Bombshell paper finds the federal judges guilty of the most racist sentencing

It has long been known that people of color get harsher criminal sentences in federal criminal court for the same crimes as white people. In the federal criminal justice system, the powerful US Sentencing Commission itself has come to this conclusion.

But the numbers obtained and analyzed by researchers usually have shown this on a birds' eye view-level only. That is by design. The US Judicial Conference has a policy of screening out judges' names from federal databases of cases, claiming that it is concerned about "the potential for judge-specific information taken out of context to be misinterpreted, the administrative burden of compiling information to satisfy outside requests, and the availability to researchers of the information from individual courts."

The policy, in other words, protects federal judges—despite the fact that they already receive the utmost insulation from populist anger as well as the democratic process. Thanks to the Constitution, they all receive lifetime tenure.

Six academics have just published a research study in SocArXiv that might go down in history as the single paper that pissed off the legal profession more than any other.

Its title—"The Most Discriminatory Federal Judges Give Black and Hispanic Defendants At Least Double the Sentences of White Defendants"—summarizes the big-picture story succinctly. But it does more than the headline suggests: Thanks to a newly created database, and the research done here, we now know the names of the judges handing down the most racist sentences from the federal bench. We know in terms of the disparate sentences these judges give to Black and Latinx defendants, compared with those they give to white defendants for the same crimes.

A handful of judges are guilty of what can only be described as horrifically racist sentencing. According to the data, the single worst offender on the federal bench is Senior US District Court Judge C. Darnell Jones, II. Appointed by President George W. Bush in 2008, he rose up the ranks of the legal profession after starting his career as a public defender in Philadelphia. Despite that background, Judge Jones's sentences for Black people are 126 percent harsher—and for Latinx people, 156 percent harsher—than his sentences for white people.

Federal defense lawyers practicing in Philly might start seriously considering motions to remove Judge Jones from their clients' cases. Ethically speaking, Judge Jones could also just resign.

The same goes for the three other federal judges who demonstrated racist sentencing disparities on a similar scale: Judge Timothy J. Savage, Judge Stanley R. Chesler and Judge Richard J. Arcara.

Each of these three judges was appointed by a Republican president (George W. Bush or Reagan). And like Judge Jones, perhaps surprisingly for some observers, they all practice in the Northeast. Unsurprisingly they are all white, and two of them are former prosecutors.

Judge Chesler was an assistant district attorney in the Bronx and a federal line prosecutor in New Jersey. Similarly, Judge Arcara was the US Attorney for the Western District of New York, as well the elected district attorney of Erie County, New York in the mid-1980s.

The mixed crew of academics on the project—four of the six researchers are in math or computer science fields—have hit the accountability nail on the head. This sort of work absolutely needs to be done to change the system.

Our system ensures that few mechanisms, as opposed to simple outcry, are in place for the public to register its disapproval of specific federal judges.

But most human beings are capable of feeling shame. These judges will now likely be asked by people in their personal circles—their family and friends, as well as professional peers—why they wield bigotry like a weapon when they don their judicial robes.

It's deeply unsatisfactory, but in the absence of needed formal accountability mechanisms, such pressure could be the most likely way for these lifelong appointees to reconsider their careers. Absolutely nothing justifies the gratuitous damage they have inflicted.

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

The 'progressive prosecutor' movement is facing a real test in Iowa

The County Attorney's Office in Polk County (Des Moines), Iowa has gotten little attention from criminal justice reform advocates—at least until March 2021, when County Attorney John Sarcone prosecuted a Des Moines Register reporter for covering a 2020 racial justice protest in a professional capacity.

Violent crime in the county has soared during Sarone's decades-long "tough-on-crime" tenure. Between 2011 and 2016, it increased by over 33 percent in the Des Moines metro area—one of the highest increases during that period nationwide.

But Sarcone decided to not run for re-election next year, opening his seat up for the first time in over 30 years. Two candidates are now vying to redefine the role in Iowa's most populous county. The differences between them will show whether the "progressive prosecutor" movement, which has mostly taken off in big coastal cities, can gain traction in a smaller city in the American heartland.

On one side is Laura Roan, a current prosecutor in the office with a long career in the field. She has handled some of the most serious recent criminal cases in her state, from kidnapping to sexual assault to murder.

On the other is Kimberly Graham, an attorney for children in the justice and family court systems. While new to prosecution, she has political experience, having run for US Senate in the 2020 Democratic primary as a progressive.

Roan has already differentiated herself both from the incumbent, emphasizing that she will not be Sarcone 2.0, and from Graham, noting the difference in their level of prosecution experience. On her campaign website, she boasts that she is "prepared to do the job from day one." While it is very rare for a top prosecutor in a sizable office to handle trials personally, many voters consider prosecutorial experience necessary for candidates.

Although selling voters on the best path to public safety is clearly a focal point of any prosecutor election, there are other important matters for candidates to address. One of those is how to reduce incarceration rates—and Polk County, after decades under Sarcone, has a clear need.

Out of all Iowa counties, Polk had the third-highest prison admission rate per capita in 2015, just behind Woodbury County. Only Black Hawk County had a substantially higher rate.

The pretrial incarceration rate also ballooned from 63 per 100,000 people in 1990, the year before Sarcone took office, to 264 per 100,000 people in 2018—a more than 400 percent increase. Nationally, most people who are locked up before trial are there because they are too poor to pay bail.

While Roan has shown competence in holding people accountable for many of Iowa's worst crimes of recent years, her record raises some red flags.

In handling the cases of the two men who killed Kedarie Johnson, a Black, genderfluid high school student, in 2016, Roan misgendered the victim at trial, denied the defense access to important evidence, introduced irrelevant evidence (a sex tape of a woman unrelated to the case), and defended the virtually all-white jury pool.

As an assistant US attorney, Roan also charged people in sweeping federal drug conspiracies, leading to sentences that seemed to greatly exceed what the law might normally provide.

According to PACER, in 2020, she prosecuted Muzammil Ali for a "conspiracy to distribute Tetrahydrocannabinol (THC)," the psychoactive compound in cannabis. Despite no allegations that Ali possessed a gun or engaged in violence, Ali recently received almost 20 years in prison. Roan did not respond to Filter's request for comment.

Candidate Kimberly Graham cannot match Roan's level of experience, but she is embracing reforms that have become part and parcel of the progressive prosecutor movement in bigger cities nationwide.

Graham has announced that the default position of her office "will be to not prosecute people for low level, nonviolent offenses like marijuana possession," She also promised that her office would promptly respond to public records requests and keep "detailed statistics on charging and sentencing."

Voters can reasonably expect Roan to implement her own take on a traditional law-and-order approach. Graham seems more likely to look at the root causes of crime when making a crime prevention plan, and would represent a much more significant change. Time will tell what people in the district want—and given the national trends that may be illuminated, it will be fascinating to 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.

Why Biden's pick for a US attorney post will backfire for her constituents

President Joe Biden has announced his intention to appoint Suffolk County (Boston) District Attorney Rachael Rollins as the next US attorney of Massachusetts. If confirmed by the Senate, Rollins would be the first Black woman in that position. She would also be the first DA elected as part of the "progressive prosecutor" movement to become a US attorney, or chief federal prosecutor, in any district.

Is this a cause for celebration? Maybe, but not so fast.

In Massachusetts, the governor gets to pick the interim district attorney when the incumbent retires, resigns or passes away. And Governor Charlie Baker, a Republican, has made no secret that he despises the Rollins philosophy of not prosecuting low-level, nonviolent misdemeanors like drug possession, despite the fact that nonpartisan, academic researchers found that it improved public safety in her district.

Now Gov. Baker will get to lift up a regressive career prosecutor who will almost certainly undo the progress the Rollins administration has worked so hard to achieve. Expect to see the new DA also wipe out the office's progressive managerial suite, which includes luminaries like Donna Patalano and Bobby Constantino—and then run on that record with a powerful incumbency advantage in next year's DA race.

Furthermore, the ability of an individual US attorney to change the justice system is quite limited. As the Massachusetts US attorney's website explains, that office handles "hundreds of cases each year." The Suffolk County DA office handles around 35,000 cases per year—a vastly higher volume. The few cases that federal prosecutors handle are, at least in theory, much more serious than the average case in county court, so Rollins can't exactly start dropping entire categories of cases in her new post to force reform. She may not even want to change the way these serious cases are handled, since her reforms, like those of virtually all reform DAs, have been focused on how to address low-level crime.

There are positive changes Rollins can make at the federal level, of course. Depending on the smoothness of the transition, she may be able to encourage her line prosecutors to think more about recommending prison sentences that are "no greater than necessary" to protect public safety. She can recommend that her prosecutors think carefully about choosing which charge to levy when multiple charges of varying harshness apply.

And she can refuse to resist (as former Philadelphia US Attorney Bill McSwain did) local government attempts to authorize the first safe consumption site in the nation—though that's not going to happen in Boston with an old-guard conservative in her old post.

Her potential impact on state or national affairs remains to be seen. But her old constituents will suffer.

But will she make any changes if she becomes Massachusetts' US attorney? Reformers should not hold their breath. In her past role as assistant US attorney in the same office, it appeared that Rollins simply fell in line with the existing office culture.

According to an article by Jamie Folk, a pharmaceutical industry professional who also runs a podcast on the state's shocking crime lab scandal, only six of Rollins' 180 cases listed on PACER were criminal cases. All her other cases were civil cases, the bulk of which involved defending the US Department of Homeland Security in deportation cases, claiming the government did not discriminate on race or gender grounds in employment discrimination cases, and fighting to ensure that the government could seize people's property (and even their homes) for growing cannabis plants.

Rollins even demanded in court that a man with serious health conditions keep serving his federal prison time for drugs almost 2,000 miles away from his family.

This is not a reformist record. It is more in line with the many actions President Biden has taken over decades to destroy the lives of people prosecuted in federal court.

It is easy to see the headlines and cheer for DA Rollins, as well as to think that change is finally coming to the federal justice system. The significance of her declining to prosecute a range of low-level charges has been both practical and symbolic. She is better than her predecessors. Yet supporters of the "progressive prosecutor" movement should avoid placing prosecutors on pedestals—and remember the persuasive power of political expediency.

The Senate may still block her confirmation, but it isn't likely. Even the former US Attorney for the Middle District of Pennsylvania David Freed sailed through on an informal voice vote, despite fraternizing with a prominent neo-Nazi leader while the DA of a small county.

Thus, Rollins will almost certainly move up the politician's career ladder. Her potential impact on state or national affairs remains to be seen. But her old constituents will suffer.

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

The federal criminal system is fundamentally morally bankrupt — because Congress refuses to act

Around 90 percent of criminal cases are handled by county court systems, where inflexibility on disproportionately harsh sentencing outcomes is largely a local political choice. Prosecutors can reopen old cases to correct injustices with relative ease, and some do.

That isn't usually possible in the federal system, where multiple layers of red tape ensure harsh prison sentences are not altered, even when they are morally wrong in hindsight. The US Department of Justice, stuffed to the gills with conservative federal prosecutors, controls the Office of the Pardon Attorney, the office tasked with giving clemency recommendations to the president.

Even the CARES Act, which was passed by Congress last year to curb the spread of COVID-19 and provides for a move to home confinement for around 4,500 low-risk prisoners, has been heavily influenced by the DOJ—an agency that has thoroughly resisted any efforts to reform prosecution and sentencing.

In the 11th hour of the Trump administration, then-Attorney General Bill Barr issued a memorandum that temporarily released prisoners must be remanded when the pandemic has abated. Biden-administration Attorney General Merrick Garland, a dyed-in-the-wool DOJ veteran, has so far declined to retract it.

Though her situation is a bit different, Gwen Levi has become the new icon of DOJ's punitive excess.

Levi, a 76-year-old Black grandmother who was serving a 30-year prison sentence for a drug conspiracy, albeit most recently in home confinement, was attending a computer word-processing class in June when she missed phone calls from federal halfway house officials. It was a technical violation of her supervision terms. As a result, Levi was arrested and placed in the DC jail, awaiting remand to federal prison.

Thankfully, on July 6 US District Judge Deborah C. Chasanow granted her a "compassionate release." This legal jargon nonetheless misses the mark for what compassion—the "sympathetic consciousness of others' distress together with a desire to alleviate it"—actually means.

Judge Chasanow's order states that remanding Levi, who had already served 16 years behind bars, "would do little (if anything) to serve the goals of sentencing." According to federal law and court decisions, these goals include retribution, education, deterrence, and incapacitation, as well as muddy concepts like "respect for the law."

A common-sense analysis of these concepts shows that even thinking about Levi's situation in these terms is out of touch and uncompassionate (even if some would balk and say that is the job of a jurist). Yet as the intensity of the pandemic diminishes, thousands more people like Levi face similar attitudes and threats.

"Retribution" is a fancy way of saying government-sponsored revenge, and it is the foundation of the US criminal-legal system. For getting involved in illegal drug sales, the government destroyed Levi's life for 16 years, separating her, among other things, from her grandchildren.

Even someone who supported the concept of revenge could not plausibly argue that the revenge inflicted on Levi was proportionate. Nor that switching her computer classes for a cell served any goal of "education."

"Deterrence" is sometimes broken up into "general" and "specific" deterrence in US government documents. General deterrence is meant to scare the general public into not making the same mistakes. Surely, 30 years in prison for a nonviolent crime is scary, but relatively few Americans know how common this is—and in any case, general deterrence isn't very effective in preventing crime. Specific deterrence is for the individual, the idea of making Levi think twice before repeating her violation of the law; but quite apart from her long experience of the harshest punishment, Levi's age would argue heavily against such a recurrence.

"Incapacitation" is self-explanatory. People aren't committing crimes—in the outside world, at least—when kept in a cage. But statistics show that seniors commit so few crimes that the risk is borderline insignificant. One recent study from England suggests that people over 60 are committing fewer crimes than 10- and 11-year-olds.

Culpability of Congress

Blame for the application of these concepts to people like Levi goes far beyond a single federal judge, or even the judiciary in general. It lies overwhelmingly with Congress.

Since the passage of the Sentencing Reform Act in 1984, which formally took "rehabilitation" out of federal sentencing law and repealed federal parole, the nation's legislature has done nothing to reexamine sentencing as a whole, opting instead to tweak around the edges of a morally bankrupt system.

Congress members' responsibility for this is collective, even if it skews to the right.

For example, even some members of "The Squad," the furthest-left members of Congress, are less progressive around crime and justice than scores of locally elected prosecutors. Legislation backed by the entire cohort includes the Dismantle Mass Incarceration For Public Health Act of 2020—with weak provisions to allow older prisoners to go home just a year or two earlier, but only if their release date is fast approaching. Rep. Alexandria Ocasio-Cortez (D-NY) meanwhile co-sponsored the Gun Trafficking Prohibition Act of 2019, which would have increased penalties for "felon with a firearm" crimes.

People federally convicted of possession of a gun are already getting on average over five years of prison time. That is already much harsher than state charges for the offense in New York.

Project Exile, a DOJ-led program centered around federal gun prosecutions that has long been seen as racist, was named for its concept of removing people with felonies caught with a gun from society for long periods of time. But the greatest reduction in violent crime ever attributed to Project Exile—a nearly 40 percent decrease in homicide in Richmond, Virginia in the 1990s—was matched after a strategic gang-violence prevention intervention program, far less reliant on incarceration, was brought to Boston around the same time.

That proved that significant violence reduction is achievable without shoveling yet more Black men—who are more likely to have felony convictions because of systemic racism—into federal prisons.

One major exception to the lethargy or worse in Congress is "Squad" member Rep. Ayanna Pressley (D-MA). Her People's Justice Guarantee resolution essentially asks Congress to pledge to roll back the clock and undo the harms of the Sentencing Reform Act.

Gwen Levi has endured injustice stacked upon injustice over a period of decades. But the media morphed it into a feel-good story just because a single federal judge decided that the "goals of sentencing" would allow Levi to live out her final years at home with her family.

Until Congress experiences a sea change in thinking about sentencing and justice, situations like Levi's are going to keep happening.

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

The grim reality behind the hype of a supposedly 'progressive' prosecutor in Massachusetts

During a recent webinar hosted by Prosecutorial Performance Indicators, an organization that encourages better data collection in the criminal justice system, Tampa's elected State Attorney Andrew Warren acknowledged that prosecutors are generally wary of data for reputational reasons.

"The data itself is going to reveal some concerning trends, at a minimum," Warren said. "But when you frame it in the context of transparency, I work for the taxpayers of Hillsborough County—and they have a right to know the things that are happening in their criminal justice system."

When voters elect prosecutors in the vast majority of states, it is essential that they have the opportunity to become informed, so that prosecutorial decisions and the social issues they influence are subject to public scrutiny.

For instance, should we as a society tell people what they can and can't do with their bodies? It's not "progressive" when conservatives dictate women's reproductive health decisions. But most so-called progressive prosecutors still charge people with drug possession.

Marian Ryan, the district attorney of Middlesex County, Massachusetts, is one "progressive" DA who does so frequently.

According to data provided from her office and posted online, she used simple drug possession charges, under the statute for people with no priors, 8,092 times from 2014 to 2020.

When we include all low-level, nonviolent charges that neighboring Suffolk County (Boston) DA Rachael Rollins promised to decline on the campaign trail in 2018, that number gets much higher. (DA Rollins largely kept her promise, and independent research found that the new policy increased public safety.)

Yet Ryan is still seen by many as a "progressive." Appointed to the job by former Governor Deval Patrick, and re-elected twice, the DA uses the word liberally in her campaign materials. In her most recent campaign, Ryan faced leftward challenger Donna Patalano, but trounced her after the local press corps framed the race as a "progressive face-off."

This is in a state where income inequality is soaring, with Black Massachusetts residents making about 40 percent less, on average, than white residents. Incarceration statistics present the same story: Black people comprise 9 percent of the state's population but over 28 percent of the prison population. White people, in contrast, make up 80.6 of the state population but 42 percent of the prison population. Black people also have a per capita jail population rate in Middlesex County that is over five times higher than that of white people.

The word "progressive," it seems, is complicated in Massachusetts, as elsewhere. With the exceedingly low bar for "progressive" prosecutors to claim that mantle, DA Ryan has received praise for being less draconian than her peers in much less liberal areas in the state.

In 2017, when the state legislature was considering a sweeping criminal justice reform bill package, most of the DAs signed a fear-mongering letter to try to thwart it or water it down. While Ryan opted out of signing the letter, she also did not voice support for the reforms.

Unsurprisingly, like many other reform prosecutors, Ryan has trimmed the edges of carceral excess in her approach to prosecuting low-level crimes, while being notably overzealous when it comes to prosecuting more serious crimes. In murder cases, the DA has prosecuted kids as young as 15 as adults.

In 2008, after Kimberly Savini stabbed her boyfriend who was allegedly abusing her, Ryan, then an assistant prosecutor, cited Savini's size in claiming she was the "aggressor." Savini was later sentenced to life with parole.

In 2010, Geoffrey Wilson, a young Black man, was charged with murder for the death of his six-month old baby. The prosecution's theory was that Wilson shook his baby to death. The medical examiner on the case, Dr. Peter Cummings, originally agreed. However, after further investigation, the examiner revised his conclusion to state that the cause of death was "undetermined." Ryan ended up finally dropping the charges against Wilson.

In 2015, that medical examiner turned whistleblower, accusing DA Ryan of bullying him to stick to his initial conclusion.

After over 20 years of wrongful incarceration for murder, a judge freed Michael Sullivan from prison in January 2013, though he was subject to an ankle monitor and court supervision. DA Ryan took office four months later, then spent a year arguing that the new evidence showing Sullivan wasn't at the scene of the crime did not warrant a new trial.

The DA lost at the Massachusetts Supreme Judicial Court, but that was not the end of it. Ryan waited until 2019 to announce that her office would not retry the case, meaning that Sullivan was unnecessarily stuck in limbo between free and unfree for another six years.

Now, there is another potential exoneration in the press: that of Keith Winfield, convicted of horrible child abuse crimes and sentenced to life without parole. Dr. Newton, the same expert witness involved in other flawed cases, was instrumental in obtaining Winfield's conviction.

When a reporter at The Appeal asked DA Ryan's office why her line prosecutors still count on Dr. Newton, a spokesperson said that the prosecutors there "never pursue charges based solely on a diagnosis" and that it is "just part of what we look at."

When prosecutors like Ryan obtain wrongful convictions for people accused of horrible crimes, there is usually no accountability.

Former Kern County (Bakersfield), California, District Attorney Ed Jagels originally "built his career" on dozens of child molestation convictions, but most of the crimes were later found to have never happened. He was repeatedly reelected, and when he retired, the Associated Press described his career as a "mixed legacy." The California Bar never disciplined Jagels for his misconduct; today, he still works for the office where he perpetrated regular injustices.

Without Middlesex County's voters giving greater attention to the way she governs in their backyards, DA Ryan will probably keep falling up. Some are already wondering if she wants to become the next Massachusetts attorney general, a job where the normal interpretation of her duties would include trying to preserve other wrongful convictions obtained by state DAs.

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

Progressives win a major victory in Philadelphia — here's how

The first re-election bid of Philadelphia District Attorney Larry Krasner—probably the figure most associated with the "progressive prosecutor" movement—was closely watched throughout the nation. Krasner has declined the vast majority of drug possession prosecutions, and essentially ended the death penalty in the former death penalty capital of the north.

Many commentators wanted to see it as a referendum on whether pro-decarceration elected prosecutors are a fad or here to stay. Some thought a loss for Krasner would be "disastrous" for criminal justice reform. False dichotomies were popularized, like the one of "cops versus Krasner," despite the fact that the organization representing Black police officers in Philly broke from the mainline police union to endorse him. On top of that, Krasner was blamed in the media for a significant increase in homicides, despite academic researchers concluding that this was largely the result of COVID-19 pandemic, a trend matched in most cities across the country.

The campaign had its bizarre moments. Philly Fraternal Order of Police President John McNesby, who once called Black Lives Matter protesters "a pack of rabid animals," showed up to DA Krasner's office in a Mr. Softee's ice cream truck in support of Krasner's Democratic primary challenger, Carlos Vega. Ben Cohen, one of the founders of Ben & Jerry's, then blasted Mr. Softee as "fake ice cream" in his ringing endorsement of Krasner. Vega later seemed to threaten Krasner during an off-mic exchange during a campaign debate, reportedly asking the DA, "you have security downstairs?"

With ice cream flying and the police union crying, Krasner won the May 18 primary anyway—resoundingly, with over 65 percent of the vote.

This makes Krasner a shoe-in for a second term in a heavily Democratic city. His opponent in the formality of a contest against a Republican candidate in November will be defense attorney Charles Peruto Jr. Peruto's campaign website is stranger than fiction, prominently displays a section called "The Girl in my Bathtub," in which Peruto tries to address how his girlfriend of "about six weeks" was found dead from purported alcohol poisoning in 2013. In the original version of this section, since edited after national media coverage, Peruto referred to her death as a "silly thing" in his background.

But how did Krasner win? First, it is worth talking about how he did not win: George Soros's money. When reform candidates win in Democratic DA primaries, that is usually what cable news checks for first. Soros often gives over a million dollars to his preferred candidates. From 2015 to 2019, every Soros-funded DA contender was victorious bar one: Tiffany Cabán in Queens, who received a comparatively paltry $70,000.

Soros did help fund Krasner's re-election campaign, but not with the $1.7 million spent in 2017. This time, his Super PAC only gave $270,000. In other re-election bids of members of the new wave of prosecutors, like Kim Foxx's contest in Chicago, Soros has spent big—like $2 million big—to keep his preferred DA in office. Not so, here.

Vega, no paper tiger, raised $734,000 and also enjoyed significant PAC funding from police unions and similar groups.

Shaun King being a big factor is also unlikely, despite his PAC's endorsement of Krasner and personally door-knocking in Philly. Even though his Real Justice PAC endorsed Krasner, the PACs fundraising capacity is usually quite low. In Bexar County (San Antonio), Texas, King's PAC raised $55,000 in 2018 for successful DA candidate and reformer Joe Gonzalez. That same year, the PAC raised about $30,000 for an unsuccessful Democratic primary candidate in Dallas County, Texas named Elizabeth Frizell. Both of those counties have larger populations than Philadelphia County, which has about 1.5 million residents.

Jeff Asher, a crime data expert who has written for major media outlets like FiveThirtyEight (while failing to disclose being paid by the Jefferson Parish, Louisiana, Sheriff's office), opined that Krasner's victory "seems like an important lesson about the durability of progressive prosecutors. Or the difficulty of defeating incumbents. Or no real lesson."

Perhaps incumbency helped. But there has been weak evidence, at best, that the new reformist DAs enjoy the heavy incumbency advantage that tough-on-crime prosecutors tend to get. That's in part because they only started getting elected in 2015, and they usually get large amounts of Soros money in support of re-election, which muddies the waters as to their actual popularity.

So it seems fair to say that Krasner won the thing organically, even sweeping the areas of the city most impacted by violent crime, despite his own party in Philly refusing to endorse him.

Is the "tough-on-crime" era really over in Philadelphia? It is hard to say. Vega, despite the backing he received, was a terribly weak opponent in a city with a large population of Black voters and a long history of serious injustices, such as the MOVE bombing, perpetrated against the Black community by law enforcement. Vega recently attempted to block the exoneration of one Black man, Anthony Wright, who was wrongfully convicted of murder.

If a plausible tough-on-crimer ran four years from now—for example, a woman of color who tactfully made the case for increased punishment for people who commit acts of violence—then it's possible Krasner wouldn't coast. But for now, the movement to stop relying on prisons and jails to solve social problems can celebrate.

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

Justice Kavanaugh's shameful decision shows contempt for due process and inalienable rights

Chelsea Clinton surprised criminal justice reform activists when she recently backed Color of Change's "Still in Prison" campaign, which sheds light on the impact of Oregon allowing non-unanimous jury verdicts in past felony cases to stand. She did not mince words, stating that Oregon Attorney General Ellen Rosenblum "has the power to topple a racist law. And she must." Thanks to a new Supreme Court decision, AG Rosenblum remains probably the only person who can do it (and she almost certainly won't).

On May 17, a 6-3 majority ruled in Edwards v. Vannoy that a new "procedural" rule, even one that shakes the system to its foundations, cannot be applied retroactively. What that means is, despite the Supreme Court ruling last year in Ramos v. Louisiana that non-unanimous jury verdicts are unconstitutional, nothing changes for people convicted on this basis in the past. Petitioner Thedrick Edwards will receive no relief from his illegal 2007 convictions in Louisiana due solely to the fact he was not convicted after April 20, 2020. Neither will many other incarcerated people in Oregon or Louisiana—the only two states where such convictions still stand. Talk about arbitrary.

Justice Brett Kavanaugh's majority opinion contains a lot to like for prison-loving conservatives who see due process as a technicality, and a lot to dislike for people who value the concept of inalienable rights, or a less politically-charged judiciary.

Kavanaugh covers the bread-and-butter of criminal law jurisprudence to make the point that the injustice of his decision is not anomalous, but pretty common—and thus correct. He explains how, after Duncan v. Louisiana, where the Supreme Court deemed a right to a trial by jury in state criminal cases constitutionally guaranteed, the Court denied an appeal from a man previously convicted without the option of a jury. He also explains how, after Batson v. Kentucky, where the Court found that the right to a jury of peers means litigants cannot strike potential jurors based on race, a man convicted by a jury purged of Black people could not complain.

This is what happens when lawyers become too used to calling the prohibition on prosecutors hiding evidence of a defendant's innocence "the Brady rule," the rule against striking potential jurors based on race "the Batson rule," and so on. Such shorthand for lawyers can be useful—so long as judges analyzing Brady and Batson violations keep in mind that these are constitutional violations, not mere "rule violations." A soccer player may get a yellow card for shoving an opponent or a red for kicking them. But such rule-breaking is of a fundamentally different nature to say, bribing a referee or drugging the other team's water bottles.

Retroactive application of a criminal procedure rule is only for "watershed" rules, according to Supreme Court precedent. But there has only ever been one rule deemed watershed: the one enshrined in Gideon v. Wainwright, wherein the Court guaranteed the right to a defense attorney in criminal cases. That is because the right to a defense was deemed necessary to prevent an "impermissibly large risk of an inaccurate conviction," and it also "altered our understanding of the bedrock procedural elements essential to the fairness of a proceeding."

The majority of the Court never took seriously the fact that the vast majority of the nation's residents couldn't even fathom the idea that a jury verdict doesn't have to mean a jury's verdict, but only the verdict of 10 out of 12 jurors.

The US jury system in criminal court descended from England, which requires unanimous jury verdicts. Non-unanimous criminal verdicts today are unheard of outside of Oregon and Louisiana. To have something "alter one's understanding," that understanding must exist in the first place. It is telling that 12 Angry Men, one of the few truly famous American legal dramas, did not teach us that a majority (or supermajority) of jurors was needed to condemn the suspected killer, but the full 12 of the title.

The Court, or at least the current six justices appointed by Republican presidents, also does not seem to get how permitting 10-2 guilty verdicts is a serious problem for accurately determining people's guilt or innocence. Frankly, trial courts can't even get it right when the requirement is 12-0. In Philadelphia, a city of 1.5 million with a district attorney in Larry Krasner (up for re-election today) willing to keep his eyes open, 24 men convicted of murder have been exonerated and released in the last five years.

In addition, the Innocence Project and prosecutors' own Conviction Integrity Units usually focus on serious cases like rape and murder that went to trial, instead of being disposed of by plea bargain like the vast majority of criminal cases. So it's impossible to know with any certainty how often innocent people plead guilty, but it likely happens more than anyone would like to admit, due to the risk of being punished more harshly for going to trial only to lose.

A non-unanimous jury system intuitively makes it even easier for prosecutors to win at trial because there is no reason for the majority of jurors who believe the defendant is guilty to bother trying to convince the holdouts. Empirical studies of juror behavior show this.

In fact, the desire to strongarm dissenters was the whole point of lawmakers in Oregon and Louisiana lowering the necessary number of jurors voting Guilty from 12 to 10. They did it to undercut the potential impact of Not Guilty votes from jurors of color or minority religions who might trust existing power structures less than others, with good reason.

Our world, as Justice Kavanaugh sees it, is a world with no "inalienable rights," except for the ones the Constitution makes unambiguous enough to require no interpretive work.

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

Why Merrick Garland is a disheartening pick for attorney general

When a government agency is as punitive, secretive and capricious as the US Department of Justice often is, trying incremental reform can feel about as satisfactory as non-alcoholic beer. That was the tack under Obama's Attorney General Eric Holder, Jr., and it almost certainly will be under Biden's choice, Merrick Garland.

Politically, Garland may seem a feel-good choice to fill the role; he became something of a martyr in 2016, when Mitch McConnell blocked the vote on his confirmation for a Supreme Court seat. Many Democrats will take satisfaction in thus getting one over on obstructionist Republican leaders.

Yet elevating political celebrities often fogs up the picture of how people behave in government. And it is clear from Garland's resume that he is no John Lewis or Stacey Abrams Democrat, forging a reputation in the heated arena of civil rights fights. Learning nothing from the successful "progressive prosecutor" movement, Biden has appointed as the nation's "top cop" not a civil rights lawyer or public defender, but someone who appears to be an inflexible supporter of mass incarceration.

Merrick Garland started his legal career in 1977 as a law clerk for Judge Henry Friendly and Supreme Court Justice William J. Brennan, Jr., two of the most famous US judges of all time. After a two-year stint at the US Department of Justice, Garland moved into private practice. Then, in 1985, Garland became a partner at Arnold & Porter, one of the largest and most elite law firms in the country.

Back in that gilded era, that "meant a million [US dollars] or more a year" for partners. But in 1987 the stock market suffered the worst crash since the Great Depression and law partners' wallets took a big hit—typically making around $250,000 by the end of the decade, according to one author. Even so, the dollar was worth around twice as much as it is today, and then-partners worked significantly less than their successors.

In 1989, something deeply unusual happened. Only five years after Congress's highly punitive Sentencing Reform Act of 1984 killed federal parole for all defendants, Garland abandoned his lucrative career in the private sector to become a rookie federal prosecutor.

Even today, new assistant US attorneys make a minimum of $55,756, and best-paid first-years still fall short of six figures. Because of the allure of higher-paying private sector jobs, recruiting and retaining federal prosecutors is a consistent national issue. That is even more the case in high-salary districts like Washington, DC, where Garland started as a prosecutor.

Senator Lindsey Graham (R-SC) remarked in 2006 that federal prosecutors "have got to do it for more [… than] the money, because part of it is just patriotism." Yet, after his rise to federal judgeship, Garland's apparent patriotism seemed code for the idea that the government of the United States is usually right—as comprehensive accounts of his judicial career across many areas of law attest.

Criminal justice reform, including drug policy reform, has for decades been a lowest-rung priority for national-level Democrats. It may therefore be little surprise that Garland has been said to be at his least liberal when it comes to criminal law and procedure.

Evan Lee, a UC Hastings law professor, analyzed Garland's record on criminal justice and procedure issues, concluding that "he's a traditionalist, a moderate-to-conservative in the criminal law and criminal procedure realm." Lee even ventured to say that Garland was less sympathetic toward people caught in the broken justice system than Antonin Scalia—the deceased, highly conservative Supreme Court justice he was slated to replace.

Writing at SCOTUSBlog, Tom Goldstein, an attorney who frequently practices before the nation's high court, explained there are only eight cases where Garland sided with a criminal-case defendant over the government. Notably, he never wrote an opinion vindicating a defendant's constitutional rights.

The harm reduction community can also find many grounds for concern over the prospect of Garland as US Attorney General under Biden. Take the late-1990s case of Talib Watson, a man originally convicted on a drug charge by a prosecutor who misstated evidence before the jury: Garland dissented from a grant of a new trial from the Black man and Black woman who constituted the two-judge majority. (Both federal judges and federal prosecutors are overwhelmingly white men.) In his written decision, Garland quipped that "Although the prosecutor's memory was worse than that of defense counsel, it did not vary significantly from that of the [trial] judge."

Perhaps Garland could afford to write off egregious prosecutorial errors (or, perhaps, even purposeful misconduct) as "innocent misrecollections," as he did in his conclusion. But this was not so for Talib Watson, who had been serving 360 months-to-life in a federal prison.

In another case around that time involving Richard Spinner, who was convicted for selling crack cocaine, Garland argued that the federal prosecutor having introduced irrelevant, prejudicial character evidence could not have mattered to a jury's factual determination of guilt. This was despite the evidence in question—a girlfriend's letter describing "drinking and cursing and laying up"—almost certainly having been introduced to sway the jurors' view of the defendant. In fact, the trial prosecutor cross-examined the girlfriend, then openly speculated in front of the jury that her language in the letter must have been veiled references to the drugs.

Garland also successfully handled some of the most serious criminal cases in modern US history, having prosecuted the people responsible for the Oklahoma City bombing, as well as the Unabomber. But such cases are relative rarities within the total federal prosecution docket. In contrast, drug-law violations represent approximately 30 percent of its caseload. Immigration-related charges alone recently reached a whopping 52 percent. Areas like these form the bulk of what we can expect Merrick Garland to do with his time as AG.

Viewed in isolation, Biden's pick for attorney general appears to be even a regression from the incrementalist approach of Obama AG Holder.

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

Why a city’s new marijuana delivery plan is an important move

During the pandemic, services that deliver food and other supplies have become invaluable. Some companies in the industry, such as the Philadelphia-based GoPuff, also do beer and liquor deliveries for adults. In states like Colorado, where cannabis is legal and regulated somewhat like alcohol, home delivery is the next frontier of a new and thriving industry.

This is exemplified by a new ordinance approved by the council of Aurora, Colorado on December 7, which will allow marijuana deliveries to begin in the city in January. Cannabis delivery is not uncommon in the US, but it is usually a privilege reserved for medical cannabis patients. Aurora appears to be the first Colorado municipality authorizing delivery services for nonmedical consumers. Yet the significance of this measure reaches far beyond customer convenience.

Alcohol and cannabis do not have the same history, even if they both were illegal on US soil at one time. While the notion of illegal alcohol businesses conjures images of 1920s white gangsters, flapper dresses and speakeasies, people who sell marijuana—and above all people of color—have faced arrest, prosecution, and harsh terms of imprisonment for close to a century longer.

State legalization campaigns have often been criticized for centering the white experience and not doing enough to address directly the racist mass enforcement of anti-cannabis laws. In many states, including California, the law forbids people with cannabis-related criminal convictions to receive licenses for cannabis-related business ventures.

That has been true in Colorado, too. In Denver, for example, the legacy of racist enforcement has without doubt contributed to the underrepresentation of Black cannabis business owners and employees, at only 6 percent overall, and the overrepresentation of white cannabis business owners, at 75 percent—figures found by a June 2020 study.

As a result, organizations like Denver-based Color of Cannabis are now fighting to ensure that new laws regulating cannabis businesses are racially just and socially equitable.

Color of Cannabis was involved in the successful push for a new state law that created a category of social equity applicants who would receive first dibs on cannabis business licenses—a person is eligible if they or an immediate family member were arrested or convicted on a marijuana charge. However, Sarah Woodson, a Black cannabis entrepreneur and Color of Cannabis's director, has explained to policymakers that this alone does not solve the inaccessibility problem of this new industry for people of color most impacted by cannabis-enforcement injustices.

Woodson achieved another important win in Aurora, where she helped shape the city's cannabis delivery ordinance. Crucially, social equity applicants will receive exclusive consideration for the first three years of the city's new cannabis delivery program.

This focus on social equity is not without its detractors, however, most of whom cite apparent legal fears. In Aurora, city councilmembers Marsha Berzins and Dave Gruber expressed concern over potential issues stemming from temporarily barring certain applicants from the industry.

But even in a mainstream political climate that is still far from authorizing widespread reparations to marginalized communities of color for everything from the War on Drugs to slavery, fear over the mere risk of hypothetical legal battles should not stop ethical politicians from taking action for equity where they can. The constitutional contours of equity policies even have a significant level of clarity after decades of Supreme Court decisions on the issue.

While, for example, in the college admissions context, explicit racial quotas have been deemed unconstitutional under Gratz v. Bollinger (2003), the Supreme Court decided the same year in Grutter v. Bollinger that admissions criteria benefitting marginalized minority groups are constitutionally permitted—so long as group status is not solely determinative of admission.

It is hard to say for certain that the Aurora ordinance would be iron-clad in court. But it is certainly worth fighting for, given what is common knowledge of the racist history and practice of the drug war.

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

The disturbing and growing reach of Amazon's surveillance

For many, Amazon represents not just a massive online retailer, but the harbinger of a new caste-based society. When Amazon wanted to create its second headquarters in Queens, a huge intersectional coalition of grassroots social justice activists took to the streets to protest. After the coalition gained support from political luminaries like Alexandria Ocasio-Cortez, the corporate monolith gave up its expansion plan in the borough.

One of the major concerns activists brought up was that poorer residents would have been pushed out of their homes in droves, thanks to the skyrocketing real estate prices that would almost certainly follow. But gentrification, whereby these residents are replaced by non-local, higher-wage young professionals from around the country and world, also ironically correlates with local NIMBYism ("Not in my Backyard") and a troubling trend of surveillance.

Amazon Ring is a smart doorbell-camera combo that is now relatively standard fare for newly constructed middle-to-upper class homes, especially in cities. The outdoor camera provides a live feed to the homeowner's smartphone, and also records video footage when its motion sensor is triggered. The camera is often not trained precisely on the doorstep of the home, but extends to the public thoroughfare, especially in urban homes without a large front yard.

Recently, the Electronic Frontier Foundation called out an imminent feature in Jackson, Mississippi, whereby police can tap into Ring footage in real time.

As a result of Amazon teaming up with hundreds of police departments and counting, these devices are increasingly hooked up to police monitors.

Most recently, the Electronic Frontier Foundation called out an imminent live-streaming feature in Jackson, Mississippi, whereby police can tap into the Ring footage of participating residents in real time. The society-as-panoptic prison as envisioned by French philosopher Michel Foucault has never been more real.

While data are still scarce, one can predict that Ring partnerships will not help police solve many serious violent crimes. Instead, the video footage will provide irrefutable evidence for petty violations of law arising from difficult personal circumstances, such as "loitering" as a homeless person, or public drug use. Pro-reform prosecutors are among those who increasingly acknowledge that such "crimes" are public health issues, and that their prosecution creates public harms.

Ironically, Jackson, Mississippi is a Democrat-dominated city, with nominal progressives of color holding both the mayor and District Attorney seats. But "progressivism" is too often seen as compatible with NIMBYism. Mayor Chokwe Antar Lumumba, seemingly in support of this massive escalation in surveillance, explained that "It would save [us] from having to buy a camera for every place across the city." Newly elected District Attorney Jody Owens, who campaigned as a moderate criminal justice reformer, and won despite facing a long list of sexual harassment allegations, has failed to comment on the issue.

NIMBY is shorthand for what is ultimately an ideological system based on exclusion. Those labeled undesirables by the NIMBYs are shunned or persecuted in the name of neighborhood "quality of life" or "historical preservation."

NIMBYism frequently acts directly against harm reduction, as seen for example, in the blocking of Philadelphia's mooted first safe consumption site in the nation, or campaigns against syringe programs. But perhaps the number one manifestation of NIMBYism is the cutting off of new home-building plans, above all when new developments are intended for low- or mixed-income populations.

NIMBYs often hardly bother to conceal the prejudices behind their objections. As Oakland Mayor Libby Schaaf said about hearings related to housing in Cupertino, California after the creation of Apple Park, "These were offensive things that were said during these hearings, about low-income people, 'uneducated' people, moving into the community. That is racist. That is classist. It's NIMBYism, and it does not serve our housing or environmental agenda."

Controlling the housing stock is a great way to ensure homogeneity of race and class in a neighborhood, but still does nothing to stop all kinds of people from shopping, working, walking around or hanging out in the area. That's where police have often become the most important enforcers of a NIMBY agenda.

And now, thanks to the heavy mainstreaming of products like Amazon Ring, NIMBYs do not have to take the risk of going viral for calling the police on a person of color for doing nothing.

It will be important for privacy advocates and harm reductionists alike to keep abreast of Ring developments, especially in Jackson, in the coming months. The desire of some Americans to constantly search for incriminating evidence on people they deem undesirable, often due to race, health status, drug use or poverty, demands constant vigilance in kind. It also makes the decriminalization of drugs more crucial than ever.

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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