

"In smaller cities, like Appleton and surrounding Outagamie County, the whims of a single judge can shape the entire criminal justice system," Heiss explained. "There is a growing movement of researchers and advocates who are focused on the power and perils of prosecutorial discretion, but the degree to which judges position themselves as having unfettered and absolute authority over people's treatment, housing, personal lives and dignity has received much less attention."

"This can be particularly pernicious in smaller cities, where many people are only able to access limited social services through criminalization and the justice system," she concluded.

While Judge Biskupic's actions are most clearly to blame for Karasounes's plight, the local district attorney, Mindy Tempelis, is not blameless, either.

Online court records show that the DA's office handled the prosecution against Kartsounes, and that his bail jumping conviction was the result of pleading guilty. As a result, the DA would have had an opportunity to challenge the terms of a plea agreement that included "probation to the court." There is no evidence of that happening.

Which is not very surprising. In 2017, when Tempelis was appointed DA by Governor Scott Walker, she had already worked as a prosecutor under former Outagamie County DA Carrie Schneider for almost 15 years. And before that, Judge Biskupic himself served as DA, appointing Schneider as his chief deputy in 2000.

It seems obvious that Judge Biskupic is not helping people "grow and change." Instead, he is engaging in a grab for power without checks and balances. In an ideal world with limitless resources, one of the defendants in his courtroom would sue on constitutional grounds, which would likely end the practice for good.

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

Prosecutors call on Biden to create task force aimed at reform

Decrying "tough-on-crime" policies, a group of more than 100 law enforcement leaders, mostly prosecutors, sent a letter to President Joe Biden on August 17, asking him to create a Presidential Task Force on 21st Century Prosecution by the end of the year.

On its face, it's an ambitious request, but Biden has created a multitude of new task forces during his first year in office. Presidential task forces are advisory in nature, meaning they can only make recommendations, but they are still influential. When Trump was in office, his Coronavirus Task Force effectively blocked a federal recommendation to mandate masks on public transit.

The drop in US incarceration during the early days of the pandemic has been gradually turning back into a rise. Between summer 2020 and spring 2021, the number of incarcerated people across the country shrank by just two percent. While prisons continued to release slightly more people than they locked up, county jails have been filling back up for at least most of 2021.

The people in a position to stop this are prosecutors, who decide which people get charged and with what crimes.

The letter's signatories, who include former Alabama US Attorney Joyce Vance and Westchester County, New York, District Attorney Mimi Rocah, write that this new task force should be modeled on the one former President Obama made to address police violence after Ferguson, Missouri, officer Darren Wilson killed 18-year-old Michael Brown. A 2015 report from that task force purportedly led to around 40 percent of the nation's largest police departments changing training and use-of-force practices within two years. It did not, however, lead to any reduction in the rates at which police officers kill civilians.

A Biden task force on prosecution would be located outside of the Justice Department and would study the work of reform-minded prosecutors at the local level with the hope of replicating it. Part of that work includes some top prosecutors effectively decriminalizing minor drug possession charges (and, more rarely, possession with intent to distribute) by their use of executive discretion. In these jurisdictions, people who use and sell drugs face less incarceration and discrimination due to criminal records than they would otherwise.

A report by Fair and Just Prosecution, the nonprofit that assembled the letter's signatories, detailed what the new task force hopes to address. Some of the proposed topics involve parts of the system that prosecutors can unilaterally improve, such as charging fewer people for nonviolent drug misdemeanors. Others involve the expansion of non-police emergency responder programs and alternative-to-arrest diversion programs like Law Enforcement Assisted Diversion.

In a promising twist, the report suggests that the task force lead conversations on the "efficacy and limits of drug diversion programs," which could help correct the mainstream narrative that innovations like drug courts are a preferable alternative to prosecution.

The federal government has shown little interest to date in the recent local- and state-driven trend toward reforming prosecution, which started in earnest in 2015. Under the Trump administration in particular, top federal criminal justice officials broke from the norms of their respective offices to attack prosecutors they deemed progressives.

Opting to not prosecute certain crimes has historically not been in most US attorneys' DNA. If they decline categories of cases—like when former Arizona US Attorney Paul Charlton stopped prosecuting the possession of marijuana under 500 pounds in the 2000s—they generally signal that it's other prosecutors' jobs to handle them.

But the movement has gotten the attention from influential Washington, DC think tanks like the conservative Heritage Foundation and the liberal Center for American Progress. Both Heritage and CAP serve as partisan pipelines to jobs in presidential administrations.

Virtually all of the signatories calling for the task force on prosecution are elected Democrats, and most represent the left flank of the party on criminal justice. Even so, the creation of the new task force might make moderates more comfortable with the idea of prosecutors who view their jobs more holistically, rather than hard-nosed trial warriors who pride themselves on high conviction rates and harsh sentencing.

That is especially true if it could survive in some form the next time a Republican is president. There are already prominent Republicans who support it. "We need @POTUS to lead on #cjreform. Form this task force," tweeted Brett Tolman, the executive director of Right on Crime and a former Utah US Attorney under President George W. Bush.

Many of the law enforcement leaders who signed are on record supporting safe consumption sites (SCS), including King County (Seattle), Washington, Prosecuting Attorney Dan Satterburg and Los Angeles County District Attorney George Gascon. If Biden authorizes the task force, it's safe to assume that some of the letter's signers would be at the front of the line for membership status. That may help invigorate national-level conversations about SCS as well.

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

A look behind the campaign to recall progressive prosecutors in Virginia

A recall campaign targeting so-called progressive prosecutors in Virginia has made recent headlines. To understand it, it's worth taking a look at the background of an organization called the Law Enforcement Defense Fund.

One of the few prosecutors who ever became a household name was Henry Wade, the district attorney of Dallas, Texas from 1951 to 1987. Not only did he prosecute Jack Ruby for killing President John F. Kennedy's assassin, but his readiness to prosecute women for getting abortions turned into Roe v. Wade, the Supreme Court case that legalized the procedure. Even before these events, DA Wade was a local courthouse legend—annually handling more cases than his counterparts in bigger cities, and with a sky-high conviction rate.

He was also a notorious racist, who once told one of his subordinates, "If you ever put another [N-word] on a jury, you're fired."

And yet, when Wade was nearing the end of his career, then-Attorney General Edwin Meese, III chose to make a laudatory speech about how Wade "redefined the very meaning of 'district attorney.'" On September 18, 1986, Meese told an assembly of prosecutors who gathered in Washington, DC that Wade was a "prosecutor's prosecutor," one who turned the Dallas DA office into a "prosecutorial Sherman tank."

After Meese was criminally investigated over the Wedtech scandal and pushed out of the Reagan administration, he moved to the Heritage Foundation, a right-wing think tank, to carry on his work. Then, in 1996, he and three other attorneys formed the Law Enforcement Legal Defense Fund, which would spend the next decades soliciting donations on behalf of police officers who stood criminally charged for illegally wounding or killing civilians.

A January 25, 1998 article from Detroit Free Press explains how LELDF, before its formal incorporation, funded the legal defense of Stacy C. Koon: the former Los Angeles police sergeant who supervised the officers who brutally beat Rodney King in 1991.

Once incorporated, it backed the defense of Walter Budzyn, one of the two cops who beat Malice Green to death in 1992. Budzyn's first conviction was tossed, then Detroit Prosecutor Kym Worthy obtained another murder conviction at a retrial. in a recent op-ed, Worthy described the Budzyn case as Derek Chauvin déjà vu.

Derek Henderson Martin, then the LELDF president, said that his organization's mission was to "try to support hard-working, law-abiding police officers who are unjustly prosecuted for doing their jobs"—a category that LELDF seems to believe means all accused police officers.

The group's decades-long run is stuffed with other details that people concerned with police accountability would find deeply unsavory.

During the O.J. Simpson trial, the organization solicited newspaper columns supporting former Los Angeles police officer Mark Fuhrman as "a cop just doing his job." Fuhrman was accused by the Simpson defense team of planting evidence. After video footage of Fuhrman using racial slurs surfaced, LELDF returned the money it raised for him.

More recently, it cheered President Trump's pardon of Stephanie Mohr, a former Prince George's County, Maryland police officer who sicced her K-9 on a homeless man. An attorney and criminal justice reform advocate who served on Mohr's prosecution team said, "Of all the acts to pardon in a year that witnessed the killing of George Floyd, it is the most insensitive and inflaming."

Today, much of LELDF's work has been reproduced and made more efficient with technology. Crowdfunding campaigns on GoFundMe and other sites now inevitably include fundraisers for cops who kill. Although LELDF's total revenue has shrunk, from $2.5 million a year in 2013 to around half that amount in 2019.

Perhaps that's one clue as to why it has sought and found a new cause for war in the concept of "progressive prosecutors." Current LELDF President Jason C. Johnson has personally bemoaned the "virtually unfettered and unchecked discretion" that elected prosecutors enjoy, and how they can "unilaterally…implement [George] Soros' vision of social justice." That is not quite true, though both supporters and detractors of Soros-funded prosecutors have said as much.

Understanding why a group like LELDF would take aim at progressive prosecutors is not rocket science. These prosecutors do not just run on ending mass incarceration—they also boast plans to hold rank-and-file law enforcement accountable for misconduct. That cuts to the heart of what LELDF was formed to prevent.

The movement's first prosecutor in Virginia, Portsmouth Commonwealth's Attorney Stephanie Morales, successfully prosecuted former police officer Stephen Rankin for manslaughter during her first term, then was re-elected in 2017. Two years later, the state's roster expanded to include Parisa Tafti-Dehghani in Arlington, Buta Biberaj in Loudoun County, and Steve Descano in Fairfax County. In 2021, Ramin Faheti joined their ranks in Norfolk.

It was Fairfax County Commonwealth's Attorney Descano who last year charged Fairfax County Police Officer Tyler Timberlake with misdemeanor assault and battery after using a stun gun on a man experiencing a health crisis. The incident was caught on video. The local police chief disowned Timberlake, saying his actions ignored the "sanctity of human life."

Going with its time-tested script, LELDF published a June 7, 2020 Facebook post stating, "Prosecutors across the country are now criminally charging police officers without taking the trouble to investigate first. What happened to due process?" (It also said Descano made the charging decision to "appease an angry mob.")

Most recently, LELDF has apparently authorized its policy director, Sean Kennedy, to create a new prong in the strategy to protect cops from even the slightest scrutiny. While still employed by LELDF, Kennedy formed Virginians for Safe Communities, a 501(c)(4), to campaign for the recall of Virginia's progressive prosecutors. (The two organizations say they are independent from one another.)

Earlier this month, Kennedy said, "We are launching this campaign to hold accountable the prosecutors who have taken office under a writ of reform but have gone too far. They are continuing to flout the rule of law, failing to enforce the law and are endangering our families and communities."

Some conservatives use the phrase "rule of law" as a synonym for "public policy I like," and "flouting the rule of law" for "public policy I hate." Appropriately used, the theoretical notion describes a society where "where no one is above the law, everyone is treated equally under the law, everyone is held accountable to the same laws."

Kennedy's employer has long made clear that its goal is to place police officers categorically above the law, so they can use violence not based on necessity but as a perk of the job. Virginia's new wave of prosecutors potentially threatens that mission.

Henry Wade left the national limelight after his DA tenure—other than more than a dozen men he prosecuted for murder being exonerated in the 2000s and '10s. But the proliferation of what he stood for—prioritizing conviction rates and sentencing harshness over justice, prioritizing the investigation of "vices" like pornography and drugs over violent crimes, and rife law enforcement misconduct—did not need him to flourish.

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

Santa Clara County’s prosecutor race will be intense — and personal

Since taking office in 2011, Santa Clara County (San Jose), California District Attorney Jeff Rosen has embraced decarceration efforts faster than most of his peers. On top of emphasizing diversion programs for people accused of committing petty crimes, he publicly supported Proposition 47, which downgraded some drug and theft charges from felonies to misdemeanors and allowed some prisoners to petition for new sentences.

Rosen also sponsored the new prosecutor-driven "second look" law, which allows the state's DAs to petition courts to reduce sentences for prisoners who were sentenced too harshly.

But advocates, especially attorneys on the other side in the courtroom, think he can do better.

Michael Ogul, a deputy public defender in the county who retired in 2020, wrote a scathing article about Rosen's decision to seek the death penalty against one of his clients in 2019. Ogul charged that his client was innocent—the jury returned a Not Guilty verdict—and expressed concern that the Santa Clara DA office had sought the death penalty only against men of color since 2000. (In 2020, Rosen announced that he would no longer seek the death penalty.)

The rift came to a head in June 2020 when Sajid Khan, a prominent local public defender, wrote a blog post suggesting that activists protesting police brutality should also protest local DA offices. DA Rosen responded by referring Khan to county investigators for allegedly unethical behavior—a move that could have cost Khan his job.

Now, Khan has announced that he will run against Rosen, in what is surely shaping up to be one of most-watched prosecutor elections in 2022. With nearly 2 million residents, Santa Clara County is the 18th most populous county in the US. If victorious, Khan, the son of Muslim immigrants from India, would be the first person of color to become the county's DA.

There are many questions as to what Santa Clara County residents will prioritize when called to choose the next DA, and both candidates will feel equipped to make a compelling case.

DA Jeff Rosen can say that violent and property crime rates have remained relatively low during his time in office, while he has simultaneously managed to pursue some significant reforms. When it comes to violent crime, Santa Clara County is safer by the numbers than San Diego, San Francisco and Los Angeles counties—though crime rates can be influenced by many factors other than the DA.

Meanwhile, Sajid Khan already has a comprehensive blueprint of what he believes Rosen—and all so-called progressive prosecutors—must improve on. In an article published this year in the Stanford Journal of Civil Rights and Civil Liberties, Khan points to issues like the need to stop prosecuting children as adults, which DA Rosen once did more often than any other DA in the Bay Area; and the need to end the use of pseudoscience in court, which is still surprisingly common across jurisdictions. On Khan's campaign website, he promises to end the county's mass incarceration and "War on Drugs," which he recognizes as racist.

In an interview with Filter, Khan discussed prosecutorial misconduct, which has remained an entrenched issue in the office. The current chief assistant DA was bench-slapped by the California Court of Appeals in 2013, as was at least one other line prosecutor who nonetheless just retired with Jeff Rosen's formal commendation. Reformers also expressed frustration last year when DA Rosen hired Linda Allen, the former San Francisco prosecutor who obtained the wrongful conviction of Jamal Trulove as a new prosecutor in his office.

Khan attributed these issues to the office's culture, which he believes prioritizes felony convictions and maximum sentences at all costs. He pointed to training materials available at the Santa Clara County government's website, which advise DA Rosen's line prosecutors on how to toe the line of misconduct without legally jeopardizing cases.

Asked how he would address prosecutorial misconduct if elected, Khan gave a surprising answer. He said that firing scores of prosecutors, as some progressive electeds have done, is "not who I am."

Instead, Khan said, "Everyone is better than their worst moments. That includes people accused of crimes, but also line prosecutors who perpetuated mass incarceration. They got into this work to do justice and cultivate safety, but they have been misguided. I will give those same people the opportunity to join our vision of a thriving, just and safe Santa Clara County community."

If he is successful in running against DA Rosen, Khan said he has other similarly nuanced policies for curbing incarceration. For example, in California, there are a whole slew of crimes that are called "wobblers": They can be charged as a misdemeanor or felony based on the judge or prosecutor's discretion. There is no formal process for, and much racial bias in, how these officials make that call—and while felony wobblers can get treated like misdemeanors for criminal record purposes, even lawyers are frequently confused as to how that works.

Khan said in the interview that he would default to no longer prosecuting "wobblers" as felonies, absent certain aggravating factors.

Filter also reached out to incumbent DA Rosen to ask about his recent record on criminal justice reforms.

A spokesperson responded, stating: "In June of 2019, the District Attorney announced a new policy of ending drug prosecutions for recreational drug users. Instead of charging people for recreational drug crimes, such as simple possession or being under the influence, the District Attorney refers these cases directly to public health providers in order to access treatment. Since implementing this policy, close to 12,000 individuals have benefited from this policy."

That is undoubtedly a positive move. Yet Khan plans to appeal to voters by arguing that he can go further. While the outcome remains to be seen, the spectacle of DA candidates in such a major county trying to out-reform each other bodes well for the bigger picture.

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

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