Is it time to legalize marijuana in Pennsylvania?

By Matt Stroud, Criminal Justice Researcher, ACLU of Pennsylvania

Is it time to legalize marijuana in Pennsylvania? Photo via herb.co.

Citations and charges can ruin lives. It can be traffic tickets with fines too high to afford, disorderly conduct charges, other non-violent offenses, or even violent offenses that reflect an earlier time in someone’s life before they had a chance to grow up and reform. Any entrance into the criminal justice system can be an automatic ticket to second-class citizenship — a way for employers to discriminate, for judges to make unfair sentencing decisions, and for peers to judge.

As part of ACLU-PA’s efforts to reduce the commonwealth’s incarceration rate, it’s our goal to lessen the number of people ensnared into the criminal justice system. We consider Pennsylvania’s marijuana laws to be low-hanging fruit in that regard.

While a recent Franklin & Marshall poll found that 59 percent of Pennsylvania residents believe marijuana should be legal, retrograde laws nonetheless trap thousands of people in the criminal justice system for pot-related offenses every year. And those numbers have risen in recent years.

Over the last several months, we’ve worked with marijuana advocates and data specialists to quantify Pennsylvania’s cannabis crackdown. And on Monday, October 16, we plan to reveal what we’ve found during a press conference at the Pennsylvania State Capitol in Harrisburg.

Stay tuned for more about Pennsylvania’s cannabis crackdown.

IN OTHER NEWS

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

Philadelphia Police Commissioner Richard Ross has some explaining to do. Photo via The Philadelphia Inquirer.

  • Philly.com: “Study: High rates of stop-and-frisk even in Philly’s lowest-crime black areas”

“It’s not just black people, but entire, predominantly black, neighborhoods that are disproportionately impacted by the Philadelphia Police Department’s use of stop-and-frisk. That’s a key finding of a new analysis of police data from 2014 to 2015 by Lance Hannon, a Villanova University professor of sociology and criminology who began analyzing publicly available police data after the presidential candidates clashed over the effectiveness of stop-and-frisk in debates last year. He found that mostly black neighborhoods drew 70 percent more frisks than nonblack areas, yet yielded less contraband. And, he discovered, the elevated rate of frisking was consistent whether the predominantly black neighborhood was a high-crime area or a very low-crime area. Although many African American neighborhoods in the city have low crime rates, he said, ‘People, police officers, and nonpolice officers tend to judge the dangerousness of a place based on racial predominance. When they think of a black area as being dangerous, they are thinking of the outliers — and all the other neighborhoods that are relatively safe get painted with the same brush.’”

  • Bloomberg: “Prison Video Visits Are No Substitute for Face-to-Face, Especially at These Prices”

“There are 650 U.S. correctional facilities offering some form of video viewing. Like Tazewell, most are county jails, and three-quarters have eliminated in-person visits, often as a stipulation of their contract with the company charging for the video feeds. Tazewell did so in 2014, when it hired Securus Technologies Inc., a prison phone company that now controls about a third of the video market. The business has been lucrative enough to attract the attention of the private equity world. In February, Platinum Equity LLC, the firm run by Detroit Pistons owner Tom Gores, agreed to buy Securus for $1.6 billion, more than double the company’s 2012 valuation. The proposed deal has come under scrutiny from both regulatory commissions and prisoners’ advocates, delaying its likely approval.”

  • TeenVogue: “Why Young Girls Die Behind Bars”

“Arrests of young women during fights with family members such as the one that led to Gynnya’s incarceration are unfortunately all too frequent. According to Unintended Consequences, a report by the National Girls Initiative of the federal Office of Juvenile Justice and Delinquency Prevention, ‘under state domestic violence laws, many law enforcement officers, arriving in homes in which girls are fighting with their parents or caregivers … often respond by making an arrest.’ As a result, ‘in-home conflict is a significant pathway for girls’ involvement in the justice system and many of girls’ arrests are for simple assault of their mothers or caregivers with no or minor injury.’ In fact, one study of 320 domestic violence calls in Massachusetts found that police were more likely to arrest young women in cases of disputes with parents and among siblings than between intimate partners.Nationally, girls of color are disproportionately arrested for assaults of family members in their homes. In Washington State, Black and Native youth are arrested for assault at a rate between 2 and 4 times greater than white youth.”

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.

Kenney’s order claims “openness and transparency”…Almost

By Midge Carter, ACLU-PA Criminal Justice Intern

The decision to release information about complaints made against Philadelphia police officers is a step in the right direction. Photo via Time.

Starting in November, the City of Philadelphia will make all civilian complaints alleging police misconduct available online. Or at least parts of them.

The executive order signed by Mayor James Kenney follows The Philadelphia Declaration’s Philadelphia Police Accountability Project — a  venture designed to accomplish two goals: 1) to come up with $5,000 in copying fees that the city asked for to provide information about police complaints, and 2) to build “a truly independent, publicly accessible database of civilian complaints lodged against the Philadelphia Police Department.” Kenney’s order deflects attention away from the former goal and moves gradually in the direction of the latter.

Kenney’s order, which was signed, it claims, “to ensure openness and transparency,” requires the city to post a monthly list of complaints filed against Philadelphia police officers. The list will include complaint summaries, incident locations, and investigative findings within 90 days of the complaint being filed. The lists will begin rolling out on November 1, and data from the last three years will be uploaded by early 2018.

That’s progress! Revealing complaint summaries and locations is good. That information will allow journalists, citizens, and lawmakers to identify trends and address potential problems.

However, the lists won’t identify officer names, and the city is permitted to withhold “any portion of the investigative file that the Police Commissioner determines must be kept confidential.”

That’s called secrecy. That’s the opposite of openness and transparency.

A further concern is that the information offered online will become the only information available. There is no indication if individuals will be able to receive physical copies of complaints. If not, then the only misconduct complaint information available would be the heavily redacted online information.

Nationally, online police complaint data is becoming more available, largely as a result of civilian pressure. The Los Angeles Police Department has an app for viewing Office of Investigation reports and filing complaints, though the complaints themselves are not available. In Chicago, the police offer little information, but two initiatives, The Citizen’s Police Data Project and Open Oversight have been working to make complaint information available.

Cincinnati makes all complaints available online but without any information that would make identifying an officer possible. NYC’s Data Transparency Initiativemakes complaints public and also offers visual summary reports. However, the information released from individual complaints is extremely limited. It provides only basic location, giving no insight into who filed the complaint or which officer the complaint was filed against. Philly’s online misconduct complaint release will potentially look very similar to New York’s.

Other cities are setting a precedent for more transparency. Baltimore and Indianapolis go a step further than Philadelphia. Both cities’ police departments participate in Project Comport, an online database of complaints. Though Project Comport does not list officer names, it does list “unique identifiers,” allowing civilians to track patterns of officer misconduct. We think Philadelphia should set a higher standard than all of these systems; it should release names.

Mayor Kenney said in a statement on Wednesday, “Everyone who works for the city of Philadelphia is a public servant, and the public deserves to know we will take their complaints about any city service seriously.” How is the public to know if complaints are being taken seriously if they do not know who the complaint is against?

Being unable to identify the public servants involved in complaints cripples the public’s ability to hold them accountable.

If police officers are to be effective public servants, then their misconduct and the complaints lodged against them need to be public as well.

IN OTHER NEWS

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

Juvenile lifers are being resentenced following the Supreme Court’s mandate, but justice looks different across state lines. Photo from AP.

  • Associated Press: “AP Exclusive: Parole for young lifers inconsistent across US”
“For years, officials in states with the most juvenile life cases were united in arguing that the Supreme Court’s ban on life without parole did not apply retroactively to inmates already serving such sentences. Now, states are heading in decidedly different directions. Pennsylvania, which long resisted reopening the old cases, has resentenced more than 1 in 5 of its 517 juvenile lifers and released 58 so far. Attorneys there talk about working their way through all the cases in the next three years. Just two Pennsylvania inmates have been resentenced to life without parole, which the nation’s highest court said should be uncommon and reserved for the rare offender who ‘exhibits such irretrievable depravity that rehabilitation is impossible.’”

  • Juvenile Law Center: “Unlocking Youth: Legal Strategies to End Solitary Confinement in Juvenile Facilities”
“Despite a growing consensus that solitary confinement harms youth and undermines the rehabilitative goals of the juvenile justice system, the practice remains all too common. At the same time, the field lacks sufficient information on the prevalence of the practice, the alternatives, and the perspectives of affected youth and families. This report uses surveys of public defenders, conversations with youth and families, interviews with correctional administrators, and legal and psychological research to fill these gaps and set forth recommendations for reform.”

“The use of money bonds to hold people who are arrested is falling out of favor in an increasing number of courts across the U.S., and Allegheny County is among them. The reasons include concerns about mass incarceration, as well as jail costs, civil lawsuits and studies that find jail time increases the chances of being arrested again. Such concerns have led to efforts to reform the way courts manage defendants before their trial. And the result has been the rise of a more evidence-​based approach for deciding who should and shouldn’t be locked up that takes money out of the equation. ‘Recommending monetary bail was one of the things we did because that’s just how you did things,’ said Janice Dean, director of Allegheny County Pretrial Services, which manages how people arrested are handled before their cases are resolved. ‘But you have people who aren’t dangerous staying in jail because they don’t have the money. And if I have $500,000 to post, no matter how dangerous I am, I’m getting out. Money doesn’t make us any safer.’”

  • Washington Post: “Fired and Rehired: Police chiefs are often forced to put officers fired for misconduct back on the streets”

“Since 2006, the nation’s largest police departments have fired at least 1,881 officers for misconduct that betrayed the public’s trust, from cheating on overtime to unjustified shootings. But The Washington Post has found that departments have been forced to reinstate more than 450 officers after appeals required by union contracts.

Most of the officers regained their jobs when police chiefs were overruled by arbitrators, typically lawyers hired to review the process. In many cases, the underlying misconduct was undisputed, but arbitrators often concluded that the firings were unjustified because departments had been too harsh, missed deadlines, lacked sufficient evidence or failed to interview witnesses.”

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.

Solitary Confinement Since 1973 – That’s 44 Years

By Matt Stroud and Midge Carter, ACLU of Pennsylvania

Hell is a “restricted housing” cell within Pennsylvania’s Department of Corrections. Photo via Flickr user jmiller291.

Daniel Delker is a Pennsylvania prisoner who has been in solitary confinement since 1973. That’s 44 years.

It’s likely that you’re aware, at least on some conceptual level, of what solitary confinement is — that it’s a punishment, often referred to as “the hole,” restricting a prisoner to a cell for nearly 24 hours per day, with rare opportunities to leave the cell for showering and exercise. In Pennsylvania, they call it the “Restricted Housing Unit.”

It’s also likely that you have some idea of what the effects of such an isolated punishment might entail. Maybe you read Atul Gawande’s 2009 New Yorkerpiece “Hellhole” about the reasons why solitary confinement should be considered psychological torture. Or maybe you read The Washington Post’s July 15 editorialcalling out the federal Bureau of Prisons for continuing to use solitary confinement even though its leaders know solitary confinement equals torture.

But if you’re like us, the idea that someone might find themselves in such a circumstance for 44 years — for longer than Beyoncé and Leonardo DiCaprio have been alive — is mind-boggling. Particularly in Pennsylvania, where the commonwealth’s corrections secretary is lauded, sometimes in high-profile outlets, as a reformer.

What surprised us even further when we started looking into Delker’s case was that he’s one of dozens of people confined similarly — on something called the “RRL,” or the “Restricted Release List” — within Pennsylvania’s Department of Corrections. Spelled out in the prison system’s DC-ADM 802 procedures manual, the RRL is a group of prisoners held in solitary confinement indefinitely. They don’t know when they’ll be released into general population — and neither does anyone working for DOC.

Recently, ACLU-PA — with the help of spring 2017 Criminal Justice Intern Morgan Everett — came out on the winning end of a months-long public records skirmish with DOC about access to this list. The list itself contains names of RRL prisoners, as well as reasons why those prisoners were placed onto the list in the first place. After DOC denied our initial request to provide the list, we appealed to the Office of Open Records, which eventually came to a compromise decision: that DOC could provide us with names of people on the RRL, but redact the reasons why they were on the list.

Fair enough. To its credit, DOC actually sent us the redacted list and didn’t force us to sue. We’ve since sent surveys to each and every one of the 100 people on that list — 100 people locked up indefinitely in solitary confinement — to get the information DOC withheld, and more: We wanted to find out how long they’ve been locked up, what procedures were individually set up for being released from the RRL, what kinds of conversations they’ve had with counselors during their stay in isolation, and whether they’ve had any interactions with mental health professionals, among other things.

We’ve learned a lot so far. Decades in solitary confinement is not unusual among people on the list, for one, and there’s already been an RRL death since we received the list. About three-quarters of the prisoners on the RRL have responded to us — and we’re learning more with each response we receive. But what we still don’t know is why such a list needs to exist at all.

Atul Gawande said it in “Hellhole.” The Washington Post said it in its editorial a couple weeks back. Countless organizations have spelled it out over, and over, andover again: Solitary confinement is torture. It’s unfair. It’s a drain on resources. And it doesn’t help anyone. It doesn’t help those who serve sentences in solitary confinement and are then released onto the streets. And it certainly doesn’t help those who have been locked up for 44 years.

The idea that Pennsylvania continues to confine its prisoners in isolation is baffling enough. (More than 2,200 Pennsylvania prisoners — about four percent of the state’s prison population — are confined to solitary.)

The idea that it keeps some of these prisoners in a secluded limbo for decades on end is beyond comprehension.

It’s indefensible.

Let’s hope DOC leaders wake up to that reality soon.

EXCERPTS

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

Debtor’s prisons still exist; Pennsylvania residents are still being jailed for the inability to pay fines. Photo from The Legal Intelligencer.

  • Andrew Christy, ACLU-PA Independence Foundation Fellow, writing in The Legal Intelligencer: “Thousands Jailed in Pa.’s Modern Debtors’ Prisons”

“My investigation of court collections ­practices suggests that many judges on both the courts of common pleas and the ­magisterial district courts fundamentally misunderstand what constitutes a defendant’s ability to pay, and thus what constitutes a willful act justifying a finding of contempt. If a defendant is unable to pay, then that defendant by definition lacks the ability to pay, the failure was not ­willful, and there can be no finding of contempt and incarceration…. Nevertheless, these practices continue to be widespread, as was recently documented by the Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness in its report ‘Ending Debtors’ Prisons in Pennsylvania,’ to which the ACLU contributed.”

  • CityLab: “Attorney General’s Civil Asset Forfeiture Orders Are ‘Irrelevant’ in Philadelphia”

“Civil asset forfeiture remains a problem, however. For one, it’s still legit for cops to take your property if they suspect it’s tied to a crime, and the victims of those takings still have no right to a lawyer to get it back. Moreover, the profit incentive for law enforcement officials to pursue seizing people’s assets remains.”

  • The New Yorker: “A Veteran ICE Agent, Disillusioned with the Trump Era, Speaks Out”

“The agent, who has worked in federal immigration enforcement since the Clinton Administration, has been unsettled by the new order at ice. During the campaign, many rank-and-file agents publicly cheered Trump’s pledge to deport more immigrants, and, since Inauguration Day, the Administration has explicitly encouraged them to pursue the undocumented as aggressively as possible. ‘We’re going to get sued,’ the agent told me at one point. ‘You have guys who are doing whatever they want in the field, going after whoever they want.’”

  • Times-Union: “Albany County inmate’s death ‘shocks the conscience'”

“The criticism wasn’t an anomaly for Correctional Medical Care, a Pennsylvania-based private company. A month after Cannon’s death in August 2014 — but long before his case was investigated — the office of New York’s attorney general reached an agreement with the company that allowed it to remain in business in New York with monitoring through May 2018. The company paid a $200,000 penalty and agreed to improve staffing levels and training practices.”

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.

“This place would not pass any health codes”

By Emilia Beuger , ACLU-PA Justice Intern

Are conditions in Pennsylvania’s prisons worse than those run by private prison companies? Photo via A.R.M.E.D.

Prisoners don’t get a lot of meaningful attention. Sure, some reality television shows claim to show “life on the inside” while occasional documentaries bring attention to prison conditions. But, for the most part, prisons serve their basic function — that of regulating prisoners’ “movements, activity, and effectiveness,” as Foucault put it, and of separating them from society. Federal civil lawsuits are filed just about every day by Pennsylvania prisoners who claim to have their rights violated behind bars, but it’s not likely you’ll hear anything about them. Prisoners are a concealed population; to most, they may as well not exist.

Which is why it’s been interesting to follow along as conditions within Pennsylvania’s Department of Corrections have received attention recently. Pennsylvania’s prisons are allegedly “dirty,” and “not livable.” The treatment that prisoners receive from guards borders on “harassment.” Did something change just recently? Did a major policy shift negatively affect prison conditions for Pennsylvania’s 51,000-odd residential prisoners causing them to speak out? Nope. Turns out, all it took was a view from the outside.

Some background: On June 12, 2017, 269 Vermont prisoners were transferred from Michigan’s North Lake Correctional Facility to SCI Camp Hill — Pennsylvania’s State Correctional Institution and processing center, near Harrisburg. The Vermont prisoners had been transferred out-of-state due to overcrowding.

Such transfers occur through the Interstate Corrections Compact. Not every state in the country is a member, but most are. Transfers occur mainly due to overcrowding and security issues, and these transfers tend to benefit private prison companies such as Florida-based GEO Group, and the Utah-based Management and Training Corporation. Another private prison contractor, Tennessee-based CoreCivic, housed some 9,500 California prisoners in three states after Governor Arnold Schwarzenegger declared a 2006 state of emergency in Golden State prisons.

But sometimes private prison companies decide they’d rather not bother. That’s what happened in Michigan. GEO Group owns the North Lake Correctional Facility, which was designed to hold nearly 1,800 prisoners. Vermont’s 269 prisoners were the only people inhabiting that facility, so in December 2016, GEO’s executives decided those prisoners weren’t worth the trouble. Vermont’s contract was not renewed.

That turned out to be good financial news for Pennsylvania’s DOC. If GEO Group didn’t want Vermont’s prisoners, Pennsylvania would take them. A three-year agreement was finalized on May 1, 2017, to allow a maximum of 400 Vermont prisoners to be shuttled and dropped into either SCI Camp Hill or SCI Graterford.Vermont would pay $72 per day, per prisoner. Secretary, John E. Wetzel touted the deal to Fox43, noting that Pennsylvania had approximately 5,000 empty beds across the state. “Vermont is looking for beds at the same time we have available beds, so it works out for both states,” he said.

That was more than a little misleading, though. If you look at Pennsylvania’s current monthly population report, sure, it looks like there’s an overall excess of beds statewide. But SCI Graterford, located about 30 miles northwest of Center City Philadelphia, is not only the largest prison in the commonwealth, it’s also one of the most crowded — well over capacity, holding about 110 percent of the number of prisoners it was designed to hold. Same goes for SCI Camp Hill: It’s the commonwealth’s second largest prison, and it’s at more than 105 percent capacity.

Unsurprisingly, the Vermont prisoners — who had the run of a Michigan facility that held only a fraction of the prisoners it was designed to hold — have begun complaining about the conditions at SCI Camp Hill and SCI Graterford. They have expressed concern about “extremely short showers once per day, dirty facilities, only being issued one pair of clothing, and constant yelling and ‘harassment’ from prison guards,” according to the Burlington Free Press. One prisoner recalled being told that “meals here are a privilege not a right.” The prisoners also complained about not having access to a library containing Vermont’s legal code, which is a constitutional right in that state.

Suzi Wizowaty, executive director of Vermonters for Criminal Justice Reform, told the Burlington Free Press that Pennsylvania’s DOC clearly “wasn’t ready for us.”

“This place would not pass any health codes,” she went on. “[It’s] really not livable.”

The Vermont inmates may have had access to an unusual amount of space in Michigan, but they were incarcerated, and under the purview of GEO Group — a company whose privately-operated prisons have faced no shortage of condemnation related to conditions and alleged prisoner abuse.

Prisoners are a concealed population, yes. And, to most, they may as well not exist. But the fact that Pennsylvania’s prisons apparently fail to match up to GEO Group’s track record for prison conditions should concern everyone — whether they make it a habit to follow prison news or not.

Maybe this view from Vermont will grant Pennsylvania’s prisoners more of the meaningful attention they deserve.

IN OTHER NEWS

(Criminal Justice news deserving of an in-depth look)

The Third Circuit ruled last week that recording police in public is a First Amendment right. Photo via Campaign Zero.

  • ACLU of Pennsylvania, via Molly Tack-Hooper, Staff Attorney: “One of the Nation’s Only Judges to Rule Against Right to Record Police Just Got Overturned”

“On July 7, the Third Circuit reversed that ruling, concluding that Mr. Fields and Ms. Geraci’s First Amendment rights had been violated. The court explained that, because the First Amendment plainly protects the right to possess and distribute photos and videos, it must also protect the act of making those photos and videos. But even more importantly, the court explained, the First Amendment protects the right to gather information about public officials, including police officers. Without a constitutional right to collect and disseminate information about the government, the people would be left in the dark, unable to make informed decisions and participate effectively in the democratic process.” Also check out approving nods from Post-GazettePennLive, and Times-Tribune, and a Facebook Live episode with Molly Tack-Hooper and noted beardsman Ben Bowens.

“Pennsylvania Senate Bill 560 is now Act 22 of 2017, loosening rules around police use of cameras. With the legislation signed, more police departments in Pennsylvania could increase their use of cameras, including body-worn cameras. ACLU-PA staffers Elizabeth Randol, Matt Stroud, and Andy Hoover discuss the implications.”

  • Pittsburgh Post-Gazette: “Unsettled in America: Pittsburgh’s Latino community is small, diverse, growing — and anxious.”

“The large majority of Latinos are, in fact, U.S. citizens or legal residents. But tensions are high for those who aren’t, and their families, supporters and anyone concerned about a broader anti-Latino backlash. Immigrants and their advocates have marched in various demonstrations in recent months, often joining with refugees and Muslims challenging similar travel restrictions under the Trump administration. Some are calling for Pittsburgh and other local governments to have ‘sanctuary’ status and not cooperate with deportation efforts. Some local immigrants have been deported already, others have been detained and still others, like Mr. Marroquin, are awaiting hearings. Many, though, have lived with knowing their turn may be next, whether they’re farm workers in an outlying county or whether they’re suburban restaurant dish washers.”

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.

We’ve embarked on an ambitious project

By Matt Stroud, Criminal Justice Researcher, ACLU of Pennsylvania

Protesters in Phoenix speak out against ICE’s 287(g) program. Photo via Flickr user Basta287g.

If the 45th president of the United States has reminded us of anything, it’s that government agencies require as much scrutiny now as they’ve ever required before — if not much more. At ACLU-PA, we’ve taken that as a cue to more closely follow the news, to more actively track the actions of lawmakers, and to more doggedly file records requests for information such as budgets or police complaints or internal governmental communications.

When it comes to records requests, we file them not to hector public employees, but rather to engage with the governing process. Sometimes this is done in pursuit of very specific information. (One of our summer interns, Emilia Beuger, this week filed a request with the city of Pittsburgh for body camera footage related to a particular police interaction, for example.) And sometimes it’s done merely to let government agencies know we’re watching.

Along those lines, we’ve embarked on an ambitious project.

You’ve heard of the 287(g) program? It’s one of the “top partnership initiatives” of U.S. Immigration and Customs Enforcement. It deputizes local police departments to act as immigration officials — to request immigration papers from individuals, and to otherwise “receive delegated authority for immigration enforcement within their jurisdictions,” according to ICE’s website. In 2012, the Obama administration scaled back 287(g) in light of racial profiling allegations. It ultimately shut the program down in 2015.

When we read that the Trump Administration planned to reinstate 287(g), we decided to find out which Pennsylvania police departments wanted to join in.

In recent months, we’ve been slowly rolling out our own program to do so — to ask whether local police departments have requested to be a part of 287(g), and, if so, what their communications with ICE have looked like. This has been no small task; there are nearly 1,200 municipal, county, and state police departments in the commonwealth. But with the help of a team of volunteers, we’re filing requests with all of them, and finding interesting information.

While ICE posts a list of established 287(g) partners online, it certainly doesn’t note who’s asking to take part, and who’s, by reasonable extension, hoping to target undocumented immigrants in their communities for arrest and deportation. We’ve not only identified departments that have made their interests in 287(g) known to ICE, we also have reason to believe that, in at least one case, our questions have inspired law enforcement officials to rethink their request to become trained as a 287(g) department.

There’s a lot more to be done. Stamping out racial profiling and civil liberties violations doesn’t start or end with identifying which police departments want to target undocumented immigrants. But letting police know that we’re here, paying attention to them if they do — well, we think that’s a step in the right direction.

If you have suggestions for other public records requests that ACLU-PA should pursue, please get in contact. I’m at mstroud@aclupa.org. Let’s file dogged public records requests together.

IN OTHER NEWS

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

Port Authority’s new fare check policy implements a federal background check on individuals who don’t pay for their fare, which would be enforced by the Port Authority Police. Photo from the Pittsburgh City Paper.

  • City Paper: “Advocates are concerned Port Authority’s new fare-check policy could lead to deportation of undocumented immigrants: ‘Once Port Authority runs your name, ICE will check that name and can detain you.’”

“The new policy, which Port Authority hopes to implement in August, will have riders pay as part of an honor system. Port Authority Police officers will check riders for proof of payment on light-rail cars and at T stations, run federal background checks on riders who don’t pay, and potentially charge repeat offenders with criminal offenses. Ruiz is terrified about what might play out because U.S. Immigration and Customs Enforcement (ICE) has access to the same FBI database through which Port Authority Police will run fare-evaders’ names and addresses. She says this means that forgetting to pay a $2.50 fare one time could lead to a deportation. ‘They are basically turning [light rail] into a border checkpoint,’ says Ruiz.”

  • Good Men Project: “Philadelphia Police Fatal Shooting of Fleeing Black Suspect Akin to 2014 Cover-Up”

“But despite the progress of the police department here — it’s reported that the majority of recommendations issued by the Department of Justice related to use of force and training has been adopted — what does it say about the agency when a rookie and a veteran assigned to the same Police District both use lethal force — Mr. Carrelli before the DOJ issued their report and recommendations and Mr. Pownhall, who may or may not have been equipped with a Taser, nearly two years afterwards — when their life isn’t immediately in jeopardy; no reasonable person would fear for their life when the perceived threat is retreating. I asserted the aforementioned when Mr. Tate-Brown was killed, and I’m asserting it again on behalf of the late Mr. Jones. It’s demoralizing that more than two years after Mr. Tate-Brown was unjustly murdered, there’s no justice realized or on the horizon, only déjà vu.”

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.

It’s expensive, does not reduce crime, and destroys due process. So why pass it?

By Elizabeth Randol, Legislative Director, ACLU of Pennsylvania

Lancaster County District Attorney Craig Stedman resorted to fear mongering to push for a mandatory sentencing bill to pass the state Senate. Screenshot via PA Senate.

On May 18, the Senate Judiciary Committee held a joint hearing to consider House Bill 741, a proposal to reinstate mandatory minimum sentences in Pennsylvania. Clocking in at five hours, the hearing included testimony from 17 people affiliated with 14 organizations, agencies, and institutions, representing an array of expertise and insights.

At the hearing, I spoke on behalf of ACLU-PA, which has long opposed mandatory minimum sentences. From our perspective, the decision to oppose HB 741 was clear cut.

Not only are mandatories ineffective, they have done exactly the opposite of their intended purpose: They decrease certainty in sentencing, have no deterrent effect on criminal behavior, and have no causal relationship to reductions in crime. They alsoincrease the likelihood of recidivism, and directly contribute to mass incarceration while costing taxpayers a lot of hard-earned cash: Reinstating mandatory minimums in Pennsylvania would likely cost $20 million in its first year.

Those reasons don’t begin to touch due process principles. Historically, our adversarial system entrusts discretionary power to judges who function as the neutral arbiter between two opposing sides, weighing the arguments and considering the facts of each individual case before rendering a decision. Our system assigns the job of judging to judges. But because mandatories are tied to specific crimes, control over mandatory sentencing decisions shifts from the judges (the neutral arbiters) to the prosecutors (one of the adversaries) who have singular and unreviewable authority to decide what charges to pursue.

But central to ACLU-PA’s opposition to mandatory minimums is their obvious contribution to racial injustice. Study after study exposes patterns of uneven and unequal application of mandatory sentences, disproportionately imposed on low income people of color. Mandatory sentencing schemes exacerbate and compound existing racial disparities in our criminal justice system.

Most of us who testified at last week’s hearing offered some combination of these arguments — that mandatory minimums are ineffective and costly; that they exacerbate racial disparities; and that they run roughshod over civil liberties. But running counter to the steady flow of evidence-based, rational arguments were the insistent protestations of HB 741’s proponents. A video recording of the hearing can be found here.

In a raised voice, around the 167 minute mark, Lancaster County District Attorney Craig Stedman made a bold appeal to fear. “Kids are gonna be raped,” Stedman said, because we’ve reduced mandatory sentences. He went on: “I don’t know who it’s gonna be, but it’s gonna happen. And it’s gonna happen more than once.”

During an exchange with Carnegie Mellon University professor Al Blumstein, a giant in the field of criminal justice, Senator Randy Vulakovich pressed him on why there’s no justice for victims. Unconvinced by Prof. Blumstein’s response, he then puzzled around the 96 min mark over why our system doesn’t allow victims to determine the punishment for their perpetrators.

Another senator faced down Dr. Bret Bucklen, the director of research and statistics at the Pennsylvania Department of Corrections. After establishing that Dr. Bucklen “looks at numbers most of the time” and “hasn’t sat with anyone whose son has succumbed to heroin addiction” as part of his job, the senator declared that he was “offended by his testimony” because it was inappropriate to “keep throwin’ numbers” around when human lives are at stake. Invoking “what the public wants and what the people are demanding” in terms of justice, the senator transformed the will of the people into a torch-wielding tyranny. And in a crescendoed finale, he drew a line in the sand and pitted people vs. facts, refusing to “take numbers over human turmoil and suffering.”

Earlier this year, HB 741 was voted out of the House — a first step toward making this indefensible bill into law. The May 18 joint hearing was the next step in that process. If questions and statements to the committee are any indication, Pennsylvania may well be on its way to reinstating policies that are blatantly regressive, that clearly run counter to all available evidence, and that will exact a steep price from Pennsylvanians.

House Bill 741 is an invitation to regress — a way to re-adopt outdated and ineffective “public safety” measures that disproportionately damage communities of color, and concentrate unreviewable power in the hands of prosecutors.

Please call your senators and urge them to vote no on HB 741.

IN OTHER NEWS

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

Room with a view — of the execution chamber at the State Correctional Institution at Rockview, just northeast of State College, Pa. Photo from the Pa. Department of Corrections via Philly.com.

  • Philly.com: “What will happen to Pennsylvania’s death penalty?”

“Pennsylvania isn’t the only state in limbo over the death penalty, as debate has raged over the probability of an innocent person being executed and the propriety of lethal injection as an execution method. Capital punishment is authorized in 31 states, but only seven have carried out executions — 31 of them — since the start of 2016, according to Amber Widgery, a capital punishment policy specialists at the National Conference of State Legislatures. ‘There are people in the world who think that no one innocent has ever been executed, and others who think it happens all the time,’ Widgery said. There are also some who don’t believe you have to constitutionally execute a criminal painlessly, she said, and others who classify lethal injection as cruel and unusual.”

  • The Baffler: “How Larry Krasner’s Victory Sounded from the DJ Booth: Finally, Philadelphia has a decarceration DA candidate, even in Jeff Sessions’s America”

“It was so fucking beautiful. We wanted this. We needed this. I heard it in every cheer, saw it every face, and felt it in every hug. The race had been looking good, but even so, we surprised ourselves. Conventional wisdom said our candidate was unelectable, but here was proof that a politics of dignity for all can win — and win big. On May 16, Krasner garnered more votes than the second and third place finishers combined, and hundreds of people turned up for his election-night party. We packed into the courtyard and community room of the John C. Anderson Apartments, one of the first LGBTQI mixed-income housing projects in the country, to celebrate a historic primary victory that should now, in a city where registered Democrats outnumber Republicans seven to one, set the stage for general election success in November.”

  • Institute for Justice: “Grandmother Who Lost Her Home Because Her Son Sold Marijuana Wins Pennsylvania Supreme Court Case”

“‘This is one of the most important civil forfeiture decisions issued by a court and the most important ever issued in Pennsylvania,’ said Jason Leckerman, a Partner at Ballard Spahr, which handled the case. ‘The court has set forth a comprehensive constitutional framework for analyzing forfeiture claims that should substantially curb forfeiture proceedings in Pennsylvania and is likely to influence other state courts considering these issues.’” More from Reason: “Court to Grandma: You Shouldn’t Lose Your House Just Because Your Dumb Son Sold Some Weed There”

  • ACLU-PA: “My graduation from a ‘segregation academy’”

“It was otherwise a mostly good experience, both while I attended CFA and this weekend’s celebrations. Unfortunately, over the course of the weekend, I saw only one other alumnus of color. Then as now, there were folks who appeared a bit leery of me, but most were very cool. Someone at the event asked me if my experience at CFA had informed my decision to become a civil rights lawyer. The truth is that it was not just CFA but my entire experience growing up in the south. And given the current state of things in N.C and beyond, there remains a lot of work to be done.”

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.

Who is holding school districts and police departments accountable?

By Harold Jordan, Senior Policy Advocate, ACLU of Pennsylvania

Surveillance video showed an interaction between a Woodland Hills High School student and school resource officer Steve Shaulis. Photo via WESA.

Controversy continues to swirl over a series of violent incidents that have occurred in the Woodland Hills School District, just outside Pittsburgh. These incidents involve allegations of violence directed against students by the school’s principal and by school-based law enforcement officials. Students have been injured. In one recent case, one of these law enforcement officials allegedly punched a student in the face and nearly knocked the student’s tooth out. An incident last year led to disciplinary action against the principal, but the principal remains at the school and was even hired as the school’s varsity football coach last month.

These incidents and the responses of administrators and the justice system so far raise fundamental questions about the role of police in our schools. They provide a textbook example of what is wrong with how many districts use police: lack of accountability for the actions of police; inappropriate use of force; failure to respect (and protect) the rights of students; and proposed solutions that may make matters worse.

Woodland Hills’ school-based law enforcement officials are known as “school resource officers” or SROs. These are sworn police officers on loan from a neighboring law enforcement agency as part of a contract between the district and the police department. But who is in control when SROs patrol the hallways? What do the school’s administrators do to protect students from harmful contact with local police? What responsibility does the school administration have when things go wrong between police and students, especially when there is unnecessary physical harm?

Often when controversies arise, police say, Don’t blame us. We’re here because the school asked us to be here. Educators say, We cannot control what police do in our school — that’s a law enforcement matter.

Who is holding districts and police departments accountable? In Woodland Hills, the officer has not been held accountable nor has the Allegheny County District Attorney, Stephen A. Zappala, prosecuted the assault. Last week community members held a protest. “We have some grave concerns about the way justice is carried out, which is why we are standing here today,” said the Rev. Richard Wingfield, pastor of Unity Baptist Church in Braddock, Pennsylvania.

This is a nationwide problem. The degree of collaboration between police and school systems has increased in the past two decades, with more districts placing police in schools on a full-time basis rather than calling them in during genuine emergencies where there is a threat to the well-being of the school community.

The experience of other districts using SROs has been that these officers sometimes engage in searches and interrogations an outside law enforcement officer would not be permitted to conduct without a warrant signed by a judge. Many districts are unsure about when these officers may have access to student records. And districts typically fail to demand that officers not carry or use potentially harmful weapons when dealing with ordinary student conflicts — including the Taser used on a student in a recent incident.

A “solution” being considered by the district is to equip SROs with body cameras. Such a measure would provide no real protections to students but would increase the surveillance of students by police. That would likely lead to more students being criminalized. In the words of one of my ACLU colleagues, “Body cameras present a real threat to students’ privacy and contribute to the creation of an environment in schools of pervasive surveillance…More likely than not, body camera footage is just going to be whipped out left and right for the enforcement of petty rules and disciplinary disturbances.”

Moreover, these arrangements between police and school districts undermine other discipline reform efforts of the district aimed at reducing out-of-school suspensions. Woodland Hills has long had one of the highest suspension rates in the state, especially for black students and black students with disabilities. In recent years, Woodland Hills has undertaken some efforts to reduce suspensions and improve school climate, with the support of AASA — The School Superintendents Association and the Children’s Defense Fund. And like me, district leaders participated in the Obama White House’s “Rethink Discipline” Summit in July of 2015.

But placing police in schools under these arrangements undermines those reform efforts. It has created Woodland Hills’ own version of “whack-a-mole”; police contact increases while the district claims to reform suspension policies.

The Woodland Hills School District has a choice. SRO arrangements are not mandated by law but are based on a contract between local law enforcement and the district. It can refuse to contract with local police, instead committing resources to student support services, or it can place stiff restrictions on police activities and the weapons they are permitted to carry in schools.

In Woodland Hills, the school district and police have become an unholy and unaccountable alliance. The district’s responsibility should be first and foremost to care for the well-being of students.

Read more about schools and the justice system at EndZeroTolerance.org.

IN OTHER NEWS

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

Criminal defense lawyer Larry Krasner is the Democratic nominee for Philadelphia district attorney. Photo from Slate.

  • Slate: “Progressives believe Larry Krasner can help fix mass incarceration and hold police accountable. That may be too optimistic.”

“If Krasner wins in November as expected, his next challenge will be tougher than the race itself. Many of the city’s cops and prosecutors despise him, which will make it harder for Krasner to live up to his supporters’ exceedingly high expectations. Ultimately, it’s judges who decide whether to set cash bail, even if it isn’t sought by prosecutors. If Krasner’s deep-pocketed backers had spread a bit of their money down ballot, maybe he would have had a little bit more help from the bench.”

  • ACLU-PA: “Racial Analysis Suggests Philly Police Still Stop Pedestrians Based on Race”

“‘We recognize that the city, under the leadership of Mayor Kenney and Commissioner Ross, has shown improvement, as stops have decreased and legal justification for those stops has increased,’ said Mary Catherine Roper, deputy legal director of the American Civil Liberties Union of Pennsylvania. ‘But improvement is not the goal. The goal is to treat people fairly and to respect people’s constitutional rights. This newest report suggests that some people in Philadelphia are still facing unfair treatment because of their race.’” More from ACLU-PA: “Expert Report Shows Continuing Racial Disparities in Philadelphia Police Department Stops and Frisks”

  • Star-Tribune: “High court has curbed life-without-parole for juveniles, but state case may open new door”

“Notwithstanding these decisions, the Minnesota Supreme Court filed an opinion last week upholding Ali’s sentences of three consecutive life terms. In an opinion authored by the newly elected Justice Natalie Hudson, the Minnesota court decided that Miller and Montgomery apply only to single sentences of life without parole, refusing to extend the principles articulated in Miller and Montgomery to consecutive sentences that have the same effect.”

  • Wired: “Zuckerberg-Backed Data Trove Exposes the Injustice of Criminal Justice”

“Measures for Justice launches today with deep data dives on more than 300 county court systems in Washington, Utah, Wisconsin, Pennsylvania, North Carolina, and Florida, with plans to expand to 20 states by 2020. It pulls together the data that has traditionally remained hidden in ancient databases and endless Excel spreadsheets. Even with just six states included, the comprehensiveness of the platform surpasses anything similar that currently exists. Measures for Justice compiles granular data for 32 different metrics that indicate how equitable a given county’s justice system might be. The portal shows, for instance, how many people within a county plead guilty without a lawyer present, how many non-violent misdemeanor offenders the courts sentence to jail time, and how many people are in jail because they failed to pay bail of less than $500. It offers insight into re-conviction rates and never-prosecuted cases. Users can compare counties or filter information based on how certain measures impact people of different races or income levels. And the site organizes all of it into easily digestible data visualizations.”

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

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

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

The best accountability tool may be the smartphone in your pocket

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

Pictured: The shooting death of Walter Scott in North Charleston, South Carolina, captured by a civilian’s mobile phone camera.

Since 2013, the ACLU of Pennsylvania has been fighting to preserve ordinary people’s power to use recording technology to keep the police in check through aseries of lawsuits against the Philadelphia Police Department over the well documented pattern of PPD officers arresting or citing people who attempt to record police.

This “Copwatch” campaign — the name we’ve given to these lawsuits, filed on behalf of individuals arrested for observing or recording police action — suffered a setback in February 2016, when federal district court Judge Mark Kearney ruled that ordinary people do not have the right to record the police unless they simultaneously criticize the police.

Judge Kearney’s ruling is a major problem. And that problem needs to be addressed now perhaps more than ever before.

Recent attacks on police reform have been launched from both Harrisburg and Washington, D.C. Attorney General Jeff Sessions has signaled that his Department of Justice will scale back its police reform activities, decreeingthat police accountability is henceforth the responsibility of local governments, not the federal government. Meanwhile, the Pennsylvania General Assembly isn’t likely to help close the accountability gap left open by Attorney General Sessions. An alarming number of Pennsylvania legislators have been hard at work on measures to insulate law enforcement against oversight, including a bill that would effectively make police body camera footage unobtainable by anyone other than police and prosecutors.

With so many members of the legislative and executive branches working feverishly to cripple the public’s ability to hold police officers accountable for abuses, reform may have to come from the courts — and from We the People.

After filing briefs in October and January in opposition to Judge Kearney’s ruling, on Tuesday, ACLU-PA asked a panel of federal appeals court judges to step up and protect the most powerful tool that ordinary people have for holding the police accountable: the right to record the police.

Although many courts have recognized that documentation and communication about how police use their power is at the heart of what the First Amendment was designed to protect, the federal appeals court that covers Pennsylvania has yet to acknowledge that.

Over the past several years, as smartphones have become ubiquitous, timeand againwe’ve seen civilians’ photos and videos of police expose the realities of policing in an undeniably powerful way. Ordinary people’s cell phone recordings of police interactions have been a starting point for national conversations about police reform and have sparked grassroots movements seeking accountability for how — and against whom — the police use their tremendous power. And studies show that videos of police interactions can not only document abuses by law enforcement but can also deter abuses.

If allowed to stand, Judge Kearney’s ruling threatens to chill the exercise of core First Amendment freedoms, erode the supply of crucial information about policing, cut off an important societal debate, and stop police accountability movements in their tracks.

We know that protecting the public’s right to record the police plays a vital role in holding law enforcement accountable.

We hope the appeals court will embrace its vital role in safeguarding First Amendment freedoms.

IN OTHER NEWS

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

Will Philadelphia’s next district attorney set juvenile lifer Terrance Lewis free? Photo from The Inquirer.

  • The Inquirer: “A judge called this juvenile lifer innocent, but he’s still in prison. Will Philly’s next DA let him go home?”

“But Lewis is — depending on your perspective — either an incredibly unlucky man or an extraordinarily lucky one. Unlucky to be charged with a crime he says he did not commit, to be tried as an adult in a state where life means life, to be appointed a lawyer who apparently never investigated his case. Lucky, because he keeps encountering more people who were out on the block that evening and are willing to testify that he wasn’t there. And lucky, because he is on the right side of a U.S. Supreme Court decision that found sentences like his to be illegal. Lewis is one of more than 300 juvenile lifers from Philadelphia — the largest such population in the country — being resentenced after the court banned automatic life-without-parole sentences for juveniles in 2012, and then in 2016 ordered that the rule be applied retroactively. So far, the Philadelphia District Attorney’s Office has taken a conservative approach to these cases, often making offers of 35 years to life. But after 19 years in prison for a crime he says he did not commit, Lewis is hoping for a different sentence: time served.”

  • ACLU-PA: “ACLU of Pennsylvania Argues for the Right to Record the Police Before Federal Appeals Court”

“With cooperating counsel, the ACLU of Pennsylvania is representing two plaintiffs who photographed police at work and who were detained as a result. Rick Fields was arrested in September 2013, after he stopped to take a photo with his iPhone of a large number of Philadelphia police officers breaking up a house party across the street. One of the officers approached him, asked if he enjoyed “taking pictures of grown men,” and ordered him to leave. After Fields refused, he was handcuffed and detained in a police van, and his phone was searched in an apparent attempt to find the recordings he had made that evening. He was charged with “obstructing the highway,” but the charge was later withdrawn. The other plaintiff is Amanda Geraci, a trained legal observer who was detained by police while she was attempting to monitor police interactions during an anti-fracking protest outside the Pennsylvania Convention Center in September 2012. When Geraci attempted to take photos of police arresting a protestor, a police officer pushed Geraci up against a pillar and pinned Geraci across her throat. Other police officers quickly surrounded Geraci and the officer to block other legal observers from witnessing or recording the incident, although not before several photos were taken by Geraci’s fellow legal observers. In February 2016, federal district court Judge Mark Kearney ruled that the plaintiffs do not have a First Amendment right to photograph the police unless they are doing so for the purpose of criticizing the police. Molly Tack-Hooper, staff attorney for the ACLU of Pennsylvania, argued on behalf of the plaintiffs at today’s hearing in the appeals court. ‘Ordinary people have an important role to play in holding the government accountable, and the First Amendment is one of our main sources of power,’ said Tack-Hooper. ‘Taking photos or videos of how police use their power is part of the freedom protected by the First Amendment.’”

  • More ACLU-PA: “State Senate Bill Blocks Public Access to Police Video, Undermines Accountability”

“The Pennsylvania Senate today passed legislation to severely restrict the ability of the public to access video recorded by police cameras. The American Civil Liberties Union of Pennsylvania said that the bill undermines the goal of using body cameras as a means of accountability for police officers. ‘If the public cannot obtain video produced by police cameras, they shouldn’t be used at all,’ said Reggie Shuford, executive director of the ACLU of Pennsylvania. ‘While body cameras may be valuable to officers in carrying out their daily duties, the idea of using these cameras came to prominence because people were demanding that police operate with transparency, fairness, and accountability.’”

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.

How much is that public record worth to you?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PLUG

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

Join us in Philadelphia to #DECARCERATEDA.

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

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

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

ASL interpreter and Spanish-language interpreter will be provided.

Free child care will be available.

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

EXCERPTS

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

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

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

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

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

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

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

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

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

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