Clarence Thomas Suggests Marijuana Laws Are Outdated

Supreme Court Justice Clarence Thomas on Monday said that federal laws against the sale and cultivation of marijuana are inconsistent, making a national prohibition unnecessary, reports CNBC. The court’s decision not to hear a new case related to tax deductions claimed by a Colorado medical marijuana dispensary prompted Thomas to issue a statement that more broadly addressed federal marijuana laws. Thomas stated that a 2005 ruling in Gonzales v. Raich in particular, which determined that the federal government could enforce the prohibition against marijuana possession, may be outdated.

Thomas referred to several policies that conflict with the 2005 ruling. Among them are memorandums issued by the Department of Justice in 2009 and 2013 that indicated the government would not intrude on state marijuana legalization schemes or prosecute individuals for marijuana activity if it complies with state law. He added that since 2015, Congress has repeatedly prohibited the Justice Department from using federal money to interfere in the implementation of state medical marijuana laws. With 36 states permitting the use of medical marijuana and 18 allowing recreational use, Thomas asserted that marijuana businesses do not experience “equal treatment” under the law.

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June 29, 2021 at 10:14AM

Millions of People With Felonies Can Now Vote. Most Don’t Know It.

Only a fraction of the thousands of formerly incarcerated people whose voting rights were restored in time for the 2020 election made it back on to the voter rolls in four key states — Nevada, Kentucky, Iowa and New Jersey, a Marshall Project analysis found.

At least 13 states have expanded voting rights for people with felony convictions between 2016 and 2020. As a result, millions of formerly incarcerated people across the country are now eligible to vote.

Devyn Roberts, 44, only heard about the voting rights changes after responding to a Marshall Project survey for newly eligible voters in Kentucky. Roberts hasn’t been eligible to vote for most of her adult life, so she hasn’t been following politics closely and didn’t know about Kentucky’s executive order restoring voting rights to some people with felony convictions.

“We are non-voters,” she said. “They should have told us. There should have been a commercial about this.”

Many people working to register newly eligible voters said the low registration numbers for formerly incarcerated people reflect more than apathy and political alienation. Most don’t even know they now have the right to vote. None of the states in our analysis required corrections departments or boards of elections to notify newly eligible voters of their rights. The task was left to political organizers, already stretched thin by get-out-the-vote efforts amid a pandemic. To coax the newly enfranchised back onto the voter rolls, they’ve had to dispel the widely-held fear that voting could mean going back to prison.

Organizers are gearing up to apply the lessons of the last election to the politically consequential 2022 midterms. They’re urging corrections officials and probation and parole officers to notify people that their rights have been restored. With the pandemic waning, they’re planning to reach more formerly incarcerated people in person at rallies and in halfway houses across their states. Many of the officials who oversee the justice system are up for election in the midterms: judges, district attorneys, sheriffs and the county commissioners and state legislators who oversee them.

For Jagada Chambers, who is registering people in Nevada, that means rallying Nevadans with felony convictions to participate in upcoming sheriff and district attorney races. In Kentucky, organizers hope to motivate people to register by the prospect of unseating Republican Sen. Mitch McConnell, who opposes restoring voting rights for people with felony convictions.

If they succeed, the results may not fall along expected party lines: People behind bars are not a monolith, and a survey of their political preferences during the last presidential election showed substantial support for Donald Trump, as well as a range of views on specific criminal justice issues.

“I don’t care what party you are,” said Ron Pierce, who was formerly incarcerated and is now leading registration efforts for the New Jersey Institute for Social Justice. “If your agenda aligns with my agenda, that’s where my vote goes.”

The full scope of the nationwide push to re-enfranchise the formerly incarcerated is difficult to assess because few states keep track of how many people with felony convictions register to vote.

The Marshall Project requested state voter registration rolls as well as the list of potentially eligible voters in Kentucky, Nevada, Iowa and New Jersey. No such list existed in Nevada and New Jersey, so we obtained information on people who had recently been released from prison. Each state we examined has active voter registration efforts and inexpensive and accessible data. To identify people who had successfully reregistered, we matched names and birthdates in each list. We also texted a survey to people in Kentucky who might be eligible to vote to find out how much they knew about the new voting criteria, and followed up with a handful of respondents.

Similar efforts to quantify voting rights restoration efforts for formerly incarcerated people have also shown low rates of registration. The Miami Herald, Tampa Bay Times and ProPublica reported that only 80,000 of 1.4 million Floridians with felony convictions registered to vote in 2020. Republican lawmakers stymied registration efforts by requiring all fines and fees be paid before registering — sums that were often unaffordable for newly-released people. The courts issued more than $1 billion in fines and fees between 2013 and 2018, according to a report by the Florida Court Clerks and Comptrollers.

Those who do register often don’t show up to the polls in large numbers on election day, research shows. But the same research also notes: Turnout is greater in states that have actively informed formerly incarcerated people about their rights.

Lack of information hobbles registration efforts. None of the states we examined required automatic notification of the newly eligible voters. Because the corrections department and probation and parole offices interact with many of them, those departments could send letters to people in their custody, organizers said, or provide voter registration applications with their orientation paperwork.

“When you get a law passed, the hardest part is getting people to implement it,” said Pierce, who is on parole in New Jersey. “I had to actually tell my parole officer that he is supposed to be telling people they have the right. He didn’t even know we had the right to vote.”

The New Jersey State Parole Board said they have taken an active approach to voting rights education for parolees, noting “that parole officers must distribute and review voter registration materials with all parolees upon their release into the community.” The Probation Division and Department of Corrections did not respond to repeated requests for comment.

Some states have had success partnering with agencies to spread the word, but progress is uneven. In Nevada, neither the corrections department nor probation and parole are informing people about the changes in state law. In New Jersey, the probation department keeps track of every conversation about rights restoration and offers a one-hour credit towards community service for people who register and vote. While the Department of Corrections includes information about voting rights in its discharge papers, they come loaded onto a CD-ROM, making them virtually inaccessible.

In Kentucky, the Department of Corrections distributes a notification form through probation officers to help people determine their eligibility under the new law. But the forms do not include information about how to register to vote. A spokesperson for the Kentucky Department of Corrections said it notifies eligible voters upon release from prison, adding “if they are not eligible for automatic restoration, they are provided a civil rights restoration application and instructions on how to apply.”

A spokesperson for the Nevada Department of Corrections said they currently “do not do anything to assist in the voting issue,” but that they were “looking into making it part of the reentry curriculum.” A spokesperson for the Nevada Probation and Parole Division said they are “indirectly facilitating voter registration” by encouraging “each supervised individual to obtain Nevada identification.” Voter registration is automatic when applying for an ID.

It’s much more common for probation officers to inform people they’ve lost their voting rights. After Tip Moody got out of jail in 2018, his probation officer informed him he’d have to wait another 5 years until he could vote.

“I was enraged and totally stunned,” said Moody, who is 61. “To me, voting isn’t just a right. It’s an obligation.”

Moody got lucky. He was released from probation early, so he plans to vote in the upcoming elections.

One of the most enduring barriers to registering more people is the criminalization of voting for the formerly incarcerated. For decades, a felony conviction has been synonymous with disenfranchisement, so some people are skeptical the laws have actually changed. The fear of being sent back to prison for violating the law is paralyzing. And high profile cases, such as Crystal Mason’s in Texas, reverberate across the country. Mason is appealing a 5-year prison sentence for voting while under supervised release.

“I have heard multiple people bring up the case in Texas,” Pierce said. “It just shows just how effective it is even outside of Texas to suppress the vote.”

Reaching newly enfranchised voters poses another challenge, since difficulty finding employment and stable housing is one of the most pervasive collateral consequences of a felony conviction.

Chambers, a fellow with Silver State Voices in Nevada, turned to the local news to explain the changes in the law. In Kentucky, Dave Newman, an organizer with Kentuckians for the Commonwealth, combed through a list of potential voters provided by the corrections department and texted every viable cell phone number to explain the new rules.

Many of the obstacles to finding and registering formerly incarcerated people stem from the new laws themselves. Several states have confusing eligibility criteria. In New Jersey and Nevada, anyone no longer in prison is eligible to vote. But in Kentucky and Iowa, people with some felony convictions may not vote, nor can people on probation and parole. In addition, the laws in both states have changed multiple times over the years.

Roberts, who heard about the new voting criteria from the Marshall Project survey, said she wants to vote in the upcoming elections in Kentucky, but isn’t sure she is eligible to register based on the new criteria. One of her convictions is in Missouri.

“I don’t know if one is ok,” Roberts said. “And if you had more than one? Or if you had it in a different state? I read the description, but that’s why I was like, ‘wait a minute.’”

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The Kentucky Department of Corrections set up a website and a call center where people can check their eligibility. Some website searches are “inconclusive,” so people have to follow up over the phone, creating another obstacle for the incarcerated to navigate.

Fragmented data on who is actually eligible also complicates registration efforts. The ACLU in Iowa did receive a list of all potentially eligible people, but the data is so poorly maintained that the Des Moines Police Department was mistakenly listed. So was the mayor of Truro, a small town south of Des Moines.

A spokesperson for the Iowa Secretary of State pointed out that “no comprehensive list” of people with felony convictions exists, and added, “The contact list for Iowans with felony convictions is maintained by the Iowa Department of Corrections, and may or may not have current contact information for those individuals.”

Political alienation is one of the hardest barriers to overcome. When Robert Pate went to prison, he was struck by how many people felt like they weren’t part of society. “[Prison] made them feel like they didn’t have any rights, and it kept a lot of them from wanting or even having the desire to see things change in the community,” said Pate, who has helped register people in Iowa. In each state we surveyed, the work to register newly eligible voters is led by formerly incarcerated people. All know first-hand the stigma that accompanies a felony conviction, which allows them to be more persuasive.

Still, some people with felony convictions, like Nafeesah Goldsmith, question the benefit of voting. Every election season, Goldsmith says she watches as candidates descend on Black churches in New Jersey, promising congregants they’ll fix the roads and improve the schools. But as soon as the election is over, the officials disappear — their promises mostly unfulfilled.

“I am looking at these things and saying to myself: What really have we as a people gained?” she said. Voting, she added, “didn’t do anything for us.”

Goldsmith, who got out of prison in 2015 after 13 years, did not vote in the 2020 election, although she was eligible. She believes direct action — testifying in front of legislators or holding rallies and protests — is a more effective tool.

With primaries for the 2022 midterms looming, organizers are working to overcome the obstacles to getting these voters back on the rolls. The midterm elections offer an opportunity to motivate voters to select officials who shape criminal justice in ways that directly affect their lives.

In Nevada, all state senators are up for election, along with the Clark County district attorney and several sheriffs throughout the state. In New Jersey, when people express frustrations about policing, Pierce explains that the mayor picks the police commissioner. In Kentucky, organizers are stirring up support for a constitutional amendment that would enshrine automatic voting rights restoration for people who complete their felony sentence.

Organizers also remind potential voters that felony disenfranchisement laws have limited Black people’s political power. Nationwide, 1 out of every 16 Black adults is disenfranchised because of a felony conviction, a rate that is nearly four times higher than the rest of the population. In Kentucky, 1 out of every 7 Black adults is barred from voting. And in Iowa, as many as 1 in 10 Black adults were barred from voting before the executive order.

Likely voters get the most time and attention from campaigns, said David Danmore, chair of the political science department at the University of Nevada, Las Vegas. Political strategists have tended to avoid areas with high rates of incarceration and, therefore, disenfranchisement. Expanding voting rights for people with felony convictions could change the way politicians campaign.

“These voters are up for grabs,” Danmore said. “But someone has to think it’s worth the time and effort to track these voters down and get them in the pool.”

For Jovan Jackson, the first formerly incarcerated person in Nevada to register to vote under the new law, the impact of decades of disenfranchisement is visible in neighborhoods with high rates of poverty and imprisonment.

Nevada is one of a handful of states that sends people to jail for unpaid traffic tickets, and studies show Black drivers across the state are far more likely than White ones to be pulled over by the police. It’s a cycle that Jackson says has led to more poverty and disenfranchisement.

Ending the criminalization of unpaid traffic tickets is just one of the issues he highlights when encouraging the formerly incarcerated to register to vote. For too long, he says, they haven’t had a say in who would represent them, so their issues weren’t part of the political agenda.

“They didn’t have a voice. They didn’t have a vote,” Jackson said. “Now we can be the voice in our communities. Now we can elect officials that can represent us instead of just neglecting us.”

This story was published in partnership with Louisville Courier-Journal and USA Today Network.

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June 23, 2021 at 06:00AM

“Truth, Lies and The Paradox of Plea Bargaining”

The title of this post is the title of this notable new paper authored by Thea Johnson now available via SSRN.  Here is its abstract:

This Article describes the regular use of lying during plea bargaining by criminal justice stakeholders, and the paradox it presents for those who care about creating a fairer criminal legal system . The paradox is this: lying at plea bargaining allows defendants the opportunity to negotiate fair resolutions to their cases in the face of a deeply unfair system, even as that lying makes way for — and sustains — the problematic system it seeks to avoid.

The Article lays out a taxonomy of lying at plea bargaining, organizing the types of lies into three categories: lies about facts, lies about law and lies about process.  The criminal justice system produces a litany of injustices. Implicitly authorized, systemic lying offers a means of dealing with these perceived injustices. But lying also obscures the system from public view, hiding and relieving pressure points via plea bargaining.

Unfortunately, what seems like the natural solution — to make the system more transparent and accountable — would likely harm individual defendants.  If lying at plea bargaining disappeared tomorrow, many defendants would suffer dire consequences, such as deportation for minor charges or being subjected to outrageous mandatory minimum sentences.  These defendants would lose their ability to avoid the injustices of the system.  And yet, lying at plea bargaining is the result of a series of interlocking, mandatory laws and rules that many stakeholders believe are deeply unfair and should be reformed.  Thus, lying at plea bargaining is both a means of avoiding injustice and a force prohibiting meaningful reformation of the laws and rules that produce such injustice.  To put it another way, the lies in the taxonomy are workarounds for a system so barbaric that lawyers are willing to lie to help defendants avoid the worst of it, but they also make that same system nearly impossible to reform.

Examining this paradox leads to the conclusion that conversations about reform must focus on total overhaul of the system, not piecemeal correction.  Something closer to abolition than alteration is the appropriate response to a system so entangled that lying is the only way to reach a just resolution.

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June 21, 2021 at 01:00PM

The Everglades Experiment: Florida’s First ‘Incentivized’ Prison Redefines Punishment

Edward Demoreta, a 39-year-old resident at Everglades Correctional Institution (ECI) and former schoolteacher from West Palm Beach, Fl., isn’t the typical person you’d envision in prison.

“I had a perfect family and great life before I was arrested,” he said. “Not a day goes by where I don’t miss laughing and playing video games with my kids.”

A first-time offender, my cellmate takes full responsibility for his actions—having an inappropriate relationship with a student. Demoreta works daily to better himself, but adapting to Florida’s violent prison system was difficult for him.

And he’s not alone.

As of mid-June, the Florida Department of Corrections (FDC) has 80, 246 inmates in their custody—the third highest incarceration rate in the nation—and many of them are nonviolent or first-time offenders trying to survive in a place notorious for gangs, fighting, and sexual abuse.

With the exception of protective custody, and despite its 153-year history of violence, the FDC hasn’t adopted any new or innovative ideas to curb these problems throughout its correctional institutions—until recently.

The Everglades Correctional Institution in Miami opened its pilot program in January 2019 to great fanfare. It’s a first-of-its-kind facility that cultivates an environment of learning and rehabilitation—a privilege offered to men who stay free of disciplinary reports for four years.

The initiative focuses on improving the quality of life inside prison, with attention paid to education, career counseling, leisure time, wellness, and planning for reintegration in civilian society before release.

“When I first came to prison it seemed like every person I met operated out of a mindset of violence. No one wanted to better themselves,” Demoreta explained to me in an interview for this article.

“When I came to the Everglades I was encouraged to see so many men dedicated to the path of learning and self-improvement.”

It is nearly impossible for men and women to thrive in a traditional prison setting.

The brutality and hopelessness of life behind bars limits opportunities for anyone wanting to change. But by creating a safe place to live, ECI began to address the problem of widespread violence in the criminal justice system, allowing inmates to focus on self-betterment.

The progressive institution offers a good-quality menu, freedom of movement, a state-of-the-art game room, unlimited recreation, and live concerts. Vocational programs like a professional barber school, a water treatment operator’s course, and commercial driver’s license training offer a potential source of income for some of the majority of people who will eventually return home.

“We needed a solution for the violence men use to retaliate against perceived offences, bringing victims to the brink of death and administering life-long scars—both physical and emotional— with no justification,” said FDC Secretary Mark Inch in a statewide email to inmates on August 14, 2020.

“We needed to separate the men who wanted nothing to do with that aggression.”

Because incentive programs are only successful when prisoners are invested, the administration empowers men to get involved.

Compound activities are led by inmates. Many of the classes available are peer-facilitated, and men take ownership of the amenities by cleaning the facility and organizing events. Participants of the incentivized prison eagerly attend classes voluntarily: Toastmasters, Servant Leadership, Conflict Resolution, Seven Habits, Parenting, Victim Impact, K-9 Service Training, Yoga, and Zen Meditation are all popular classes and usually filled to capacity.

If you look at the advantages I’ve had in life, it’s almost inconceivable that I am sitting here in the Everglades today: a loving family who raised me to have good character; gifted classes in a great school system outside Philadelphia; an ambitious and career-oriented work life; a beautiful wife and son.

Yet in 2014, after losing a long struggle with drug addiction, I was sentenced to eight years in prison for grand theft and dealing in stolen property. I served my first five years on a rough compound in the Florida Panhandle—a city-boy stuck in the Deep South—and then volunteered to move to a newly created incentivized program as a way to change my life for the better and make my family proud.

My first class was called Healing Emotions.

I sat in a circle of convicts, sharing my feelings and fears while connecting on the same level as my peers. I’d never thought that I’d be involved with something like group therapy in prison, but it felt cathartic to explore my past.

Racism was nonexistent in the room: a bald, former white supremacist with homemade tattoos leaned forward with his chin in his hands; a retired Black gang leader posted up against the wall; a Hispanic boy sat mute, possibly ruminating on his own life choices.

We were all there for the same reason and working in harmony … trying to better ourselves.

In recent remarks to me about his institution, Assistant Warden of Programs Scott Siegler stated: “Environment plays a role in reform. By creating a low-stress atmosphere for officers and inmates, it allows growth and mutual understanding.”

On any given day there could be a Gang Summit for Unity or Family Day in the visitation park, a church softball league playing on the rec yard, or Peace Education Development in the learning annex.

Professors from nearby University of Miami and Florida International University volunteer to teach writing workshops and exchange anonymous letters with college students studying criminal justice or law. In an unprecedented move for the FDC, the administration hands out seven-inch loaner tablets used to email family, receive pictures and video-grams, and keep a schedule of classes.

The wardens send uplifting messages regularly. Living at ECI is the first time I’ve had a guard shake my hand, call me ‘sir’, or ask me how my afternoon was going. It inspires me to show them equal respect.

Measuring Success

If a nonviolent incentivized prison gives men and women an opportunity to change their lives and not come back to prison, it should be considered a viable option to pursue if only for the benefit of tax-paying communities, victims’ rights, and the broken families of the incarcerated.

The state of Florida spends an average of $25,000 per year to house, feed, clothe, secure, and give medical attention to a single inmate.

The minimal cost of converting a traditional prison into an incentivized prison pales in comparison to the cost of recidivism in the FDC: official records show that 35 percent of Florida’s inmates will return to prison within three years and approximately 65 percent will return in their lifetimes.

Experts disagree about whether imprisoning criminals in a violent environment actually prevents further crime. U.S. prisons simply warehouse men and women—meaning that inmates are confined in large numbers, with little or no effort made to rehabilitate them.

This punitive structure impedes correction, as isolation from society already hinders attempts to reintegrate back home. Sociologist Erving Goffman[i] describes prisons as total institutions— self-contained systems that are unhealthy and shelter inmates from societal norms.

Walnut Street jail in Philadelphia, America’s ‘First Penitentiary,’ promoted education for prisoners.

The first progressive prison in the U.S. was the Walnut Street jail in my hometown of Philadelphia. Built three years before the American Revolution as a conventional jail, it was expanded in 1790 to incorporate Quaker ideas that’ prisons should be rehabilitative.

The prison, which was called “America’s First Penitentiary,” was spearheaded by Benjamin Rush, a signer of the Declaration of Independence, who promoted prisoner education. Not all his views on prison reform would find approval today: inmates were locked in their cells for the duration of their stay with “minimum human contact and nothing more to read than a Bible,” according to one description, ostensibly to encourage them to focus on personal redemption and penitence for their sins (hence the word “penitentiary”).

But the innovative energy that fueled such reformers in the past seemed to fizzle out in modern day corrections. States are still slow to adopt policies that reduce violence inside—while at the same time the rate of incarceration across the country has exploded.

But how will anyone know if incentivized prisons are successful or simply progressive?

What set of metrics can be used to quantify meaningful change in an inmate?

Besides monitoring statistics and disciplinary reports, how can we say that living in this atmosphere reduces violence?

I’ve seen evidence of this 1,800-man pilot project working here in the Everglades.

Before I moved from my last institution I saw a stabbing every week. I haven’t seen one here in three years. No officers have been assaulted by inmates, or vice-versa. There hasn’t been one drug overdose or riot. Nobody has been life-flighted by a trauma helicopter after being brutally attacked on the rec yard.

These are daily occurrences in other Florida prisons that I’ve seen firsthand.

Statistics from North Dakota, Oregon, California, and Georgia show that DOC programs like firefighting school, forestry camps, equestrian training, and conservation groups lower inmate violence and help curb recidivism.

Only time will tell if ECI is completing its mission.

The benefit of treating inmates humanely has already been widely publicized in magazines like Outdoor, Time, and Esquire, and on television series like 60 Minutes and CBS Sunday Morning.

On September 16, 2020, only nine months after ECI’s experiment began, FDC Deputy Secretary Ricky Dixon sent a statewide email to inmates verifying Florida’s plans to open two more pilot programs.

It said the following:

We are also expanding the number of Incentivized Prisons,. These facilities are for those of you, who through your cooperation, have shown excellent behavior that is deserving of advanced privileges. e have tested this in the Everglades and it has been a success. Your peers have better program outcomes, fewer disciplinary infractions, and reductions in theft and violence. We will continue to reward positive behavior. Our goal is to provide an environment free from violence with opportunities for personal growth and development. [ii]

A Long Way to Go

Any new innovation incorporated into an already broken system comes with impediments.

Peer-facilitator Justin Slavinski, a 40-year old tutor who has lived at ECI since its transition, points out the limitations facing the institution.

“There’s little accountability for the officers who exhibit the same behaviors as those at non-incentivized correctional facilities,” said Justin. “It’s as if they haven’t bought into the tranquility of program oriented inmates.

“These officers are unwilling to adjust their behaviors, and they’re unchecked by upper administration.” [iii]

FLDOC correctional officer trainees who are assigned to ECI straight from the academy haven’t yet experienced what a “real” prison is like; therefore, some take advantage of the population’s meekness and fail to have a positive mind-set.

Some of this responsibility falls on the training officers, but for the most part it is a failure in regional leadership.

Guards who are assigned to an incentivized prison work in a safe environment; nonviolence and mutual respect creates a stress-free workplace. Unfortunately, some correctional officers have the ingrained thinking that all convicted felons are untrustworthy and evil.

Because of a FDC policy called population adjustment, the regional administration will regularly transfer new inmates to ECI even though they have not volunteered to participate in an incentivized prison and have not gone four years without a disciplinary report. Most often this is done to fill beds and meet certain requirements.

Although these inmates typically take advantage of the amenities and blend in, many have a negative attitude and do not follow the rules. Allowing men to live at an incentivized prison that hasn’t earned the right negates a reward-based system.

There’s also the lingering question: should we have to send people to prison to get the educational, emotional, and other support services they need? Many people in the criminal justice system were cut off from such opportunities and it led them down a path to incarceration.

Ryan Moser

Ryan Moser

Ideally, this support model would be applied before anyone interacts with the criminal justice system in the first place.

But for the current system—where violence is rampant—any conversation about reform must include discussing the way that modern correctional institutions operate. The goal is to raise awareness of progressive rehabilitation methods and spur a revolution of new ideas and innovative solutions for the future.

After two years of trial and error, the Everglades Correctional Institution is now known as the safest prison out of the 64 correctional institutions in the state.

Looking at ECI can at least start a conversation about that change.

Editor’s Note: On Dec. 23, 2020, Florida Corrections Secretary Mark S. Inch announced that, following “the successful pilot at Everglades Correctional Institution, FDC will add four institutions designed for inmates who meet strict admission criteria by demonstrating positive behavior during their incarceration. The incentivized program features enhanced opportunities and enables inmates to make a positive re-entry back into society.”

Ryan M. Moser is a recovering addict from Philadelphia serving eight years in the Florida DOC for property crimes. Nominated for a 2020 Pushcart Prize and Best of the Net 2021, he’s had work published by the Mississippi Quarterly, Upstreet Literary Magazine, december, Muse Literary Journal, Evening Street Press, Storyteller, Santa Fe Literary Review, Miami Herald, The Covid Collection, University of Iowa Prison Project, Progressive, thewildword.com, ihemarshallproject.org, medium.com, pen.org, and thestartup.com. Ryan enjoys yoga, martial arts, chess, and has two beautiful boys.

ENDNOTES

[i] The late Canadian-American sociologist Erving Goffman has described U.S. prisons as total institutions—that is. self-contained, self-sufficient social systems that are unhealthy and shelter inmates from societal norms. Isolated within a total institution, inmates are cut off from the rights and responsibilities of society

[ii] All quoted emails were sent from administration directly to inmate-owned tablets

[iii] All interviewees quoted directly, with expressed consent.

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June 21, 2021 at 07:39AM

Senate Bill Would Ban Judges From Increasing Sentencing Based on Acquittals

The Senate Judiciary Committee recently voted to advance the Prohibiting Punishment of Acquitted Conduct Act of 2021, a bill that would ban federal judges from enhancing someone’s sentence based on charges they were acquitted of, reports Reason. Currently, a federal judge can decide at sentencing to enhance a defendant’s sentence using facts not found by the jury and based only on a preponderance of evidence—lower than the “beyond a reasonable doubt” standard required of juries.

The only other avenue for opponents of acquitted conduct would be to get a case before the Supreme Court, but the Court has been unwilling to take up the issue directly over the past two decades, despite vocal objections from several justices. The bill, which was introduced by by Senators Chuck Grassley (R–Iowa.) and Dick Durbin (D–Ill.), is supported by a number of groups across the political spectrum, from Americans for Prosperity and the Faith & Freedom Coalition to the Leadership Conference on Civil and Human Rights.

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June 15, 2021 at 09:52AM

US rights groups urge end to solitary confinement

The Federal Anti-Solitary Taskforce (FAST) released its Blueprint for Ending Solitary Confinement on Monday, detailing how the government can end solitary confinement of inmates in federal custody through executive, administrative and legislative action.

On any given day, more than 10,000 people are in a form of solitary confinement in federal Bureau of Prisons (BOP) facilities, with people of color, transgender people, and people with mental health needs disproportionately represented in this figure.

FAST’s Blueprint calls for four forms of government action. First, it asks that all forms of solitary confinement of inmates in federal custody be abandoned. This is subject to exceptions, including short lock-ins for the purpose of de-escalation and medical quarantine. Second, it requires that there be alternatives to solitary confinement, which must involve at least 14 hours per day out of the cell, with 7 hours of meaningful activities. Third, due process protections must be enhanced through the utilization of neutral decision-makers. Fourth, oversight and enforcement mechanisms should be implemented.

FAST is a coalition of 130 advocacy organizations, including the American Civil Liberties Union (ACLU). Tammie Gregg, the director of the ACLU’s Stop Solitary Campaign, supported the Blueprint, explaining:

the debilitating, dehumanizing, and even deadly effects [of solitary confinement] on incarcerated people are an ongoing stain on the American legal system. We strongly believe that the reforms outlined in this Blueprint will go a long way towards eradicating much of the senseless and counterproductive harm that has been caused.

In addition to the Blueprint, the ACLU and more than 130 other organizations signed a letter on last week to President Joe Biden and Vice President Kamala Harris calling for the administration to end the use of solitary confinement. Biden and Harris committed to stopping the use of solitary confinement during the 2020 campaign. Moreover, states are restricting the use of solitary confinement. In 2021, 70 pieces of legislation have been filed in 32 states.

The post US rights groups urge end to solitary confinement appeared first on JURIST – News – Legal News & Commentary.

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June 10, 2021 at 02:09PM

Congress Divided Over Measure to End Police Qualified Immunity

Since the police murders of numerous Black citizens, including George Floyd and Breonna Taylor, ending police qualified immunity has been a policy goal for advocates across the country, The Hill reports. Qualified immunity allows officers to avoid liability in civil lawsuits unless “plaintiffs can show that their allegations amount to a violation of constitutional rights and that those rights are ‘clearly established’ law.” In order to show that a right is a “clearly established” law, there must be precedent from similar previous cases in which courts have sided with plaintiffs.

Qualified immunity represents a divide among Congress as they attempt to pass a comprehensive police reform bill. Introduced in June, The George Floyd Justice in Policing Act seeks to eliminate qualified immunity for police. Republicans, who have introduced their own police reform legislation, want to leave qualified immunity intact, but their proposed legislation does share other similar police reform policies with the Floyd Bill.

According to Inimai Chettiar, the federal director of the bipartisan Justice Action Network, lawmakers are considering the idea of a middle ground proposal that would hold police departments or municipalities accountable for misconduct committed by their police officers.

Supporters of ending qualified immunity argue it would hold police accountable for wrongdoing while many GOP lawmakers who oppose the measure argue it would cause the number of people interested in law enforcement to decrease and would make it more difficult for police to do their job.

Jeffrey Fagan, a professor at Columbia University’s law school who supports ending qualified immunity, said: “I’m sure there’ll be some people who will do that, who will not go into law enforcement. But I think a person who’s likely to reject law enforcement because of a qualified immunity issue has a certain picture of law enforcement — both of the necessity for violence and the inevitability of violence — that will get them into trouble.”

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May 25, 2021 at 10:57AM

Cannabis Sellers Struggle to Keep Money Safe as Banks Leave them Behind  

Marijuana sales are spiking, but producers, retailers and manufacturers have no where to put their income, reports Reuters. Marijuana is illegal on a federal level, so banks won’t service the industry, but that leaves the people working in it with large sums of cash lying around, at risk of being stolen.

Legal U.S. cannabis sales are expected to jump more than 20 percent this year. Sales grew 30 percent to $22 billion last year, more than the $17.5 billion Americans spent on wine. With the surge in buyers, the industry’s employees have left some companies and people to deal with cash piles of more than $10 billion last year.

Marijuana can be sold legally in 36 U.S. states and the District of Columbia (D.C.) for medical use and in 15 of them and in D.C. for recreational purposes. The sales boom has left cannabis workers with nowhere to put their money, as Ryan Hale, a U.S. Navy veteran and co-founder of cash management firm Operational Security Solutions, had to persuade a weed farmer in California to stop hiding cash in a tree. It also leaves employees at risk of being robbed.

There were at least 43 attacks on weed dispensaries along the West Coast during the last weekend of May 2020, when protests erupted against the murder of George Floyd. In April, the House of Representatives passed a bill that would allow cannabis firms to have bank accounts, get loans and accept credit card payments.

However, Senate Majority Leader Chuck Schumer wants to work instead towards lifting the federal ban on cannabis so it may not make it to the Senate. Only 515 of the more than 8,200 federally registered banks and one in 30 credit unions in the United States worked with marijuana businesses at the end of 2020.

“All this cash flowing around is just a recipe for disaster,” said Smoke Wallin, chief executive of hemp health products maker Vertical Wellness Inc. “How do you account for it? Where do you keep it? How do you move it? Even in a safe, it’s a security risk for employees.”

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May 24, 2021 at 11:40AM

Does Banning People With Felonies From Dating Apps Actually Make Anyone Safer?

Jason Hernandez got out of prison in 2015 and started making up for lost time. He’d done nearly 18 years on federal drug conspiracy charges, and only escaped life behind bars because then-President Barack Obama granted him clemency. He settled down near Dallas, began volunteering in schools, visited the White House and wrote a book.

Then he decided to start dating, so he downloaded Tinder. He was open about his past, and at first, it was fine. But a couple months ago, he got a notification: “Your account has been banned.”This article was published in partnership with NBC News.

Although he can’t prove the reason why, he’s been booted from half a dozen other apps with similar prohibitions tucked into their terms of service: People with felonies — anything from a $10 drug conviction to capital murder — are banned for life. These policies aren’t new, but their enforcement has been haphazard.

That could change. Match Group, which owns Tinder and a host of other dating sites, plans to launch a feature allowing daters to run background checks on potential matches. The company says its efforts are aimed at keeping users safe. But civil rights advocates say the record checks extend an unfair practice of imposing “collateral consequences” long after people have finished their sentences, and will disproportionately affect people of color without actually improving safety.

“Meeting strangers can be risky, and I worry that this approach will mislead people into thinking they’re safe,” said Sarah Lageson, a Rutgers University sociologist who studies the growing use of online criminal records. “It’s using the justice system as a barometer of someone’s worth.”Does Banning People With Felonies From Dating Apps Actually Make Anyone Safer?

Jason Hernandez was granted clemency after 18 years in prison on federal drug charges. After his release, he decided to start dating and joined Tinder. Though he can’t prove the reason, he was banned from Tinder. ZERB MELLISH FOR THE MARSHALL PROJECT

Match Group wouldn’t say when or why the company created its ban, but a spokeswoman said Match would “continue to develop and evolve” its policies. “We understand and share the concerns raised about the impact our policies have on people who have been incarcerated, many of whom are victims of the inequities of the criminal justice system,” she said.

The practice of banning people from certain rights or activities because of a criminal conviction was once known as civil death. People who were convicted of felonies lost all property and rights before the usual punishment: execution. Now, the collateral consequences of a conviction typically last far longer than any court’s sentence.

In some states, people with felonies cannot serve on juries or buy pepper spray, and can be disqualified from getting an electrician license or fostering kids. Employers often exclude applicants with criminal backgrounds, some schools won’t admit students with felonies, and many apartments ban people with misdemeanors.

As someone with a criminal history, these are problems I understand. More than a decade ago, I was arrested in upstate New York with 6 ounces of heroin and sentenced to 2 1/2 years in prison. Afterward, I stopped doing drugs, finished college and became a journalist.

I am White and grew up in the suburbs, but even for someone with such privilege, collateral consequences are everywhere — and they make it harder to reintegrate into the community. In the past decade, I’ve been turned down for jobs, rejected from volunteering at an animal shelter and told I don’t qualify for more apartments than I can count. When I was looking for a new place during the pandemic, I found that people cared far more about my decade-old drug conviction than about whether I took Covid-19 seriously. Hundreds of apartment listings barred people convicted of felonies, but I only saw one that mentioned pandemic safety.

Whether they’re tucked into terms of service or hidden in unspoken biases, collateral consequences have an outsize impact on communities of color.

“Even though only 8% of the population has a felony record, 33% of Black men have felony records, so any ban on people with felony records disproportionately affects Black communities,” said Amreeta Mathai, an American Civil Liberties Union lawyer who’s pushing the rental app Airbnb to stop banning people with “serious” felonies from using the service. (Airbnb did not offer a comment, but referred me to the company’s online policy.)

Most major dating apps ask users to verify that they haven’t been convicted of felonies when they sign up — but that language is easy to miss in the terms of service, and it’s on an honor system. Generally, it only comes up if another user makes a report. The policies don’t provide exceptions for nonviolent crimes, and the ban never expires.

When I started contacting the companies to ask about their policies, eHarmony said no one had time to comment, while Coffee Meets Bagel and Zoosk didn’t respond. (All three companies ban people convicted of felonies.) Bumble — which does not explicitly ban people with felonies but booted Hernandez anyway — asked to set up a call, then stopped responding. Facebook Dating and Grindr, which don’t have bans, didn’t respond on the record. A representative for Meet Group said that only two of the company’s apps — Skout and GROWLr — have a ban, based on policies it inherited when it acquired those apps. The representative said Meet Group would reconsider that part of the policy.

Match Group came under scrutiny after a 2019 ProPublica investigation found registered sex offenders on the company’s free apps, which include Tinder, Plenty of Fish and OKCupid. That’s because the company only did the pricey background checks needed to enforce the felony ban on its paid site, Match.com.

After implementing new safety measures last year, in March the company announced its investment in Garbo, a nonprofit aiming to create more accessible background checks, focused on preventing dating violence. When Garbo’s app launches later this year, users will be able to pay what the organization describes as a small fee, enter a first name and a phone number and in a few minutes get a stranger’s criminal record, or at least part of it. (A Match Group representative said any money collected will go to Garbo; Match won’t receive any profits.)

“We realized that the opportunity to build an equitable background check existed with the focus on reporting violence,” founder Kathryn Kosmides said. “We make the effort to filter out drug possession, loitering, things like that.”Tinder never told Hernandez why he was banned from the Tinder app, but the company's policy bans people with felonies — anything from a $10 drug conviction to capital murder.

Tinder never told Hernandez why he was banned from the Tinder app, but the company’s policy bans people with felonies — anything from a $10 drug conviction to capital murder. ZERB MELLISH FOR THE MARSHALL PROJECT

But Garbo will also provide access to arrests and cases that never resulted in convictions. Pointing out that many abusers aren’t convicted as often as they’re accused, Kosmides said those records will help people make more informed decisions. Someday she hopes to expand the service to vet passengers on ride-share apps like Uber and Lyft.

Legal experts say that relying on arrests and dismissed cases undermines the presumption of innocence and won’t necessarily improve safety. And they note that while some dating app users may feel safer if people who committed certain crimes are filtered out of an app, prior convictions may not be an indication of danger.

The felony bans also have not stopped complaints of sexual violence linked to dating apps. A recent ProPublica investigation based on interviews with more than 50 current and former dating company employees found that they lacked clear policies to prevent and respond to alleged assaults.

“You could have someone with an old drug conviction, and how is it keeping anyone safer to ban them?” said Jenny Roberts, a law professor at American University who studies collateral consequences. “But a current drug user in a nice neighborhood that police aren’t policing, they’re allowed on that website. It creates a false sense of security.”

Instead, experts said improved dating app safety could come from better identity verification practices. And helping people who are seeking long-term relationships could make everyone safer.

“The things that make us safer are things like having a stable family, getting married, being able to buy a house — participating in all these social institutions that have been around for a long time helps make sure the crime rate doesn’t go up,” said Lageson, the Rutgers sociologist. “So if you’re worried about public safety, the best thing you can do is bring people into relationships.”

Though Hernandez, the former prisoner, can’t prove that he got booted because of his felony, he says it was the only way his account violated the terms of service. “How can you hold something against me that I did in 1993?”

He’s hoping that the companies will reconsider their policies. But for now, he’s doing his online dating on Facebook.

Keri Blakinger   is a staff writer whose work has focused on prisons and prosecutors. She previously covered criminal justice for Houston Chronicle, and her work has appeared in the Washington Post Magazine, VICE, the New York Daily News and NBC News. She is the organization’s first formerly incarcerated reporter.

Florida Lawmakers Push Reforms to Lower Prison Population

A group of bipartisan Florida lawmakers hope a flurry of targeted sentencing- and rehabilitation-focused reforms could begin to reduce the state’s massive prison population, relieving some pressure on the corrections department that its own leadership has repeatedly described as close to a crisis point, reports the Orlando Sentinel. The proposed reform bills would create new options to release elderly and sick inmates, increase incentives for prisoners to complete educational and other self-improvement programs and provide opportunities to retroactively reconsider and change some long sentences. The COVID-19 pandemic has only increased challenges for the Florida Department of Corrections (FDC), with FDC Secretary Mark Inch recently alerting lawmakers that more than half of the state’s prisons were understaffed to the point of emergency, and that the agency could not withstand more budget cuts.

At least two more inmate deaths linked to COVID-19 were reported this month, bringing the total to 210, the second highest in the country, and new cases among staff and inmates continue to rise. Two of the bills proposed this session would give FDC officials more autonomy to release inmates before the completion of their sentence, under certain circumstances. Another bill would create a new elderly release program and expand medical release options, under the complete authority of FDC, to account for the growing number of aging inmates, as well as those with terminal or incapacitating illnesses. Another bill would change the minimum amount of time served on a criminal sentence for those eligible to earn time off for good behavior, lowering it to 65 percent instead of 85 percent. According to legislative analysis, such a change would save the state almost $800 million over the next six years.

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March 15, 2021 at 09:53AM