Pennsylvania Commission on Sentencing’s Risk Assessment Tool: What Happened

Ten years after the state legislature mandated that the Pennsylvania Commission on Sentencing create a risk assessment tool to be used at sentencing, the commission finally voted on and passed a proposal in early September.

The vote comes on the heels of more than three years of public hearings in which the commission and criminal law reform advocates debated the details of proposals while thousands of Pennsylvanians spoke out in opposition to the use of risk assessment tools at sentencing.

Let’s talk about the version of the commission’s risk assessment tool that ultimately passed and what is next.

How does the risk assessment tool that passed work?

Before an individual appears at sentencing, a web-based computer program calculates a risk score, according to the risk assessment tool created by the commission. If the individual scores “high” or “low” according to the tool, a notation is added to the sentencing guidelines form instructing the judge to seek “additional information.” The sentencing judge will not receive the person’s risk label, only a notation regarding more information.

Why is the risk assessment tool problematic?

As with previously proposed versions of the risk assessment tool put forth by the commission, the data points in the worksheet used to label an individual as low, medium, or high risk are steeped in racial biases baked into the system. What’s more, the high-risk label is accurate only about half the time — no better than a coin toss.

What’s next?

Unless the state legislature explicitly rejects the risk assessment tool, it will go into effect on July 1, 2020. Beginning in January, the commission will begin six months of training to help judges learn how to use the tool. Some legislators have floated the idea of not only rejecting the risk assessment tool, but overturning the original mandate. Read more about what legislators can do next in this piece from Senators Street and McClinton.

We will continue to monitor proposals before the commission and work to oppose any and all policies that would perpetuate mass incarceration and racial biases. You can sign up for email updates from the ACLU of Pennsylvania to get the latest information about the commission’s next steps and other important civil liberties issues in the commonwealth.

What’s the good news?

The commission members heard you.

The risk assessment tool could have been much worse. Thanks to more than a thousand ACLU of Pennsylvania members who spoke up to oppose the proposal and critical feedback from our partners, the commission made key changes at the 11th hour so that the version of the risk assessment tool that ultimately passed is far better than the earlier versions.

These changes included scrapping a plan to turn over those individuals deemed to be low and high risk to county probation officers — who are already overworked and under-staffed — to conduct a second even more problematic risk assessment tool and make a final recommendation to the sentencing judge on risk. Moreover, in the current version, a sentencing judge no longer sees the risk labels generated by the tool. Finally, the commission removed many of the extremely problematic factors used to calculate risk. This would have compounded the racial biases that already plague the proposal while slowing the entire sentencing process to a glacial pace that would have meant more people spending more time in jail awaiting sentencing.

Because of your voice, some of the worst pieces of the risk assessment tool were abandoned.

The Pennsylvania Supreme Court is Serious About Investigating Bail Practices in Philly

Judge gavel with Justice lawyers, Business woam in suit or lawyer working on a documents. Legal law, advice and justice concept.

by Hayden Nelson-Major, Independence Foundation Fellow

After more than a year of gathering data and urging Philadelphia bail judges to follow the letter of the law, in early July, the Pennsylvania Supreme Court announced that it would launch an investigation into the use of cash bail in Philadelphia.

When an individual is assigned bail in Pennsylvania, the bail judge must follow, by law, the Pennsylvania Rules of Criminal Procedure. According to these rules, an individual cannot be locked up before their trial simply because they are too poor to afford cash bail. These rules instruct bail judges to assess whether a person is able to pay bail. If the answer to that question is no, then the rules say that the person charged must be released until their day in court.

But that’s not what is happening in Philadelphia.

In March, the ACLU of Pennsylvania joined the law firm of Arnold & Porter to file a lawsuit demanding that Philadelphia bail judges follow the rules and stop jailing people pretrial simply because they cannot afford bail.

The lawsuit followed months of court-watching and witnessing more than 2,000 bail arraignment proceedings. After it became clear that bail judges were not following the rules, the ACLU of Pennsylvania sent a lengthy letterto the First Judicial District detailing the ongoing issues.

In announcing the lawsuit, ACLU of Pennsylvania and Arnold & Porter were joined by advocates from Philadelphia Community Bail Fund and the Youth Art & Self-empowerment Project, who shared personal stories from the plaintiffs on whose behalf the lawsuit was filed.

In a statement responding to the court’s decision, Nyssa Taylor, criminal justice policy counsel for the ACLU of Pennsylvania, described what court-watchers saw from observing more than 2,000 bail arraignment proceedings.

“Bail hearings in Philadelphia typically last less than three minutes . . . and the person whose liberty is on the line is not even in the room, as they watch the proceedings by video.”

According to the complaint we filed in March, the Pennsylvania Supreme Court has already “reaffirm[ed] that the purpose of bail is to ensure” that a person charged with a crime shows up for court and that “Pennsylvania law favors the release, rather than the detention of an individual pending a determination of guilt or innocence.”

Nobody should be locked up simply because they are too poor to afford to pay bail.

The ACLU’s Campaign for Smart Justice aims to cut incarceration by half and challenge racism in the criminal legal system. Ensuring that Philadelphia follows the rules when it comes to assigning bail is one step towards this goal. But it is far from the last step.

In Pennsylvania, the use of cash bail and pretrial detention is not unique to Philadelphia. We hope that this lawsuit will send a message to bail judges across the commonwealth that they must follow the rules, and we hope that lawmakers will embrace policies that don’t criminalize poverty.

The ACLU of Pennsylvania will continue to work to achieve the goals of the Campaign for Smart Justice by pushing for an end to pretrial detention, sentencing and prosecutorial reform, and significant changes to parole and probation laws in Pennsylvania.

Learn more about the Campaign for Smart Justice.

Elected Officials Cannot Block People on Social Media

By Rich Ting and Andy Hoover

From Franklin Roosevelt’s “fireside chats” on radio to John F. Kennedy’s mastery at the televised debate, politicians have made use of the latest communications technology to reach people with their message. Today, elected officials as different as Donald Trump and Alexandria Ocasio-Cortez have mastered social media as a platform.

But communication between an elected official and the people is a two-way street. Thanks to the free speech clause of the First Amendment, politicians cannot eliminate viewpoints they don’t want to hear.

A federal court in New York this week affirmed the right of the people to share their views with elected officials. In a case known as Knight First Amendment Institute at Columbia University v. Trump, the United States Court of Appeals for the Second Circuit upheld a lower court’s decision that President Trump violated the free speech clause of the First Amendment by blocking certain users from his Twitter account.

In its ruling, the court made a distinction that the ACLU of Pennsylvania has been making over the last two years as this issue has popped up – the relevance of the First Amendment hinges on whether or not the social media account is the person’s official government page or a personal or campaign page. Blocking users from a social media account violates the First Amendment if the account is an official, government-run account with interactive features accessible to the public.  The court noted that “not every social media account operated by a public official is a government account,” and whether a social media account is a government account is a fact-specific inquiry informed by how the official describes and uses the account, to whom features of the account are made available, and how others regard and treat the account.  The decision in Knight, for example, does not apply to personal or campaign social media accounts.

With respect to President Trump’s Twitter account, the court noted several factors indicating the account is an official, government-run account.  For example, the account is registered to “Donald J. Trump, ‘45th President of the United States of America, Washington, D.C.,’” the President uses the account on an almost daily basis to communicate and interact with the public about his administration, the President uses the account to engage with foreign leaders and announce foreign policy decisions, and the account was intentionally opened up for public discussion.  The court found that President Trump, therefore, “is not entitled to censor selected users because they express views with which he disagrees.”

As a private real estate mogul, Donald Trump could block whomever he pleased from his Twitter account. But when he made the decision to run for public office, he lost that luxury. He and other elected officials cannot eliminate people from public discussion based on their viewpoints. Our constitution forbids it, and our democracy demands that those viewpoints can be expressed without obstruction from public officials.

Rich Ting is a volunteer attorney with the ACLU of Pennsylvania. Andy Hoover is ACLU-PA’s director of communications.

Meet Caleb Christ, the 2018-19 Frankel Adair Scholar

The Frankel-Adair scholarship provides $1,500 in support of post-secondary education to an LGBQ&T student residing in the greater Philadelphia area. The scholarship honors the late Larry Frankel, former executive and legislative director of the ACLU-PA, and the benefactor, Thomas T. Adair. For more information about the scholarship, visit this link.

What were the most important events or influences that brought you to where you are today?

My lived experience as both a queer person and a transgender man motivated my pursuing a second undergraduate degree in the field of nursing. Interning at the Allentown Women’s Center and having the opportunity to help develop and implement their transgender health program sparked my passion for healthcare. I have been an advocate for people accessing transition-related healthcare, navigating insurance hurdles, and breaking down barriers to care. I would not be where I am today if I had not been able to access affirming, transition-related healthcare that allows me to live as my authentic self.

What do you see as the critical issues facing the LGBQ&T community at this time?

Access to expert healthcare for LGB and especially transgender communities is critical, along with health insurance that meets the unique needs of these communities. We also must address the ways that racism, class, and incarceration create barriers to healthcare, housing, and employment.

Do you envision your own career having an impact on concerns of the LGBQ&T community?

Healthcare as a whole has been slow to implement the level of training necessary to provide truly affirming care for transgender patients. Though LGBTQ competency is beginning to be included in health and medical education, there are many gaps. I hope to advocate for LGBTQ patients through the care I provide, through research and policy, and through clinical excellence.

What other social issues motivate you?

Sexual health and reproductive rights, rethinking the carceral system, homelessness, substance use, mental health and wellness — all these issues have an impact on access to healthcare and are crucial to address in tandem with being a healthcare provider.

The Philadelphia Police Department has a Racism Problem

By Reggie Shuford, Executive Director, ACLU of Pennsylvania

The job of a police officer is to serve and protect the community, no matter the racial, ethnic, religious, or socio-economic status of that community. Real justice is blind, and police officers are the front-line arbiters of justice in America.

But as a new, comprehensive report and database from the Plain View Project makes clear, many of the police officers in Philadelphia and across the country operate under a vision of justice that is anything but unbiased.

The analysis, which was first reported by Buzzfeed News, provides a searchable, public database of deeply disturbing social media posts from police officers in Philadelphia and seven other police departments, including York, Pennsylvania. While the names of people who interacted with the posts have been redacted, the names of the police officers who authored the posts have not.

The bottom line? The Philadelphia Police Department has a racism problem. Fortunately, the Plain View Project database names names, revealing exactly which officers are not fit to fulfill their duties to serve and protect.

The deep-seeded racism plaguing the department won’t be unraveled overnight. While the police officers whose hate-filled posts have been exposed should be dismissed immediately, the racism in the Philadelphia Police Department can’t and won’t be rooted out until the department faces the issue head-on. After all, this culture most assuredly runs deeper than the police officers who made publicly viewable social media posts.

People of color already have legitimate reasons for lacking trust in law enforcement in Philadelphia; our ongoing litigation over stop-and-frisk practices has proved that time and again. The behavior exposed by this report provides even more evidence for why that distrust is warranted. Hundreds of police officers in Philadelphia openly express hostility and antipathy toward the people they “serve.”

And the report only exposes those officers who did not hide their views behind a privacy wall. How many more officers say the same thing under the cloak of stronger privacy settings?

Over the past decade, with the emergence of smartphone technology, the epidemic of police violence driven by apparent racial animus has been well-documented. While many thought that the use of police body cameras would offer a measure of accountability that might prevent police killings, those hopes have been dashed as police officer after police officer wins acquittal in cases where their killing of unarmed civilians was caught on video.

The disturbing social media posts uncovered by the Plain View Project reinforce the sad reality that police can get away with anything, from brazen racism to murder.

Police culture in Philadelphia and across the nation must change. But it can’t change if those in power —mayors, police commissioners, city council members— don’t address the problem boldly and urgently. Until then, it’s difficult to see how the public – particularly communities of color – can trust police to do their jobs, leaving “serve and protect” as nothing but a bitter punchline.

Police Are Ill-Equipped to Help People With Mental Health Disorders

Osaze Osagie (photo courtesy of the Osagie family)


By Reggie Shuford, Executive Director, ACLU of Pennsylvania

Last month, District Attorney Bernie Cantorna of Centre County, Pennsylvania, announced that his office would not criminally charge three State College police officers who were involved in the shooting death of Osaze Osagie, a 29-year-old Black man, in March. Osaze was shot and killed in his own apartment building. The only reason the officers were there is because his parents called the police to ask for help with their son, who was having a mental health crisis. The police responded to the parents’ plea to help a mentally ill person, and they ended up shooting the young unarmed Black man dead.

Cantorna’s decision wasn’t surprising, of course. Despite the epidemic of officer-involved killings – 992 people were shot and killed by police in the United States in 2018, disproportionately people of color – officers are rarely charged by prosecutors. And when they are charged, they are rarely convicted, even in a case like the death of Antwon Rose, a 17-year-old boy who was unarmed and running away from a traffic stop when he was killed by Officer Michael Rosfeld in East Pittsburgh, Pennsylvania, last year. Rose’s death was filmed by a bystander, but the jury acquitted Rosfeld anyway.

In Osaze’s case, there were no witnesses, and there was no video footage. There were four people on the scene; one of them is dead and the other three are police officers. So, Cantorna was left with only the officers’ stories in conducting his investigation. When he announced his decision, Cantorna effectively acted as a mouthpiece for the police. And he refused to name the officers involved, leaving people in State College to wonder who on the police force killed a man.

Osaze came to the attention of the State College police because his family was concerned that he may have been having a mental health crisis. The officers knew this when they approached his door. According to a statement released by the family, Osaze’s father was in the neighborhood, looking for him. DA Cantorna stated that all three officers had crisis intervention training and one had been trained as a crisis negotiator.

And yet, with all of that training and Cantorna’s contention that the officers followed it, Osaze still ended up dead.

The fact is that police officers should not be first responders to people who are in crisis. When they are, the odds increase that the person in crisis will be killed. Research indicates that at least 25 percent of people who are killed by police are in crisis. Helping people who are struggling with mental health disorders is a public health issue and is better left to healthcare professionals.

Some cities in the United States are taking this approach, sending crisis counselors or at least paramedics and nurses to the scene when the situation does not involve a crime in progress. And for the narrow situations in which police must respond, their training needs a total overhaul, to emphasize de-escalation techniques.

It was disappointing and, frankly, a bit frightening that DA Cantorna actually suggested loosening Pennsylvania law to make it easier for police to intervene with people with mental health disorders. State law only allows involuntary commitment when a person is an imminent danger to harm themselves or others. Cantorna’s rationale is that broadening the law will allow intervention before a person is in crisis.

While his reasoning sounds logical, in practice, it would likely lead to more tragedies like the death of Osaze Osagie. As long as police culture and training cling to a mentality of control and violence, giving police more power to engage a person who has not committed a crime is a terrible idea. The public needs less interaction with the police, not more.

According to Cantorna, more than 300 mental health warrants were served in Centre County in 2018. And Osaze’s death was the first officer-involved killing in the State College Police Department’s 100-year history.

That is little solace to the Osagie family, who called the police to help their son, not kill him.

Pennsylvania is Jailing People With Mental Illness Who Belong in Treatment

By Witold Walczak, Legal Director, ACLU of Pennsylvania

For the third time in less than four years, the ACLU of Pennsylvania and co-counsel from Arnold & Porter Kaye Scholer asked a federal judge last week to order Pennsylvania’s Department of Human Services to reduce the time that people with severe psychiatric disabilities spend waiting in jail for treatment beds. These people’s mental disabilities are so significant that under the Constitution they can be neither prosecuted nor punished, which means they cannot be kept in a prison or jail. 

How disabled are our clients?

Most are floridly psychotic. This means that they see people who are not in the room, hear people who are not talking, and feel things — like armies of spiders crawling on them — that are not there. Jail conditions only exacerbate these symptoms and make them deteriorate further. They spread feces on themselves and eat it. Some become violent. 

These people are also very alone. Many of our clients’ families have abandoned them — not because they are bad people necessarily, but because the societal and medical supports to help both their loved one and themselves are not there. And the clients’ illness prevents them from advocating for themselves. These people are helpless, often without anyone even trying to help them. 

Our clients also share in common criminal charges for a range of transgressions, from stealing peppermint candies from a convenience store — I kid you not; check out our lead plaintiff’s story— to murder. But because they are too sick to understand the charges or assist in defending against them, the Constitution prohibits them from being prosecuted or imprisoned. 

If the criminal court determines that mental health treatment will likely make them competent within a reasonable time period, however, the court can order them into “competency restoration treatment.” This treatment need not involve expensive hospital beds; for some people, the treatment can be provided in the community. 

In October 2015, we sued DHS over what appeared to be the longest wait times for incompetent criminal defendants in the country. Two federal courts had ruled that the Constitution requires states to transfer incompetent patients ordered to treatment within seven days. In Pennsylvania, one of the two DHS hospitals accepting such patients was so full that people were waiting in county jails for over a year, and in some cases more than two years.

These lengthy waits in jail are not only plainly unconstitutional: They are inhumane. People with severe psychiatric disabilities, who legally cannot be punished, are held in cages — that’s what a prison cell is, folks — usually with little or no mental health services. Studies reveal that individuals with major mental illnesses, as a group, face a substantial likelihood of getting seriously injured in prison. Confining severely mentally ill patients in close quarters with, and without adequate protection from, large numbers of antisocial persons with excess time and few productive activities results in bullying and predation.

Moreover, their mental illness causes them to act in ways prisons don’t condone, often leading to their placement in solitary confinement. Not only does the patient remain untreated, but the isolation causes the patient to decompensate much faster, exacerbating the mental health condition. These experiences — the trauma of physical and sexual victimization and conditions of solitary confinement, either alone or in combination — often aggravate inmates’ psychiatric symptoms and even create new mental disorders. 

Our first injunction in the case resulted in a January 2016 settlement requiring DHS to study the problem to identify a solution as well as to add treatment beds. We suggested that many of the patients could be treated in community settings, which would be better for them and much cheaper for the agency. When those changes did not reduce wait times, we filed for a second injunction in summer 2017. The second settlement eventually reduced wait times to about 4-5 months, but that was still far too long, legally and medically.

Our third injunction request last week is straightforward: We ask the court to order DHS to meet the seven-day transfer period for all patients by Sept. 1. The agency will need to figure out how to do so. Our clients cannot continue to pay the heavy price of DHS’s failure to fix this problem.

If a society is judged by how it treats its most vulnerable citizens, Pennsylvania is not doing very well. 

Why won’t Philadelphia follow the rules when setting bail?

by Ian Pajer-Rogers

“G.T.” was arrested in Philadelphia on March 4, 2019. Fifty two years old and suffering from chronic pain from a 2014 injury, G.T. is a recipient of food stamps and was living in a car with all of his possessions in the weeks before he was arrested, as he sought an affordable apartment.

At his bail hearing, despite stating that he was currently unemployed and homeless, the judge set G.T.’s bail at $250,000, meaning G.T. would have to come up with $25,010 to secure his release until his trial.

G.T. is worried that his car, full of his possessions and parked on a public street, will not be there when he finally is released. He’s at risk of missing scheduled doctor’s appointments to treat his chronic pain. He’s sure that the leads on apartments will have evaporated. Worst of all, G.T.’s mother is dying of cancer. Everyday that he spends languishing in jail before he’s ever had his day in court is less time that he might spend with his mother.

“K.B.” is a 27-year-old mother of two who was recently arrested in Philadelphia. Despite making clear that she is not currently working and has no other source of income, the judge set K.B.’s bail at $10,000.

The judge never asked K.B. whether she could afford the $1,010 necessary to secure her release. K.B. remains separated from her children, who are five and nine.

K.B. has no idea how long she will be separated from her children before she has her day in court.

At the time of this writing, G.T. and K.B., like so many others, are incarcerated in Philadelphia’s county jail. Even though they have not been convicted of a crime, they are still being held pretrial because they can’t afford to pay to get out. But working with groups like the Philadelphia Community Bail Fund and the Youth Art & Self-Empowerment Project, they are fighting back.

G.T. and K.B. are, along with eight other individuals being held pretrial in Philadelphia County Jail, co-plaintiffs in a lawsuit filed March 12 by the ACLU of Pennsylvania and the law firm of Arnold & Porter. The lawsuit comes after observing more than 2,000 bail arraignment proceedings and after sending a letter of concern to the First Judicial District last September.

The lawsuit makes a very simple demand: that bail judges in Philadelphia follow the Pennsylvania Rules of Criminal Procedure.

But before describing how bail judges in Philadelphia are in violation of the rules, let’s remember what bail is. And what it isn’t.

As cited in the complaint, the Pennsylvania Supreme Court has “reaffirm[ed] that the purpose of bail is to ensure” that a person charged with a crime shows up for court and that “Pennsylvania law favors the release, rather than the detention of an individual pending a determination of guilt or innocence.”

In other words, bail should never be the sole factor that keeps a person locked up pretrial and judges have a legal obligation to consider whether an individual can afford the bail they set or whether they are effectively locking up a person for being poor.

The 2,000+ bail hearings that were observed in Philadelphia’s First Judicial District over the past year were rife with rule violations.

In many cases, judges would assign cash bail in one breath and a pro bono public defender in the next. Eighty-six percent of the defendants who were observed being assigned cash bail had already been determined to be too poor to afford bail or a lawyer.

The lawsuit calls on the Pennsylvania Supreme Court to intervene and ensure that judges in Philadelphia are acting within the parameters of the rules and within the bounds of decency.

While this lawsuit is focused on bail judges in Philadelphia, the overuse of cash bail and pretrial detention is rife across Pennsylvania. We hope that judges and district attorneys statewide will take notice of this lawsuit and take time to review their own practices to ensure fairness, liberty, and justice for all Pennsylvanians.

If not, we will see them in court.

PA Prisons’ New Legal Mail Policy Stifles Communications Between Lawyers and Prisoners

Photo: Ali Khan via flickr

By Andy Hoover, Director of Communications, ACLU of PA

At the first day of testimony in federal court in Harrisburg on Tuesday, four lawyers and one person who is currently incarcerated testified that the Pennsylvania Department of Corrections’ new policy of copying and storing mail between lawyers and their clients in the state prisons significantly hampered their ability to communicate with each other.

Federal district court Judge John E. Jones III is presiding over the hearing in PILP et al. v. Wetzel and Hayes v. Wetzel, two cases that challenge the prison system’s policy as a violation of the First Amendment right to attorney-client confidentiality.

In her opening statement, Alexandra Morgan-Kurtz, a staff attorney with the Pennsylvania Institutional Law Project, said that the department “overreacted” and that, “There’s a reason no other prison system in the country has adopted this
overly aggressive approach.”

Until last fall, legal mail was opened in front of the intended recipient, checked for contraband, and given to the prisoner. But in October, the department changed that practice. Now, legal mail is still opened in front of the prisoner, but, after checking for contraband, prison staff then copies the document. The copy is given to the prisoner, and the prison staff stores the original.

In testimony today via videoconferencing, Davon Hayes, a prisoner at SCI-Smithfield in Huntingdon who is challenging the practice, said that he has never actually seen the originals placed into the locked bin where they are to be stored and that he is unable to see the copier that is used for producing the copy.

Mary Catherine Roper, deputy legal director at the ACLU of Pennsylvania, and Su Ming Yeh, deputy director at PILP, both represent organizations that are plaintiffs in the litigation and that communicate regularly with people who are incarcerated. Or at least they did. Roper told the court that ACLU-PA stopped sending any privileged communications to people in DOC facilities and instead now sends a generic questionnaire, asking prisoners about their experiences with the new policy. And Yeh testified that PILP no longer sends legal mail that is specific and confidential. She called the department’s policy a “detriment to our cases and to the hundreds of people who contact us.”

Although the department’s policy prohibits staff from reading legal mail that they are handling, Roper testified that the idea that staff will simply avert their eyes from the pages they’re handling is “not credible.”

Furthering the point, in his own testimony, Hayes talked about the experience of a guard looking at his legal mail during a cell search in 2011, long before the policy of copying and storing mail started. According to Hayes, the guard read the complaints that Hayes had filed, including a complaint to the local district attorney. When Hayes asked him to stop, the guard called him “a rat” and kicked his mail and his religious materials.

Also on Tuesday, the court heard from two attorneys from the Federal Public Defender – Leane Renée, chief of the Capital Habeas Unit in central PA, and Lisa Freeland, chief of the FPD in western Pennsylvania. Renée and Freeland both discussed the impracticality of visiting their clients, with long drives across the state and hurdles created by prisons’ rules, which are often different from one prison to the next. Renée testified that, under the previous policy, lawyers in her unit would typically send letters with their opinions and thoughts about a client’s case and draft briefs. Her attorneys stopped doing that when the new process went into effect in October. Because the DOC also requires that legal mail provided by attorneys to their clients during visits be copied and stored, the lawyers in her office have no confidential way to provide physical copies of documents to their clients.

Freeland, who represents Hayes, said that her decision to cease sending confidential information put a strain on their relationship. Hayes had advanced his case through the appeals courts while representing himself. The Federal Public Defender started representing him last year, so when his new attorneys stopped communicating by mail, Hayes became frustrated and threatened to dismiss them, after years of having total control as his own lawyer.

On Wednesday, the ACLU-PA and our fellow plaintiffs will continue our case with testimony from several officials from the Department of Corrections, a former warden of San Quentin Prison in California, and another prisoner. Along with ACLU-PA and PILP, the other plaintiffs and co-counsel include the Abolitionist Law Center and the Amistad Law Project, with volunteer attorneys from the law firm Schnader Harrison Segal & Lewis. More information is available at aclupa.org/PILP.

Update: Wednesday’s proceeding has been cancelled due to weather.

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.