Will Pennsylvania make police body camera footage impossible to obtain?

By Matt Stroud, Criminal Justice Researcher/Writer, ACLU of Pennsylvania

Any new iteration like SB 976 of 2016 would limit citizens’ ability to obtain body camera footage. Photo from WESA.

Pennsylvania’s state legislature is again considering policies that govern police body cameras. In the fall, the state Senate passed Senate Bill 976 — an attempt to standardize policies for “recordings by law enforcement officers.” But the session ended before the House could consider it for a vote. There are now indications that some version of SB 976 could come up again for consideration.

At a glance, last session’s bill looks reasonable. It would let police officers record inside a private home when a body camera has been activated, and it would clear up confusion over whether officers are required to inform everyone in a public place that they’re being recorded when a body camera is turned on. But there’s a problem: The bill would also make it nearly impossible for citizens to acquire the kind of footage that has exposed disturbing police overreach, lead to dropped civilian charges, and forced criminal proceedings against police officers in other states.

Under this previous proposal — introduced by Senator Stewart Greenleaf, along with two former cops, Senator Randy Vulakovich and Representative Dom Costa — body camera footage would be withheld under the state’s Right-To-Know Law if an agency made the decision that the footage was part of an ongoing investigation. Such a rule could render most relevant footage inaccessible, since one imagines that most of the sought after footage will connect to incidents that have already begun to receive scrutiny. The old bill would also allow agencies to charge $250 for the right to appeal a decision to withhold footage.

And it would also deny any request made by anyone who can’t identify every individual in the video.

On that last part: The argument to support a requestor identifying individuals in a police video revolves around protecting the privacy of crime witnesses and onlookers. Why shouldn’t policy be written, the argument goes, to protect the rights of those who don’t want to be identified? It turns out that there’s an answer to this question that doesn’t involve making footage impossible to obtain.

Companies such as Taser International — which provides body cameras and video evidence infrastructure to several Pennsylvania police departments — offer a monthly subscription plan that includes automated redaction, and in fact uses as a selling point how remarkably easy it is to redact video for records requests. Just a reminder to the legislators who will be mulling over a new version of this legislation in the new session: The RTKL’s redaction section states that agencies “may not deny access to the record if the information which is not subject to access is able to be redacted.”

ACLU-PA’s Communications Director, Andy Hoover, told The Legal Intelligencer in October that SB 976’s public access rules amount to a “byzantine process.” As many smart people like Hoover have written before, it’s a good idea to establish consistent policy around police body camera use. But shielding body camera footage from public view won’t help to increase transparency, and it won’t force police to “document how officers conduct themselves,” as Senator Greenleaf told the Intelligencer that body camera footage might do.

On the contrary, if legislation like the old bill becomes law, it would make police transparency in Pennsylvania akin to body camera footage: all but impossible to obtain.

IN OTHER NEWS

(Criminal justice news that could use a second look.)

Wait times for prisoner mental health treatment have not improved, says Vic Walczak, ACLU-PA’s legal director. Photo from The Inquirer.
  • From The Philadelphia Inquirer: “A year after ACLU settlement, little change in delays for court-ordered mental-health treatment”

“In a bid to reduce the amount of time spent waiting in jail by mentally ill individuals declared incompetent to stand trial, the Jan. 27, 2016, settlement required the state to create 60 new treatment spots within 120 days and an additional 60 spots within 180 days. Plus, within 90 days of the agreement, the state was supposed to make $1 million available for supportive housing in Philadelphia, the settlement said. Spent on housing vouchers, that money was expected to provide 50 to 80 beds. Given the DHS’s lack of transparency, it’s unclear exactly how much of that has been done.”

“Pennsylvania has a problem. According to a recently released report initiated by the state House, ‘The Commonwealth’s rates of expulsion and out-of-school suspension are higher than the national average. Further, studies have shown that excessively punitive discipline for misbehavior can result in long-term consequences for the children involved, especially the youngest ones… Policies relating to expulsion and out-of-school suspension are those in need of the most scrutiny.” On October 28, Pennsylvania’s Joint State Government Commission, the research service for the state legislature, released Discipline Policies in Pennsylvania’s Public Schools. The study, a year in the making, was developed at the request of the PA House (House Resolution 540).”

“The system was developed to help law enforcement fight drug dealers, and Lebanon County District Attorney Dave Arnold said it’s a “critical” tool for cutting off their ability and financial motivation to sell drugs. But some people who lose property, like Elizabeth Young, may not be involved in drug selling at all. If people try to rescue their property, critics say they enter a complex and confusing legal process with the deck stacked against them. Since it isn’t a criminal case, there are few legal protections, no right to an attorney, and no presumption of innocence. And critics say police departments are making a profit in the process.”

“Much of the increase in the prison population has been driven by the war on drugs. Some legislators acknowledge that mass incarceration has not solved the problem. [ACLU-PA Communications Director Andrew Hoover] says now they need to do something about it. ‘There hasn’t been the kind of restructuring of sentencing that’s necessary to fulfill that promise, to make drugs more of a public-health issue than a criminal issue,’ he added.”

THE APPEAL — The Appeal is a weekly newsletter helping to keep you informed about criminal justice news in the Commonwealth of Pennsylvania and beyond. If you’d like to receive this weekly newsletter, you can subscribe here.

JOIN— The ACLU of Pennsylvania’s mailing list to stay up to date with our work and events happening in your area.

DONATE — The ACLU is comprised of the American Civil Liberties Union and the ACLU Foundation. The ACLU Foundation is the arm of the ACLU that conducts our litigation and education efforts. Gifts to the ACLU Foundation are tax-deductible to the donor to the extent permissible by law. Learn more about supporting the work of the ACLU of Pennsylvania here.

Is the commonwealth doing enough?

By Matt Stroud, Criminal Justice Researcher/Writer, ACLU of Pennsylvania

Philadelphia’s Eastern State Penitentiary has been closed since 1971. Pennsylvania’s prison secretary wants to close two more prisons.

(Excerpt from Andy Hoover’s Closing prisons isn’t a good thing or a bad thing. It’s a thing.)

Last Friday, Department of Corrections Secretary John Wetzel announced that the DOC will close two state prisons. He identified five finalists for closure.

Closing prisons is a good thing if it’s happening for the right reasons. Governor Tom Wolf said the closures would save the commonwealth money during a time when strains on the state budget are significant. Wetzel said transferring the inmates from closed prisons would be manageable.

But what happens when the department puts the same amount of people into a smaller space? A prison is like a small town of a few thousand people. Any time the population increases significantly in a short amount of time, it has the potential to strain resources and services.

We and our allies have raised concerns about the impact on the living conditions of inmates. John Hargreaves of the Pennsylvania Prison Society told PennLive, “When they run out of space, the dayrooms and the gyms are filled up with beds,” he said. “Those are the places the inmates go to get out and let out steam.” Since 2009, the population of Pennsylvania’s state prisons has decreased by 7.6 percent, from a peak of 52,000 to its present population of 48,000. The decrease amounts to roughly the population of two prisons..

Which sounds good. But is the commonwealth really doing enough to lower prison populations?

Other states have been more serious about ending mass incarceration than Pennsylvania has. Mississippi decreased its population 17 percent in two years by reforming its parole system. In Pennsylvania, the legislature and then-Governor Tom Corbett repealed our early release program in 2012.

Sometime this month, the Justice Reinvestment Initiative, a project initiated by the commonwealth’s three branches of government to analyze data on the criminal justice system and to offer recommendations for a more efficient system, will release its final report. At a meeting last month, researchers for the project stated that, if every recommendation is implemented, our state prison population will drop one percent by 2022. That hardly qualifies as bold thinking.

Closing prisons is not a good thing or a bad thing. It’s just a thing. In our work on mass incarceration, the closing of prisons has never been an end unto itself. It’s a result of the goal we seek, and the goal we seek is a common-sense approach to sentencing and parole policy. If that’s why two state prisons are closing, that’s great. If the DOC does not carefully monitor conditions for the same amount of people in fewer spaces, then they can expect to hear from us and our allies again.

Read the full article here.

IN OTHER NEWS

(Criminal justice news that could use a second look.)

Terrell Thomas lost his brother to gun violence. Photo from PublicSource.

  • From Public Source: “The ‘new Pittsburgh’ takes root on the Hilltop. But gun violence remains.”

“Everybody wants to hide behind this mask that we’re doing the best we can,” said Carrington, founder of Voices Against Violence and a resident of Beltzhoover. “You’re full of shit. We’re not doing anything.”

“The accused guards coerced the incarcerated women into the sex acts by giving them extra privileges or threatening to take away privileges or throw them in the restricted housing unit, the suit says. When they were free, the guards manipulated them into having sex by threatening to have their probation revoked, the suit says. Two of the women say they tried to report the abuse to other guards and prison officials. Rather than help them, the guards harassed and berated them and actively helped the abusive guards conceal the assaults, the suit says.”

Read the second amended complaint of the lawsuit here.

  • From The Inquirer: “Shooting of deliveryman results in largest police settlement in city history”

“Hanvey and Farrell told investigators they approached Holland because they saw him walking past a Chinese restaurant on 51st Street and asked a witness on the street where the gunshots she’d heard had come from. They said the woman had pointed toward Holland and said the shots came from where he was walking. But the woman later told police investigators she had only pointed toward the Chinese restaurant, and didn’t mention a man at all.”

THE APPEAL — The Appeal is a weekly newsletter helping to keep you informed about criminal justice news in the Commonwealth of Pennsylvania and beyond. If you’d like to receive this weekly newsletter, you can subscribe here.

JOIN— The ACLU of Pennsylvania’s mailing list to stay up to date with our work and events happening in your area.

DONATE — The ACLU is comprised of the American Civil Liberties Union and the ACLU Foundation. The ACLU Foundation is the arm of the ACLU that conducts our litigation and education efforts. Gifts to the ACLU Foundation are tax-deductible to the donor to the extent permissible by law. Learn more about supporting the work of the ACLU of Pennsylvania here.

Pennsylvania Commission Releases Informative Study of School Discipline

By Harold Jordan, Senior Policy Advocate, ACLU of Pennsylvania

Pennsylvania has a problem.

According to a recently released report initiated by the state House, “The Commonwealth’s rates of expulsion and out-of-school suspension are higher than the national average. Further, studies have shown that excessively punitive discipline for misbehavior can result in long-term consequences for the children involved, especially the youngest ones… Policies relating to expulsion and out-of-school suspension are those in need of the most scrutiny.”

On October 28, Pennsylvania’s Joint State Government Commission, the research service for the state legislature, released Discipline Policies in Pennsylvania’s Public Schools. The study, a year in the making, was developed at the request of the PA House (House Resolution 540).

The Commission was tasked with doing a comprehensive study of school discipline policies, state laws and regulations and memoranda of understanding between law enforcement and school districts. A focus was to be on the effects of discipline on students with disabilities and those under 12 years of age. Finally, it was asked to make recommendations for policy and legislative reform.

Overall, the report is thoughtful and informed. It nicely complements the ACLU of Pennsylvania’s statewide report, Beyond Zero Tolerance: Discipline and Policing in Pennsylvania Schools.

The report states that PA ranks 20th and 13th in the nation in the percentage of students that are respectively suspended and expelled.

While not a full blueprint for reform, the report offers many important policy recommendations. In my view, the most important ones are these:

  • Minimize the use of exclusionary discipline and law enforcement intervention and move toward a system of evidence- or research-based alternatives.
  • Lower Pennsylvania’s expulsion and out-of-school suspension rates and clarify that expulsion and out-of-school suspension are reserved for only the most serious of offenses.
  • Restrict out-of-school suspensions or expulsions of children under the age of 10 to those circumstances when the discipline is based on conduct that is of a violent or sexual nature that endangers others, and provide services to return the child to the classroom as soon as possible.
  • Change the language of the MOU school districts are required to have with law enforcement to eliminate mention of offenses where notification is discretionary. I’ve long argued that that the current language encourages districts to report incidents they are not legally required to report. The Commission uses a different argument to reach the same conclusion.
  • Use pull-out discipline programs (known as “alternative education for disruptive youth”) sparingly and only for the most disruptive students. Remove from the definition of disruptive “disregard for school authority, including persistent violation of school policy,” as too vague and subjective.
  • Change Act 26 (PA’s zero tolerance law) so that it is much narrower, modeling the federal Gun-Free Schools Act.
  • Adjust the funding formula for state school safety grants, so that a smaller percentage goes to funding School Resource Officers vs. other programs, including those that reduce the use of exclusionary discipline.

The report falls short, though, in how it tackles the epidemic of student arrests and racial disproportionality in discipline. The report fails to mention that PA ranked first in the nation in the rates of student arrest — the ultimate form of exclusion — during the same period in which it ranked well above average in other forms of exclusionary discipline. Also, while it acknowledges racial disproportionality in discipline rates and arrests, it does little to address its possible causes and remedies.

A final irony in the report is that it defines zero tolerance so narrowly that it struggles to explain why suspension and expulsion rates are unacceptably high. The report is correct in identifying as a problem the fact that some districts have added non-firearms infractions to the list of zero tolerance offenses for which there is mandatory exclusion. But this is only one piece of the explanation for the high rates of exclusionary discipline.

“Zero tolerance” has come to refer to the phenomenon of using exclusionary discipline for alleged infractions that aren’t at the level of serious safety concerns involving weapons or significant injury. This expanded meaning is widely accepted, including by groups like The Council of State Governments. With the adoption of zero tolerance approaches came a dramatic rise in the use of out-of-school suspensions for dress code violations, lateness, and a whole host of infractions not involving weapons and not resulting in significant injury.

The lesson is this: If you don’t correctly identify the policies that contribute to these rates, you cannot make the reforms that would be needed to bring them down. This larger “culture of zero tolerance” accounts for much of the racial disparity and for the overall high suspension rates in many districts. Perhaps it is time we broaden the definition of “zero tolerance.”

On a constructive note, the Commission recommends that the Pennsylvania Department of Education increases its monitoring of discipline data and, where problems are identified, be empowered to require districts in question to establish Disciplinary Policy Review Committees. These committees would have 50% their membership be “parents and advocates who are representative of the population subject to disciplinary exclusions and law enforcement referrals.”

The Commission is to be commended for producing an informative report and accompanying draft legislation. Hopefully, lawmakers and school decision makers will engage the serious issues it raises.

Get the full report and executive summary

Originally posted at EndZeroTolerance.org

Abu-Jamal Hep C treatment victory will benefit 7,000 PA state prison inmates

By Matt Stroud, Criminal Justice Researcher/Writer, ACLU of Pennsylvania

A federal judge has ordered Pennsylvania’s Department of Corrections to provide Mumia Abu-Jamal with hepatitis C treatment. Photo via The Inquirer.

In a victory for some 7,000 Pennsylvania state prison inmates, a federal judge this week ordered that Mumia Abu-Jamal — the activist and radio journalist serving a life sentence at a state prison in Frackville — should be treated for his hepatitis C infection.

Hepatitis C is pervasive in prisons; in Pennsylvania, about 14 percent of the state’s prisoner population is infected with it. But the only cures are produced by Gilead Sciences Inc., AbbVie Inc., and Merck & Co., which charge as much as $94,500 for complete treatment. In a remarkable opinion by Middle District Judge Robert D. Mariani, the judge was unmoved by the cost, which could rise to as much as $600 million if every one of Pennsylvania’s infected state prisoners receives treatment. “The only conceivable injury [the Pa. Department of Corrections] will suffer is monetary,” the judge wrote.

“As a result of the grant of this injunction,” he continued, “Defendants will be required to treat Plaintiff with expensive medication. While the Court is sensitive to the realities of budgetary constraints and the difficult decisions prison officials must make, the economics of providing this medication cannot outweigh the Eighth Amendment’s constitutional guarantee of adequate medical care.”

Bret Grote of the Abolitionist Law Center in Pittsburgh — which also collaborated with ACLU-PA on its recent lawsuit against Allegheny County Jail for its treatment of pregnant women — told The Inquirer that judge Mariani’s ruling was the first time “a federal court has ordered prison officials to provide an incarcerated patient with the new [hepatitis C] medications that came on the market in 2013.”

Grote and co-counsel Robert Boyle have no expectations that the case is over.

“We expect an appeal,” Grote wrote on Facebook following the opinion’s release, “but for now this is a major victory.”

IN OTHER NEWS

(The Pennsylvania criminal justice news that could use a second look.)

Bias is inevitable in criminal risk scores. ProPublica found that Bernard Parker, pictured left, was determined to be high risk; Dylan Fugett, on the right, was low risk.
  • From The Morning Call: “Glitch puts felony charge on Fountain Hill Man’s record”

“Ernesto Galarza went to court twice and won. He stood trial on a drug conspiracy charge and a Lehigh County jury found him not guilty. The New Jersey native sued the officials who improperly held him as an illegal immigrant after his arrest and changed the way local law enforcement agencies work with federal immigration authorities. But more than eight years after he was arrested at an Allentown construction site where police suspected his boss was selling drugs, the experience is still dragging him down.” Read more about Galarza’s 2010 ACLU case here.

  • From NBC News: “To End Decades on Death Row, [A Pennsylvania] Inmate Makes an Agonizing Choice”

“‘James Dennis entered a no-contest plea, not a guilty plea, because he maintains the same position that he has maintained for 25 years: that he is innocent of this crime,’ one of his lawyers, Karl Schwartz, told the judge. ‘He and his family have made this incredibly difficult decision based on his and their strong desire to have him home and free, [in] lieu of potentially years of continuing litigation.’ The no-contest plea is not uncommon in claims of wrongful conviction. It allows prosecutors to keep a conviction without a new trial. The defendant, meanwhile, acknowledges there may be enough evidence for another guilty verdict but can still claim innocence.”

  • From ProPublica: “Bias in Criminal Risk Scores Is Mathematically Inevitable, Researchers Say”

“Defendants inaccurately classed as ‘high risk’’ and deemed more likely to be arrested in the future may be treated more harshly than is just or necessary, said Alexandra Chouldechova, Assistant Professor of Statistics & Public Policy at Carnegie Mellon University, who also studied ProPublica’s COMPAS findings. Chouldechova said focusing on outcomes might be a better definition of fairness. To create equal outcomes, she said, ‘You would have to treat people differently.’ Chouldechova’s paper, ‘Fair prediction with disparate impact: A study of bias in recidivism prediction instruments,’ was posted online in October. Chouldechova is continuing to research ways to improve the likelihood of equal outcomes.”

  • From The Wall Street Journal: “Why Some Problem Cops Don’t Lose Their Badges: [An] examination shows how states allow some police officers to remain on the force despite misconduct”

“Pennsylvania has reported no officer decertifications since 2012 and just 31 in the past 12 years, according to data the state provided to the Journal. Cpl. Adam Reed, a spokesman for the Pennsylvania agency in charge of decertification, said the state’s law is ‘very specific’ as to when an officer can be decertified and the agency ‘does not act as an “internal affairs.”’

THE APPEAL — The Appeal is a weekly newsletter helping to keep you informed about criminal justice news in the Commonwealth of Pennsylvania and beyond. If you’d like to receive this weekly newsletter, you can subscribe here.

JOIN— The ACLU of Pennsylvania’s mailing list to stay up to date with our work and events happening in your area.

DONATE — The ACLU is comprised of the American Civil Liberties Union and the ACLU Foundation. The ACLU Foundation is the arm of the ACLU that conducts our litigation and education efforts. Gifts to the ACLU Foundation are tax-deductible to the donor to the extent permissible by law. Learn more about supporting the work of the ACLU of Pennsylvania here.

New Website Explores the School-to-Prison Pipeline and How to End It

By Harold Jordan, Senior Policy Advocate, ACLU of Pennsylvania

endzerotolerance.org is a new website from the ACLU of Pennsylvania

Every day, we hear from advocates, reporters, educators, and students asking questions about how to find the best resources on some aspect of school discipline and policing. Whether from an advocate preparing testimony for a school board meeting or a reporter digging into a story when an incident occurs, folks want to know how to get accurate and up-to-date information and analysis.

Today, the American Civil Liberties Union of Pennsylvania is launching a comprehensive national website on the school-to-prison pipeline, which can be found at both www.s2pp.org and www.endzerotolerance.org.

In crafting the site, we reviewed countless requests for information and documents that have come in, especially since the publication of our report on school discipline and policing in Pennsylvania, Beyond Zero Tolerance.

This site is the place to go to get up-to-date resources and commentary on how to keep young people in school and out of the justice system. It is loaded with presentations and sample materials, and to links to videos, podcasts, policy statements, research reports, and media stories. In a few cases, we have taken official data and produced simplified spreadsheets illustrating a trend.

While reforms have been implemented in a growing number of communities, the culture spawned by “zero tolerance” remains very much alive. Today, “zero tolerance” refers to the array of policies and practices that mandate or facilitate the removal of students from school under a broad range of circumstances, not principally (or just) in response to weapons violations. Therefore, our site is named “End Zero Tolerance.”

Additional features include:

  • Q and A on school discipline and policing
  • Using Data — a guide to how to obtain and use data, plus links to summaries of recent trends
  • Policing in Schools — news and analysis plus information about students arrests and examples of policy reforms
  • Special sections for educators and for advocates on how to implement reforms
  • What’s New –a blog about recent developments and new resources

Whether you want to research the issues, or to learn about successful campaigns and local work to improve school communities, this site is a great place to start.