Tag Archives: criminal justice

How To Cancel $3.2 Million of Debt for 20,000 People Who Went Through the Carceral System

Originally published in The Intercept on October 29, 2021.
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DOUGLAS HARPER WAS stunned by a piece of mail he got earlier this month. The letter said the $270 he owed in probate debt had been canceled.

“No one should go to jail because they are unable to pay a private probation fee,” the form letter read. “You no longer owe the balance of this particular debt. It is gone, a gift with no strings attached. You are no longer under any obligation to settle this account with the original creditor, the bill collector, or anyone else. … You are not a loan!”

Harper, a 31-year-old man living in Quitman, Mississippi, had been trying to pay off this debt for nearly two years, all while having his driver’s license suspended for the traffic tickets that led him to start accruing debt in the first place. Instead of going to jail for failure to pay his tickets, he was put on probation, which meant he needed to pay at least an extra $25 each month in probate fees.

“I was so happy to get the letter, it was great, it was a blessing,” he said. “Now I can get my license back and go back to my job.” Harper works as a supervisor at an oil field where, he said, driving a commercial vehicle is a job requirement.

The letter, sent in both Spanish and English, was one of 20,500 mailed out this month to individuals living in Mississippi and Florida by the Rolling Jubilee Fund, a nonprofit mutual aid group that buys debt off the secondary debt market to cancel it. The fund is affiliated with the Debt Collective, a national union of debtors which has achieved significant policy wins over the last few years, including pressuring the federal Department of Education to cancel billions of dollars in student loans.

The Rolling Jubilee Fund launched in 2012 as an offshoot of the Occupy Wall Street movement, initially focused on canceling medical, tuition, and credit card debt. The effort went dormant over the last five years as activists turned their sights to other projects they felt would bring about more systemic change. On Friday, the group announced a return to extinguishing debts outright, saying it had canceled $3.2 million in probation debt as “an act of solidarity” amid the Covid-19 pandemic. In the portfolio purchased by the group, the average debtor owed $159. The Rolling Jubilee Fund had been able to purchase all of it for just $97,922.

When the Debt Collective realized that buying and erasing debt wasn’t a sustainable strategy for change, it turned its focus toward building a national union of debtors. “We always knew there were limits to this tactic, but we’ve revived it because of the pandemic,” explained Astra Taylor, the group’s co-founder. “In that sense it’s an echo of 2008, we’re in another economic crisis, but it’s also different now. We can see that people were spending their stimulus checks on debt payments. We know that the non-mortgaged debts of retirees have doubled. We know that payday lenders made a killing over the last year. So we wanted to revive the jubilee for this moment, but a difference this time is also our abolishment of probation debt, which ties us into a whole new domain of criminal carceral debt.”

Canceling Carceral Debt

The $3.2 million in probate debt cancellation isn’t the only announcement the activists made on Friday. Activists also introduced a new online mutual aid tool that will help Californians cancel their bail bond debt. Using this so-called Abolish Bail Debt Tool, individuals who took out bail debt with co-signers will now be able to dispute the payments easily using state consumer protection law. Good data is hard to come by, but the Debt Collective estimates that more than 1 million people across California hold debt from bail bond contracts and that at least $500 million of that was obtained with a co-signer.

Hannah Appel, co-director of the Debt Collective, said the group’s bail tool came out of California organizing they got involved with in 2017, which was focused on other financial penalties from aggressive policing. “We would show up at other community organization meetings and, while there, offer advice on disputing household debt, and folks would say, ‘Yes, it’s great to be able to dispute all these debts that got worse while I was inside but I actually have debts from my incarceration itself. What can you do about that?’” recalled Appel. “And our answer at the time was nothing.”

The median bail bond in California is $50,000, which is five times higher than the national average. Since most people can’t afford that, they turn to private bail companies that typically charge 10 percent of the total bond amount in nonrefundable premiums and fees. While the California Supreme Court ruled earlier this year that conditioning freedom solely on whether an arrestee can afford bail is unconstitutional, the court’s decision does not affect the millions in bail debt still on the books.

The Debt Collective soon learned that Danica Rodarmel, then a fellow with the San Francisco chapter of the Lawyers’ Committee for Civil Rights Under Law, had developed a new legal application of California consumer protection law for these bail bond contracts. Her strategy, which she was testing out successfully with some clients, said that if one is a co-signer of a bail bond, then they should be treated as a credit lender under California consumer protection law. Among other things, California law requires co-signers to be provided with liability notices outlining their rights and obligations; Rodarmel noticed virtually no one was receiving these notices. Failure to give this notice entitles the co-signer to rescind (or cancel) the contract. While bail bond companies argue their contracts are not consumer credit contracts, so far the courts have disagreed.

With some funding from the San Francisco-based Future Justice Fund and the New York-based Justice Catalyst, the Debt Collective hired a legal fellow as well as a new carceral debt organizer and set out to make an online tool that leveraged Rodarmel’s application of the consumer protections, along with exploring other methods of using the laws to get carceral debt canceled.

Debt Abolition

The move into carceral debt and the embrace of “abolition” language is relatively new for the Debt Collective, which launched with a focus on household debts, including mortgages, student loans, medical debt, and credit card debt. Appel says the group originally focused on emphasizing debt cancellation as opposed to debt forgiveness, which suggests that a debtor has done something wrong and needs forgiveness.

“We actually didn’t start using ‘debt abolition’ until much more recently — I think it was in 2019 — and it was a very intentional shift due to our movement work with Critical Resistance,” said Appel, referring to a national prison abolition group. “I credit partners like Ruth Wilson Gilmore at CUNY and Dylan Rodríguez at UC Riverside for moving us on this.”

In “Can’t Pay, Won’t Pay,” a short book the Debt Collective published last year outlining their strategy for change, the group explores how debt abolition is based on similar ideas as prison abolition. “Like prison abolition, debt abolition is a strategy and a vision for a world without—and a world with,” the collective wrote. “Indeed, the two forms of abolition may require one another.”

Discussion of how debt, policing, and incarceration impact one another grew more public in the years following Michael Brown’s death in Ferguson, Missouri. The police killing galvanized what would become the global Black Lives Matter movement. Following Brown’s death, a legal advocacy group, ArchCity Defenders, reported that Ferguson had issued almost 33,000 arrest warrants in 2013 — in a city of 21,000 people — often for trivial offenses like failing to pay a municipal fine or fee. A class-action lawsuit later charged Ferguson with being a modern debtors’ prison, outlining how individuals were routinely jailed for their inability to pay court fees. (That case is still pending.)

Ferguson is not unique. Many cash-strapped municipalities have borrowed heavily over the years to fund basic services. As the Debt Collective highlighted in “Can’t Pay, Won’t Pay,” in order to pay back creditors, cities began more aggressively extracting revenue from some of their poorest residents. Police departments, in particular, began targeting individuals for arrest to help balance their budgets with new fines and fees.

These penalties have not gone unnoticed. In 2020, as the pandemic swept the nation and protests followed the police killings of George Floyd and Breonna Taylor, racial justice activists ramped up pressure on issues related to household and municipal debt. Among other demands, leaders called for rent and mortgage cancellations, moratoria on utility and water shutoffs, and cancellation of student and medical debt.

The Debt Collective’s successes this year in wiping out $3.2 million in probate debt and pressuring the Education Department to cancel billions more in student debt is partly why advocates do not see themselves as proposing something so far-fetched and unrealistic when they call for full debt abolition.

“It’s not an easy task but it’s reasonable,” said Braxton Brewington, a press secretary with the Debt Collective. “And if a group like ours can do this, then surely the government can also negotiate with private companies to take off this debt.”

Just this week Fair Fight Action, the voting rights group led by Stacey Abrams, announced that it too had donated $1.34 million to wipe out medical debt from 108,000 people living in five Southern states. Fair Fight Action gave to RIP Medical Debt, which then erased debt with a collective face value of $212 million that had been sold on the secondary market for pennies on the dollar.

The Debt Collective says its ultimate goal is to destigmatize holding debt and work to organize debtors into leveraging their collective power against companies, banks, and creditors. Unlike labor unions, which have been targets of the right wing for decades, debtor organizing has not really been regulated or restricted. This fact gives debt activists energy. “Debtor organizing has the potential to bring millions of people who may never have the option of joining a traditional labor union into the struggle for economic justice,” the Debt Collective wrote in its book.

Douglas Harper, for his part, feels open to learning more about the debtors’ union now that his probate debt has been canceled. “Yeah I’m interested in maybe getting involved,” he said. “So we can change some of the laws because this is ridiculous. People need a little bit of leniency.”

Newly Elected Michigan Prosecutor Will Stop Seeking Cash Bail

Originally published in The Appeal on January 4, 2021.
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Eli Savit, the new chief prosecutor of Washtenaw County, Michigan (Ann Arbor), announced today that his office will no longer seek cash bail. His policy is the latest victory for advocates nationwide who are working to eliminate financial conditions for pretrial release. It comes on the heels of similar announcements in December by prosecutors in California and Virginia.

Savit, the county’s first new prosecutor in 28 years, ran on ending cash bail during his 2020 campaign. “One’s wealth must never play a role in their detention,” he told The Appeal: Political Report in August.

He is issuing a 20-page policy directive today that cites several reasons for opposing cash bail, including that debtors’ prisons are illegal in all 50 states and that cash bail stands at odds with the country’s legal principle of “presumption of innocence.” 

“We’re very excited about Eli’s no cash bail policy,” said Twyla Carter, national policy director at The Bail Project. “We’d love to see other elected and appointed officials follow suit, and ultimately what we want to see is the decriminalization of poverty, mental health and addiction.”

According to a state task force report released last year, people detained pretrial have comprised roughly half of Michigan’s jail population in recent decades, often because they couldn’t afford their bail. And this sparks great disparities in incarceration. Preliminary analysis by the ACLU of Michigan found that Black people in Washtenaw County were 8.55 times more likely than white people to be incarcerated because they couldn’t pay bail. 

These trends are not unique to Michigan. Nationwide Black and Latinx people are more likely to be incarcerated pretrial than whites charged with similar crimes, and nearly half a million legally innocent people sit in local jails every day, according to an analysis by the Prison Policy Initiative. 

Researchers have found even brief periods in jail can hurt job and housing prospects, negatively impact children, and increase the odds that a defendant will plead guilty. 

Prosecutors don’t set bail themselves, but their recommendations and motions weigh heavily on what judges do. Over the last few years, prosecutors elected on progressive platforms have reformed the use of cash bail, including Kim Gardner in St. Louis, Larry Krasner in Philadelphia, and Rachael Rollins in Boston, especially for lower-level offenses. Studies have found that jurisdictions that have experimented with bail reform have not seen an increase in crime.

“We know from our almost 16,000 bailouts, including in Washtenaw County, that when a defendant’s financial needs are met, when they have rides, text message reminders, child care, they show up to court,” said Asia Johnson, a communications associate at the Bail Project.

But only in January 2020, when Chesa Boudin became the district attorney of San Francisco, did a prosecutor announce that they would no longer request cash bail under any circumstance. 

Others have since joined Boudin. Sarah George, the prosecutor of Vermont’s Chittenden County (Burlington), rolled out a similar policy in September, followed in early December by George Gascón, the newly elected DA of Los Angeles. A few weeks later, Steve Descano, the chief prosecutor of Virginia’s largest county (Fairfax County), announced that his office would also not request cash bail, formalizing a practice he established after taking office a year ago.

“Simply put, cash bail creates a two-tiered justice system—one for the rich and one for everyone else,” said Descano in his recent announcement. 

Still, criminal justice reform advocates are wary of some limits of these prosecutorial reforms and of the continued reliance on pretrial detention, including for factors tied to money.

In Washtenaw County, according to Savit’s directive, prosecutors “can and will” still seek unsecured and surety bonds, which require payment from a defendant or third party if they fail to show up in court or otherwise break the conditions of their release.

Michigan law requires that in some cases judges must impose a cash or surety bond, though Savit’s directive also enables prosecutors to seek secured bonds more broadly. He told the Political Report this would be “very rare.” Surety bonds require a third-party to show they could afford to pay a bond if a defendant breaks release conditions, which hinders the ability of defendants with impoverished families to gain release. In some cases, surety bonds can even require a defendant to provide upfront payment to secure a third party’s intervention, but Savit said he is steering staff away from for-profit commercial bond agents. “It is not appropriate to require a defendant to secure a surety from a for-profit commercial actor,” his directive notes.

“I don’t want anybody to be put in a position where they have to pay upfront money—to the court or a third party—to secure their release,” Savit said. “If surety bonds are being used by courts to require such an upfront payment, we’ll re-evaluate and adjust as needed.”

Phil Mayor, a senior staff attorney with the ACLU of Michigan, says the “knee-jerk reaction” shouldn’t be a threat of financial penalty later in the legal process either. “We need to continue to be worried about the poverty trap that our criminal legal system easily devolves into,” he said, noting that defendants sometimes miss court hearings for fear of losing their jobs, or failing to find child care or reliable transportation. 

Savit’s prosecutors can also choose to recommend the denial of pretrial release for some serious offenses, including murder, armed robbery, and repeat violent offenses. Advocates worry that asking prosecutors to decide who presents a safety risk before they have been afforded a trial poses problems, especially when those determinations are made with algorithmic tools that researchers say are faulty and racially biased. Savit, however, is avoiding the algorithmic tools, and told the Political Report he “consciously chose not to go down that route” because he “read the studies and knows those can often reinforce human and racial biases.” 

Washtenaw  prosecutors will still be permitted to request nonfinancial conditions for pretrial release like drug and alcohol testing, GPS tethers, and in serious instances, oversight by a “responsible” member of the community, though Savit will encourage his staff to articulate specific reasons for seeking such conditions. 

In many jurisdictions the cost of GPS tethers is borne by the defendant, which can either lead to new forms of debt or an inability to leave jail altogether. Savit told the Political Report that while he sees a tether as “far preferable” to forcing someone to sit in jail, he does worry about the costs of the devices charged to the defendant. 

“We need to put our heads together and work collaboratively, and some of this probably will take changes at the state level,” he said. Michigan’s legislature recently enacted some reforms spurred by the state task force on pretrial justice, but lawmakers have yet to tackle bail.

Mayor, who consulted on the new Washtenaw policy, told the Political Report that he had urged Savit to make any pretrial restrictions limited and rare. “I think his new written policy reflects that, but the proof is going to be in the implementation,” he said. “I have strong optimism that it is Eli’s intent to implement things in a way that’s designed for pretrial detention to be the dramatic exception and not the rule, but the test will be in the buy-in from line prosecutors and judges.”

There have been similar concerns in Fairfax, Virginia, where advocates note that an end to cash bail—while positive—will not inevitably lead to justice or even pretrial release.

“What’s been more prevalent in Fairfax is the over-conditioning of release—like requiring a probation officer, mandatory drug testing or mental health treatment,” said Bryan Kennedy, a public defender in the county. “The judges definitely over rely on it, and prosecutors ask for it more than they should.” Kennedy says Descano has also stayed fairly quiet when judges send people back to jail for missing court hearings due to poverty-related issues, and there have even been times when Descano appealed a circuit court’s decision to release somebody pretrial. (Descano told the Political Report that’s “not something that happens regularly.”)

In Virginia, unlike other states, there is also no constitutional right to bail, which means the list of eligible offenses for detention without bail includes everything from driving without a license to murder. Kennedy says he and his colleagues worry that, without addressing that on the state level, judges might just detain more people if cash bail is not an option. 

Descano has called on the state legislature to reform the pretrial system and end cash bail, as did the association of progressive Virginia prosecutors in a letter released today.

Michigan organizers say they will keep an eye on how things unfold in Washtenaw as well.

Trische’ Duckworth, an organizer of anti-police brutality protests in Washtenaw County and the executive director of Survivors Speak, told the Political Report that she’s thrilled about Savit’s new cash bail policy and that she didn’t have to “twist Eli’s arm” to take it on. “He came in with a vision,” she said. 

“But I tell him all the time, ‘I’m watching you,’” she added. “I say, ‘Don’t get your first protest.’”

Washington Governor Vetoes Bill That Would Have Automatically Cleared Criminal Records

Originally published in The Appeal on May 19, 2020.
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When the Great Recession hit in 2008, the unemployment rate among the general public stood at 6 percent. But it stood at a staggering 27 percent among the formerly incarcerated, according to a study by the Prison Policy Initiative —“higher than the overall U.S. unemployment rate during any historical period, including the Great Depression.” As the nation now grapples with the novel coronavirus and tens of millions of newly unemployed workers, individuals with criminal records—upward of 70 to 100 million Americans—are bracing for an even more severe crisis, with heightened difficulties obtaining jobs, loans, and housing.

In that context, criminal justice reform advocates in Washington State were all the more disappointed in April when Democratic Governor Jay Inslee vetoed House Bill 2793. It would have initiated the process of automatically expunging criminal records in nearly 2 million eligible cases.

Advocates have pushed for this type of reform, dubbed “Clean Slate,” around the country. Although expunged records yield major benefits, the vast majority of people who are eligible to get an expungement—over 90 percent of them, according to a University of Michigan study published in 2019—don’t even apply, for a host of reasons ranging from cost and time to legal complexity and a lack of information. Clean Slate bills propose to remedy these obstacles by requiring states to automatically expunge people’s records for eligible offenses. Though specifications vary, these bills typically involve clearing cases promptly if they did not result in a conviction, and clearing convictions after some waiting period.

The economic downturn has amplified the issue’s importance. Applicants with criminal records can be half as likely to get a callback or job offer, research has shown, and nearly nine in 10 employers use criminal background checks when hiring. Even among those who do find jobs, employees with records generally face significant earning penalties, while those with expunged records typically see their wages spike.

Still, in his formal veto letter, Inslee cited COVID-19 to explain his decision to block HB 2793. He argued that given the health and economic crisis wrought by coronavirus, Washington could not afford to move forward with the bill. Despite the research showing automatic record-clearing boosts economic opportunity for vulnerable people and ultimately saves states money, he insisted, “we must prepare for the effects of the lost revenue that will result from this pandemic.”

“To have Inslee veto our Clean Slate bill was really devastating for all of us who worked so hard and continue to make progress toward the relief that so many individuals need help with,” said Tarra Simmons, director of the Washington-based Civil Survival Project, a criminal justice organization led by formerly incarcerated individuals, and the co-chair of Washington’s Statewide Reentry Council. “Austerity is not going to help us in the economic recession.”

Simmons herself was sentenced to 30 months in prison for theft and drug crimes back in 2011. Six years later, when she graduated from Seattle University Law School, the Washington State Bar Association denied her entry into the bar exam, citing her felony record, but Simmons got the state Supreme Court to affirm her right to take the test. Simmons is now a licensed attorney and is also running for the state House.

The final version of HB 2793 was watered down from what advocates had originally proposed. It would have authorized a pilot program of automatic record-clearing in just one county, as well as a study due in December assessing how to implement the policy statewide, given Washington’s decentralized court system. The total price tag, according to the fiscal note, was $1.2 million over two years.

When the coronavirus hit, advocates pressed Inslee to sign the bill even if he couldn’t authorize the funding. Though it was limited, supporters still saw the legislation as essential to get the ball rolling in the state. Major philanthropic organizations like the W.K. Kellogg Foundation, Arnold Ventures, and the Chan Zuckerberg Initiative have supported automatic expungement efforts, and Simmons said they were confident they’d be able to secure private resources for the study if needed.

“He could have passed the policy without the funding piece, and it would have at least compelled state agencies to come to the table and collaborate with us,” Simmons told the Appeal: Political Report. “We said we can still do the report and we’ll figure it out, the cost, as a coalition.”

Nevertheless, Inslee nixed the legislation in full.

Mike Faulk, the press secretary for Inslee’s office, told the Political Report that the governor believes record-clearing is “an important issue” and “would like to see work done to move this forward when there are resources to allow for the work.” Faulk noted that Inslee vetoed many bills that he endorsed to control the budget and emphasized that the governor supports Clean Slate, “regardless of whether it got his signature this time around.”

Washington’s setback stands in stark contrast to the wave of momentum reformers have seen over the past few years when it comes to automatic record-clearing.

Pennsylvania was the first state to pass a Clean Slate bill in 2018, with polling showing over 80 percent of Pennsylvanians backed the idea. The law has had a tremendous impact in a short amount of time: Since it went into effect in June 2019, more than 34 million cases have already been sealed, including more than 80,000 misdemeanor convictions.

Unlike in Washington State, Pennsylvania has a unified court system—meaning that the data was already consolidated from all 67 counties. This aided Pennsylvania’s swift passage of its bill. “It mostly required some programming to make the concept run, and I think the fact that it wasn’t going to cost much of anything was really key,” explained Sharon Dietrich, the litigation director of the Philadelphia-based Community Legal Services.

Then, in 2019, Utah became the second state to pass a Clean Slate bill. California followed suit in October, though unlike in the prior two states, its reform does not apply retroactively. Only eligible offenses that occur after 2021 will be automatically cleared.

California went further than Pennsylvania and Utah in another way, though. Its law will apply not just to misdemeanors, as in these other states, but to some felony offenses as well.

Michigan is also advancing a Clean Slate bill, which passed the state’s House in November; the Senate may still take it up this year. If that bill passes, Michigan would have the first Clean Slate law to clear prior felony offenses. Lawmakers have also introduced bills this year in California, which may expand on its 2019 reform, and in Connecticut.

Advocates are pressing states to speed up consideration of these measures, rather than use the pandemic as a reason to slow it down. Workers with criminal records tend to be among those first fired from jobs and last hired during economic crises, they stress.

“This kind of policymaking is going to be more important—it’s not something that should be left as a COVID-19 afterthought,” said Rebecca Vallas, senior fellow at the Center for American Progress, where she works on automatic expungement. “It needs to be part and parcel of our economic recovery or else we’ll just further compound the inequities we already have.”

Simmons agrees that discriminating against those with criminal records amid the pandemic puts Americans more at risk. “As the illness continues to spread, we need to beef up our essential workforce,” she said. “Folks with criminal records would be well equipped to step into these delivery and grocery roles.”

The federal government may be paying some attention. In 2019, Representatives Lisa Blunt Rochester, a Delaware Democrat, and Guy Reschenthaler, a Pennsylvania Republican, introduced legislation to automatically seal some people’s criminal records. Vallas says she has also heard of bipartisan interest in offering federal support to states that face greater financial and technological barriers to implementing automatic record-clearing than Pennsylvania did.

Reschenthaler told the Political Report in an email that Clean Slate-like legislation is important to battling “the revolving door to prison.” He added, “As we recover from the COVID-19 outbreak, eliminating barriers to employment will ensure formerly incarcerated individuals can fully participate and contribute to their communities to help us reopen America and reignite our economy.”

So far, the federal government has only made it more difficult for people with records to benefit from its economic stimulus package, though, by restricting access to forgivable business loans.

Free Prison Calls Could Be Coming to Connecticut

Originally published in The Intercept on April 2, 2019.
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CONNECTICUT MAY SOON be the first state in the nation to make calls from prison free for incarcerated people and their families, following on the heels of New York City, which became the first city to do so last year. Decades of research have shown that keeping in touch with loved ones while incarcerated greatly improves an individual’s chance for successful re-entry when they are released and that the financial toll of maintaining contact disproportionately falls on low-income family members.

A hearing for the bill — H.B. No. 6714 — was held in Hartford in late March, and advocates are cautiously optimistic it will be voted out of the state’s House Judiciary Committee next week. The bill was introduced by Rep. Josh Elliott, a progressive elected in 2016 to represent Connecticut’s 88th District, and drafted by Worth Rises, a national nonprofit focused on ending the influence of commercial interests in the criminal justice system.

According to a recent report by Prison Policy Initiative, Connecticut charges more for in-prison phone calls than any other state in the nation aside from Arkansas. A 15-minute call from a Connecticut prison costs $3.65, nearly five times the cost of calls from prisons in neighboring states like Rhode Island and New York (71 cents and 65 cents, respectively). Advocates say the high rates are due to Connecticut poorly negotiating its telecommunications contract with Securus Technologies, the national prison telecommunications corporation it has contracted with since 2012.

In addition to making phone calls free, the bill includes language stipulating that if Connecticut implements video conferencing for prisoners in the future — which it doesn’t currently offer, but other states have slowly begun to — then those communications should be free of charge too. The bill also maintains that Connecticut shall not limit in-person visitation if it makes phone calls and video conferences free. (The Prison Policy Initiative estimates that 74 percent of U.S. correctional facilities have reduced or eliminated in-person visitation since implementing video conferencing.)

A Securus spokesperson noted that their company offers not only a way for families to keep in touch but also “critical security features that prevent victim harassment, violent crime and other criminal activity.” With respect to the jurisdictions considering paying directly using taxpayer funds, the Securus spokesperson said, “we welcome discussions regarding financing models with all the agencies we serve, in order to determine the most effective way to pay for technology that keeps people both connected and safe.”

Karen Martucci, the director of external affairs for the Connecticut Department of Correction, said her agency “is supportive of efforts that increase communication between offenders and their loved ones, which will hopefully help to reduce the rate of recidivism.”

State data shows that Connecticut residents pay roughly $15 million annually for prison phone calls, with the state taking 68 percent as a kickback. A spokesperson for the state’s judicial branch testified at the hearing that losing prison phone call commission fees would result in cutting several important adult probation officer positions, illustrating how the state relies on revenue extracted from incarcerated people and their families.

One Republican legislator, Rep. Craig Fishbein from Wallingford, raised objections at the hearing and suggested that the bill would be too expensive and would seemingly allow for unlimited calls every day. He suggested making calls free on holidays like Christmas and Thanksgiving, instead.

Bianca Tylek, the executive director of Worth Rises, dismissed Fishbein’s proposal and told The Intercept that his comments reveal a fundamental misunderstanding of what advocates aim to achieve with the legislation.

“This bill was not introduced so people can talk on Christmas. It’s so family ties can be fostered, which we know leads to so many improved outcomes for children with incarcerated parents, for people on the inside to lower recidivism, and improving re-entry outcomes on the outside,” she said. “None of that is resolved with a few free days throughout the year.”

THE EXORBITANT COST of prison phone calls exacts a heavy psychic price as well. Some prisoners are able to use their meager prison wages to cover the costs, which leaves them with no savings when they finish their sentence. Many, though, must rely on family members to pick up the tab. Every minute they’re on the phone, they’re aware of the literal cost their incarceration is putting on their loved ones, straining the types of relationships that are key to re-entry.

If the state of Connecticut assumed the costs of prison phone calls, Tylek said, it should revise its contract with Securus or another company to be a flat, fixed rate.

“It would be absolutely inappropriate and imprudent for the state to continue to pay for a contract that assumes the liability of costs on a per-minute basis,” she said. “Think about your state legislature. All elected officials have telephones in their offices, and some provider, maybe it’s Verizon or AT&T — that provider isn’t saying to the state legislator you’ll pay on a per-minute basis. In no place in the country are we doing that except in prisons.”

Tylek also dismissed the idea that this would mean people would have unfettered access to phones, noting prisons still need to establish systems so that the phones can be shared equitably. Tylek suggested that a solution may be limiting phone use to 90 minutes per day (or up to six 15-minute phone calls). “We’ve done surveys across the country and found that, on average, 90-120 minutes is what people are looking for, so we might actually look to codify something like that in the bill,” she said.

New York City passed a law in August 2018 to eliminate the charge for prison phone calls, making it the first city to do so; the change is set to go into effect in May. New York City will assume the costs of paying Securus for the phone services and will forego the $5 million it had annually collected in commission fees.

Aside from Connecticut and New York City, other states and cities are now also considering eliminating phone costs on prisoners and their families, including Massachusetts and San Francisco. In November, Shelby County, Tennessee, announced it would no longer charge juvenile detainees and their families for making phone calls; shortly thereafter, in North Carolina, the Mecklenburg County Sheriff’s Office also agreed to stop charging juveniles in custody at county jails for using phones.

The new legislative traction comes after years of activists raising alarm about the high costs of prison phone calls. In 2000, Martha Wright, a grandmother in Washington, D.C., filed a lawsuit against the private prison where her grandson was living, saying that the costs of calling him were unconscionably steep. The court ruled that Wright’s complaint was an issue for the Federal Communications Commission to handle; she then moved to petition them to intervene. In 2013, the agency finally acted, voting to cap rates for interstate phone calls in jails and prisons. Two years later, the FCC also capped the amount an incarcerated person could be charged for calling someone within their state.

The major prison telecommunication providers — including Securus Technologies, Global Tel Link, and CenturyLink — all challenged the FCC’s authority to regulate the rates, and in 2017, the U.S Court of Appeals for the D.C. Circuit ruled against the FCC. As The Intercept reported at the time, the court decision came amid political turnover at the federal agency, with the individual who voted against the FCC’s 2013 proposal, Ajit Pai, having been recently named commission chair by President Donald Trump. Pai praised the D.C Circuit for agreeing with him that the FCC overstepped its authority.

Last month, the National Consumer Law Center issued a new report detailing consumer abuses wrought by private companies that extract profits from the criminal legal system and highlighted the kickbacks that cash-strapped governments accept in exchange for things like offering exclusive contracts.

Report author Brian Highsmith, who testified in favor of Connecticut’s bill to make prison phone calls free, told The Intercept that it’s important for the public to understand that this is not just a criminal justice issue, but a fiscal policy and consumer protection issue too.

“Candidly, that changes the advocacy strategy,” he said. “One of the reasons we have arrived at this moment, in having created a system of mass incarceration and social control, is because it’s very easy for people to imagine that this stuff doesn’t affect you, and so many of these abusive practices have escaped widespread public awareness.”

While Highsmith thinks there can be a role for the federal government to play, he emphasized that many of these exploitative policies are set at the state and local level, and so will have to be tackled with laws like the ones proposed in Connecticut.

“This all really gets at the intersection of two of the worst trends,” he said. “One is offloading tasks to the private sector, which comes with reduced accountability and transparency, and the other is cost-shifting,” where governments rely on bails, fines, and fees imposed on people who interact with the criminal legal system to cover the costs of policing.

Florida Has Been Stealing Votes From Black People Since The Civil War. That Could Change In November.

Originally published in The Intercept on September 6, 2018.
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One in ten eligible voters in Florida are effectively disenfranchised, thanks to a draconian law that bars former felons from voting and a broken clemency system. When it comes to black voters, the numbers are even more grim: More than 20 percent of otherwise eligible black voters from Florida cannot cast a ballot. In total, more than a quarter of all disenfranchised felons in the entire country are in the Sunshine State.

But this November, Florida voters will have a chance to reverse that by weighing in on Amendment 4, a constitutional ballot measure to restore voting rights to an estimated 1.5 million Floridians who have fully completed their felony sentences. Florida is just one of three states in the U.S. that indefinitely bans citizens with felony convictions from voting.

Amendment 4 is the results of years of grassroots work by Florida organizers, but it’s also part of recent nationwide push on this front. In 2016, the Democratic Party put in its party platform for the first time a commitment to restore voting rights to formerly incarcerated individuals. Earlier that same year, the Democratic-controlled Maryland legislature overrode the veto of Republican Gov. Larry Hogan and restored the right to vote to more than 40,000 former prisoners still on probation or parole. Also over the course of 2016 and 2017, Virginia’s Democratic Gov. Terry McAuliffegranted clemency to more than 168,000 former felons.

Constitutional amendments in Florida require least 60 percent approval to pass — no easy objective. In 2012, for example, there were 11 constitutional amendments on the ballot, and Florida voters rejected eight of them.

But a slew of early polling bodes well for supporters of Amendment 4: In February, a Quinnipiac University poll found 67 percent of Florida voterssupported the idea of restoring voting rights to individuals who have committed a felony and completed their sentences, while 27 percent opposed it. Another poll released in May found that 74 percent of voters say they’d back Amendment 4. However, a poll released in June by the Florida Chamber of Commerce found that just 40 percent of voters approved of Amendment 4, with 17 percent opposed and 43 percent undecided.

The passage of Amendment 4 would be monumental to the vast majority of former felons in the state, but some would still get left behind; it does not provide restoration for those convicted of murder or sexual offenses. There’s a pragmatic rationale behind that: A measure that allows someone who, say, committed a robbery to vote again is much easier to sell politically than one that re-enfranchises someone convicted of rape. The amendment also has the full-throated support of Andrew Gillum, the Democratic candidate for governor who won an insurgent victory in last week’s primary. (Floridians energized by Gillum’s nomination are likely to vote in favor of the amendment.) His Republican opponent, Rep. Ron DeSantis, stands in opposition.

Disenfranchising criminals has a legal history that dates back well before the existence of the United States. Sean Morales-Doyle, a counsel in the Democracy Program at the Brennan Center for Justice, said the practice was prevalent in English common law and can likely be traced back to ancient Rome.

“It comes from an outmoded concept of government and criminal justice, that if you commit a crime you become an outlaw, and in addition to potentially being subject to the actual death penalty, it is appropriate for you to suffer a ‘civil death’ and no longer be allowed to participate in society in any way,” he said.

While some states adopted criminal disenfranchisement in their early years, Morales-Doyle said many did not, and there was a lot of variation during the United States’s formative years. However, in the period immediately following the Civil War, interest in felon disenfranchisement grew far more pronounced, especially in the South. Following the ratification of the 13th, 14th, and 15th Amendments, African-Americans received a wave of new rights, freedoms, and — importantly — political power, which were wholly opposed by many whites. States began to push for ways to undermine these new protections, like restrictions on voting for people convicted of crimes that black people were more likely to be found guilty of, thanks to a criminal justice system that was rife with racial prejudice. For example, South Carolina lawmakers barred those convicted of “thievery, adultery, arson, wife beating, housebreaking, and attempted rape” from voting, but not those convicted of murder or fighting. By 1869,29 states had enacted such policies.

This included Florida, which enacted a constitutional provision to indefinitely ban former felons from voting. It’s remained on the books ever since. “It was passed in 1868, after an unsuccessful attempt by Florida and other states to reject the 15th Amendment,” says Morales-Doyle. “So Florida passed a constitution with universal male suffrage — as required by the 15th Amendment — but then included some other provisions to undermine it, and one was the felon disenfranchisement provision.”

In the last half-century, many states have moved in the opposite direction. Though Maine and Vermont are the only two states that allow currently incarcerated individuals to vote, it’s just Florida, Iowa, and Kentucky that still permanently bar all citizens with felony convictions from voting. But many states still have other sorts of restrictions: Nationwide, more than 6 million Americans are barred from voting due to a felony conviction. According to the Sentencing Project, more than half have fully completed their sentences, another quarter are under probation or parole, and another quarter are still in prison. While 1 out of every 40 U.S. adults is barred from voting due to a former or current felony conviction, one in 13 African-American adults is disenfranchised.

Florida’s system for clemency has been mostly unchanged since the 1880s, but it grew even stricter in 2011, when newly elected Republican Gov. Rick Scott issued new rules requiring citizens with a felony conviction to wait at least five years before filing for clemency, including the restoration of voting rights — a process that often takes a decade or more.

Nearly five years after taking office, Scott had issued clemency to fewer than 2,000 Florida citizens, while over 20,000 applications remained pending. The number of disenfranchised Floridians has meanwhile continued to grow. Between 2010 and 2016, nearly 150,000 more were disenfranchised, bringing the total to about 1.7 million, according to the Sentencing Project. (This figure includes people who are still serving out their sentences, who would not be covered by Amendment 4.)

There have been some unsuccessful legal attempts in the past to strike down Florida’s voting ban on citizens with felony convictions. In 2000, the Brennan Center filed a class-action suit on behalf of more than 600,000 Florida citizens, arguing that the constitutional provision was discriminatory, and a violation of the 14th and 15th Amendments, and the Voting Rights Act of 1965. The federal district court for the Southern District of Florida agreed, but the U.S. Court of Appeals for the 11th Circuit in 2005 rejected it on appeal, saying the plaintiffs had failed to prove clear discriminatory intent.

A couple years later, the state started to make progress on its own. Former Republican Gov. Charlie Crist, who was in office from 2007 to 2011, granted automatic clemency for people completing sentences for certain felony convictions. More than 115,000 Florida citizens had their voting rights restored between 2007 and 2008, and by the end of his four-year term, more than 150,000 people with felony convictions regained their right to vote. (Crist is now a Democratic member of Congress.)

But within three months of taking office, Scott repealed the Crist-era reforms and issued even stricter barriers for voter restoration. He has earned a notorious record for voter suppression even beyond felon disenfranchisement, including signing a law in 2011 that reduced the window for early voting in Florida. (Facing immense public outrage, Scott and the legislature reversed course on this in 2013.)

Voting rights activists are pushing back on multiple fronts against Scott, who is now running for Senate. In addition to Amendment 4, there’s a class-action lawsuit winding through the courts — Hand v. Scott — that is trying to change the Florida voter restoration process while avoiding making the same legal argument about discrimination that failed in 2005. The Fair Elections Legal Network is representing former Florida felons who completed their sentences. The plaintiffs argue that the process used by the Florida clemency board to determine who should get their right to vote back is arbitrary and violates the equal protection clause of the 14th and 1st Amendments. In February, U.S. District Judge Mark Walker agreed. “Disenfranchised citizens must kowtow before a panel of high-level government officials over which Florida’s Governor has absolute veto authority,” Walker wrote in his opinion that struck down the state’s clemency system. “No standards guide the panel. Its members alone must be satisfied that these citizens deserve restoration.” In March, he ordered Scott to revamp Florida’s system by the end of April.

The state appealed to the 11th Circuit, putting a hold on Walker’s order. The case remains pending.

Amendment 4 is a chance to try something new — a grassroots, citizen-led effort in which the power for change is in front of voters, not judges and elected officials.

Activists started collecting petition signatures in 2015, under the banner of Floridians for Fair Democracy. Led by Desmond Meade, who was convicted of several drug charges and later completed a 15-year prison sentence for possession of a firearm as a felon. Organizers collected more than 799,000 certified signatures from registered voters in all 27 congressional districts, surpassing the minimum 766,000 signatures needed to get on the November 6 ballot.

Neil Volz, a former chief of staff to Republican Rep. Bob Ney — the congressman sentenced to jail in 2007 for corruption charges — pleaded guilty in 2006 to conspiring to corrupt public officials. Volz paid a fine and did community service, and never served time in prison, but when he moved to Florida in 2008, he realized he was unable to participate fully in his community. When he met Meade in 2015, Volz said, he quickly decided to get involved in the voter restoration effort. Today, he serves as political director for the Florida Rights Restoration Coalition, a grassroots organization led by returning citizens. “While collecting signatures I met people from all walks of life, from all over the state, from all political backgrounds, who were close to the pain of this policy,” Volz told The Intercept. “This is just about second chances.”

THE CAMPAIGN’S MESSAGING around second chances, however powerful, has its limits. Under Amendment 4, that redemptive message is not being extended to those who have been convicted of felony sex offenses or murder.

Gail Colletta, president of the Florida Action Committee, a state affiliate of the National Association for Rational Sexual Offense Laws, said that she supports Amendment 4, but her group opposes the exclusion of the over 70,000 citizens currently on Florida’s sex offender registry.

“The bottom line is that they leave this population out of anything that’s positive because they have a distorted view as to who people who are,” she told The Intercept. “They look at every sex offender like they’re a Ted Bundy.”

Colletta notes that while the criminal justice system looks at drug offenders and even murderers on a graded scale, society paints sex offenders with a broad brush. “It doesn’t matter what you did, they treat you all the same with a lifetime of punishment,” she said.

Critics note that by excluding sex offenders and murderers from the November amendment, these populations will become even further stigmatized than they already are.

“This country was built on Christian-Judeo values and in my understanding, that means people deserve a second chance,” Collette said, “but here we’re willing to throw [sex offenders] under the bus for politics.”

Darryl Rouson, a Democratic member of the Florida Senate, has long been a proponent of voter rights restoration. Prior to Amendment 4 making it to the ballot, Rouson himself introduced a now-withdrawn amendment to the state constitution. It would have excluded not only sex offenders and murderers from automatic rights restoration, but 12 additional categories, including kidnappers and armed robbers.

“It would have still covered about 70 percent of the people currently disenfranchised,” Rouson told The Intercept. “I felt mine was a reasonable compromise in a state that has not indicated sensitivity to the issue of voting rights.” Passing Amendment 4 a “critical, moral issue,” he added.

When asked why the drafters of Amendment 4 opted to exclude those who committed sex offenses or murders, Volz told The Intercept that that’s “what the people wanted” and that their campaign has “been listening to people at every step along the way so we knew [those exemptions] needed to be included in the initiative.” But the petition language has remained the same since organizers began collecting signatures, and it could not have been changed based on public feedback after the drive began in 2015. “We’re focused on moving this forward, in the healthiest, broadest way that we can,” Volz said, declining to answer more specific questions. (Meade did not return multiple requests for comment on this issue.)

It’s not clear when the 11th Circuit will rule on the Hand v. Scott case, but if Amendment 4 passes, Jon Sherman, senior counsel at the Fair Elections Legal Network, said the lawsuit would be rendered moot, because all the plaintiffs would regain their right to vote.

Morales-Doyle of the Brennan Center said creating exemptions for specific convictions is an exception to the larger trend of how voting rights restoration is playing out elsewhere across the country, in part because of the unique political circumstances in Florida.

“The discussion around felon disenfranchisement is more typically around ‘when does the restoration come?,’” he said. “Is it after you’ve paid off all your legal obligations, as soon as you’re released from prison, or whether you’ve completed probation and parole?” Morales-Doyle pointed to New York, which is one of the few states left in the country where citizens still lose their right to vote while on parole. (In April, Democratic Gov. Andrew Cuomo announced he intends to restore voting rights to the more than 35,000 felons on parole.)

“The sense of fairness is central to the question of rights restoration, the idea that if you’ve served your sentence, you should be allowed to vote,” he says. “I think what’s happening in Florida, making it contingent on the crime, is unique.” He pointed out that Florida faces some unusual political circumstances, with its anomalous rate of felon disenfranchisement, and the tough 60 percent threshold needed for an amendment to pass.

“Without passing judgment on whether that was the best place to come down, my point is just that there has to be a really broad base of support for this amendment, so the question of who will be won over by what policy is what led to the current moment,” he said.

With the election just two months away, Volz said campaign organizers will continue to hold events, educating the public about the importance Amendment 4 and rights restoration.

Rouson, the state senator, said it’s been hard for activists to sustain focus on the initiative while the primaries loomed. “We legislators could all do more to raise awareness around this issue, and there are grassroots champions across the state doing the work, but I also think the attention of the voters was divided because of the primary,” he said.

There are 13 constitutional amendments on the Florida ballot this cycle. “The worry is that voters will get ballot fatigue, under-vote, or not vote on everything,” Rousen said. “We need to educate voters early and often.”

Reeling from a Murder Spike, Baltimore Grasps at a Gun Bill

Originally published in CityLab on September 22, 2017.
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Across the country—from Louisiana to Iowa to Massachusetts—so-called “mandatory minimum” sentencing is increasingly out of favor. These are laws that require certain penalties for people convicted of specific drug or firearm offenses. A powerful bipartisan consensus has emerged around the idea that mandatory minimums are ineffective (and expensive) deterrents, as well as racially discriminatory and unlikely to reduce recidivism.

In part, the bill’s success reflects the pressure that the city’s legislators are under to do something—anything—to curb the violence. As the Brennan Center for Justice has reported, violent crime is at historic lows nationally, but no such decline can be found in Baltimore: As of this writing, 253 people have been murdered since January. In 2015, Baltimore’s violent crime rate was more than four times the national average, and its murder rate was more than 11 times the national average. Right now, Baltimore’s murder toll exceeds that of New York City, which has about ten times the population. 

“I by no means think this is a comprehensive solution to gun violence,” says city councilman John Bullock, widely seen as the deciding vote. He recognized the public’s concern with mandatory minimum sentencing, which is why he introduced the amendments to weaken it from its original form. Councilman Eric Costello, who voted for the bill and has said the amended version is “not as strong” as he would have liked, declined a request for comment; Council President Jack Young, who also backed both versions, did not return requests for comment.

Critics of the bill are frustrated with the city council’s rationale to pass a measure that has no evidence to support it.

“The easiest thing for elected officials to do is pass a new criminal law, make sentences longer, add mandatory minimums,” says Molly Gill, vice president of policy for Families Against Mandatory Minimums. “That may give them a feeling of accomplishment, but it’s not going to solve these very complicated problems of why we have violence, gun crimes, and murders.”

Mark Kleiman, an NYU public policy professor and an expert on drug and criminal justice issues, calls the $1,000 fine “gibberish.” Quoting the infamous politician syllogism, he says, “We must do something, this is something, therefore we must do it.”

Among those who testified against the mandatory minimum bill this past summer was Dayvon Love, director of public policy for the Baltimore nonprofit Leaders of a Beautiful Struggle. He points to the support from the Greater Baltimore Committee, a business advocacy group, as key to the bill’s success. “I suspect they are trying to attract more wealthy, white people to invest and come to Baltimore, and the murder rate is merely an impediment to them doing business,” Love says. “They could care less if this bill would have the possibility of destroying the lives of black people who become more prone to violent activity because they were sucked into the criminal justice system.”

Illegal gun possession is highly correlated with the future risk of committing a murder, and Daniel Webster, director of the Johns Hopkins Center for Gun Policy and Research, does think illegal gun possession is a serious crime and is a major contributor to Baltimore’s homicide rate. Ultimately, though, he did not support the measure passed by the city council, principally because he says there’s no evidence that it would be effective. “It’s rather surprising that there is no solid research that answers the question of what happens if you adopt a mandatory minimum for illegal gun possession,” he says. Most existing research has focused on drug-related arrests.

Webster thinks the city does need to have better consequences for illegal gun possession, but that the consequences should be driven by better arrest and prosecution, rather than at the tail end of the sentencing process. In Baltimore only about 40 percent of arrests for illegal gun possession end up in a conviction or guilty plea. A Baltimore Sun analysis found that about one-quarter of cases are dropped even before defendants go to trial. And though the Baltimore Police Department has improved its homicide clearance rate in 2017 compared to recent years, Webster notes that the past two years have led to many unsolved murders and nonfatal shootings. “When shooters are not locked up, they are emboldened and ripe for being shot themselves,” he testified recently in Annapolis.

Proponents of mandatory-minimum sentencing have taken to placing blame on Baltimore city judges. “At the end of the day, we don’t impose sentences and don’t implement bails,” State’s Attorney Mosby said last year. “We can make a recommendation. But it’s not on us.” In an op-ed that counseled against “reflexively recycling the regressive strategies of the 1980s,” former deputy attorney general of Maryland Thiru Vignarajah noted that leaders who blame the courts are essentially echoing tactics deployed by President Donald Trump, who has repeatedly tried to discredit the judiciary, even threatening judges at times.

Yet this month in Baltimore, the city council voted 8-7 in favor of establishing a new mandatory minimum penalty for individuals caught carrying an illegal gun. The proposed legislation originally would have imposed a one-year jail sentence on first-time offenders caught carrying a gun within 100 yards of places like churches, schools, and parks. After public protest, the bill was weakened to add just a $1,000 fine to existing state law, which already imposes a one-year minimum sentence on second-time offenders. The legislation (in both its original and final form) was backed by the city’s police commissioner, Kevin Davis, along with Mayor Catherine Pugh and Baltimore State’s Attorney Marilyn Mosby—who all also advocated unsuccessfully over the last two years for new statewide mandatory minimums.

“Mandatory minimum sentences are shortcuts we don’t need as prosecutors,” says Vignarajah. “We should be able to walk into a courtroom and explain why a sentence is appropriate and have faith in our judges to determine where a specific defendant falls on the spectrum between a violent repeat criminal and someone who needs a second chance. Mandatory minimums are unduly rigid and strip away discretion that judges need.”

Todd Oppenheim, a public defender in Baltimore who opposes the mandatory minimum measure, says that in his experience most defendants who would be affected by the bill are young and/or first-time offenders, not the “repeat violent offenders” who tend to dominant the debate. “The possession of a handgun is considered a violent offense, but I don’t see it as one because I know the circumstances under which my clients come into possession of it,” he says. “Like drugs, a lot of my clients don’t understand that you can possess something without it being on your body.”

The Baltimore Police Department, by contrast, emphasizes that in the past 18 months, 60 percent of the 605 convicted gun offenders had had more than half their sentence suspended by a judge, and more than 100 people were arrested on handgun charges at least twice. The mandatory minimum “isn’t about mass incarceration or locking up more people,” Commissioner Davis testified in July. “It’s about holding the right people accountable.”

Still, there are alternative ideas.

With a new grant from Bloomberg Philanthropies, Johns Hopkins’s Daniel Webster is currently working with the state’s attorney’s office and the police department to develop new training protocols that will help strengthen the prosecution of illegal firearms. “First we have to have good policing that is done in a way to identify illegal gun possession without doing illegal searches and unconstitutional policing,” he says. “And then we need to have solid evidence that is useable to bring convictions.”

Dayvon Love emphasizes investments in community-based solutions, “where violence is prevented by people who are in closest proximity to the violence.” Leaders of a Beautiful Struggle’s recommendations include more funding for Safe Streets Baltimore, which uses a public-health strategy of employing ex-offenders as to mediate neighborhood disputes. In studies, the model has shown to be effective, but Baltimore’s program has drawn controversy in the past due to allegations of criminal activity by program workers. Love also cites efforts like the Baltimore Ceasefire movement and local violence prevention centers.

Gill, of Families Against Mandatory Minimums, points out that the number of full-time law enforcement officers per 1,000 Baltimore residents fell 14 percent between 2003 and 2015, and even more in 2016. “Mandatory minimums are incredibly expensive—prison is not cheap,” she says. “It might be a better investment to put more squad cars on street corners than to jack up sentences.”

In other words, the answer doesn’t have to be a year in jail, but the assumption that there will be some consequence to breaking the law. “Right now a lot of people figure I’ll just take my chances,” says Webster.

Kleiman of NYU thinks policymakers should be considering things like 9 p.m. curfews. “It’s the perfect sanction in the sense that it’s salient, it’s aversive, and it doesn’t interfere with family duties and employment,” he says.

Ironically, on October 1, a major new statewide law—the Justice Reinvestment Act—goes into effect, and it will significantly reduce mandatory minimum sentences for non-violent offenders throughout Maryland. The law, which was signed in May of 2016, was widely seen as the broadest criminal justice legislation to pass in decades, representing a major shift away from “War on Drugs”-era policies.

“There’s a progressive movement to move away from incarceration for nonviolent offenses,” says Oppenheim. “But when it comes to violent offenses—and the definition of violence I think is subjective—leaders still harbor the old-school mentality. They don’t have any real ideas, and it helps them get elected.”

Why DeRay Mckesson’s Mayoral Candidacy Will Be Defined Far More By Education than Policing

Originally published in Slate on February 12th, 2016.
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News of mayoral runs usually don’t merit the attention that Black Lives Matter activist DeRay Mckesson got when he announced his candidacy for Baltimore’s top job last week. His campaign had leaked the story to the Washington Post, the New York Times, and the Guardian in advance, and within 24 hours, he had already crowd-funded $40,000.

National publications began speculating how Mckesson’s candidacy would elevate police reform onto Baltimore’s political agenda, the implication being that it wasn’t already a top priority in the race. It absolutely is: Nearly 10 months after the death of 25-year-old Freddie Gray in police custody, and after one of the most crime-ridden years Baltimore’s seen in decades, few topics are more prominent. So what, exactly, will Mckesson bring to the election?

Mckesson joins 12 other Democrats competing in April’s primary, the winner of which will almost certainly go on to win in November. But though Mckesson’s large Twitter following may be eager to see how he’ll carry his national Black Lives Matter work into Charm City, I suspect they’ll be in for a surprise. What’s going to distinguish Mckesson probably won’t be policing and criminal justice at all—it’ll be education.

Nationally, school reform is an issue that confounds political partisans, opening fault lines among progressive allies and uniting constituencies that typically never agree. Reform is even more complicated in Baltimore; the city stands as a distinctively unusual landscape for education politics next to other, similar urban centers.

Already, Mckesson has signaled that he plans to campaign on education, which isn’t surprising since that’s where the 30-year-old cut his professional teeth. After graduating college, he spent two years teaching sixth graders in Brooklyn followed by several stints with education nonprofits, reform organizations, and administrative district jobs. But Mckesson brings to the race some national baggage, which he’ll have to confront as he tries to make his case to Baltimore voters. Specifically, residents have already raised questions about his ties to national reform groups like TNTP and Teach for America, as well as his enthusiastic support for charter schools.

So far, Mckesson has largely dismissed these concerns. He’s reminded the public that he’s spent several years working with the Baltimore school district as an administrator focused on staffing personnel. Still, he’ll have to reckon with local education politics that have changed substantially since he left his job back in 2013.

For example, a few months ago a coalition of charter operators filed a lawsuit against the school district over funding—a highly controversial move that’s divided Baltimore public school families. The city is also in the midst of closing down more than two-dozen schools, and the next mayor will need to determine what becomes of the vacant buildings. Will they be sold off? Will they be leased to charter schools? Will they be repurposed into some other civic entity? These decisions are sure to intensify an already-fraught K-12 landscape.

The main thing to grasp about Baltimore’s education environment is that it’s pretty unique. All charter teachers are unionized, unlike most charter employees in other states. Moreover, Maryland charter schools—which are predominately mom-and-pop institutions, not larger charter-school chains—are subject to more oversight and regulation than charters elsewhere. While reformers say they’d like to see Maryland charters freed from these legal constraints, supporters of the status quo say that tougher oversight explains why Maryland charter schools have never wrought the kind of fraud, mismanagement, and abuse found in other jurisdictions.

What Mckesson will soon have to decide is whether he is committed to keeping Baltimore’s charter sector as is—with unionized teachers, a close relationship to the school district, and substantial oversight—or join the coalition of charter operators and national education reform groups that seek to significantly revamp chartering in Maryland. That decision may also force him to choose between competing groups that may try to back him. Some national charter networks have expressed disinterest in setting up shop in Baltimore, namely because they don’t want to work within the school district and employ unionized teachers. The National Alliance of Public Charter Schools, a D.C.-based organization, consistently ranks Maryland as the worst charter school state in the country, largely for these same reasons.

Yet within Baltimore, both traditional teachers and charter teachers alike strongly support Maryland’s charter law—and rallied together last year to protest reformers’ attempts to change it. The Center for Education Reform, another national group, hired lobbyists to push for loosening Maryland’s regulations. They were ultimately unsuccessful, but the fight is expected to resurface again soon.

On Friday, Mckesson released his education campaign platform—a substantive list of proposals ranging from expanding early childhood education to strengthening college and career readiness programs. He calls for increasing the school district’s transparency (a common theme among all the candidates) and more equitable state financing. He notably doesn’t mention anything about unions or charter schools, but Mckesson won’t be able to shy away from that charged debate for long.

When news broke that Mckesson would be running, some Baltimore activists, particularly those who have been fighting for police reform, protested on Twitter—a surprise to some outside the city, given his national stature within Black Lives Matter. Among other things, locals argue that Mckesson lacks sufficient relationships with the communities he now seeks to lead.

In many ways, their critiques mirror those that veteran public school educators level at Teach for America—that outside young teachers without roots in the cities they work in displace those who have more of a right, and need, to be there. And despite Mckesson’s early campaign efforts to brand himself as a “son of Baltimore,” some local activists have said they’ve rarely seen him fighting alongside them in the causes they’ve been invested in for years, like building independent black institutions and weakening the Maryland police union. (Mckesson defended himself against these charges, saying “there are many ways to engage in the work.”)

A few weeks ago, 11 Democratic candidates gathered together for a mayoral forum to discuss their political vision for Baltimore. One audience member asked the candidates, “How will you stop police from killing black people?” Answers varied somewhat, but all in all, they were broadly similar. The candidates spoke of strengthening civilian review boards, getting body cameras on all police, transforming the way Baltimore recruits and trains officers, establishing more transparent accountability systems, pushing for more police to formally live within the city, mandating cultural diversity training and regular psychiatric evaluations, and calling for convictions for those who break the rules.

In other words, Mckesson is entering a crowded field of candidates who likely share many of his police reform policy goals. Some hope that Mckesson’s candidacy will encourage others to articulate even sharper campaign proposals. Perhaps, and that would be a good thing. But it was already an issue that no candidate was really ignoring—and certainly one that no future mayor can expect to avoid.

So despite to Black Lives Matter’s national work, that aspect of his candidacy is unlikely to be too disruptive in the race. It’ll be where his campaign intersects with the school-reform movement, and specifically how local education politics rub up against his national ties, that could really shake things up.

How Baltimore Is Reacting to the Start of the Freddie Gray Trials

Originally published in VICE on December 1, 2015.
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Photo Credit: Rachel M. Cohen

It was cloudy and chilly outside the Mitchell Courthouse in Baltimore on Monday morning at the opening of the trial for William G. Porter, one of the six police officers charged for the April death of 25-year-old Freddie Gray. The other five implicated officers will have their own trials over the next several months; the prosecution reportedly sees Porter as a “material witness” who could be useful against the others. Baltimore State Attorney Marilyn Mosby charged the six officers in May after weeks of protests and riots that upended the city.

The trials begin at a fraught time for the city, as Baltimore has seen a dramatic spike in homicides this year, with 311 murders so far in 2015—100 more than the city saw in all of 2014. Meanwhile, police killings of people of color continue to generate outrage across the country, leaving Baltimore activists to wonder exactly how much they’ve accomplished since Gray’s death and the tumult that followed.

The “Baltimore Uprising”—as local activists call it—began just over a year ago, on November 25, 2014. That’s when protesters gathered downtown to protest Darren Wilson, the white police officer who shot and killed Michael Brown in Ferguson, Missouri, not getting indicted. Local activists recognize that the death of Freddie Gray carries as much significance for the national Black Lives Matter movement as other high-profile killings, and on Saturday, they held their own rally in solidarity with activists in Minneapolis and Chicago.

It’s been challenging for Baltimore activists to keep up their energy and momentum over the past seven months, but residents and public officials are bracing for a new wave of energy as the trials for the officers accused of ending Gray’s life heat up.

“The people from West Baltimore’s poorest communities are still reeling from how the Freddie Gray incident was handled by the powers that be,” says Perry Hopkins, an organizer with Communities United, a local grassroots organization. “The majority want justice, but openly say [that] if officers only get a slap on the wrist, this city had better be prepared to experience another thwack on the hand. They mean it.”

When I asked Hopkins if he thinks that means the community will begin protesting again if the officers are not convicted, he said, “Yes they’ll protest…and in many different fashions.”

A few handfuls of activists convened with signs and banners at the courthouse Monday, where metal barricades blocked off the areas protesters typically use to congregate. Some grew angry at what they felt were attempts by city officials to thwart their First Amendment rights. Still, those within the courtroom could hear protesters’ chants from the street.

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Photo Credit: Rachel M. Cohen

Sharon Black, a leader with the Baltimore People’s Power Assembly, told me that it feels like there’s a great deal of confusion right now, even among some of the most committed activists in town. “We’ve been phone-banking, and our sense is that people are a little bit confused about what’s actually going on,” she said. This makes sense given the complicated legal process, and the fact that the presiding judge imposed a strict gag order last month on the lawyers involved in the case.

“People are sort of saturated with news, and there’s a bit of wearing down in terms of energy,” Black said. “The bigger response from the public may only come after the trials have concluded.”

Legal experts have expressed doubt that the officers will be convicted, and city officials are preparing for the likelihood that residents could revolt if they feel justice isn’t served. Police Commissioner Kevin Davis says his department has spent nearly $2 million on new police riot equipment—including vans, protective gear, shields, and helmets—since the unrest over Gray’s death this spring. Davis replaced the former Baltimore police commissioner, Anthony Batts, and the police department underwent a significant reorganization over the summer.

Mayor Stephanie Rawlings-Blake told the Baltimore Sun that city officials are having “constant conversations and planning sessions” to prepare for, and prevent, potential riots. “Community members certainly don’t want the city to erupt in violence again,” she said. More than 250 businesses were damaged after the April protests, almost 150 vehicles were burned, and roughly 60 buildings were set on fire.

“People in Baltimore still want to see justice for Freddie Gray, that has not changed one bit since April,” said Andre Powell, a protestor who stood outside the courthouse Mondaymorning. “Yes the mood was much more heightened directly after the incidents but people are closely watching what’s going on.”

Porter, the first officer on trial, has been charged with manslaughter, second-degree assault, reckless endangerment, and misconduct in office. Officer Porter reportedly asked Gray if he needed a medic while traveling in the police van, but thought he might be lying to avoid going to jail when Gray said yes. The officer is a 26-year-old Baltimore native who’s been on unpaid leave from the Baltimore Police Department since posting his $350,000 bail earlier this year.

A spokesperson for the Baltimore police union on Monday told VICE they were unavailable to comment on the trial. In general, however, the union has expressed outrage at the indictment of the six officers, and has called on State Attorney Marilyn Mosby to recuse herself from the case. The president of the union, Gene Ryan, called the city’s $6.4 million settlement deal for the family of Gray, approved in September, “obscene.”

On Monday, the court proceedings were focused on selecting a panel of impartial jurors for the case. Porter’s attorneys have argued that finding a truly fair jury will be impossible in Baltimore, and that the trial must be held elsewhere.

There is new evidence to suggest that Marylanders outside of Baltimore hold rather different views on the Gray protests than those who live within the city. A recent pollfound that Baltimore voters are more likely to say that racism and the lack of jobs are the biggest reasons for the unrest after Gray died. Voters across the state, on the other hand, are more prone to saying it was due to residents’ “lack of personal responsibility.” The same poll found that 63 percent of Baltimore voters supported Mosby’s handling of the case, compared to 38 percent of voters statewide.

The presiding judge, Judge Barry G. Williams, a black man who previously prosecuted police misconduct for the federal Justice Department, said he would reconsider moving the trial out of town only after the court makes a serious effort to find a fair crop of jurors within the city. Williams made clear that he thinks it’s important for people to be tried by “their peers.” And trying the officers within the city, many have noted, should help lend the court proceedings greater legitimacy. “One way to ensure that a community accepts a jury’s verdict is for the jury to reflect the entire community’s diversity,” University of Maryland law professor Douglas Colbert told the Sun.

Residents and civil rights leaders will closely monitor the proceedings, and the local NAACP chapter plans to have a court watcher in attendance for the full duration of the trial. A great deal is riding on the outcome of these trials, and for better or for worse, everybody in Baltimore knows it.

 

The Growing Movement to Restore Voting Rights to Former Felons

Originally published in The American Prospect on August 7th 2015.
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Rachel M. cohen

SEIU 1199 

Rachel M. Cohen

       

On August 6, the 50th anniversary of the Voting Rights Act, dozens of Baltimore ex-felons rallied and marched alongside community members to protest their disenfranchisement. In May, Maryland Governor Larry Hogan vetoed a bill which would have granted ex-felons the right to vote when they return home from prison, rather than making them wait until after their probation and parole sentences have been completed (some sentences can last for decades). Holding up signs that read, “We Want Taxation with Representation!” and “End the New Jim Crow!” protestors made clear that they understand the racial implications of the status quo. Had Hogan signed the bill into law, 40,000 more Maryland residents—a majority of them black Baltimoreans—would have been able to cast a ballot in the next election. “Override! Override! The veto! The veto!” protestors shouted together as they marched down the street.

The crowd, well over 100 people, eventually gathered around a statue of Thurgood Marshall, not far from Baltimore’s Inner Harbor. “We picked that spot because he’s one of the greatest symbols of justice and fairness,” explained Perry Hopkins, an ex-felon who now works as an organizer with Communities United, the social justice group that planned Thursday’s rally. Fifty-four-year-old Hopkins has never voted.

While Baltimore has made national headlines this year for its police brutality scandals and its spiking murder count, the gathered crowd recognized that these issues cannot be separated from the societal exclusion African-Americans experience every day.

One woman who came to the rally was Robinette Barmer, who has had two children and one grandchild locked up in jail. Barmer has been fighting for ex-felon voting rights all year, and traveled to Annapolis last spring to push for the bill’s passage. “I try to tell ex-cons that their voices do still matter,” she said.

Greg Carpenter, a 62-year-old black man who served 20 years in prison for an armed robbery, also has a 20-year parole sentence. Although Carpenter has been out of jail for 12 years now, he worries he won’t ever get to vote again in his lifetime.

Governor Hogan said that requiring ex-felons to finish their parole and probation sentences before voting “achieves the proper balance” between repaying one’s obligations to society and restoring citizens’ rights. Ex-felons point out that they are both working and paying taxes within their communities, and thus should also have the right to vote.

Social science research suggests that removing voting restrictions would provide positive benefits to both ex-offenders and society at large. The American Probation and Parole Association also says there is no credible evidence to suggest that disenfranchising people who have returned home from prison serves any legitimate law enforcement purpose.

According to the Sentencing Project, a criminal justice advocacy group, there are roughly 5.85 million disenfranchised American citizens with felony convictions, and 2.2 million of them are black. That’s one out of every 13 African-Americans.

The Voting Rights Act was passed in 1965 to end discriminatory voting barriers but the courts have disagreed on whether the VRA should apply to felon disenfranchisement laws. Maryland activists aren’t waiting around for the courts, though. At Thursday’s rally, organizers prepped the crowd for next year’s legislative season where they hope to push for an override. “We need you to show up and come out with us to Annapolis,” said Nicole Hanson, an ex-offender who works with Out4Justice, a group that politically mobilizes ex-offenders. “There’s only 90 days of [the legislative] session, so we’ll need you to make some sacrifices.”

Eighteen states considered loosening ex-felon voting restrictions this year, up from 13 states in 2014. But passing legislation, as Maryland activists witnessed first hand, is difficult. Only one state—Wyoming—ended up successfully loosening its restrictions.

Still, there has been demonstrable progress. The Sentencing Project estimates that nearly 800,000 citizens have regained the right to vote through voting reforms enacted between 1997 and 2010. Last month, President Obama even said that, “If folks have served their time, and they’ve reentered society, they should be able to vote.”

“This is a very peaceful rally, but this issue is personal,” Hopkins said in an interview. “We’re going to flip power, and we’re going to empower. We’re going to show the governor who’s the boss. We’re the boss! We’re the people.”

Rachel M. Cohen

Perry Hopkins at the podium