Category Archives: racial disparity

Clarifying the problems with mandatory-minimums: why it’s okay to let them go

Over the weekend, Susan Bigelow at CT News Junkie had a fantastic op-ed piece arguing that Connecticut should follow AG Holder’s lead1 and revisit its use of mandatory minimum sentences.

Susan writes:

Just as important as efforts on the federal level, however, are criminal justice reforms we can and should implement here at home. The number of prisoners held in Connecticut’s facilities has, for a number of reasons, dropped from all-time highs in 2007 and 2008, but those levels are still high considering the drop in violent crime that’s occurred over the past decade. Also, the parole reforms enacted after the Cheshire murders in 2007 have contributed to the reversal of recent declines in prison population, meaning fewer prisoners are being released.

That’s accurate, with some recent reporting by The CT Mirror showing that numbers have gone up and overcrowding is a problem again, driven in large part by “reforms” to parole laws. Susan argues that in the next legislative session, we should “reform” mandatory-minimums or,  better yet, do away with them altogether.

There’s nothing to reform. Mandatory-minimums are a dangerous power to give to prosecutors. The results of that power being wielded in a heavy-handed way are evident in the war on drugs. It’s taken decades for the Attorney General of the United States to recognize that mandatory-mininum sentences have a terribly disproportionate impact on racial minorities.

In Connecticut, mandatory-minimums apply if you’re selling drugs within 1500 feet of a school or public housing project. Repeated efforts over the last few years to reduce that “drug-free zone” to 200 or 300 feet have failed.

Take a guess as to who is most impacted by this mandatory-minimum sentence2? You know where you can’t stand without being within 1500 feet of a school or public housing project? That’s right. Connecticut’s urban cities (that’s a post from 2007, by the way. We’ve been dithering over this common sense reform for six fucking years).

Mandatory-minimums are also dangerous because they are a chain that binds the hands of judges who seek to do justice and are a weapon in the hands of prosecutors who want to be unreasonable and unjust.

In Connecticut, prosecutors determine the charges to be filed and pursued. A judge, short of dismissal of a charge for legal reasons, cannot alter the charges filed by a prosecutor. Judges, on the other hand, can indicate a sentence they would impose, which can differ from a prosecutor’s recommended sentence.

So let’s say that a judge thinks an assault charge is worth a prison sentence of two years; the victim doesn’t want to the defendant to go to jail and there is no real long-term injury to any party. The defendant is a young man, with little or no criminal record and the state’s case is iffy at best.

But a gun was used in the assault, so the prosecutor charges Assault in the First Degree, which carries a mandatory sentence of 5 years. Now, no one thinks that a 5-year sentence is appropriate, except the prosecutor, but no one can do anything about it, including the judge and/or victim. Maybe the prosecutor doesn’t like the defendant, maybe she doesn’t like the defense lawyer, maybe she doesn’t like the judge or doesn’t like the system. Who knows.

But the point is that the prosecutor can hijack “fairness” in the process by “sticking” on a mandatory-minimum.

Mandatory-minimums are set by the legislature, based on precise calculations made using actuarial tables and deep meditation pulling numbers out of their ass. Most don’t have any experience in the day-to-day operation of the criminal justice system and base their ideas of “justice” and “fairness” on fairytales Law and Order. To be fair, when we’re resolving cases, we also pull numbers out of our ass, but at least our asses are attuned to the range of widely accepted resolutions.

But legislators, in someone’s infinite wisdom, have selected arbitrary numbers and have decreed not only maximum punishments, but also minimum punishments, sometimes in abject disregard for the realities of the criminal justice system.

Eliminating mandatory-minimums would do only one thing: eliminate the minimum. It would do nothing to the maximum. But it would allow judges the flexibility of making fair determinations of the appropriate sentence to be imposed, not hindered by an over-charging prosecutor. If a case is “worth” 2 years, a defendant should get a sentence of 2 years. But if a case is worth 8 years, he will get 8 years. Eliminating mandatory-minimums does nothing to alter that possibility.

Instead of a range of 5-20 years, the range simply becomes 0-20 years and a judge is free to sentence anywhere between those two numbers.

Finally, as I’ve said before, CT’s mandatory-minimum scheme has a weird interaction with its juvenile sentencing scheme, resulting in 14 year old children being tried in adult court as adult criminals and sentenced to mandatory ten years in jail. Juveniles – children – are different than the rest of us. The science is incontrovertible and established and even the United States Supreme Court has acknowledged this distinction. They deserve a second chance. While states across the country are considering altering their laws to comply with the Supreme Court, a bipartisan bill that would have done just that was defeated in the State legislature.

Because people are afraid:

“There seems to be some notion that mandatory minimum sentences make us safer and that moving away from them makes us less safe,” [State Rep. Gary] Holder-Winfield said, highlighting a stale leftover from the tough-on-crime rhetoric of the 1980s and 1990s. More people in prison doesn’t equal a safer or more just state, especially not when so many lives are being destroyed in the process.

People who commit crimes should be punished. But they should be punished fairly and proportionate to their crime. They should also be punished in a manner that is proportional to others who have committed similar crimes. They should also be punished in a manner taking into account their individual facts and circumstances.

Smart on crime means all of that. It means treating people as human beings. “Tough on crime” means being afraid of everything that isn’t you and condemning vast numbers of people because you’re scared. Tough on crime is simply continuing the narrow-minded racist policies that got us where we are today: staggering numbers of children and low-level non-violent drug offenders serving significant prison sentences, while our jails burst at the seam, corrections swallows the largest portion of our state’s budget and a trail of destroyed lives and families in its wake.

It’s time to stop being stupid on crime and start being smart on it. Eliminating mandatory-minimums is a step in the right direction.

Martin, Zimmerman and the colors of injustice

This is not a Trayvon Martin post; this is not a George Zimmerman post. For that, go read these fine pieces with which I wholeheartedly agree.

This isn’t even a post about race, although race certainly fuels much of it.

This is a post about injustice. Injustice doesn’t come in one shape: the acquittal of a seemingly obviously guilty white-ish man for murdering a black teenager. Injustice comes in many stripes, shades and hues. Injustice is smaller than the Zimmerman acquittal and greater than it too. Injustice happens every day before your eyes, but you don’t see it.

Injustice is Warren Hill. In 2002, the United States Supreme Court said it was unconstitutional to kill mentally retarded people. Georgia is a part of the United States. Warren Hill is a prisoner in the State of Georgia. Warren Hill is mentally retarded. His experts agree. The State’s experts agree. Yet Warren Hill is scheduled to die tomorrow. A mentally retarded man, in direct contravention to the Constitution of the United States. Because it’s Georgia and Georgia does what it wants.

Injustice is the hundreds of thousand of black men who went to jail for years longer than their white counterparts because of an imaginary crack-cocaine disparity.

Injustice is when children like Trayvon Martin or younger are arrested and treated as adults by a harsh, unrepentant adult criminal system, sending them to jail automatically for a decade or more.

Injustice isn’t at the fringes of the criminal justice system; it isn’t in the extreme corners and reaches, rearing its head every 6 months or so for you to vent your moral outrage at.

Injustice happens to the wrongfully convicted, like Ronald Cotton or James Tillman or Miguel Roman or the hundreds of others who were convicted by duly sworn juries just doing their jobs.

Injustice is every day. Injustice happens like a death by thousand cuts. Injustice happens to the guilty and the innocent. And every injustice to the guilty is injustice to the innocent.

Injustice is when we spend millions of dollars to fund police and prisons and prosecutors and our legislators increase the number of crimes and multiply the punishment without nary a thought to covering the costs of defense. Injustice is when your rights are in the hands of underpaid, overworked lawyers who are doing their best but are overwhelmed by an overwhelming system. Injustice is when “tough on crime” trumps the promise of equality in access to justice.

Injustice is when prosecutors get to decide what to turn over and what not to. Injustice is when they don’t turn over evidence proving innocence. Injustice is when the courts protect their illegal and unethical ways.

Injustice is when the police department in New York has a policy of stopping every minority and “frisking them”, because they were “wearing clothes commonly used in a crime“. Injustice is when the police department wants the power to stop anyone on the street, for any reason, in violation of the Fourth Amendment.

Injustice is when “technicalities” are used to deny people their appeals, to forcibly impose convictions no matter the Constitutional violations or error. Injustice is when we elevate form over substance, format and rules over rights and freedoms. Injustice is when you punish people for exercising their rights.

Injustice is when they use fear to scare you into giving up your rights, telling you tales of the terrorist or the criminal whom you must punish.

Injustice is when you believe that you have nothing in common with the individual subjected to the full force of the government’s ire. Injustice is when you believe that you will never be a persecuted minority. Injustice is when you believe that you have nothing to hide, so you don’t say a word when they illegally look inside my house.

Injustice is when you pay attention when the media tells you to and you stop thinking for yourself. Injustice is when you go into court, predisposed to convict.

Injustice is when you think justice only applies to the innocent or the likeable. Injustice is when you decide that one set of rules apply to you and another set of rules to those that you don’t like. Injustice comes in a dazzling array of colors. Do you have the courage to not be afraid anymore?

Can you stop being colorblind to injustice?

Breaking news: things cost money

In a sure to be groundbreaking series of articles, the Hartford Courant’s Jon Lender has discovered that the business of government – the every day practice of running a State – costs money.

This heretofore undiscovered concept works in this way: people work for the State. They get paid. Shocking and novel, I know. I wonder what the repercussions for society will be? I shudder to think of the fallout from this breathtaking expose that you know, people like to get paid for the work that they do.

Take his latest revelation, for example: that lawyers hired to defend death row inmates were paid money. Ingrates, right? Bastards should work free for the honor or something.

Racism in the death penalty? We’re North Carolina after all!

Tar_Heel_postcard

What do you call people from North Carolina? Whatever that word is, they were faced with a choice: do they appear to be racist murderers or just plain Northeastern Liberal Sissies?

I know what I’d choose and I know what stereotype says that the North Carolinians would choose. And proving that stereotypes are stereotypes for a reason, they chose the former. The Senate just repealed (here‘s the bill) the Racial Justice Act, which allows inmates to use statistics to prove that their death sentences are obtained based on racial injustice.

Just last year I was congratulating the Second in Flight State for a decision reversing the death sentence for a man who proved that racial bias played a significant role in the jury selection process. The opinion by Judge Weeks [PDF] said that:

Race played a “persistent, pervasive and distorting role” in jury selection and couldn’t be explained other than that “prosecutors have intentionally discriminated” against Robinson and other capital defendants statewide, Weeks said. Prosecutors eliminated black jurors more than twice as often as white jurors, according to a study by two Michigan State University law professors Weeks said he found highly reliable.

The opinion relied in part on a study [PDF] by Michigan State University. This was all made possible due to the Racial Justice Act, an avant-garde piece of legislation enacted in North Carolina that did exactly what the United States Supreme Court prohibited a quarter century ago in McCleskey v. Kemp.

The cost of your conviction

This attitude that I’ve written about before: the attitude of us vs. them, which is enshrined in the ‘tough on crime’ policies of the 80s and 90s, has consequences. Real life consequences that affect you and me, the “us”, as much as they affect the “them”. There’s a financial cost to society that goes unnoticed: the high cost of incarceration, the cost of having non-productive members of society and the cost of destroyed lives. We bear the burden of all of these.

The New York Times has this lengthy piece on the consequences that long-term incarceration strategies have on families. From driving family members to welfare, to neglect in childcare:

“I thought I was going to lose my mind,” he said. “I felt so bad leaving my wife alone with our daughters. When they were young, they’d ask on the phone where I was, and I’d tell them I was away at camp.”

His wife went on welfare and turned to relatives to care for their daughters while she visited him at prisons in Tennessee, Texas, Arizona and New Mexico.  “I wanted to work, but I couldn’t have a job and go visit him,” Ms. Hamilton said. “When he was in New Mexico, it would take me three days to get there on the bus. I’d go out there and stay for a month in a trailer near the prison.”

In Washington, she and her daughters moved from relative to relative, not always together. During one homeless spell, Ms. Hamilton slept by herself for a month in her car. She eventually found a federally subsidized apartment of her own, and once the children were in school she took part-time jobs. But the scrimping never stopped. “We had a lot of Oodles of Noodles,” she recalled.

to increasing rates of sexually transmitted diseases and teen pregnancy:

A ray of sunlight in East Haven

the land of steady racism

East Haven, Connecticut’s most famous modern day “sundown town“, has just learned what it feels like to be on the other end of a good scrubbing. The town, you will recall, made the news when the DOJ filed a federal lawsuit alleging racial profiling and violation of civil rights for its policy of targeting minorities for traffic and other violations. From the DOJ report [PDF]:

  • The East Haven Police Department (EHPD) conducted disproportionate traffic stops of Latinos. Latinos accounted for 24.8% of the stops in the 4pm-12am shift, which is typically the busiest. The numbers for the other shifts were 17.8% and 14.7%.
  • However, comparing the percentage of Latinos stopped to the percentage of Latinos in the population reveals a starker difference. Latinos accounted for 19.9% of all traffic stops, but make up only 8.3% of East Haven drivers (and 15.5% of East Haven and surrounding towns).
  • Officers heavily patrol known Latino areas, lying in wait for people leaving predominantly Latino-oriented businesses.
  • Other methods use include following cars until a traffic violation occurs, out-of-state license plates known to be “forged”, citing speeding but writing little to no information about the speeding on the ticket itself.
  • Latinos face harsher treatment after being stopped: they are more likely to be arrested and have their cars towed for traffic violations than non-Latinos.

Yesterday, in the wake of another guilty plea by one of the embattled police officers, the town and the DOJ announced an agreement that they entered into, which will halt the lawsuit for the time being. The consent decree is 54 pages long and I’ve embedded it below. In it, East Haven agrees that:

  • EHPD officers shall conduct investigatory stops or detentions only where the officer has reasonable suspicion that a person has been, is, or is about to be engaged in the commission of a crime.
  • EHPD officers shall not use “canned” or conclusory language in any reports documentinginvestigatory stops, detentions and searches. Articulation of reasonable suspicion andprobable cause shall be specific and clear.
  • EHPD officers shall not use or rely on information known to be materially false or incorrect in effectuating an investigatory stop or detention.
  • EHPD officers shall not use demographic category as a factor, to any extent or degree, in establishing reasonable suspicion or probable cause, except as part of an actual and credible description of a specific suspect in an ongoing investigation.
  • EHPD officers shall not use demographic category in exercising discretion to conduct a warrantless search or to seek a search warrant, except as part of an actual and credible description of a specific suspect in an ongoing investigation.
  • Where an officer seeks consent for a search, the officer shall affirmatively inform the subject of his or her right to refuse and to revoke consent at any time, articulate and document the independent legal justification for the search, and document the subject’s consent on a written form that explains these rights
  • EHPD officers shall only arrest an individual where the officer has probable cause. In effectuating an arrest, EHPD officers shall not rely on information known to be materially false or incorrect. Officers may not consider demographic category in effecting an arrest, except as part of an actual and credible description of a specific suspect in an ongoing investigation.

Sadly, I could go on. This is pretty basic stuff here that the EHPD has failed to do in the past and needs to do in the future to rectify their despicable practice of targeting minorities. What’s interesting, though, is that the decree also includes a provision stating clearly that citizens have the right to observe and record police conduct and that the EHPD cannot interfere with that. This is obviously a response to the glut of arrests state-wide and across the country of people who were merely recording police activity:

  • EHPD shall ensure that onlookers or bystanders may witness, observe, record, and/or comment on officer conduct, including stops, detentions, searches, arrests, or uses of force in accordance with their rights, immunities, and privileges secured or protected by the Constitution or laws of the United States.
  • Officers shall respect the right of civilians to observe, record, and/or verbally comment on or complain about the performance of police duties occurring in public, and EHPD shall ensure that officers understand that exercising this right serves important public purposes.
  • Individuals observing stops, detentions, arrests and other incidents shall be permitted to remain in the proximity of the incident unless there is an actual and articulable law enforcement basis to move an individual, such as: an individual’s presence would jeopardize the safety of the officer, the suspect, or others in the vicinity; the individual violates the law; or the individual incites others to violate the law.
  • Individuals shall be permitted to record police officer enforcement activities by camera,video recorder, cell phone recorder, or other means, unless there is an actual and articulable law enforcement basis to deny permission.
  • Officers shall not threaten, intimidate, or otherwise discourage an individual from remaining in the proximity of or recording police officer enforcement activities.
  • Officers shall not seize or otherwise coerce production of recorded sounds or images,without obtaining a warrant, or order an individual to destroy such recordings. Where an officer has a reasonable belief that a bystander or witness has captured a recording of critical evidence related to a felony, the officer may secure such evidence for no more than three hours while a legal subpoena, search warrant, or other valid order is obtained.

Of course, this does nothing but force the members of the town’s police department and the mayor to behave in an orderly fashion. The consent decree does nothing to actually enhance their tolerance of minorities. East Haven Mayor Joseph Maturo, after all, is the same man who upon being re-elected in 2011, reinstated suspended Police Chief Gallo and then allowed him to retire. He’s also the man who, upon being asked what he was going to do for the Latino community in the wake of these allegations, glibly stated that he might go home and eat a taco.

The question, of course, is whether this ray of sunlight will disinfect the whole town in years to come or whether, when the FBI has moved on, the windows will be shuttered again and embedded racism allowed to fester again. Rev. Manship, whose arrest for videotaping the harassment of a Latino shop-owner kickstarted this effort, says just as much:

“When the spotlight’s on, everybody’s behaving well,” Manship said, “so the real test for this will be years after the Department of Justice has left East Haven and [see if we] can have a Police Department where everybody is comfortable, safe, and can go to and not be afraid of.”

Isn’t that what we should want?


 

Death on death’s doorstep

[You should've seen the alternate title I had lined up for this post: Death's Final Countdown.]

In the early morning hours of April 11, 2012, the people of Connecticut, through their elected legislature, decided that they would no longer permit their own to be put to death with the imprimatur of official state action. For those like me, who are abolitionists, it was only half a victory: the measure was prospective only. So while we rejoiced, we did so with caution and measure, because there were still 11 men who could be executed by the State and at least two more who could legally join them on death row.

Even before the ink that formed the Governor’s signature on the “repeal” bill was dry, chatter was building that there would soon be a push to make the repeal retrospective as well. Despite the clear language that this piece of legislation applied only to future crimes, many were skeptical that such a measure could pass constitutional muster. After all, what is more “arbitrary and capricious” than deciding who lives and dies based on a date?

Soon, we will find out if those skeptics were indeed correct. The Connecticut Supreme Court has granted a motion for reconsideration in the death penalty appeal of Eduardo Santiago (who was one of the 11 on death row, but whose death sentence the Supreme Court reversed [PDF] on other grounds in June). Instead of going straight to another penalty phase hearing, Santiago’s lawyer asked the Supreme Court to rule whether the death penalty is even a legal option in his case, given the repeal. The Supreme Court agreed to do so.

There’s also a similar motion pending in the case of Richard Rozkowski, who’s currently awaiting another penalty phase hearing. I wouldn’t be surprised if that were joined with the Santiago appeal at some point.

Meanwhile, the trial of the death penalty on charges of racial and geographic bias continues undeterred this week, despite the abomination that is McCleskey. Professor John C. Donohue’s study here in CT isn’t the only one to find great bias in the application of the death penalty. See this recent paper on a study of one county in California.

Frankly, the conclusion that the death penalty needs to be taken off life support is inescapable to me when viewed the prism of stories like that of Terrance Williams, where 5 jurors signed a letter stating that they were unaware that the alternative to death was life without the possibility of release; or that of Robert Wayne Holsey, whose lead attorney confessed that he drank a quart of vodka every day during the trial, and yet the 11th Circuit upheld [PDF] the death sentence, because nothing would’ve made a difference.

Will it be taken off life support? Or will it be allowed to live, weakened, cowering in a corner, yet poisonous and infecting us all? We’ll find out soon enough.

A quart a day keeps effectiveness at bay.