Rory Fleming

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.

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.

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