After deportation, a murder in central Mexico: The case of Juan Coronilla-Guerrero

By Andy Hoover and Matt Stroud, ACLU of Pennsylvania

c’s wife told a federal judge that he could be killed if he was deported back to central Mexico. The judge decided to deport him anyway — and Coronilla-Guerrero was killed. Photo via the American-Statesman.

For a decade, irresponsible public officials and other public figures have used xenophobic rhetoric to fuel a hateful anti-immigrant movement. Some — among them, former Hazleton mayor and now Congressman Lou Barletta and former DOJ bureaucrat and now Kansas Secretary of State Kris Kobach — have gained power by using fear of immigrants as a launching pad for their ambitions, even while their most extreme ideas continuously lose in court. That xenophobia charged our current president’s run to the White House, and its inevitable conclusion is now being seen around the country, as ICE and Border Patrol agents harass, intimidate, and arrest people wherever and whenever they can find them.

Advocates for immigrants’ rights have a fairer, more compassionate vision of America — as a place where people can seek refuge from extreme poverty, extreme violence, and political persecution.

On Tuesday, the Austin American-Statesman reported about the case of Juan Coronilla-Guerrero.

Coronilla-Guerrero was arrested by agents with U.S. Immigration and Customs Enforcement on March 3 when he showed up for a routine court appearance to address misdemeanor charges in Travis County, Texas. That he was picked up in a so-called “sensitive location” highlights how aggressive immigration enforcement has become.

In a federal hearing that followed Coronilla-Guerrero’s arrest, his wife described the gangland environment that she and her husband escaped when they left central Mexico for Austin. She warned a judge that her husband would likely be murdered if he were deported.

The judge wasn’t moved; Coronilla-Guerrero was sent back to his home country. His wife’s warning soon proved prescient: Three months after he arrived in Mexico, Coronilla-Guerrero’s body was discovered on a roadsidenear where he lived with his wife’s family.

As immigration enforcement gets more and more aggressive, we hear stories like this — of immigrants who are essentially refugees, begging to stay in the United States, and being arrested and/or deported regardless. NPR reportedWednesday about the parents of a two-month-old being arrested by Border Patrol agents while their child underwent a serious operation. In Pennsylvania, we hear frequent stories of immigration raids, ramped-up enforcement. When Hurricane Harvey devastated Texas’s Gulf Coast, a worry among undocumented immigrants was whether or not they could go to shelters without being arrested and deported.

Under Trump, Mexicans are “rapists” and we must build a “big, beautiful wall” to keep them out. Under Trump, the problem of immigration is not how to assimilate “your tired, your poor, your huddled masses yearning to breathe free,” but rather to lend a bullhorn to the “voices of immigration crime.”

But as that fearful, xenophobic philosophy spreads throughout federal law enforcement agencies — and as immigration-related arrests spike to record levels — the aggression of the fierce anti-immigrant movement championed by Trump, Barletta, Kobach, and their ilk creates new heartbreaking stories, new martyrs. Coronilla-Guerrero’s death shows the dangers of deportation itself. It highlights that claims that the United States is overrun by violent immigrants is a fallacy, a claim unsupported by data.

One wonders how those sympathetic to Coronilla-Guerrero will respond.

IN OTHER NEWS
(Criminal justice news deserving of an in-depth look.)

The

A fascinating investigative report from USA Today delved into The Wall, and whether it’s realistic. Of course it’s not, but the details of its impossibility are fascinating. Photo via USA Today.

“‘Build the Wall.’ Three words energized a campaign. But could it be done? What would it cost? What would it accomplish? Our search for answers became this, a landmark new report, ‘The Wall.’ The task was massive. We flew the entire border, drove it too. More than 30 reporters and photographers interviewed migrants, farmers, families, tribal members — even a human smuggler. We joined Border Patrol agents on the ground, in a tunnel, at sea. We patrolled with vigilantes, walked the line with ranchers. We scoured government maps, fought for property records. In this report, you can watch aerial video of every foot of the border, explore every piece of fence, even stand at the border in virtual reality. Still, breakthrough technology would mean nothing if it didn’t help us better understand the issues — and one another.”

“The records depict a slush fund for DA and police spending that runs the gamut from the mundane to the downright bizarre, all enabled by laws that empower police to seize property from individuals sometimes merely suspected of criminal activity. In one instance, the forfeiture ‘bank’ helped top off the salary of a former DA staffer who once served as campaign manager to now-jailed District Attorney Seth Williams. (The office maintains these expenses were appropriate and eventually reimbursed.) Other forfeiture dollars paid for at least one contract that appears to have violated city ethics guidelines — construction work awarded to a company linked to one of the DA’s own staff detectives. (The DAO said it is now conducting an ‘internal investigation’ into these payments.) With little concern for public scrutiny, the clandestine revenue stream also paid for much more: $30,000 worth of submachine guns (equipped with military-grade laser sights valued at $15,000) for police tactical units; a $16,000 website development contract; custom uniform embroidery; a $76 parking ticket; $1,000 in raccoon-removal services; a push lawn mower; a pair of outboard motors; and tens of thousands in mysterious cash withdrawals — along with thousands of other expenses.”

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.

Finally, some good news!

By Andy Hoover, Communications Director, ACLU of Pennsylvania

Under Pennsylvania’s “Clean Slate” bill, records of minor, non-violent misdemeanor convictions will automatically be sealed from public viewing after 10 conviction-free years. Photo from Steven Gottlieb via The Atlantic.

This space can get a little depressing sometimes. It seems like nearly every Friday we’re bringing you the latest bad news from Harrisburg or Philly or some other locale in the commonwealth.

That’s why here in our office this week we were falling over each other to write somegood news.

On Tuesday, the state Senate Judiciary Committee passed Senate Bill 529, known in short hand as “Clean Slate.” This is like criminal records expungement 2.0. Clean Slate works like so: People who have offenses on their records that are specified in the bill will have those records automatically sealed from public view after a period of years without another conviction. No going back to court to argue for it. No filing fees. Poof, it’s gone from public view, and while it will still be available to law enforcement, it will be unavailable to employers, landlords, schools, and nosy neighbors.

Our friends at Community Legal Services of Philadelphia (CLS), who have been the lead allies on this along with the Center for American Progress (CAP), describe it thusly:

“Sealing allows Pennsylvanians who show redemption by staying crime-free to move forward with their lives. The bill enjoys broad and bipartisan support, including from some legislators and advocacy groups who rarely find common ground.”

To that point, the bill passed out of committee unanimously and is co-sponsored by a majority of senators. The House version, HB 1419, is co-sponsored by a broad swath of Democrats and Republicans. (The lists of co-sponsors are here and here.)

The ACLU of Pennsylvania is thrilled to join with CLS, CAP, the U.S. Justice Action Network, and many other allies in support of this bill. If it becomes law, Clean Slate will allow people with low-level criminal offenses to truly move on.

Of course, we can’t report from Harrisburg without some bad news. We’ve told youbefore about the terrible, no-good bill that will limit — and effectively end — the public’s access to video produced by police cameras. That bill continues its merry trip through the legislature without a whiff of resistance, passing the House Judiciary Committee unanimously on Wednesday, after it passed the state Senate unanimously last month. The days of seeing police videos in Pennsylvania will soon be over, if this bill becomes law.

Meanwhile, the House Judiciary Committee wasn’t done. That bill on civil asset forfeiture that has inspired nothing more than a “meh” and a shrug of the shoulders from us passed out of committee, too. Color us unimpressed. This is the first time the state House will have a chance to vote on forfeiture reform, though, and amendments to the bill are starting to trickle in. How this plays out on the House floor remains to be seen.

Reforming the criminal justice system will not happen on a linear trajectory. This path will zig and zag. And this week proved it.

IN OTHER NEWS

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

Chief Scott Schubert is expected to provide the Pittsburgh Police department with a steady hand, while avoiding the reforms pursued by his predecessor, Chief Cameron McLay. Photo by Lake Fong, via the Pittsburgh Post Gazette.

  • Post-Gazette: “Pittsburgh police chief worked his way to the top”

“Three months into the job, Chief Schubert is steering clear of the reformer role shouldered by his predecessor, Chief Cameron McLay, instead naming community engagement, officer support and violent crime reduction as priorities for the department. ‘There are a lot of goals,’ he said in a recent interview, seated in his office in police headquarters, which is filled to the brim with photos, city memorabilia and awards. ‘But it’s all to make sure we have the best department.’”

  • PRI: “It took a health emergency for this Guatemalan boy, who crossed the border alone, to see a US judge”

“It was the kind of moment an undocumented immigrant dreads: coming face-to-face with the system. If they could have, the cousins would have avoided it. They didn’t have money to pay for hospital bills. But they knew it could be a matter of life or death. So, the two Bartolos went to the hospital. At the hospital, it turned out a lot was wrong. The bubbles were related to Pott’s disease or spinal tuberculosis. Bartolo also had a potentially fatal heart murmur. And he needed glasses. At 5-foot-3, he weighed 90 pounds. Hospital staff wrote in his records that he was possibly malnourished. But getting treated was tricky — he was a minor and even though the US government had placed him with his cousin when he entered the country, his cousin wasn’t actually his legal custodian. No one was. ‘So here he was, a kid who is 16, and he can’t sign the papers, he can’t make informed decisions about his own health care. But no one else could either…. No one seemed to know what to do to handle a kid who doesn’t have health insurance, doesn’t speak English and needed a lot of follow-up care.’ It was a case for the courts.”

“Here, addressing America directly, was a black police officer. Someone who knew both the pain of losing officers in the line of duty and losing a son at the hands of officers. Someone who had worked hard to reform policing, to lower violent encounters. Video of that press conference was shared millions of times because, even during this terrible time, Chief Brown was a symbol of hope. His life is proof that you can support the men and women who serve and protect us and still want cops who violate the public trust to go to jail — or at least lose the badge. You can believe that people should respect and cooperate with police officers, but that not doing so shouldn’t result in death. That people in general should have more empathy and compassion for one another.”

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

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

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

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

By Andy Hoover, Communications Director, ACLU of Pennsylvania

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

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

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

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

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

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

It’s the House being the House.

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

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

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

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

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

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

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

IN OTHER NEWS

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

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

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

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

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

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

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

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

Hiding cops who kill

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

By Andy Hoover, Communications Director, ACLU of Pennsylvania

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

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

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

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

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

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

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

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

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

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

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

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

IN OTHER NEWS

What happens when cops lie? Photo via Vice.

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

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

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

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

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

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

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

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

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

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

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

Is the commonwealth doing enough?

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

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

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

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

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

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

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

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

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

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

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

Read the full article here.

IN OTHER NEWS

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

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

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

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

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

Read the second amended complaint of the lawsuit here.

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

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

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

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

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

Marijuana Deform at the State Capitol

By Andy Hoover, Legislative Director, ACLU of Pennsylvania

Weed_Capitol_AH

In June of last year, members of the state House received this co-sponsorship memo from one of their colleagues. The opening paragraph reads:

I hope you join me in sponsoring legislation that will reduce the penalty for a first or second offense of possessing a small quantity of marijuana (under 30 grams) from a misdemeanor to a summary offense. Downgrading this offense from a misdemeanor to a summary offense would have a positive effect on local law enforcement efforts, allowing police and prosecutors to focus their time and resources on more serious offenses.

At first glance, you might think, ‘Wow! This is progress.’ The memo concludes:

As a former law enforcement officer, I strongly believe in cracking down on drug dealers and those who prey on the young or weak with drugs. But those defendants are addressed elsewhere in the Controlled Substances Act. For individuals who merely possess small amounts of marijuana, I believe this adjusted grading makes sense, saving taxpayers thousands of dollars in court costs.

‘Reason is breaking out at the General Assembly,’ you’re thinking.

Well, don’t get out your Ben Harper records and get ready to burn one down just yet. Like anything at the legislature, details matter. And the details here ain’t good.

House Bill 1422, introduced by Representative Barry Jozwiak of Berks County, does indeed lower the grading of possession of a small amount of marijuana, defined as less than 30 grams. Of course, a summary offense is still a criminal offense, though it is the lowest Pennsylvania can go in state law, short of full-blown legalization.

But that’s not the real story with HB 1422. The real story is the massive increase in the fines for possession. Under current law, a person charged with possession faces a maximum fine of $500. There is no minimum fine. According to Jozwiak’s own co-sponsorship memo, the typical fine is around $200.

His bill, though, turns that concept on its head and institutes a minimum fine of $500. With no maximum fine. And it climbs from there. For a second offense, the minimum fine is $750, and a third offense brings a minimum fine of $1000.

If you’re a member of the ACLU or have any cursory knowledge about civil rights, you can see where this is going. If implemented, HB 1422 gives the police perverse incentive to excessively stop, search, and harass people to generate revenue from marijuana users, people who are no more danger (and maybe less) to public safety than people who use the legal drug of alcohol. (Access to which the legislature just expanded. FYI.) And that will disproportionately impact people of color and people from certain neighborhoods.

This is not mere conjecture. In 2013, the ACLU released our report The War on Marijuana in Black and White. The report analyzed nationwide data on arrests for marijuana and found that Pennsylvania had the sixth-highest rate of racial disparity in marijuana arrests between 2001 and 2010. A black Pennsylvanian was nearly six times more likely than a white Pennsylvanian to be arrested for a marijuana offense, even though research consistently shows parity in usage among people of different races.

Plus, without a ceiling set on the fine, it is easy to imagine some cowboy judge who thinks that the War on Drugs was a swell idea dishing out fines of thousands of dollars for a single offense. After all, the bill gives judges discretion to implement any fine they want, as long as it is not below $500.

Of course, this is going in the exact opposite direction of the national trend. In December, Delaware became the 19th state to decriminalize marijuana possession, creating a civil offense with a fine not exceeding $100. Maryland followed in February. In November, Maine, Florida, and Nevada will vote on ballot initiatives to start some form of legalization.

Meanwhile, the city of Philadelphia has saved millions of dollars with its local decriminalization ordinance that created a civil offense with a fine of $25 for possession and $100 for smoking in public. And in 2015, Colorado generated $135 million in tax revenue from its tax-and-regulate initiative.

I give Rep. Jozwiak and the House Judiciary Committee credit for continuing to think about ways to reform marijuana laws. But tagging cannabis users with fines many times larger than current law is not the way to go.

There is a smart way to do this. Representative Ed Gainey of Pittsburgh has introduced House Bill 2076. That bill also lowers the grading of possession to a summary offense and lowers the maximum fine to $100 without risk of incarceration or the suspension of the person’s driver’s license, which is currently one of the penalties for possession.

Two months ago, the legislature acknowledged the reality that cannabis can help patients by passing Senate Bill 3, what became Act 16. It was a small but significant recognition that the commonwealth has handled marijuana in the wrong way for decades. It’s time to fix the mistakes that have been made and get smart on cannabis.


Andy_Blog_HeadhshotAndy Hoover joined the ACLU of Pennsylvania in December 2004, as a community organizer and became legislative director in 2008. As the organization’s lead lobbyist, Andy largely deals with civil liberties and civil rights issues at the state capitol.

In the Struggle for Equality, We Choose Dignity and Respect

By Andy Hoover, Legislative Director, ACLU of Pennsylvania

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For more than a decade, the ACLU of Pennsylvania has advocated for protections from discrimination for gay and transgender Pennsylvanians. We have always known that the opposition would get uglier as we got closer to passage. And now that we have a coalition of business and academic interests at our back called Pennsylvania Competes and some of the most prominent members of the General Assembly in support, “the antis” – in the parlance of advocates- have sunk to their lowest level yet, as was inevitable.

The Pennsylvania Fairness Act- House Bill 1510 and Senate Bill 974- amends the commonwealth’s non-discrimination law to include sexual orientation and gender identity or expression as protected classes in employment, housing, and public services. It levels the playing field for gay and transgender Pennsylvanians. We’re the only state in the northeast that does not have some form of this protection.

A few weeks ago the Pennsylvania Family Institute- the state’s leading anti-gay, anti-trans, anti-woman advocacy group- launched a new campaign called “defend my privacy” that claims that the Pennsylvania Fairness Act would make it illegal to have gender-specific public restrooms. That’s not a joke and it’s not from The Onion. That’s actually what they say.

The areas in which the Pennsylvania Human Relations Act provides protection from discrimination include “public accommodations.” This means that people cannot be denied services based on the protected classes in the act. Think of an interracial couple being denied a wedding cake from a baker because of their race. Or a public golf course refusing to allow women to play there.

The antis have taken a bill that is intended to stop discrimination against gay and transgender people in their daily lives and twisted it into an attack on the simple act of peeing in peace. Last year Brae Carnes, a trans woman from Canada, and Michael Hughes, a trans man from Minnesota, took on the absurdity of the antis’ argument by posting pictures of themselves in public bathrooms of their assigned gender at birth.

Transgender women are women. And transgender men are men. That’s it.

At the ACLU of Pennsylvania, we share the values of privacy and public safety. In my 11 years here, I cannot think of another organization in this state that has done more to protect the right to privacy than us. The issues are too numerous to list.*

Privacy and public safety are not compromised by ensuring that people can use public services based on their gender identity. The city of Harrisburg has had an ordinance like the Pennsylvania Fairness Act for more than 30 years without complaint. If there were problems in Harrisburg or in any of the 30+ municipalities with such ordinances, I can assure you that the antis would tell us.

But the rhetoric of the antis- from the Pennsylvania Family Institute to the advocates and politicians behind recent anti-LGBT legislation in North Carolina and Mississippi- does compromise public safety. It inflames hostility toward transgender Americans. According to the FBI, hate crimes against transgender people tripled in 2014. And advocates believe the actual victimization number is much higher.

In advocating for the Pennsylvania Fairness Act, the ACLU of Pennsylvania and its allies have chosen a campaign of respect, dignity, and basic human decency. It is a shame that the people who oppose this bill cannot offer transgender Pennsylvanians the same.
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*But here are a few. Women’s reproductive healthcare, the Real ID Act, two-party consent in the state Wiretap Act, DNA collection from people not convicted of a crime, protecting data in prescription drug monitoring, the PATRIOT Act, anonymity for parents who give their biological children for adoption, access to location data gathered by EZPass. Etc., etc., etc.

Andy_Blog_HeadhshotAndy Hoover joined the ACLU of Pennsylvania in December 2004, as a community organizer and became legislative director in 2008. As the organization’s lead lobbyist, Andy largely deals with civil liberties and civil rights issues at the state capitol.

Endgame for DNA Collection Debate?

By Andy Hoover, Legislative Director, ACLU of Pennsylvania

DNA Collection

For five years, the ACLU of Pennsylvania has fought legislation to collect and store DNA from people who have not been convicted of a crime. The varying forms of the legislation demanded DNA collection from people who had been arrested for or charged with certain crimes, flipping the idea of “innocent until proven guilty” on its head.

In each of the last two sessions, a bipartisan coalition of state representatives has turned back the legislation when it has reached the House. If you follow the personalities of state politics, check out this amendment vote from 2012. Those voting “yea” voted to remove the preconviction collection provision from that bill. Yes, Rep. Daryl Metcalfe (R-Butler County) and Rep. Dan Frankel (D-Pittsburgh) voted together, along with a host of liberals and conservatives and moderates.

On Tuesday, the House Judiciary Committee took up yet another version of this legislation. But instead of moving the bill along with the offending language, as the committee has done in the past, Chairman Ron Marsico (R-Dauphin County) offered an amendment to remove the language that requires DNA collection from people who have been arrested. His amendment replaced it with expansion of the current postconviction collection to include all first-degree misdemeanors and some second-degree misdemeanors.

While some civil libertarians won’t like expanding the post-conviction practice, which is currently for all felonies and a few misdemeanors, stopping across-the-board, blanket DNA collection from people who have not been convicted is, in the words of Vice President Biden, a big (frickin’) deal. Twenty eight states and the federal government collect DNA from people who have been arrested or charged but not convicted, and in 2013, a divided Supreme Court upheld the practice.

The privacy implications of preconviction DNA collection are huge. First, the government must jam a swab into your mouth or pluck a hair from your head or take blood to get a DNA sample. (The swab is the most common form of the practice.) In that practice alone, the government is in choppy privacy grounds in invading the person of someone who is still considered innocent under the law and in doing so without a warrant approved by a court.

Then, the government takes that very personal, very private information and uploads it to a database at the Pennsylvania State Police, which is linked to a query system at the FBI called the Combined DNA Index System, or CODIS. Remember, our DNA contains more than 1,000 identifying characteristics about us. And while the profile created for these databases only contain the markers that identify a person, don’t kid yourself. The infrastructure is in place to store more. If you’re acquitted or never charged or exonerated, you have to go back to court to get your DNA profile out of the database.

Of course, every win comes at a cost. The Marsico amendment maintained and actually worsened language in the bill on “modified DNA searches,” or what are more commonly known as familial searches. You and your family members share DNA. The more distant the relative, the less DNA you share. If this language becomes law, a law enforcement agency can go to the state police and ask for a modified search. PSP would then determine if the evidentiary sample is a close enough match to someone in their database that it could be linked to a family member of that person. If your troublemaker cousin is in the DNA database, you’re in the DNA database.

(If any of my cousins are reading this, apologies for throwing you under the bus.)

Senate Bill 683 contains all sorts of requirements before a familial search can be conducted, but the Marsico amendment added language that prohibits a person from challenging an arrest, conviction, search, or any other investigatory action because the law enforcement agency did not follow the requirements. So the limitations on familial searches are, essentially, meaningless.

This will probably be a contentious issue if and when this bill makes it to the House floor. Familial searches are highly controversial. And in its opinion upholding Maryland’s arrestee DNA law, the Supreme Court suggested that familial searches may be unconstitutional.

This bill still has several steps to go before it is finished, so no one is declaring victory. But the House Judiciary Committee, for the first time in three tries, recognized that the will of the legislature- and, specifically, Republicans and Democrats in the House- wasn’t there to pass a bill to collect DNA from people who have not been convicted of a crime. That’s a BFD.

Read more about Senate Bill 683

Poor and Need Help? Please Pee into this Cup

By Andy Hoover, Legislative Director, ACLU of Pennsylvania

One of our ongoing challenges at the ACLU is explaining the subtle, and sometimes not-so-subtle, nuances of constitutional law to the public. Take government-run drug testing.

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In the run up to passing the state budget, a state House committee passed legislation that would require applicants for public assistance to submit to a questionnaire for the purpose of flagging them for drug testing. Those who are flagged would then be required to take a drug test. One positive test would lead the person to a referral for drug treatment while maintaining their assistance. A second positive test would ban the person from assistance for a year.

We dealt with a similar bill with similar arguments last session that required school teachers to be drug tested. That bill passed the House but was not considered in the state Senate. This issue really is the worst combination of legislative sausage: Legislators can score cheap political points due to the ignorance of the public and the public’s hostility to poor people on assistance while making terrible law.

Here’s the most common argument for a bill like this: “Private employers drug test their employees. Why not for welfare?” Another argument we’ve heard is that there are government workers who are drug tested–police officers, highway workers, the military–so people who get public assistance should, too. I don’t expect the general public to understand the twists and turns of the Fourth Amendment. But legislators who write the law have an obligation to know better.

Let’s review the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Essentially, if you have an expectation of privacy, the government cannot search you without suspicion, i.e. probable cause, that you’ve committed a crime and without an order (a warrant) from a court of law.

To drug test someone, the government would have to secure a biological sample- like urine or blood- from the person. We feel quite strongly that a person has an expectation of privacy in her biological samples. That is not a wild-eyed, radical notion.

The arguments of supporters are not comparable to drug testing for assistance. First, a private employer is not required to follow the Fourth Amendment. (Drug testing by private employers gets into another argument about privacy in the workplace and the foolishness of the failed War on Drugs. But that’s a discussion for another time.)

Second, the government can drug test police officers and highway workers as a condition of employment only because they fall into the narrow public safety exception to the Fourth Amendment. The police and highway workers drive vehicles as part of their work, and the police are armed. Applicants for assistance and public school teachers don’t fall into that exception.

The purpose of the questionnaire in House Bill 1380 is to establish suspicion to justify the drug test, thus avoiding the Fourth Amendment problem. But states that have tried the applicant screening approach have found that so few of the people who are flagged actually test positive that it really cannot be argued that the screening even creates suspicion.

Meanwhile, the creators of one of the screening questionnaires that states are using has said that their questionnaire was intended as a therapeutic device, not to create suspicion to deny people employment or public assistance.

The legislation before the state House does a real disservice to people in poverty and to constitutional law. Our hope is that leaders in the General Assembly will resist the urge to score political points and let this one die quietly on the vine.

Learn more about HB 1380

Andy Hoover is the legislative director of the American Civil Liberties Union of Pennsylvania. His mobile phone is decorated with an ACLU sticker that says, “Get a warrant.”

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.