Severe Restrictions on Mail to PA’s Prisons Harm People Inside — And Undermine Attorney-Client Privilege

By Sara Rose

Imagine that you’re incarcerated in a Pennsylvania prison. Your primary means to connect with the world outside — your loved ones, your friends, and your attorneys — is the mail.

But under a new DOC policy, the only mail you receive are photocopies. Birthday cards signed by your family or a drawing sent by your child — you only get the photocopy. Legal correspondence that may or may not include sensitive information or grievances against employees of the prison — you only get the photocopy.

In August, the Pennsylvania Department of Corrections (DOC) locked down every prison in the state, returning all mail received during the two-week period to its sender. After the lockdown ended in September, the DOC began confiscating all incoming legal and personal mail, only allowing prisoners a photocopy of their correspondence. The DOC holds the original copies of legal mail for 45 days. All other mail is destroyed after it’s scanned it, but searchable digital copies are maintained for seven years. According to the DOC, the intent of the new mail policy is to prevent “unknown substances” from entering DOC facilities. But the result of the policy is to undermine prisoners’ relationships with their families, friends and attorneys.

Attorneys representing individuals in Pennsylvania’s state prisons have no faith that their correspondence with their clients will be kept confidential under this new policy, and experts in legal ethics have recommended that lawyers with clients in the state prisons should stop communicating by mail. But the other options lawyers have for communicating with clients in state prison — in person or by phone — are not feasible.  The state prisons where their clients are housed are often hours away from the lawyers’ offices and setting up confidential phone calls is often difficult. Mail is the only option most lawyers have to communicate regularly and securely with clients who are in prison.

Even in the most incarcerated nation on the planet, this policy is without precedent in any jail or prison from coast to coast.

That’s why the ACLU of Pennsylvania is part of a lawsuit filed last month challenging the new policy’s restrictions on legal mail and demanding that the DOC identify alternative methods to prevent contraband from entering its prisons. In an interview after the lawsuits were filed, the DOC secretary admitted that contraband entering the prisons via legal mail is rare and that the policy is a preemptive move. The DOC is severely compromising attorney-client confidentiality with no real evidence of a problem.

Depriving attorney-client communications of confidentiality chills prisoners’ constitutionally protected expression under the First Amendment. This violation of the First Amendment is the basis of our litigation.

This is a crucial test-case for jails and prisons nationwide whose administrators may be watching the outcome of this case to determine the future of their own mail policies. In this sense, Pennsylvania is ground-zero for protecting the rights of prisoners in accessing their mail and confidential attorney-client correspondence.

Certainly, the DOC should take the necessary steps to ensure the safety of its employees. Safety of DOC employees, however, cannot and must not infringe on the First Amendment protections of prisoners or their attorneys.

Joining the ACLU of Pennsylvania in the litigation are the Pennsylvania Institutional Law Project, the Abolitionist Law Center, Amistad Law Project, and Schnader Harrison Segal & Lewis LLP.

Sara Rose is senior staff attorney at the ACLU of Pennsylvania.

Philadelphia Police Should Not Enforce the Bias of 911 Callers

Commissioner Ross’s Response to a New Report Shows He Doesn’t Get It

Credit: Ben Bowens

By Reggie Shuford and Carl Takei

Last month, Juán-Pabló Gonźalez, a Black graduate student at Catholic University, attempted to do something mundane — study in the school’s law library. But the library clerk incorrectly told him he needed special permission to do so and then called campus police on him for being “argumentative.” Seven university officers responded and made him leave despite seeing his school ID.

Gonźalez’s run-in at the library happened within days of a white woman in New York City falsely accusing a nine-year-old Black boy of sexual assault at a Flatbush bodega, leading observers to dub her Cornerstore Caroline.

These are just the latest incidents in which white people have been caught on camera calling the police on a Black or brown person simply trying to go about their daily lives. Unfortunately, while some officers have modeled excellent ways to stop themselves from weaponizing the biases of 911 callers, police departments too often fail to adopt appropriate policies to screen and respond to such calls.

Case in point is the Philadelphia Police Department. In April, after a Starbucks manager in Rittenhouse Square called 911 on two Black men who were waiting for a business associate to arrive, two officers arrested the men for “defiant trespass.” Police Commissioner Richard Ross initially responded by saying the officers “did absolutely nothing wrong.” He later walked it back, stating: “I should have said the officers acted within the scope of the law, and not that they didn’t do anything wrong.”

The department later revised its policy for defiant trespass arrests, but it did not address the role of race and continued to ignore the possibility that 911 callers could be using police to victimize others.

These tasks were left to the Philadelphia Police Advisory Commission, the civilian agency that oversees the police department and makes non-binding recommendations to departmental leadership. Earlier this month, the commission released a report evaluating the Starbucks arrest.

The commission found that “the officers were purportedly trying so hard to ignore race that they did not consider race being a factor in the incident even when bystanders were shouting it at them” and that this led the officers to act in inflexible ways that resulted in an avoidable arrest. The commission also noted that some police department leadership took the extremely problematic stance that the officers should have acted no differently even if the manager had requested that “two N-words” be removed from the café, stating that as long as the person making the complaint was legally in the right, racial slurs and racist motivation should not matter.

In response, the commission recommended a series of changes to training and policies that would have led to a better response in the Starbucks incident and other situations when people call 911 to target Black people who are doing nothing wrong.

Commissioner Ross’s response, however, was jaw-dropping. He wrote, “The PPD cannot agree with the statement that racism has a profound effect on what drives citizen and police contact,” and flatly rejected many of the recommendations. The commission recommended that the police department “develop a clear and consistent communication strategy to educate the public regarding how and when 911 should be utilized” and take steps to address the weaponization of police by 911 callers. Commissioner Ross responded that “any messaging by the PPD of when people should or should not call 911 will have a chilling effect” and “compromise the trust in the community that the PPD continually strives to improve.”

The commission recommended that the police department encourage “supervisory assessment of problem solving skills” to help avoid unnecessary arrests. Commissioner Ross rejected this, too, doubling down on the department’s existing “race-blind” approach to racism.

This blinkered approach ignores the fact that if a police officer ejects a Black or brown person from public space purely on the say-so of a white person who is motivated by racial bias, that officer is enforcing racism. When police allow themselves to be weaponized by biased 911 calls, they put Black and brown people at risk, send a message that they must accept living as second-class citizens, and undermine the legitimacy of the police. That’s why the ACLU has launched a Living While Black on Campus campaign aimed at getting college police departments to adopt a simple model policy for screening and responding to bias-based calls and described principles for handling these calls that can apply to all police departments.

Starbucks’ Chief Operating Officer Rosalind Brewer described the April 2018 incident as a “teachable moment” for the company and stated, “Good companies acknowledge their mistakes and learn from them and then make the necessary changes.” Commissioner Ross should take note — if a coffee company can acknowledge its own mistakes and change its policies and practices to regain the trust of people of color, the police have no excuse for refusing to do so.

Reggie Shuford is the executive director of the American Civil Liberties Union of Pennsylvania. Carl Takei is a senior staff attorney at the ACLU’s Trone Center for Justice and Equality.

We want America to be fair, just, and free: A letter from our executive director

Credit: Tim Hindes

Dear ACLU supporter,

We live in truly troubled times. Like you, our hearts were broken when we heard the news that the congregations at Pittsburgh’s Tree of Life synagogue were targeted by a person whose alleged sole intent was to kill Jewish people. Eleven people died while peacefully worshipping as they chose, a freedom that is guaranteed to all of us as Americans.

All mass shootings are tragic. This one struck especially close to home, as many ACLU-PA staff, volunteers, and supporters live and worship in Pittsburgh’s Squirrel Hill neighborhood, including some at Tree of Life, New Light, and Dor Hadash Congregations. From all of us at the ACLU of Pennsylvania, our hearts are with everyone touched by this tragedy.

I am reminded — again — of the urgency of the work that we do as advocates for civil rights, now more than ever. Whether people in a community are targeted for hate crimes by private citizens or face discrimination from their own government, we know that we cannot let up. We will take time to mourn, to breathe, and to care for ourselves and others. And then we will double down on working to create the kind of country that we want.

Anti-Semitism has no place in our America. In our America, diversity is a strength — our diversity in culture, in race and ethnicity, in sexual orientation and gender identity, and in religious practice makes our country better.

America’s past, both recent and removed, is littered with tales of discrimination and violence toward people based simply on their identity. But our past does not write our future. It must not. Our future is determined by what we do, together, in this present moment.

Together, we mourn the tragic and unnecessary loss of life in Pittsburgh this weekend. And then the work starts anew, also together, to create an America that is fair, just, and free for all.

In liberty,
Reggie Shuford
Executive Director, ACLU of Pennsylvania

Tell politicians that immigrants are an integral part of our commonwealth

Washington State 05-01-17 May Day March

Call to oppose SB 10: 1-844-803-2258

This week, Pennsylvania lawmakers will proceed to vote on Senate Bill 10 (SB 10). The passing of SB 10 will further endanger the civil liberties of immigrants. Immigrants are an integral part of our commonwealth. Many community members, including US citizens, will become hesitant to report emergencies and crimes and to help law enforcement in the investigation and prosecution of crimes; this will jeopardize public safety. In addition, SB 10 will drain local resources by diverting them towards a federal responsibility. Congress funded ICE more than $7 billion in fiscal year 2018; do the feds really need help from PA? 

Please take a few minutes to make a call to express opposition for the bill. You can utilize the toll-free number 1-844-803-2258 to connect to your local senator. Once on the line, tell them your name, enter your zip code, and tell your senator: 

“Senate Bill 10 will force local police to act as an extension of the immigration system, which drains already limited local resources and erodes community trust in law enforcement. Please oppose Senate Bill 10 because it will squander valuable resources while jeopardizing public safety. ”

Look up your senator >> http://www.legis.state.pa.us/cfdocs/legis/home/findyourlegislator/

Dear Municipal Officials: The First Amendment Protects Door-to-Door Canvassers

Credit: Chris Goldberg, via flickr

Dear mayors, police chiefs, and other local government officials,

In the near future, you may see an increase in people in your towns going door-to-door to strike up conversations with residents. These politically engaged folks are actively pursuing votes for their candidates of choice, a time-honored tradition since the founding of the republic. With Labor Day passed and Election Day in the near future, all political parties will be ramping up their get-out-the-vote (GOTV) efforts.

Your inclination may be to restrict this activity, or to enforce an old, outdated ordinance that requires such canvassers to first jump through any number of hoops, like giving police advance notice or fingerprinting people who will be doing the canvassing or forcing canvassers to pay a fee or to provide a criminal background check. Here at the ACLU of Pennsylvania, we’ve already received complaints that some municipalities in the commonwealth have been doing just that, including in Lackawanna, Beaver, Delaware, and Bucks counties.

Our advice to you, as leaders of local government in Pennsylvania, is simple: Don’t do it. The Supreme Court of the United States has been clear on this point. Governments cannot restrict people from going door-to-door for noncommercial purposes between the hours of 9 a.m. and 9 p.m. “Noncommercial” includes people who will be trying to convince residents of your towns to vote for their preferred candidate.

In 2002, the U.S. Supreme Court ruled that a municipal ordinance prohibiting any “canvassers, solicitors, peddlers, hawkers, itinerant merchants or transient vendors” from “going in and upon private property … without first registering in the office of the Mayor and obtaining a Solicitation Permit” was overbroad and violated the First Amendment’s free-speech guarantees in a case called Watchtower Bible & Tract Society v. Village of Stratton. Your solicitor might want to check it out. It was an 8-1 decision; it wasn’t even close.

In 2006, the ACLU won a lawsuit on behalf of political GOTV canvassers who challenged a municipal pre-registration requirement. In Service Employees International Union v. Municipality of Mt. Lebanon, the U.S. Third Circuit Court of Appeals declared that even a minimally burdensome “registration,” or advance-notice, requirement prior to people canvassing door-to-door violates the First Amendment.

By the way, that lawsuit cost the borough of Mount Lebanon in Allegheny County $65,000 in litigation fees and costs, which is typical in civil rights cases.

The only people who can stop canvassers from coming to their doors are the residents themselves, who can legally post “no soliciting” signs on their property.
When the government respects people’s constitutional rights, everyone wins. But, if necessary, the ACLU of Pennsylvania has no qualms about protecting the First Amendment rights of people who want to express themselves politically by talking with the residents of your towns about the upcoming election. If your police department tries to prohibit someone from going door-to-door, that person is welcome to contact us at this link.

Hopefully it won’t come to that. This memo and this FAQ should give you all of the guidance you need. You took an oath to uphold the constitution. We expect you to honor it.

Sincerely,
The team at the ACLU of Pennsylvania

ACLU PA Offers Testimony at Hearing on Police Accountability Following Murder of Antwon Rose, Jr.

ACLU PA Legislative Director Elizabeth Randol

By Elizabeth Randol, Legislative Director, ACLU of Pennsylvania

Back in June, I attended a convening with my ACLU colleagues who are working on the Campaign for Smart Justice to reduce mass incarceration by 50% and address systemic racial disparities in the criminal justice system. For three days in Pittsburgh, Campaign for Smart Justice organizers and communicators from across the country had planned on intensive strategy and skill-sharing sessions to make our campaigning as powerful as possible.

Then, on the morning of our second day, we learned that just a few miles away, an East Pittsburgh police officer had gunned down a teenager, Antwon Rose Jr., with three shots to the back as Rose fled a traffic stop.  

Putting aside our planned agenda, we quickly decided to rally and march in solidarity with the Rose family in community protests that evening in East Pittsburgh and the next day in front of the Allegheny County Courthouse.

As the Rose family continues to demand justice for Antwon, we all ask the same question about this case: How was the officer who murdered Antwon just hours into his first day of work in East Pittsburgh hired in the first place despite a long record of disciplinary issues at other departments around the county?

Last week, I testified at a public hearing regarding police training and accountability in Wilkinsburg which is, like East Pittsburgh, a borough just outside Pittsburgh city limits.

The joint hearing, convened by the PA House and Senate Democratic Policy committees and co-hosted by Rep. Ed Gainey (D-Allegheny) and Sen. Jay Costa (D-Allegheny), was in direct response to the murder of Antwon Rose, Jr.

The goal of the hearing was to educate lawmakers about what can be done to improve police training and how best to hold an officer accountable when they violate their code of conduct or themselves break the law. The hope is that this, and other public hearings and conversations, will lead to legislation that codifies better training and accountability in police departments statewide.

One recurring theme was the need for better diversity training for all police officers. Wilkinsburg Chief of Police Ophelia Coleman, a law enforcement official for more than forty years, recounted that when she took over her department the training budget for more than twenty officers was only $1500. “Today,” she proudly noted, “it’s no less than $50,000 for training.”

Wilkinsburg Chief of Police Ophelia Coleman

But, Chief Coleman reminded the lawmakers, training alone is not enough. In a perfect world, officers would be patrolling areas in which they are also community members. Calling her department one of the “best kept secrets” in terms of law enforcement in the commonwealth, Chief Coleman shared what she feels makes the officers in her department so successful: “They’re community oriented police with a capital C-O-P.”  

While it’s clear that more training for police is needed across the board, what is equally clear is that training without clear accountability to the community is nothing more than window dressing.

The good news is, when it comes to police accountability, there was a clear interest in tackling the issue among the lawmakers in attendance.  

Sen. Sharif Street (D-Philadelphia) called for the open sharing of information about officers and a statewide officer database. Sen. Art Haywood (D-Montgomery) referenced legislation he introduced this session that would require the Attorney General to appoint a special prosecutor to handle cases in which police officers used deadly force. Sen. Jay Costa (D-Allegheny) recently proposed a bill package to improve police-community relationships. And House representatives are expected to introduce a series of other reforms in the coming days and weeks.

When it came time to deliver my testimony, I echoed many of the concerns already raised by advocates, agencies, and law enforcement officials at the hearing. I decided to highlight a few important police accountability reforms enacted in other states, including stricter hiring practices, stronger disciplinary procedures, standardized use of force policies, mandated implicit bias training, enhanced data collection and reporting, and the creation of independent investigations to prosecute officer-involved shootings.

After each instance of police violence, communities all too frequently are left waiting for their lawmakers to respond. Pennsylvanians deserve comprehensive and meaningful reforms that improve community-police relationships, de-escalate police use of force, and that will truly hold police officers accountable for their actions.

“Don’t just introduce legislation that’s easy to pass,” I urged the legislators, “Be bold and show your constituents where you stand by showing them what is possible.”

After I spoke, several legislators asked if the ACLU-PA could provide them with additional resources or assist with writing legislation to address these critical issues. I agreed that we could and would.

The ACLU of Pennsylvania looks forward to being an active participant in drafting and supporting bold and meaningful reform legislation. Justice for Antwon Rose, Jr. and far too many others like him is only possible when we ensure police are better trained and held accountable for their actions when they commit acts of violence.

Politicians in Harrisburg are Using People With Down Syndrome

By Rabbi Mordechai Liebling

Members of the Pennsylvania House of Representatives recently passed HB 2050, a bill that attempts to restrict abortion based on a Down syndrome diagnosis. They did so without holding a single public hearing, and the bill is now before the state Senate. I’m the parent of a son with Down syndrome, and I can tell you what this bill truly is: an attack on a woman’s right to control her own reproductive care decisions in our commonwealth.

The bill would make it a felony to terminate a pregnancy based solely on a prenatal diagnosis that a fetus has Down syndrome. It copies legislative efforts in several other states that restrict abortion access and are now facing legal challenges over their constitutionality. It’s also an infuriating exploitation of people with Down syndrome as political pawns by Harrisburg politicians so eager to interfere with Pennsylvanians’ reproductive freedom.

There are a lot of misperceptions of what it’s like to raise a child with Down syndrome. The reality is that never before have the opportunities been so great for people with cognitive disabilities, from employment opportunities to the level of acceptance in society. If this proposed legislation was truly about protecting the wellbeing of people with Down syndrome, then it would mandate more funding for genetic education and genetic counseling about the realities of having a child with Down syndrome.

Any parent with a child with Down syndrome will tell you their child is a blessing, and our son Lior has added so much to my family. Now 27, he attended a two-year program at Temple University for people with cognitive disabilities and works full-time while living in an independent living community. It’s critical that people understand the possibilities that exist for people with cognitive disabilities, including specially designed college programs and state and local services. Any new legislation should focus on widening access to such possibilities.

The Liebling family

It makes me angry that people with Down syndrome are being used as bargaining chips in Harrisburg to restrict a woman’s right to make her own decisions about her reproductive healthcare. This is purely a manipulative play by anti-abortion legislators, one that we need to fight not only in Pennsylvania’s legislature, but nationwide.

Not all people whose lives are touched by Down Syndrome or cognitive disabilities agree that this bill is the way to advocate for people with those disabilities. Having Lior has brought immeasurable joy to my family, and I’m so glad he came into our lives. But that doesn’t mean parenthood is my – or Harrisburg politicians’ – decision to make for anyone else.

Take action! Tell your state senator to vote NO on House Bill 2050 by clicking this link. Women’s access to reproductive healthcare depends on it!

It’s Time to Get Real About Race and the Death Penalty

By Andy Hoover, Legislative Director, ACLU of Pennsylvania

SQ Lethal Injection Room

Two weeks ago, Governor Wolf announced a moratorium on executions in Pennsylvania and granted a reprieve from execution to Terrance Williams, who was scheduled to be executed on March 4. Wolf will continue granting reprieves- a power he is granted by law – until an analysis commissioned by the state Senate returns with its recommendations and “all concerns are addressed satisfactorily.”

In his announcement of the moratorium, Wolf referred to capital punishment as “unjust” and cited several reasons for using the word. In his memorandum that explained the moratorium, he spent several paragraphs discussing the role of race in capital punishment.

Death penalty abolitionists don’t use race as one of their top tier messages, and who can blame them? A 2007 survey found that support for capital punishment actually goes up when white respondents hear messages of racial disparity. White America is still sticking its collective fingers in its ears when it comes to race and the criminal justice system.

Pennsylvania has consistently shown a penchant for sentencing black defendants to death. According to the Death Penalty Information Center, of the 188 people on death row in the commonwealth, 120 of them, or 64 percent, are people of color, as of October 1, 2014. Over the 15 years that I have been involved in death penalty repeal work, that number has been as high as 70 percent.

A study by Professor David Baldus and his colleagues at the University of Iowa found that a black defendant in Philadelphia was 3.9 times more likely to receive a death sentence than a white defendant in a similar case.

The Baldus study was 17 years ago and was based on data from 1983 to 1993. As part of the Senate-supported analysis, researchers are trying to update the question of race and the death penalty in Pennsylvania. Unfortunately, according to one of my sources, at least one high-profile district attorney stymied that work for months by refusing to release data from his county on race in capital cases. He was ultimately persuaded but only after much cajoling. Some public officials just don’t want to talk about facts in the death penalty debate.

The race of the victim may play an even greater role in deciding who lives and who dies. Homicide victims are white in about 50 percent cases. But since the Supreme Court reinstated the death penalty in 1976, the victims were white in 76 percent of cases that ended in execution.

There are many reasons why capital punishment is slowly being swept into the dustbin of history. Since 2007, six states have repealed their death penalty statutes, bringing the total of non-death states to 18. In 2014, only seven states carried out executions, and 80 percent of those were in three states. Governor Wolf did the right thing in bringing a halt to the machinery of death, and he used the right word to describe it- unjust.

To learn more about the debate over Pennsylvania’s moratorium on executions, check out the discussion on WITF-FM’s Smart Talk, which featured Spero Lappas, who is a member of the ACLU of PA’s South Central Chapter board, a retired criminal defense attorney, and former cooperating counsel with ACLU-PA.

Andy Hoover is the legislative director of the ACLU of Pennsylvania and is the former chair of the board of Pennsylvanians for Alternatives to the Death Penalty.

This blog post is part of a series for Black History Month.