Why tout debunked deterrence myths?

By Elizabeth Randol, Legislative Director, ACLU of Pennsylvania

Photo via Dave on Flickr.

Pop quiz: can you name a crime that carried a mandatory minimum sentence in Pennsylvania? Can you name the minimum sentence for that crime? No? Don’t worry, you’re in good company — 66% of your fellow Pennsylvanians didn’t know the answer either. If most people can’t name a single crime or the minimum sentence it carries, then it defies reason (and established research) that mandatory minimums deter crime.

And yet this past week, district attorneys from the west to the southeast of the commonwealth touted this debunked deterrence myth in their support for HB 741, a bill that would reinstate mandatory minimum sentences in Pennsylvania. For over two years, Pennsylvania has been without them — but not because we repealed them. Mandatory minimums were invalidated after the PA Supreme Court ruled that the process we used to impose them was unconstitutional. But supporters of this bill, including many district attorneys, want mandatory minimums back, claiming that they are an important tool in fighting crime and keeping the public safe.

What they fail to mention are Pennsylvania’s existing and exhaustive sentencing guidelinesthat already establish benchmarks for criminal sentences. In fact, HB 741’s mandatory minimums are nearly identical to sentences recommended in the guidelines. And judges sentence criminals within those guidelines 90% of the time. But legislators and district attorneys would have us imagine that without mandatory minimums, violent criminals risk being sentenced to a slap on the wrist. When the press asked about this wrist-slapping, district attorneys were unable to cite even one case that resulted in an overly lenient sentence.

But not everyone in the criminal justice community believes that mandatory minimums are an effective public safety measure. PA Secretary of Corrections John Wetzel recently argued against reinstating mandatory minimums, namely because they don’t make the public safer. They fail to deter crime or reduce recidivism, they legislate decision-making best left to judges, and, if this bill passes, they would balloon the prison population, resulting in an estimated increase of $85M annually to cover incarceration costs.

District attorneys and the legislators who support HB 741 threaten to put Pennsylvania on a collision course with reform efforts that are now standard throughout the United States. Don’t let them move Pennsylvania backwards with an ineffective, outdated, and one-size-fits-all approach to crime. We cannot arrest our way out of this problem.

Please contact your state representative next week and urge them to vote NO on HB 741.

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

Eagles safety Malcolm Jenkins (left) prepares to speak to Democratic members of Congress on March 30, 2017. Photo from The Daily News.

  • From The Daily News: “Eagles’ Malcolm Jenkins visits Congress to push criminal justice reforms”

“Along with Jenkins, they all said they hoped to use their experiences and their platforms as athletes to make the issue a priority during a busy Congressional session. ‘We’re here to use our leverage, our voices, to make sure that our families, our communities, our kids are a priority to the people here on Capitol Hill, to this administration, to the rest of our nation,’ Jenkins told seven Democratic members of Congress during a public forum. He said he got involved in the issue after seeing the widely-publicized incidents involving police and minorities last year. He met with the Philadelphia police commissioner and community groups, joined protests during the national anthem at Eagles games — holding his fist aloft — and recently visited a state prison in Graterford, Pa. He argued that the current criminal system is costing too much money, due to the number of people sentenced to prison, and ‘creates doubt and distrust’ between police and the communities they work in.”

  • From Harold Jordan of the ACLU of Pennsylvania in The Post-Gazette: “Don’t arm school police”

“A Post-Gazette editorial (‘Arm the Officers,’ March 24) and the Pittsburgh Federation of Teachers executive board resolution both put forth troubling arguments that are at odds with what we know about school policing. The most immediate impact of arming school police would be felt by students, as school-based police spend the bulk of their time interacting with students in non-emergency situations. Having officers patrol the hallways with firearms sends a negative message to students. It makes many students feel that they are being treated like suspects. It can have an intimidating presence and can contribute to negative attitudes about police, in general. There is no evidence that arming school officers increases overall safety or improves relationships within school communities. Having an armed officer stationed in schools has neither prevented nor stopped ‘active shooter’ incidents. It did not at Columbine High School nor has it elsewhere. Thankfully, these tragic situations are still rare in schools.”

  • From ACLU of Pennsylvania: “Attorney General Sessions’ Interpretation of Immigration Law is ‘Extreme and Indefensible’”

“The following can be attributed to Sara Rose, senior staff attorney for the ACLU of Pennsylvania: ‘Numerous courts have held that jails violate the Fourth Amendment when they hold people on immigration detainers, which are issued without probable cause to believe a crime has been committed. Attorney General Sessions’ statement sends the message to municipalities that they must violate their residents’ constitutional rights or lose federal funding. Such a requirement is plainly illegal under our system of government.’”

  • From The Daily News: “A death row inmate, a murder victim’s son, and a 16-year quest for justice”

“The timing for Lowenstein’s tome couldn’t be better — just as eight candidates jockey to replace disgraced Philadelphia DA Seth Williams and debate what must be done to repair the city’s deeply flawed criminal-justice regime. The fact that Williams’ lieutenants not only continue to defend Ogrod’s deeply flawed conviction but are blocking DNA tests that could prove Ogrod’s innocence or guilt is Exhibit A in that system’s indictment.”

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.

“A democratic society starts to lose its moorings when police can kill in secret”

By Andy Hoover, Communications Director, ACLU of Pennsylvania

Vote “NO” on House Bill 27. Photo from flickr.

Baseball fans are familiar with the phrase, “It’s just Manny being Manny.” It was the thing to say about the often eccentric behavior of Red Sox and Indians slugger Manny Ramirez. Manny disappears into the Green Monster — Fenway Park’s famous left field wall — to drink Gatorade and talk on the phone. Manny high fives a fan while making a catch against the fence and then throws back to the infield for a double play. Manny refuses to talk with reporters all through spring training but breaks his silence to talk about the grill he sold on Ebay.

In Pennsylvania government, we have our own version of “Manny being Manny,” but it isn’t nearly as amusing. It’s the House being the House. The Pennsylvania House of Representatives is the place where ways to compound mass incarceration and police brutality go to live.

This week alone, the House passed legislation to forfeit bail money to cover fines and restitution, even if the depositor is not the defendant. Your mom or your buddy bails you out, and now they’re paying your fines, too, if this bill becomes law.

The House Judiciary Committee passed a bill to reinstate mandatory minimum sentencing, which has been on ice for two years thanks to federal and state court rulings, despite growing evidence that mandatories have no impact on public safety and are discriminatory.

And on Monday, the House passed a bill to make it a crime for public officials to identify cops who kill, a bill we’ve told you about before.

It’s the House being the House.

And lest anyone thinks in these hyper partisan times that this is a product of a Republican majority, Democrats vote for this stuff, too. Like this one and this one and this one.

We are in a fierce struggle now to stop House Bill 27, the police secrecy bill, in order to protect transparency and accountability in policing. Governor Wolf agrees with us that hiding the identity of public employees who seriously injure or kill someone is no way to run a transparent government. He vetoed this bill last year. A handful of state senators agreed with us last session, but we need more this time.

The best thing you can do right now to stop the police secrecy bill is call your state senator and tell them to vote “no” on HB 27. You can find your state senator’s contact information with our “find your legislator” tool. And you can find more information about HB 27 on our website.

The message here is simple: Police officers are public employees to whom we give a great deal of power. With that power comes the responsibility to be transparent and accountable to the public.

A democratic society starts to lose its moorings when police can kill in secret.

And frankly, local officials already have the power to hide an officer’s identity if they think it’s necessary for safety reasons. This is a decision to be made at the local level, based on circumstances in the community, not by politicians in Harrisburg.

Your state senator needs to get the message: Vote “NO” on House Bill 27.

IN OTHER NEWS

Philadelphia DA Seth Williams was indicted Tuesday on 23 counts of corruption and bribery-related charges. Photo from The Inquirer.

  • From Philadelphia Magazine: “Here’s What’s Behind the Sharp Left Turn in Philly’s District Attorney Race”

“Unlike most local elections, the Democratic primary for district attorney is a real, honest-to-goodness fight. There is no clear front-runner in the seven-person race. Some candidates have more advantages than others, though. Untermeyer is a self-funded millionaire. Krasner might have that super PAC waiting in the wings. Because so few Philadelphians typically vote in off-year elections — only 105,000 of the city’s 1.2 million voting-age citizens turned out in the last competitive Democratic primary for DA — factors like race and party endorsements could also make a difference. According to an analysis of local elections, whites and blacks usually cast ballots for candidates of their own race. El-Shabazz is the only black candidate in a city that’s 44 percent black in a year in which many African-Americans are worried about President Trump’s law-and-order agenda. Negrin is the only Latino at a time when many Hispanics have those same fears. Khan’s father is Pakistani, but the South Asian-American community here is comparatively small; the rest of the Democrats are white. Will the vote split along racial lines, or will a broad coalition usher someone into office, à la the 2007 and 2015 mayoral elections?”

“The indictment recaps multiple text-message exchanges between [Mohammad N.] Ali and Williams in the days and weeks that followed; Williams expresses appreciation for the multiple gifts Ali bestowed upon him, and ultimately offers to get personally involved with Ali’s friend’s case. The conversations begin Feb. 8, 2012: Ali: “the guy pleaded guilty, he will take any punishment but he just doesn’t wanna do jail! . . . If you can do anything for him it would be very appreciative (as long as you have no problem with it).” Williams: “I will look into it.” Shortly thereafter, the indictment shows that Williams texted one word to Ali: “April?” Authorities allege that was in reference to another trip to Punta Cana that Ali was expected to pay for.Williams: “I am merely a thankful beggar and don’t want to overstep my bounds in asking … but we will gladly go.” On Feb. 24, Williams and Ali had another text conversation — this one about a $3,212 couch that Ali planned to buy for the district attorney. Ali attached a photo of the couch to the text thread. Ali:“Is that it?” Williams: “That is the exact one … but the special order color Chocolate.”

“The Department of Homeland Security Monday issued its first ‘Declined Detainer Requests’ list of jurisdictions where local law enforcement officials allegedly have refused to adequately help with federal detention and deportation operations. The public notice was ordered by President Trump in January. The feds made 3,083 requests between January 28-February 3 and were ‘declined’ help in 216 incidents, most of which occurred in Travis County, Texas. HUFFINGTON POST Related: Here’s the official notice. DEPARTMENT OF HOMELAND SECURITY More: Hey, LA, you made the list. LOS ANGELES TIMES Still more: So did you, Hennepin County, Minnesota. MINNEAPOLIS STAR TRIBUNE

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.

Hiding cops who kill

In response to protests in Pennsylvania and around the country to hold police accountable, Pennsylvania’s state legislature has responded by trying to expand the role of secrecy in government. To vote NO on House Bill 27, click this link. Photo via Thomas Hawk.

By Andy Hoover, Communications Director, ACLU of Pennsylvania

A social justice movement knows that it is having an impact when it faces backlash. And so it is with the movement for black lives and the response it’s getting from the Pennsylvania General Assembly.

As people from communities around the state and around the country have called for fairer treatment from the police and more transparency in how police operate, our state legislature is maneuvering to use state law to withhold as much information as possible from the public.

Next week, the state House of Representatives is prepared to vote on legislation to hide the identities of police officers who kill or seriously injure someone. Public officials could be charged with a second-degree misdemeanor for violating the gag order.

Ostensibly, this public blackout would last 30 days. But the bill also prohibits releasing an officer’s name if doing so “can reasonably be expected to create a risk of harm to the person or property” of the officer or his family. In practice, the gag order will go on indefinitely. What public official would risk it otherwise, especially with the threat of criminal charges?

The supporters argue “safety,” as they always do when they want to undermine civil liberties. And yet they cannot point to a single documented case in which the safety of an officer who used force was under credible threat of harm.

In November, Governor Wolf vetoed a similar bill, and in his veto statement, he said, “Government works best when trust and openness exist between citizens and their government. I cannot agree to sign this bill, because it will enshrine into law a policy to withhold important information from the public.”

We agree. Police officers are public employees with extraordinary powers. They have the power to deprive people of their liberty and even to deprive people of their lives. With that power comes the expectation that they will operate with openness for the public to see.

We are not alone in that opinion. Former Philadelphia Police Commissioner Charles Ramsey has said that police officers cannot shoot someone and have an expectation to remain anonymous. Open government advocate Terry Mutchler, the former head of the Office of Open Records, told the Pittsburgh Post Gazette, “This type of legislation, while very well intended, which I understand coming from a long family of cops, collides with open government. Government must be open and transparent no matter how difficult that may seem at times.”

In urging Wolf to veto last year, state Representative Jordan Harris, the chairman of the Pennsylvania Legislative Black Caucus, wrote, “(T)his bill would cast a cloak of secrecy around police officers at a time when the public most demands information. This is not how you rebuild community-police relationships.”

Last year, the bill even received national attention, including from David Simon, creator of “The Wire.”

And now the bill is back. The ACLU of Pennsylvania has created an action for you to contact your state representative to tell them to vote NO on House Bill 27. The action is available at this link.

There is a lot of gloomy talk these days about where we are headed as a country. This bill and others like it that hide information about police practices from the public create an environment in which police are hidden and unaccountable. Be assured that the ACLU of Pennsylvania will do whatever is necessary to stop it.

IN OTHER NEWS

What happens when cops lie? Photo via Vice.

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

  • From Vice: “Why Cops Don’t Get Charged with Crimes When They Lie”

“According to Professor Yaroshefsky, the DA’s implicit concession that its office fails to search out evidence favorable to defendants in police files could leave it vulnerable to a federal lawsuit down the line. But Kline, in a statement, shifted the burden to the police department, saying they all ‘must rely on the department and on other sources to identify appropriate cases for review. We note that the premise of your inquiry appears to be that all internal police discipline is automatically Brady material. The expert you quote does not say that, and we do not believe it is the law.’ Meanwhile, Philly DA Seth Williams is on his way out, and Larry Krasner, a longtime civil rights attorney, is hoping to succeed him with a campaign premised on rooting out some of the police misconduct local prosecutors have long countenanced. ‘I’ve seen first hand how dirty they can get,’ Thompson said in his Internal Affairs complaint. ‘Even if they don’t like the tone of your voice they are not God.’”

  • From PennLive: “Immigration agents flood Allison Hill in Harrisburg”

“The ICE agents do not partner with police or even notify police of their raids, Olivera said. Instead, police have found out about the series of daily raids, some starting as early as 5 a.m., from residents. ‘Several people have been taken into custody,’ Olivera said. ‘Families have been broken up.’ The organization, Movement of Immigrant Leaders in Pennsylvania, or MILPA, is planning a 6 p.m. news conference Monday about the raids, said Harrisburg City Councilwoman Shamaine Daniels. The event will be at the St. Francis Assisi Church in Harrisburg. The raids have caused such fear in certain pockets of Allison Hill that residents are afraid to go to the corner store, Olivera said. Some parents are reluctant to drop their children off at school for fear of getting stopped, said Daniels, who is an immigration attorney. Instead, the children are missing classes. ‘It’s really bad,’ Daniels said. ‘They don’t just stop the person they’re looking for. They hassle everyone who’s around.’”

“The four kitchen employees were arrested as part of a recent surge in Immigration & Customs Enforcement activity, said Stephen Converse, the attorney representing them. The men are all in their mid- to late 20s and are from Guatemala, Mexico and El Salvador. Converse declined to provide his clients’ names, but he said none has a criminal record. Their only crimes, he said, are being undocumented immigrants.”

  • From The Marshall Project: “The Seismic Change in Police Interrogations: A major player in law enforcement says it will no longer use a method linked to false confessions.”

“The technique was first introduced in the 1940s and 50s by polygraph expert John Reid, who intended it to be a modern-era reform — replacing the beatings that police frequently used to elicit information. His tactics soon became dogma in police departments and were considered so successful in garnering confessions that, in its famous 1966 Miranda decision, the U.S. Supreme Court cited it as a reason why suspects must be warned of their right against self-incrimination.But the advent of DNA evidence and advocacy by the Innocence Project in the 1990s showed that about one-third of exonerations involve confessions, once believed to be an absolute sign of guilt. Academics have theories why someone would falsely confess to a crime, including having a mental disability, being interviewed without a lawyer or parent in the room, or suffering through hours or days in jail before questioning.”

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.

No quick or easy remedy for Philadelphia’s profitable forfeiture machine

By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

Pennsylvania’s Controlled Substances Forfeiture Act allow all seized assets to go directly to the offices of prosecutors. The ACLU-PA found that prosecutors overwhelmingly target disadvantaged individuals without the means to fight the forfeiture in court. Photo from Occupy.com.

In a class action challenge to Philadelphia’s forfeiture practices, a federal district court ruled on February 23 that people who have lost property through forfeiture will have to file separate lawsuits to be compensated, even if the court finds some of Philadelphia’s practices unconstitutional. The ruling underscored one key message: that relief for the victims of this deeply broken system is still a long way off.

The lawsuit, Sourovelis v. City of Philadelphia, was filed by the Institute for Justice (a Washington, DC-based property rights group) with the assistance of local civil rights hero David Rudovsky in the summer of 2014. It was filed at the same time that ACLU-PA was forming a broad-based Coalition for Forfeiture Reform to push for statewide legislative change to Pennsylvania’s civil forfeiture laws. On both groups’ agenda was removing the direct financial incentive for prosecutors’ offices to aggressively pursue forfeiture.

Under Pennsylvania’s Controlled Substances Forfeiture Act, 100 percent of the proceeds from forfeiture go directly to the offices of the prosecutors who make decisions about what property to go after for forfeiture, who to target, and how ruthlessly to litigate forfeiture cases. In every county examined by the ACLU-PA, prosecutors disproportionately targeted people of color for forfeiture, taking mostly small amounts of cash where owners had little incentive to fight the forfeiture in court.

Senate and House bills would have removed this pecuniary incentive to use forfeiture overzealously and target people who can’t fight back by diverting forfeiture proceeds to a general fund instead. But in 2016, these bills were gutted at the urging of the Pennsylvania District Attorneys Association to remove all of the major reform components.

The current statute specifies that prosecutors are supposed to use forfeited property for drug enforcement, community-based drug- and crime-fighting programs, or relocation and protection of witnesses in criminal cases. However, the Sourovelis complaint alleges that, in Philadelphia, forfeiture proceeds are split between the police and District Attorney’s office and used in part to pay prosecutors’ salaries. The lawsuit makes the somewhat novel claim that the prosecutors’ financial stake in the outcome of forfeiture cases denies property owners due process.

In May 2015, the trial court rejected the City’s bid to throw out this due process claim, ruling that it couldn’t decide the claim without first resolving a factual dispute between the parties about whether the DA’s office actually used its forfeiture proceeds as contemplated by statute or used it for salaries.

In its February 23 ruling, the court made clear that even if the court ultimately sides with the plaintiffs and rules that the Philadelphia DA’s stake in the outcome of forfeiture cases is unconstitutional, the court will not order the return of all class members’ forfeited property. Rather, anyone who has lost property in Philadelphia to forfeiture would then have to file an individual lawsuit to determine what relief they’re entitled to.

With meaningful legislative reform seemingly off the table in Harrisburg and the federal trial court sending a signal that the Sourovelis lawsuit will not provide a quick or easy remedy for the victims of Philadelphia’s profitable forfeiture machine, it looks like Pennsylvanians will remain vulnerable to forfeiture abuse for a while longer.

IN OTHER NEWS

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

The ACLU is updating its police body camera recommendations to clarify public release guidelines and improve accountability. Photo by Ryan Johnson.

“In Pennsylvania, Black students were four and a half times more likely to be arrested than White students. This rate is two and a half times greater than the national rate for Black students. While Black students made up only 15% of student enrollment, they were 40% of the students arrested in Pennsylvania — a total of 2,074 Black students were arrested in 2013–14. In contrast, White students made up 69% of public students, but received 41% of student arrests.”

  • From ACLU National: “We’re Updating Our Police Body Camera Recommendations for Even Better Accountability and Civil Liberties Protections”

“We have also added language stipulating that police departments cannot use ‘investigative privilege’ as a basis for withholding footage where the suspect is a police officer (who likely is the one who recorded the video and has been allowed to see it). As we argue at greater length here, the rationale for such a privilege (tipping off suspects) does not apply when the suspect is a police officer. We do allow that redaction, subject to limitations, can be used in such situations.”

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.