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What the New DOJ Drug Policy Means for Everyone

Monday, May 15th, 2017

Jeff Sessions -Photo/Alex Brandon

Jeff Sessions -Photo/Alex Brandon

Attorney General Jeff Sessions announced that he has rescinded the prior Department of Justice policies of Attorney General Eric Holder on sentencing and charging in drug cases. Under Attorney Generals Eric Holder and Loretta Lynch, both reversed prior drug policies which saw many minorities and others going to prison for decades for low level, non-violent drug involvement due to mandatory minimum sentences. Under Attorney General Holder, the Department of Justice concentrated more efforts and resources on drug defendants who were violent and/or had substantial involvement with drug trafficking. Sessions, known as the law and order Attorney General, has saw fit to turn back the progress seen in the Eric Holder era.

Sessions announced last week that he intends for all U. S. attorneys to charge the most serious crimes and seek the highest penalties for all drug defendants in federal courts. Mandatory minimums and lengthy sentences began in the 1980’s to combat the crack cocaine epidemic. After 30 years since the original law and order mandatory minimums of the Regan era sought to increase drug sentences, there is still an epidemic of drugs—known currently as the opioid epidemic. In the prior mandatory minimum era, there were persons with very low drug involvement who spent decades in jail for having very small amounts of drugs in their possession and with no prior criminal convictions, due to mandatory maximum minimums.

Sessions declared the need for a change in policy due to an increase in crime; in fact, crime has been decreasing and is at its lowest in many years. And while many national prosecutors praise Sessions and the new policy, others who seek criminal justice reform abhor the new policy, as it will simply fill up jails. And maybe that’s exactly what Sessions wants to do. Private prisons are a high priority for those who earn big bucks for building and maintaining private prisons.

What is needed today to curtail drug use and abuse is the same thing that was needed during the 1980’s. Drug treatment and prevention is a key to decreasing the drug problem in the U.S. Opponents to the increased drug sentences and in favor of overall criminal justice reform include progressives and conservatives alike. The Charles Koch Institute found that the majority of Trump voters even contend that criminal justice reform is important with its findings:

“A poll last month by the conservative Charles Koch Institute found that 81 percent of Trump voters think criminal justice reform is “very important,” and 63 percent said judges should have the freedom to assign forms of punishments other than prison, which is the opposite of what mandatory-minimum sentences require.”

It will be interesting to note if the new policy will target mainly minorities, as in the past or include individuals across the country involved in the “new” opioid drug epidemic. There is a provision in the new drug policy that will allow for prosecutors to use their judgment. As a former prosecutor, I know that discretion is rarely allowed when a policy calls for the highest sentences and charges.

I suspect that as in the past, the majority of those getting arrested, charged and sent to prison will be people of color. Studies have found that minorities and whites use drugs at or about the same rate. Yet, prisons overflow with people of color. African Americans are disproportionately targeted and sent to prison for lengthy jail sentences in the mandatory-minimum era. That was one of the underlying reasons why Attorney General Eric Holder sought to change the policies.

The new war on drugs, a la Sessions style, should have everyone concerned. And this time around unlike the 1980’s Regan era, everyone who knows someone with a drug problem should have reason for concern. The new policy will likely affect John and Jamal.

Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former Baltimore prosecutor. She often appears on MSNBC, PBS, CBS News, Al Jazeera and Fox 5 DC.

Freddie Gray’s Friend To Get Jail while Officers Cases in Limbo

Friday, March 4th, 2016
Credit: Murphy, Falcon and Murphy

Credit: Murphy, Falcon and Murphy

On March 29, Allen Bullock will receive a jail sentence pursuant to a plea deal entered in Baltimore Circuit Court on February 29.  Nineteen year old Allen Bullock was charged in April of last year with eight counts of rioting, disorderly conduct and malicious destruction of property following the death of Freddie Gray, his friend. Bullock is seen in a photograph standing on top of a police car smashing a windshield with a cone during a protest.  No one was hurt. Bullock says the death of his friend, Gray, got the best of him.

 

 

Baltimore State’s Attorney Marilyn Mosby’s office offered Bullock more than 9 years if he would plead guilty.  Bullock and his attorney, J. Wyndal Gordon, declined that plea deal. Over nine years in jail for, in essence, busting a police car window—are you kidding me?  As a former prosecutor, that doesn’t sound fair and just to me. Obviously, the Baltimore State’s Attorney Office wants to make an example of Bullock but for what reason, I’m not sure. I acknowledge that Bullock committed a crime.  I don’t accept that his crime should result in a 9 year sentence—or any jail time for that matter.

 

Baltimore Circuit Court Judge Charles Peters offered Bullock and his attorney the plea deal of 12 years all but 6 months suspended, 5 years on probation, 400 hours of community service and getting his GED as a condition.   Bullock accepted the plea offered by Judge Peters, likely because the aspect of facing a trial and the State’s offer was not appealing.  It is an incredibly harsh and long sentence for the crime.  He will be formally sentenced as part of the plea deal on March 29.

 

What the sentence on March 29 will mean is that Bullock must go to jail for 6 months—minus any time he spent while waiting to make bail last year.  Then he must remain on probation for 5 years.  If he does not complete the 400 hours of community service or get his GED, he will face the balance of the 12 year sentence—all for smashing a police vehicle windshield.  If he gets re-arrested for anything during the next 5 years, he faces up to 11 ½ years in jail—again for busting a police car window.

 

On April 12, 2015, police arrested 25 year old Freddie Gray and placed him in a police van.   After riding him around Baltimore without a seat belt in the back of the van for 45 minutes, Gray was found unconscious.  He died a week later.  Following Gray’s funeral, riots and civil unrest broke out in Baltimore.  Bullock’s act is seen on video during a protest in downtown Baltimore.

 

Allen Bullock later turned himself into the police after discussing the situation with his parents. His bail was set much higher than any of the six police charged in the death of Freddie Gray at $500,000 for multiple counts of malicious destruction of property and rioting.  He was released on bail through social media fundraising efforts. However, if not due to the social justice efforts to raise bail, he might still be in jail today. And that would be tantamount to a crime.

 

Most of the facts are known in Bullock’s case—in part due to video footage.  I question why the prosecutors would choose to make an example of this young man.  It is highly unlikely that any of the six police officers facing trial for the death of Freddie Gray will receive 9 years in jail—assuming any convictions occur in any of the six cases.

 

Bullock’s case shows that justice is not dispensed evenly and fairly for young African American men—even with a Black woman as State’s Attorney.  And there are two different criminal justice systems—one for the Allen Bullocks and Freddie Grays and one for others who are different from Bullock or Gray.

 

Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former Baltimore prosecutor.  Her Op- Ed articles appear in the Washington Post, Baltimore Sun and Huffington Post.  She often appears as a legal analyst on Al Jazeera America, BET, CBS News, C-span, MSNBC, PBS, Fox 5 DC and other networks.

Why Cameras are Needed in the Courtroom

Thursday, August 13th, 2015
Baltimore Circuit Court House via Flickr by Kirsch

Baltimore Circuit Court House via Flickr by Kirsch

On Wednesday August 12, Minnesota’s Supreme Court approved a pilot program to commence in November allowing cameras in criminal court rooms but only in sentencing hearings. The new rule changes the precondition that all parties consent.  Much of the work of our criminal justice system occurs long before a trial or plea bargain. Cameras are needed inside courts to bring about necessary changes in the criminal justice system.

 

The recent police shootings of unarmed minorities sparked the call by many for police to wear body cameras to show how events unfold.   Body cameras only speak to one part of the equation. The other part is what happens inside courtrooms across America.

 

As a former prosecutor and now trial lawyer, I see the need for allowing cameras in all court rooms.  Most court room proceedings are open to the public.  Those proceedings that are already open to the public present no harm in allowing further transparency with cameras.

 

The use of cameras inside courts varies from state to state. In Maryland where I prosecuted, camera coverage is prohibited in criminal cases. Those opponents in Minnesota and elsewhere against cameras inside the courtroom argue cameras only benefit the media but work against justice and due process. I beg to differ.

 

In criminal cases from bail hearings, arraignment, motions hearings, trials and post- trial proceedings, the criminal justice system grinds daily.  What happens inside court rooms will surprise most people. Real court does not remotely resemble TV dramas. And most high profile trials that are broadcast give only a glimpse of how the system works.  The most important aspects of the criminal justice system are the day to day inner workings of courts.

 

A bail hearing is the first step in the process for someone charged with a crime to determine an amount of bail or release without bail. Factors depend on the seriousness of the crime, an individual’s ties to the community and whether he or she presents a flight risk.  The amount of bail set is usually an arbitrary amount and varies from judge to judge or county to county for similar crimes and individual criminal history. In Baltimore following the Freddie Gray unrest, a judge set a $500,000 bail for Allen Bullock, the African America teen who turned himself following alleged destruction of a police vehicle whose photo went viral.  Meanwhile, the six Baltimore police officers charged with the death or assault of Freddie Gray received bails ranging from $250,000 to $350,000.  And former University of Cincinnati police officer Ray Tensing received a $1 million bail for the  shooting death of Samuel Dubose.  I’ve seen a  defendant with no previous criminal record receive a bail set at $100,000 for sending harassing texts and emails.  A closer look at our bail system is warranted.

 

Many persons who cannot pay bail regardless of their crime remain in jail until trial.  In misdemeanor cases, that sometimes means a person might spend as much time in jail awaiting trial as the maximum sentence allowed for the crime for which they are charged.   In other cases, many innocent persons unable to make bail will agree to plea bargains  just to receive their get out of jail free card.  Trials for individuals who do not want a plea bargain are a rare occurrence.  More than 90% of all criminal cases result in a plea bargain.

 

The most striking aspect of cameras inside court rooms, particularly those in urban cities, will show the disparate amount of African Americans in the criminal justice system facing misdemeanors.  Court rooms of mostly African Americans often fill up with standing room only.   In most states, misdemeanor dockets make up the vast majority of cases.  Yet, felonies receive all the media attention.

 

The interaction between lawyers and their clients varies. Many lawyers are very well prepared.  However, many overworked public defenders and some private counsel meet their clients for the first time inside the court room on the day of the case. And I see lawyers who do not know the facts or legal aspects of a client’s case. And a lawyer’s preparation often determines the outcome of a case.

 

I doubt if cameras will change the way that lawyers, judges or defendants act.  The change will come from how concerned citizens respond. Seeing the harsh realities of real court room drama will compel change.   As many activists lobby for body cameras on police, they should also argue that cameras be allowed inside criminal courts.  Change will not occur in the criminal justice system until we know the facts that necessitate the change.

 

Washington, DC based Debbie Hines is a trial lawyer and former Baltimore prosecutor.

Justice League NYC at Justice Department Seeks Answers

Monday, August 3rd, 2015
Justice League Rally Courtesy Debbie Hines

Justice League Rally
Courtesy Debbie Hines

Justice League NYC activists traveled on Monday to the Department of Justice to rally and bring awareness to the lives of women  of color killed while in police custody with no clear answers from the Department of Justice or local police officials.  The small but diverse group demanded answers in the Sandra Bland case and a host of others, including Raynette Turner, Kindra Chapman, Joyce Curnell, Sarah Lee Circle Bear, Ralkina Jones and other unnamed and unknown women of color.  Speakers spoke about a national emergency and rejected the idea that these women dying while in police custody are individual incidents.

 

Sandra Bland at 28 years old died in a jail cell in Waller County, Texas on July 13 after a traffic stop for failing to signal she was changing lanes.  Her death while ruled a suicide leaves more questions than answers.  While jail guards state that Bland may have had a prior attempt suicide, jail guards made no attempt to keep her safe.

 

Native American Sarah Lee Circle Bear, a 24 year old mother of two children ages 1 and 2, arrested on a bond violation in South Dakota complained of excruciating pain to her jailers.  Instead of protecting and helping her, her jailers stated, “quit faking” and “knock it off”.  She died July 6 after being found unconscious in her cell and later taken to a hospital.

 

The death of 18 year old Kindra Chapman of Alabama,  also like Bland’s ruled a suicide by hanging,  came after she was arrested  and jailed for allegedly stealing a cell phone from another person. Chapman died July 14.

 

Joyce Curnell, 50  was found dead on July 23 at a Charleston County facility after being arrested for shoplifting.  Cleveland Police arrested Ralkina Jones, 37 following a domestic dispute with her ex-husband on July 24. Two days later, she lay dead in her Cleveland Heights jail cell

 

Raynette Turner, mother of 8 and wife of Herman Turner for 23 years, landed in a Mount Vernon, NY jail after being arrested for allegedly shoplifting from a grocery store on July 25. Her arraignment was scheduled  two days later on July 27.  She never made it. She was dead by that afternoon in a holding cell awaiting her arraignment.  Her husband waited all afternoon for her to be arraigned.

 

 

And these are a few of the women of color known to have died while in police custody—in July.   Although the name of Sandra Bland  and her video police encounter is widely known, these other women of color who lost their lives in July barely received any media mention. And the Twitter hashtag was started with #SayHerName to recognize that women of color have died while at the hands of police.  It is not solely black men who die while in the custody of police.  These women’s names and lives matter.

 

The investigations into these women’s death varies.  The  questions still outweigh the answers.  And justice eludes these cases.  Keeping attention on these  women and  saying their names will help propel answers and hopefully justice.

 

Rally speakers represented on Monday were from the Justice League NYC, Black Women’s Roundtable, Avis Jones-Deweever, Tamika D. Mallory, Rev. Willie Wilson, Rev. Jamal Bryant and a host of others.  While commending Loretta Lynch as the first black woman to be confirmed as U.S. Attorney, Rev. Jamal Bryant stated to her this is a code red situation.  Bryant sought answers of what would be the outcry if 6 Caucasian women died under police custody. Speakers demanded to know how many resources and lawyers are being allocated to address this crisis. Bryant engaged the crowd to lift up their voices as one collective group of conscious effort until justice is reached.  Justice League NYC also had representatives from the hip hop artist community in support of the cause.

 

The event is a preamble of many more similar events to come in various cities throughout the U.S.  Another similar event will be held in Baltimore on August 15.

 

Washington, DC based Debbie Hines is a trial lawyer and former Baltimore prosecutor.  She also contributes to the Women’s Media Center.

AG Eric Holder Announces Strides in Sentencing

Tuesday, February 17th, 2015

Eric_Holder_official_portraitOn Tuesday, Attorney General Eric Holder spoke at the Press Club in D.C. and gave what may be one of his last speeches before stepping down. He announced that there have been quantitative strides in his actions taken to reform criminal sentencing in America. Holder realized very early on that the criminal disparities in sentencing in drug cases resulted in African Americans being sentenced to higher sentences and to mandatory minimums. Attorney General Holder stated, “For years prior to this administration, federal prosecutors were not only encouraged – but required – to always seek the most severe prison sentence possible for all drug cases, no matter the relative risk they posed to public safety. I have made a break from that philosophy.” Data compiled by the U.S. Sentencing Commission shows that the efforts made by Holder have helped to dramatically reduce mandatory minimums and to reserve higher and harsher sentencing to more serious offenders. Attorney General Holder’s approach was to reserve the more severe sentences to those offenders that deserved it, instead of indiscriminately applying harsh sentences to every drug defendant coming before a federal court. The change in policies affects the nonviolent drug cases and allows the federal prosecutors to use discretion in these cases.

Attorney General Holder’s approach as Attorney General was to make America less dependent or reliant on incarceration. He noted in his speech the effect of the previous approach to criminal justice saying “After all, although the United States comprises just five percent of the world’s population, we incarcerate almost a quarter of its prisoners. While the entire U.S. population has increased by about a third since 1980, the federal prison population has grown by almost 800 percent over the same period.” And most studies have shown that this increased incarceration has not improved safety to our communities. But studies have shown that African American men and Hispanic men make up almost 50% of the U.S. prison population while black men make up 6% of the U.S. population. The Sentencing Commission confirms that numbers show that federal prosecutors sought mandatory minimum penalties at a lower rate in 2014 than in any other year on record.

Attorney General was responsible for having President Obama to sign the Fair Sentencing Act, which reduced the inappropriate and unjust 100-to-1 sentencing disparity between crack and powder cocaine. And although the disparate gap was reduced to approximately 18-1, it is a vast improvement. African Americans are more likely to use crack cocaine over white Americans, while white Americans more likely use powder cocaine. Yet, crack cocaine uses powder cocaine as a base. There should not be any distinction in sentencing between the two.

Perhaps, the effects of Holder’s change in U.S. attitudes to incarceration can be seen in places like Kentucky, Texas, Ohio and Pennsylvania – where governors and legislatures of both parties have provided a model for others to emulate by directing funds away from prison construction and towards programs designed to reduce recidivism. Building new prisons in communities is not the answer to the issues of criminal justice.

Overall, in Fiscal Year 2014, the U.S saw its first reduction in the federal prison population in 32 years. And perhaps, more importantly, the U.S, under Holder and the Obama administration has achieved side-by-side reductions in both crime and incarceration in more than 40 years. Holder stated that improvements and changes to the criminal justice system under his leadership are just a beginning for laying a foundation for a new era in American justice.  If confirmed by the Senate,  hopefully, US Attorney General nominee Loretta Lynch will continue to work on and improve upon what Attorney General Eric Holder has successfully started under the Obama Administration.