How much is that public record worth to you?

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

A new Pennsylvania bill would make body camera video a tool for prosecutors — not the public. Photo via Flickr user North Charleston.

Pennsylvania is swiftly pushing forward a very bad bill — Senate Bill 560 — that will seriously hamper civilians’ ability to obtain footage from police body-worn cameras. The Appeal has addressed body camera issues before (this week, even), but SB560 is quickly progressing. A vote could happen in Harrisburg as soon as next week. So we’re gonna address it again.

Body cameras have been widely available to the policing market since about 2007. Some departments started using them early, such as the BART Police Department after Oscar Grant’s killing in 2009. But a groundswell of interest didn’t emerge until August 2014.

When white police officer Darren Wilson shot and killed a black teenager named Michael Brown in Ferguson, Missouri, Wilson’s story — what he said about why he was justified in killing Brown — was questionable. Protests erupted nationwide. You know the story.

Among many other conversations about policing and race that emerged in the wake of that shooting, one focused on body cameras. There was, among many who paid attention, a consensus that body camera video would have provided an unbiased perspective in Ferguson that was sorely lacking. Both police and civilians seemed to concur: If body camera footage could tell the real story — and be shown to the public — then there would be less of a question about what happened between Wilson and Brown. In general, there would be less testilying by cops. There would be fewer false reports of police misconduct. It would be a win for everyone.

And indeed, that’s where things went: Thousands of police representatives began pushing their leaders to purchase body cameras, and so did civilians. The body camera market expanded exponentially. New companies were founded, and old police companies rushed to get into the business. Tens of millions in taxpayer dollars were made available in federal funding for body cameras. The market exploded — in large part because both police and civilians seemed to agree that body camera footage could hold both cops and civilians accountable.

Police leaders were, in fact, at the forefront of this movement toward transparency through police body cameras.

“A police department that deploys body-worn cameras is making a statement that it believes the actions of its offcers are a matter of public record,” wrote Chuck Wexler, in a pioneering 2014 document by the Police Executive Research Forum that encouraged best practices for body camera use. Wexler continued: “body-worn camera video footage should be made available to the public upon request — not only because the videos are public records but also because doing so enables police departments to demonstrate transparency and openness in their interactions with members of the community.”

Fast forward to now. Pennsylvania’s legislature is working to walk back one of the main premises that made body cameras agreeable to both civilians and police in the first place: their accessibility to the public.

Senate Bill 560 — which I implore you to read — will do a number of things that run counter to basic principles of transparency. It will insure that body camera video falls outside the state’s Right To Know Law, for one thing — meaning that the rules allowing civilians to obtain policies, meeting minutes, and even internal emails sent to and from government employees, will not apply to video produced by police.

SB560 won’t let any civilian request body camera video that’s more than 60 days old.

If a request is denied — for reasons as vague as the video “contains potential evidence” — it will cost civilians $125 just to appeal the decision. And of course there’s no guarantee that they’ll succeed in getting the video after the appeal.

Pennsylvania is not alone in pushing a transparency-killing law to limit access to body camera video. In September last year, North Carolina passed into law a similarly terrible bill.

But we don’t need to follow in that state’s footsteps.

If Darren Wilson had been wearing a body camera in 2014 — and if Missouri’s laws were the same as what Pennsylvania’s legislature hopes to pass — it’s unlikely that the video from his interaction with Michael Brown would have been available to the public. Protests would have erupted. The cameras would have been useless.

Having such a law would, indeed, make body cameras essentially useless for civilians. They would instead be tools for cops and district attorneys to put more people behind bars.

That’s not what anyone protesting in Ferguson wanted in 2014, and it’s not what anyone still paying attention wants today.

SB560 is a bad bill that should vanish. Stay tuned to aclupa.org to find out how you can help make that happen.

PLUG

(An ACLU-PA criminal justice event you should know about.)

Join us in Philadelphia to #DECARCERATEDA.

  • ACLU-PA: “District Attorney Candidate Forum — Philly DA for the People”

Philly needs a district attorney who will bring a new vision for justice. Come hear what the candidates running to be the next Philadelphia district attorney have to say about ending cash bail, bringing transparency and accountability to the office, protecting our immigrant communities, and more.

WHEN: Tuesday, April 18, 6 p.m. — 8 p.m. (Event will start promptly at 6 p.m.)
WHERE: Arch Street United Methodist Church, 55 N Broad St, Philadelphia, PA 19107

ASL interpreter and Spanish-language interpreter will be provided.

Free child care will be available.

Sponsored by the Philadelphia Coalition for a Just District Attorney, a diverse set of groups representing tens of thousands of Philadelphia voters and communities. This coalition is working to hold all the district attorney candidates accountable to their communities’ fundamental need for justice and respect. More about the coalition and its platform is available here: www.phillydaforthepeople.org

EXCERPTS

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

How effective was a $3.5 million grant to lessen Philly’s incarceration problem? Photo via The Inquirer.

  • The Inquirer: Has a bold reform plan helped to shrink Philly’s prison population?

“The number of inmates has fallen nearly 12 percent, from 7,486 last April to 6,603 as of last month, according to data released Wednesday by the Managing Director’s Office. The prison population numbered as many as 8,301 as recently as early 2015. The dropoff has earned praise from even hardened critics of the various arms of the local justice system. This has been no small task. Philadelphia has the highest per-capita incarceration rate of the 10 largest cities in the nation. About 30 percent of those sitting behind bars are awaiting trial.”

  • Daily News: “Locked up for being poor: Can next Philly DA fix the bail mess?”

“With seven of the eight DA candidates facing off in a May 16 Democratic primary, three of those candidates — Joe Kahn, Lawrence Krasner, and Michael Untermeyer — have promised to work to completely eliminate cash bail in the city, and most of the other candidates support lesser varieties of bail reform, such as dropping the practice for lower-level non-violent crimes. To many advocates of criminal justice reform, the move seems like a no-brainer. For one thing, it would save Philadelphia taxpayers millions of dollars; officials say that as many of half of the 6,600 people now locked up in the city’s jails are there because they’re awaiting trial and unable to afford cash bail. In many cases, advocates say, the inmates could gain their freedom for as little as $500 or less — but in the city with America’s highest rate of deep poverty, the figure might as well be a million dollars. ‘It’s just such an obvious thing — the question of whether someone is a danger to the community has nothing to do with how much money they have,’ said Patrick J. Egan, a partner in the Fox Rothschild law firm who moderated a Philadelphia forum last week on ending cash bail. ‘Poor folks stay in jail and rich folks don’t.’”

  • New York Times: “‘It Did Not Stick’: The First Federal Effort to Curb Police Abuse”

“‘Pittsburgh could very well have been stuck in the ’60s with no computers if it hadn’t had a consent decree,’ he said. The Justice Department had a list of demands — for instance, that every passenger’s race and sex be recorded during traffic stops. Chief McNeilly protested, questioning the practicality and legality of such a requirement. In the end, only the driver’s information was tracked. The Justice Department also required an ‘early warning system,’ opposed by the union, that would flag officers prone to using force. ‘Bob McNeilly was like a test pilot in the Mercury flight program,’ said Chuck Wexler, the president of the Police Executive Research Forum, a group of law enforcement professionals. ‘No one knew what an “early warning system” was, how to build it or what to measure.’”

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.

The work of defending civil liberties goes on

ACLU of Pennsylvania Executive Director Reggie Shuford addresses the crowd at the “Show Love for the Constitution” event. | February 15, 2017. (credit: Ben Bowens)

Dear supporter,

In some ways, our country changed on November 8. The United States elected a leader who, by all measures, is hostile to the basic foundations and principles that we stand for. President Trump and his regime deserve every ounce of pushback we can gather, and the ACLU will be on the front lines of the resistance.

And yet, at the ACLU of Pennsylvania, we have always taken the long view. Issues that are with us today were with us before November 8 and, to one degree or another, would have continued regardless of who was elected, including mass incarceration, police brutality, inequality for gay and transgender people, and efforts to compromise women’s access to reproductive healthcare.

You may have heard that there has been a major increase in giving to the ACLU since the election. While much of that growth has occurred at the national level, in fact, here in Pennsylvania, our membership has tripled. We saw a notable rise in donations after Election Day, but the real surge of giving happened after the weekend of the Muslim Ban. It was in that moment that many Pennsylvanians realized the significance of the threat to our values and to the people we most cherish.

You have put your trust in the ACLU in these challenging times. We are grateful for that trust and take it as a responsibility. Thank you.

The generous outpouring of support we’ve received in recent months has allowed us to think big about our work. It is my intention to add new staff to our existing staff of 22. Our current team has the talent, skills, and persistence to take on the many challenges before us. I also know that we can advance the cause of civil liberties throughout Pennsylvania by bringing even more talented people on board. The times demand it. Your support enables it.

In the months ahead, you’ll hear more about our Smart Justice campaign, our effort to reform, reinvent, and revamp the criminal justice system; our Transgender Public Education and Advocacy Project; the campaign for District Attorney in Philadelphia; the many bills we’re advocating for and against at the state capitol; and more litigation to push back against government excesses wherever they occur.

The ACLU of Pennsylvania is prepared to thwart the Trump administration’s worst instincts as they play out in the commonwealth.

And state and municipal officials aren’t off the hook. We’re working with immigrant communities to monitor federal immigration enforcement tactics while also standing with municipal governments that insist they won’t bend to every demand of ICE. We’re insisting that the commonwealth keeps its commitment to open beds for people who are too ill to stand trial and are being warehoused in local jails. We’re working at the state legislature to defeat efforts to hide the identity of police who seriously injure and kill people and to hide video that captures police brutality from the public. And we are active in ongoing struggles to diminish police presence in schools, to stop rollbacks of women’s reproductive healthcare, and to fight the practice of jailing people for their debts.

The ACLU of Pennsylvania has the infrastructure and the experience to defend civil rights at every turn. Consider some of our recent work:

  • Our legal team successfully freed travelers who were detained at Philadelphia International Airport the weekend of Muslim Ban 1.0, our advocacy team supported the protests at airports in Philly and Pittsburgh, and our communications staff echoed the message to #LetThemIn.
  • Two weeks ago, we settled a lawsuit against the School District of Lancaster for denying enrollment at its regular high school for older refugee students. Older refugee students will now be able to attend the regular high school instead of being segregated at an alternative school.
  • Over the last month, our legislative director has been busy at the state capitol in Harrisburg lobbying against efforts to reinstate mandatory minimum sentencing, which has been suspended for two years due to court rulings.
  • In tandem with allies, our advocacy team has launched the Philadelphia Coalition for a Just District Attorney, an effort to push the candidates for district attorney to commit to reforming the criminal justice system.
  • Last week, our lawyers filed to intervene to defend a school in Berks County that has been sued for affirming its students’ gender identity. We’re representing a transgender student and a youth advocacy organization who would be harmed if the lawsuit successfully overturns the school’s practice.

These five examples are just from the last two months. In fact, four of them happened in the last two weeks.

My favorite playwright, Pittsburgh native August Wilson, said this about gratitude in his play Two Trains Running:  “You walking around here with a ten-gallon bucket. Somebody put a little cupful in and you get mad ’cause it’s empty. You can’t go through life carrying a ten-gallon bucket. Get you a little cup. That’s all you need. Get you a little cup and somebody put a bit in and it’s half-full.”

Well, thanks to you, our ten-gallon bucket runneth over.

Onward!

Reggie Shuford
Executive Director, ACLU of Pennsylvania

REVEALED: Pittsburgh unveils its long-hidden body camera policies. They’re ‘not very good’

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

When two national policy organizations surveyed police body camera regulations in cities all over the country last year, they discovered that Pittsburgh was hiding something: it’s body camera policies.

Departments in 46 other cities made their policies public. Pittsburgh was one of only two major cities in the country to keep them secret.

It’s no wonder why.

Responding to a Pennsylvania Right-To-Know-Law request, Pittsburgh’s Bureau of Police publicly released its body camera policies for the first time to the American Civil Liberties Union of Pennsylvania on April 3. (It had previously only released a “synopsis.”) Those policies were among the least transparent in the nation. And despite implementing its policies in July 2014, Pittsburgh’s are still under “active, internal review.”

“We’ve looked at a lot of these,” said Harlan Yu, of Upturn, one of the two groups who evaluated policies nationwide. “To put it simply, Pittsburgh’s policies are not very good.”

Sound body camera rules are important. They can mean the difference between a police department that holds its officers accountable — as the Police Executive Research Foundation has suggested they should — and one that doesn’t. Sound rules outline whether body camera footage can be reasonably obtained by the public, for example. Unsound rules don’t.   

The Body Worn Camera Policy Scorecard is a website created by the Leadership Conference on Civil and Human Rights in Washington D.C., and digital design company, Upturn. It is a first-of-its-kind assessment determining whether specific police departments have written clear rules about how police officers use body cameras.

The BWC Scorecard — whose assessors took guidance from the American Civil Liberties Union to evaluate policies — is simplified into eight categories. They are:

  • Whether the police department makes its policy easily accessible;
  • Whether it limits an officer’s discretion about when to record;
  • Whether it addresses personal privacy concerns;
  • Whether it prohibits officers from viewing body camera footage before they write most police reports;
  • Whether it limits retention — i.e., how long footage should be kept;  
  • Whether it protects footage against tampering and misuse;
  • Whether it makes footage available to individuals filing complaints;
  • Whether it limits use of biometric technologies such as facial recognition to be used with body camera footage.

The BWC Scorecard doesn’t judge the policies themselves; rather, it tracks whether the policies are clearly outlined. It gives a checkmark in a green box for an up-to-date policy; a circle in a yellow box for an outdated policy; and an X in a red box for an unavailable policy.

Of those eight categories, Pittsburgh received a green box rating in only one category: retention. “Members are advised, per this regulation, that all recordings collected by the BWC equipment which is not regulated by a regular retention schedule will be purged no later than 90 days from the date of the last recording,” the policy reads.

In two other categories — officer discretion, and footage misuse — Pittsburgh’s policies were outdated, say Miranda Bogen and Harlan Yu, of Upturn, who helped to evaluate policies nationwide for the BWC Scorecard.

For officer discretion, Pittsburgh’s policy states that officers should record at stops, in vehicle pursuit, and at major crime scenes. But it outlines no repercussions if an officer fails to record.

With footage misuse, Pittsburgh’s policy states that officers should not destroy body camera footage “except for approved annotation in accordance with the training and capabilities of the BWC system,” but it outlines no specific rules for logging footage.

In the other five categories, Pittsburgh’s policies received a big X.

“We already knew that Pittsburgh was keeping its full body camera policy hidden from the public,” said Reggie Shuford, executive director of the ACLU of Pennsylvania. “Now we know why: It is out of date, and sorely lacking. The Pittsburgh Bureau of Police needs to change this, and to write body camera policies that are clear and current.”

Have a look at Pittsburgh’s body camera policy here:



Pittsburgh BWC Policy (Text)

No money for capital defense?

By Marshall Dayan, Assistant Federal Defender — Capital Habeas Unit
Western District of Pennsylvania

Photo from Flickr user M01229.

The death penalty is an unworkable and ineffective criminal justice policy, so it is no surprise that states around the country are abandoning it. In recent years, New York, New Jersey, New Mexico, Illinois, Maryland, Connecticut, and Delaware have either repealed legislatively or struck down judicially their death penalty statutes. In Washington, Oregon, Colorado, and now Pennsylvania, governors have hit the pause button on executions. Here in Pennsylvania, Governor Wolf has indicated that he will grant a reprieve in every case in which a death warrant is signed pending the conclusion and evaluation of a state study on capital punishment.

Surprisingly, Pennsylvania has the fifth largest death row in the United States. Our state’s death row population is exceeded only by those in California, Florida, Texas, and Alabama. District attorneys prosecute dozens of capital cases annually, at an exorbitant financial cost. The Reading Eagle estimated that the death penalty has cost Pennsylvanians $816 million since 1978. That estimate is conservative, since it did not capture all of the costs involved in pursuing a sentence of death. Yet there has not been an execution of a person who did not give up his appeals in Pennsylvania since 1962, and no execution at all since 1999. Why not?

Pennsylvania is one of only two states in the nation (the other being South Dakota) in which no money is spent on capital defense for those who are too poor to afford it on their own. Rather, funding in Pennsylvania is provided on a county by county basis. Beyond providing for a single attorney, trial judges make discretionary decisions about the allocation of resources. National standards recommend and highly encourage a minimum of two lawyers and other experts, as necessary, for a capital defense team. Based upon the circumstances of each case, these might include experts in ballistics, serology, DNA, fingerprints, hair and fiber, to challenge assertions made by the prosecution about the guilt of a particular person accused of murder. These resources are crucial, since 157 death row inmates who have been convicted of murder beyond a reasonable doubt have been exonerated.

Several of those exonerations have occurred in Pennsylvania.

Most importantly, national standards strongly recommend and encourage provision of a mitigation specialist. Usually a licensed social worker, a mitigation specialist is qualified to investigate and prepare a social history of the life of each person charged with a capital offense. This information is used to create and present an individualized educational, socioeconomic, and psychological profile of someone whom a jury might have to decide should live or die. None of these resources are required in Pennsylvania, and none of them are ever provided by state funding. Elected trial judges are motivated to keep the county funding for indigent capital defense to a minimum. In many other states, including Virginia, North Carolina, and even Mississippi, these resources are provided by the state without the interference of elected judges who keep an eye on public opinion.

The real import of the failure of the Commonwealth of Pennsylvania to provide adequate state resources is that, beyond the exonerations, we have had more than 200 reversals of capital cases in the last 40 years. This means that the same cases are being tried repeatedly at significant costs to the taxpayers. These reversals are based on important constitutional legal grounds such as the failure to provide effective assistance of counsel guaranteed by the Sixth Amendment, or by prosecutorial misconduct prohibited by the Due Process Clause of the Fourteenth Amendment, protections guaranteed by the United States Constitution. These are not reversals on technicalities; these are serious flaws in the system.

We can and must do better. Our best option is to follow the lead of our neighbors — West Virginia, Maryland, Delaware, New Jersey, and New York, and abandon capital punishment. Until then, Pennsylvania must provide those charged with and/or convicted of capital crimes sufficient resources to prevent, to the greatest extent humanly possible, wrongful convictions and death sentences, and minimize, if not eradicate, the constitutional flaws that have marked capital prosecutions in our state.

IN OTHER NEWS

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

Pennsylvania counties will take part in the Stepping Up Initiative, an initiative that aims to safely reduce the number of people with mental illness in Pa. jails. Photo from The Inquirer.

  • The Daily News: “Rendell, calling DA’s Office ‘in crisis,’ endorses Khan in Democratic primary”

“The Philadelphia District Attorney is ‘obviously in crisis,’ former Gov. Ed Rendell declared Wednesday as he endorsed former federal prosecutor Joe Khan in the Democratic primary election. Rendell, who served as the city’s district attorney from 1978 to 1985, did not mention the current office holder, District Attorney Seth Williams, while standing next to Khan in the Mayor’s Reception Room in City Hall. But the federal indictment filed against Williams two weeks ago, accusing him of accepting bribes in return for official acts and of stealing money meant for the care of his elderly mother, was clearly on his mind. ‘The D.A.’s office absolutely needs someone of unquestioned integrity and someone who is an experienced prosecutor,’ Rendell said, calling the office ‘in need of a new and good district attorney.’”

  • The Inquirer: “Can Pennsylvania find a way out for thousands of mentally ill inmates languishing in county jails?”

“An interagency team is beginning to address the backlog of about 130 people who are in limbo in Philadelphia jails because they have been deemed incompetent to stand trial but are awaiting an open bed at the Norristown State Hospital. Some, typically nonviolent offenders, are now being placed in community-based treatment programs while they await trial, Herdman said. And, as part of the MacArthur collaboration, the city will soon launch an effort to divert people with behavioral-health issues picked up on low-level probation violations into community-based care, said Julie Wertheimer, chief of staff for criminal justice at the Philadelphia Managing Director’s Office. A similar program, diverting people with probation detainers to substance-abuse treatment, is already underway.”

“The officers were wearing body cameras, which are intended to add clarity to controversial moments in policing — including these types of shootings. The problem: The cameras weren’t on. Last Saturday’s shooting was at least the second this year in which body cameras worn by LAPD officers weren’t recording when they fired their guns. Since the department launched its ambitious 7,000-camera deployment in August 2015, there have been at least four shootings in which officers didn’t have their cameras on at the time, according to a Times review of LAPD statements and reports. Those cases underscore a growing predicament as more law enforcement agencies deploy body cameras. While the use of the technology has increased, so have examples in which the cameras weren’t on when they were supposed to be.”

“TASER International (NASDAQ: TASR), the global leader in connected law enforcement technologies, announced today that it is launching a new program to equip every police officer in America with a body camera and changing its name to Axon (NASDAQ: AAXN). It will also provide supporting hardware, software, data storage, training, and support to police departments free of cost for one year. ‘We are going ‘all-in’ to empower police officers to more safely and effectively do their jobs and drive important social change by making body cameras available to every officer in America,’ said Rick Smith, Founder and CEO of Axon. ‘We believe these cameras are more than just tools to protect communities and the officers who serve them. They also hold the potential to change police work as we know it, by seamlessly collecting an impartial record and reducing the need for endless paperwork. That’s why we’re giving this opportunity to every single police officer in America.’”

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.