Justice Dept Knows Scores of Prisoners are Innocent, But Says “It Is Not Their Job” to Set them Free
Justice Department officials said it is not their job to notify prisoners that they might be incarcerated for something that they now concede is not a crime.
By John Vibes on May 11, 2015 --- The Free Thought Project
Elizabethtown, NC – There are over 60 people sitting in jail in North Carolina right now despite the fact that they have been declared innocent in court, according to a recent USA Today investigation. Some of the prisoners are totally unaware of the legal status of their case and don’t even know that they have been declared innocent, so many of them are not even fighting for their freedom.
The investigation found dozens of cases where men have been sent to jail for nonviolent gun possession offenses, yet it was not illegal for them to have a gun. All of the cases in question result from a legal misunderstanding that has allowed police and prosecutors to throw people in jail for exersizing their right to bear arms.
It is a federal crime for felons to possess firearms, and while all of the men arrested under these laws did have criminal records, they were not technically felons. This detail was specifically codified after the cases in question were decided, so as far as the court is concerned, the prisoners were still guilty of a crime.
USA today reports:
Justice Department officials said it is not their job to notify prisoners that they might be incarcerated for something that they now concede is not a crime. And although they have agreed in court filings that the men are innocent, they said they must still comply with federal laws that put strict limits on when and how people can challenge their convictions in court.
The courts are now afraid to overturn the rulings because then they would be setting a precedent for other inmates to challenge their own imprisonment.
“We can’t be outcome driven. We’ve got to make sure we follow the law, and people should want us to do that. [We are] looking diligently for ways, within the confines of the law, to recommend relief for defendants who are legally innocent,” Anne Tompkins, the U.S. attorney in Charlotte told reporters.
However, many legal experts are saying that the government has a responsibility to overturn these rulings and inform the prisoners about the status of their cases.
“If someone is innocent, I would think that would change the government’s reaction, and it’s sad that it hasn’t. I have trouble figuring out how you rationalize this. These are innocent people. That has to matter at some point,” Debra Graves, an assistant federal public defender in Raleigh said.
Sadly the rusty cogs of the bureaucracy turn at such a rate that “justice” is a but a pipe dream for most. The system would rather keep innocent people locked away than admit a mistake.
John Vibes is an author, researcher and investigative journalist who takes a special interest in the counter culture and the drug war. In addition to his writing and activist work he organizes a number of large events including the Free Your Mind Conference, which features top caliber speakers and whistle-blowers from all over the world. You can contact him and stay connected to his work at his Facebook page. You can find his 65 chapter Book entitled “Alchemy of the Timeless Renaissance” at bookpatch.com.
We Lock Up Tons of Innocent People—and Charge Them for the Privilege
Even as the crime rate goes down, the number of people in jail is rising.
By AJ Vicens --- Feb. 17, 2015
The United States has a prison problem. We have just 5 percent of the world's population but 25 percent of its prisoners. Even though our imprisonment rate has grown more than 400 percent since 1970, locking people up has not proved to be a deterrent.
The prison problem also extends to jails, which hold defendants awaiting trial and prisoners sentenced for minor offenses. A new report from the Vera Institute of Justice, a nonprofit focused on justice policy, reports that America's local jails, which hold roughly 731,000 people on any given day, are holding more people even though the crime rate is going down. Jails disproportionately detain people of color longer and for lesser crimes. The report also finds that jails are less likely to give inmates the rehabilitation and mental-health support that could keep them out of prison.
"I observe injustice routinely. Nonetheless even I—as this report came together—was jolted by the extent to which unconvicted people in this country are held in jail simply because they are too poor to pay what it costs to get out," writes Vera president and director Nicholas Turner. He described poor detention practices in which the mentally ill, homeless, and substance abusers are routinely jailed for bad behavior and described the practice as "destructive to individuals, their families, and entire communities."
The 46-page report paints a devastating portrait of American jails. Here are a few quick takeaways:
1. The number of people going to jail is going up while crime rates are falling: In 1983, roughly 6 million people were admitted to a local jail. That number grew to roughly 11.7 million in 2013. Meanwhile, crime rates have been dropping. See Vera's chart:
Jail admissions rates include people who've gone to jail more than once--recidivism is a separate, but related issue—but even factoring that in, more people are going to jail. The report speculates that this is tied to arrests for drug crimes: In 1983, drug defendants and inmates made up less than 10 percent of local jail populations but by 2002 they accounted for 25 percent.
2. Jail time is getting longer: Once people land in jail, their average stay has increased nearly 65 percent, from 14 days to 23. This statistic doesn't distinguish between pretrial detention and those serving actual jail terms, but, as the report notes, "the proportion of jail inmates that are being held pretrial has grown substantially in the last thirty years—from about 40 to 62 percent—it is highly likely that the increase in the average length of stay is largely driven by longer stays in jails by people who are unconvicted of any crime."
3. People who go to jail often work less and earn less after getting out: Spending any time in jail can, and usually does, significantly alter someone's ability to lead a normal life upon release. Plus, many jail inmates have to pay fees for laundry service, room and board, and even booking fees. Even if they're later found innocent, they still must pay those bills, leaving many former defendants indebted to the system.
Consider Kevin Thompson, a Georgia man who had been jailed once and was jailed again for not paying $838 in traffic fines, court fees, and probation fees to a private probation company.
4. Lack of money is the main reason defendants sit in jail: The report comes to a depressing, if not surprising, conclusion: "Money, or the lack thereof, is now the most important factor in determining whether someone is held in jail pretrail. Almost everyone is offered monetary bail, but the majority of defendants cannot raise the money quickly or, in some cases, at all." This leads to situations where people are stuck in jail for minor offenses. A 2010 Human Rights Watch report found that in about 19,000 criminal cases in New York City, many people couldn't afford bail set at $1,000 or less. In some cases, the accused pled guilty early to get out of jail, even if they were innocent.
5. Society's race problems are amplified by the local jail dynamic: The Vera report notes that about 38 percent of felony defendants will spend their entire pretrial periods in jail, but only one in 10 were denied bail in the first place. The rest, many of whom are African American men, simply can't afford to post bail: "Black men appear to be caught in a cycle of disadvantage: incarcerated at higher rates and, therefore, more likely to be unemployed and/or in debt, they have more trouble posting bail."
AJ VICENS ReporterAJ Vicens is a reporter at Mother Jones. For more of his stories, click here. RSS | TWITTER
Man locked up in jail for one month despite having video evidence of innocence
RT --- November 04, 2013
A Pennsylvania security guard spent a month in jail for a crime he didn’t commit after local police ignored evidence proving he was innocent.
The charges have now been dropped, but only after the Allegheny County District Attorney’s Office reviewed the case. DeAndre Brown, 26, was arrested for allegedly robbing a local bakery while armed, and faced between five to 10 years in prison.
However, Brown, a security guard at the Homewood branch of the Carnegie Library, told police at the time of his arrest that he couldn’t have possibly committed the crime. He said he was attending a training session in Oakland, PA when the robbery occurred.
In addition to simply claiming he had an alibi, Brown also said he could provide security video footage of him arriving and leaving the training session, a sign-in sheet with his name on it, and a witness to verify his claim.
When Brown’s attorney, Patrick Nightingale, tried to submit this evidence to the case’s investigating officer at a preliminary hearing, the officer refused to listen. He would not take the witness’ name or phone number, either.
"I'm extremely disappointed the police officer investigating this matter completely ignored the alibi witness," Nightingale said to the Pittsburgh Post-Gazette.
According to Nightingale, the only evidence connecting Brown to the crime was incorrect eyewitness identification by the bakery’s clerk. The clerk, however, told local WXPI Channel 11 News that he said Brown “might or might not be the one.”
Brown was jailed on September 16 and released to electronic monitoring on October 17. As Nightingale sees the situation, police only wasted time that could’ve been used to track down the real criminal.
"So now we know today the person who committed this armed robbery is still out there running around, and the city police blew six weeks on this," Mr. Nightingale said. "It's unfortunate my client had to sit in jail for weeks knowing he is an innocent man, but today justice has prevailed."
As for Brown, his mother Yvonne thinks the most important thing is that he could finally go home.
“I'm just glad this thing is over,” she said.
Inside the Wild, Shadowy, and Highly Lucrative Bail Industry
How $550 and a five-day class gets you the right to stalk, arrest, and shoot people.--
By Shane Bauer
THE LARGEST ANNUAL GATHERING of bail bondsmen in the country—the convention of the Professional Bail Agents of the United States, or PBUS—was slotted between Dunkin' Donuts and Elk Camp 2013 at the Mirage Resort and Casino, a tall, shiny structure shaped like an open book and set against replicas of the Colosseum and Eiffel Tower on Las Vegas' Strip. The sidewalk out front was littered with cards bearing phone numbers and pictures of naked women. In the courtyard, flames licked the late-winter air to the rhythm of a tribal drum every hour, on the hour. A sign at the entrance announced that the casino's dolphin just had a baby and we would be able to see it soon. As I walked through the smoky slots area I saw a man with a PBUS lanyard doing an extremely forced I'm-having-fun dance with his assistant while a casino employee showed them how to play the one-armed bandit. It was a bit of a letdown from what I'd been anticipating—all-night blackjack sessions with bondsmen and bounty hunters telling tales from the street over stiff drinks. I'd even grown a mustache for the event, thinking it would help me blend in a little—bondsmen have mustaches, don't they?
Not really, I discovered when I arrived at the welcome reception. "So how do you like the industry?" I asked a clean-shaven man in a shiny gray suit who looked to be about 30. "I like it," he said buoyantly, taking a sip of his beer. "Sometimes you get real lucky." He told me about the first bond he ever wrote in the cheerful, blow-by-blow manner of a poker player recounting a winning hand. A college student went out drinking and crashed his car into a fence, he explained. "So him and a girlfriend both get kinda messed up." He beamed. I was confused—was I to realize that this was a boon? He quickly explained that normally, bail for a DUI was $5,000, but since it involved an injury, the amount automatically jumped to $100,000. When he told the driver's mom she would have to pay him a $10,000 fee to get her son out of jail, she said, "No problem. Here's my credit card number." He smiled and took a sip from his beer, nodding happily. "I couldn't believe it."
The business model is pretty straightforward. Say you get arrested for drug possession and wind up in jail. Shortly afterward you appear before a judge who decides whether to let you out before your trial (only people charged with the most heinous crimes are denied bail altogether) and, if so, what collateral it will take to make sure you don't bolt. For drug possession, let's say the judge sets bail at $30,000. If you have that kind of money, you can give it to the court and get it back when you show up for trial. If you fail to appear, you lose it. If you don't have that much cash, you have two choices: sit in jail and wait for your trial, or hire a bail bondsman. To the bondsman you pay a nonrefundable fee—usually 10 percent of the bail—and he promises the court that you will show up for trial. If you don't, he will owe the court $30,000.
The man in the gray suit continued: "I write real A+ stuff," he said. "You make the most money off domestic violence, cuz the bail's high. Domestic violence is $50,000. You figure that's at least $5,000" in the bank. "And a lot of times those cases don't even get filed—" His eyes drifted toward the middle distance behind me. I turned around to see Dog the Bounty Hunter entering the room, cameras swirling around him. His blond mullet flowed down the shoulders of his flame-embroidered leather jacket. His sunglasses sat on top of his pink forehead. People edged in for handshakes and pictures. They all knew his A&E reality show, in which he kicked in doors and pepper-sprayed fugitives for bail bondsmen around the country. Dog, like many bounty hunters, was a freelance contractor, hired by bondsmen to track down clients who skipped court. He was a private policeman of sorts, empowered by the state to bust into the houses of people out on bond, make arrests, and detain people—things bounty hunters get to do with minimal, if any, training and regulation.
Dog's show was suspended for a few months in 2007 after his son sold the National Enquirer a recorded phone conversation in which Dog said he couldn't work for him unless he broke up with his black girlfriend. It wasn't because she was black, Dog said, but "because we use the word 'nigger' sometimes here. I'm not gonna take a chance ever in life of losing everything I've worked for for 30 years because some fucking nigger heard us say 'nigger' and turned us in to the Enquirer magazine." Dog was the star guest of the convention.
For starters, he said, all bail agents should require clients' Facebook and email passwords.
Hundreds of bondsmen were here to learn the tricks of the trade. In one workshop, the president of the association gave an impassioned speech about the IRS—"Don't even think about talking to those folks. They are not your friend." In another, a private investigator schooled us in the art of catching skips. For starters, he said, all bail agents should require clients' Facebook and email passwords. Another tip was to maintain fake Facebook pages and friend clients to keep track of them. The instructor has 11 faux personas. (Stuck in traffic? "Update the page where you are a 14-year-old girl." Waiting for a meeting? "Update the one where you are a 97-year-old guy.") If your client has an iPhone, a.k.a. "snitch in your pocket," require her Apple ID so you can trace her anywhere. And don't forget about Google—you can subpoena them for your clients' records.
He taught us about companies that drive around scanning license plates. They market themselves to repo companies,but if a bondsman is looking for someone, he can give them a license number and they'll tell him where the car has been and when, for $7 a hit. He also said we should all think about getting drones. "I use a drone in my business…I can control it from my iPad. Guy's got a big, long driveway and a barking dog? No problem." He made a little buzzing sound as his hand mimicked a drone zipping up the driveway and taking pictures of license plates. "I keep this thing in the trunk of my car."
It wasn't hard for Edmund Langevin III to become a bondsman. All it took was five days of classes and $400; that, plus a $150 firearms class, gave him the power to make arrests and use a gun on the job. Bennie Roughton saw that power in action in October 2012, when Langevin showed up at his house in Chesapeake, Virginia. He was looking for a man named Jason Turner who lived across the street. Had he seen him? Roughton hadn't; he was friendly enough with Turner but didn't know him well and thought him "a little weird."
Langevin had bailed Turner out after he and his wife stole a washing machine from a former landlady they had a gripe with. It was the kind of thing that had left Turner with a long rap sheet of petty crimes. As a condition of bail in the washing machine case, Turner had to meet regularly with his parole officer. He hadn't shown up for the most recent one, so Langevin went to look for him.
Later that day, Roughton was out walking his dog when he saw Langevin jump out of his vehicle with his gun drawn, running toward three guys sitting in a car in the driveway of Turner's house. "He never announced himself, he didn't say who he was," Roughton said. (In a police statement later on, Langevin said that he did.) The men jumped out and ran. "If you were with me and you see a guy running at you with a gun out," Turner would later ask, "are you gonna run? I'm scared of my life." Roughton saw Turner's hands go up, as though in surrender, then the gun went off—"Pow!" He heard Turner shout, "Motherfucker, you shot me!"
"I wished I'd had my camera and videoed it," Roughton said. "It was something off of Dog the Bounty Hunter, except stupid. Dog woulda never done that."
Turner was unarmed, but Langevin shot him in the stomach. Langevin would later tell police Turner had grabbed for his gun, but in his police statement Roughton said that was not what he saw. Turner denied it too. "This is a kill shot," Turner said when I met him, pointing to the scar across his stomach. "He didn't shoot me in the knee, he shot me in the fucking stomach…When you shoot a deer, you shoot him in the stomach and he walks into the woods and dies and you go get him." The bondsman kept Turner pinned to the ground until the police showed up and disarmed him. Turner went to the hospital, then to jail for missing his parole meeting. Langevin went home.
THERE HAS LONG BEEN A VIGILANTE quality to the bail system—the business itself is a creature of the Wild West. Before that, bondsmen didn't exist. In Anglo-Saxon times, when much of our legal system was born, crimes were private affairs and suits were brought not by the state, but by one party against the other, with the wronged party typically seeking monetary compensation. Even murder cases could be settled by a fine paid to the victim's family. In the rare case when an offender was thought to be a danger to society—usually because he was a recidivist—he was mutilated or executed. Imprisonment was considered costly and troublesome, and people were generally detained only up to the point that a family member or friend provided a pledge guaranteeing that the accused would appear in court. If the accused fled, the guarantor would pay the accuser, and the matter would be settled.
As centuries passed, crimes increasingly became the concern of the state and bail grew more complex—nowhere more so than in frontier America. The absence of close friends and extended family made it difficult to find people willing to put up bail money, especially in amounts high enough to discourage the accused from fleeing.
Out of this quandary emerged a new industry, born in the rough-and-tumble San Francisco of the late 19th century. Two brothers, Peter and Thomas McDonough, began putting up bail money as a favor to lawyers who drank at their father's saloon, where they worked as bartenders. Once the lawyers' clients showed up for court, the brothers got their money back.
The McDonoughs had an idea: Why not charge a fee for their service? The scheme was so successful that when their father died, they ripped out the bar and dealt solely in bail bonds. The establishment, named McDonough Bros., turned them into millionaires. The company quickly earned the moniker "Old Lady of Kearny Street" and was "without a doubt the most notorious business house in San Francisco," according to a 1941 Time article. The Old Lady "furnished bail by the gross to bookmakers and prostitutes, kept a taxi waiting at the door to whisk them out of jail and back to work." The article quoted a 1937 report on police misconduct that referred to the Old Lady as a "fountainhead of corruption, willing to interest itself in almost any matter designed to defeat or circumvent the law."
By the 1940s, bail bonds nationwide were high enough that many defendants had no choice but to either pay a bondsman or sit in jail until trial. What had started as a specialty business was now an integral part of the criminal-justice system.
In 1960, a seed of doubt was sown. A businessman and a journalist visited a jail in Manhattan and became convinced that far too many people were being locked up before trial because they couldn't afford bail. The two, Louis Schweitzer and Herbert Sturz, organized a small staff, called themselves the Vera Institute, and conducted an experiment. They interviewed thousands of defendants, asking them about past criminal records, local family ties, and employment history, assessing which defendants could be trusted to return to court without a bail bond. They provided their recommendations to judges. By the third year, their Manhattan Bail Project reported that less than 2 percent of the pretrial detainees released without bail on its recommendation were failing to appear for trial. Similar projects began to emerge in major cities across the country.
In the decade that followed, Congress passed the Bail Reform Act, restricting commercial bail in federal courts and establishing release on recognizance (i.e., for free) as the preferred form of pretrial release. Four states—Illinois, Kentucky, Oregon, and Wisconsin—followed suit. Pretrial release programs modeled on Vera also proliferated, allowing judges to release low-risk defendants. The bail bond business seemed headed for near-extinction. But soon its fortunes would reverse.
"Ed, why did you shoot me?" Turner asked Langevin as he bled through his stomach. "I thought the guy liked me," he told me later. "This man knows my family. He knows my heart."
Turner had met Langevin when he was his sister's bondsman a few months earlier. When Joy Turner landed in jail for a traffic offense, several inmates told her Langevin could get her out, no money down, no need for a cosigner; "just stay with him and whatever he, you know, wants, whatever it leads to, to do." She called him up. "I told him straight up, I said, 'Look, I don't have no money to give you right now, but I can promise you I'll give you an extra $50.' I bribed him, basically." After she got out, she and Langevin started to date. His life was exciting for Virginia Beach. He didn't hire bounty hunters. He did it all himself—cussing people out over the phone, chasing down skips who didn't show up for court. Joy started riding along with him when he'd go find people. "He thinks his shit don't stink basically—he's higher than the law."
Joy was a drug addict then. Langevin misused his Adderall prescription and gave some to Joy, she said. Other women he bailed out had to pay for it, she recalled. There was that one client of his who would come over to buy it, the one Joy walked in on when he had his hand up her shirt. "She was using him to get his Adderall," she said.
When her brother needed to post bail for taking the washing machine, Joy referred him to Langevin. He seemed to like her family. He even drove her mom to the hospital once. But Joy didn't like how he kept messing around with other women he bailed out. He was "turning into some of them other bondsmen that do the same damn thing, down there at the oceanfront. They have sex to get you out and all that other crap."
Eventually Joy grew afraid to go for walks in her neighborhood lest she run into Langevin. "When it comes to him, I get freaked out," she told me. First he "went psycho and went hunting for my brother." She heard about another young woman he'd taken up with after she broke up with him, another one who couldn't afford to pay the bond fee. Her name was Sophia.
THE PAST TWO DECADES HAVE BEEN good to the bail business—very good. Of the nearly 750,000 people in America's jails at any given time, two-thirds are awaiting trial. Of accused felons held until case disposition, 89 percent are there because they can't afford bail. The American Bar Association, the National Association of Counties, the International Association of Chiefs of Police, the National District Attorneys Association, and others have condemned commercial bail as a system that discriminates against the poor and places Americans' liberty at the mercy of private businesses. In 2011, Attorney General Eric Holder said commercial bail was a major obstacle to reducing inflated prison populations. All other factors being equal, defendants detained pretrial are three times more likely to be sentenced to prison than someone charged with the same crime who was released before trial. One reason for such disparities is that it's hard to mount a robust defense from behind bars, says Tim Murray, director of the Pretrial Justice Institute. People eager to get out of jail are "more prone to take plea offers," he says.
There is no national data on the cost of holding people pending trial, but what numbers do exist suggest the total is staggering. An Oregon county estimates the cost per inmate at $234 per day. In New York, it's $460 per day. Even if the national average were as low as $50 per day, the annual cost of pretrial detention would reach $8 billion.
"We don't have a system currently that does a decent job of separating who is dangerous and who isn't," Murray says. "We only have a system that separates those who have cash and those who don't." The median time people charged with a felony stay in jail before their case is settled is 45 days, but some are held for much longer. In Los Angeles County, some defendants who couldn't afford bail have been in jail, waiting for a trial, for close to six years. In Houston, some have been held for eight.
Even a few weeks in jail can wreak havoc on the lives of the accused. Seventy-one percent of jail inmates had jobs when they were arrested, according to the Bureau of Justice Statistics. Losing those jobs because they can't post bail leaves their families at risk. Studies also show that people become more likely to reoffend the longer they are detained pretrial: With just two to three days of detention, low-risk defendants are almost 40 percent more likely to commit new crimes before trial than equivalent defendants held less than 24 hours. Low-risk defendants held 8 to 14 days are 51 percent more likely to recidivate within two years than equivalent defendants held one day or less. "That recidivism has a toxic effect," Murray says, "not only with regard to the individual, but to the community that will ultimately be the victim."
At the convention in Vegas, any talk of victims was about beleaguered bail professionals. "There are people out there who are dead set on getting rid of you," announced a slick, gray-haired man with a slow Texas drawl at the convention's opening session, as some 200 people—some in suits, others with leather jackets and tattooed necks—listened in silence.
The speaker—Jerry Watson, the chief legal officer for Newark-based Allegheny International Association Bail Bond Surety—was referring to pretrial service programs modeled on the Manhattan Bail Project that serve roughly 10 percent of US counties. These programs gather evidence about each defendant and come up with a "risk score" to help judges determine whether they need to set bail. Those considered a low risk—as many as two-thirds—are typically released on recognizance. Many of the agencies monitor low-level defendants after they are released, helping to ensure they abide by any conditions set by the court. Eight months after New Orleans started a pretrial services program last year, its felony pretrial population dropped 22.5 percent, saving the city more than $2 million a year.
Needless to say, Watson told me, these programs are bad for the industry's bottom line. "If [pretrial services] got 1,000 people out of jail last year, those people would have otherwise gotten out on a bail bond," he said.
In a class I took the next day, we got some concrete advice on how to fight back. The speaker, Mike Whitlock, encouraged us to become "politically connected…backing this sheriff or that judge and contribute to the legislator in your district." If your state didn't allow corporate contributions, he counseled, you might want to write checks in your own name and have your company reimburse you. He didn't mention that, in many states, this would be a violation of election law.
and, this is not about 'political prisoners' of which there are plenty...
Scores in N.C. are
yet still imprisoned
By Brad Heath, USA TODAY
ELIZABETHTOWN, N.C. – Terrell McCullum did not commit a federal crime by carrying a shotgun and a rifle out of his ex-girlfriend's house.
But he is serving a federal prison sentence for it. And the fact that everyone — including the U.S.Justice Department— agrees that he is legally innocent might not be enough to set him free.
A USA TODAY investigation, based on court records and interviews with government officials and attorneys, found more than 60 men who went to prison for violating federal gun possession laws, even though courts have since determined that it was not a federal crime for them to have a gun.
Many of them don't even know they're innocent.
The legal issues underlying their situation are complicated, and are unique to North Carolina. But the bottom line is that each of them went to prison for breaking a law that makes it a federal crime for convicted felons to possess a gun. The problem is that none of them had criminal records serious enough to make them felons under federal law.
Still, the Justice Department has not attempted to identify the men, has made no effort to notify them, and, in a few cases in which the men have come forward on their own, has argued in court that they should not be released.
Justice Department officials said it is not their job to notify prisoners that they might be incarcerated for something that they now concede is not a crime. And although they have agreed in court filings that the men are innocent, they said they must still comply with federal laws that put strict limits on when and how people can challenge their convictions in court.
"We can't be outcome driven," said Anne Tompkins, the U.S. attorney in Charlotte. "We've got to make sure we follow the law, and people should want us to do that." She said her office is "looking diligently for ways, within the confines of the law, to recommend relief for defendants who are legally innocent."
These cases are largely unknown outside the courthouses here, but they have raised difficult questions about what, if anything, the government owes to innocent people locked in prisons.
"It's been tough," said Ripley Rand, the U.S. attorney in Greensboro, N.C. "We've spent a lot of time talking about issues of fundamental fairness, and what is justice."
It's also unusual. Wrongful conviction cases are seldom open-and-shut — usually they depend on DNA or other new evidence that undermines the government's case, but does not always prove someone is innocent. Yet in the North Carolina gun cases, it turns out, there simply were no federal crimes.
Using state and federal court records, USA TODAY identified 23 other men who had been sent to federal prison for having a firearm despite criminal records too minor to make that a federal crime. Nine of them remain in prison, serving sentences of up to 10 years; others are still serving federal probation. The newspaper's review was limited to only a small fraction of cases from one of the three federal court districts in North Carolina.
Federal public defenders have so far identified at least 39 others in additional court districts, and are certain to find more. And prosecutors have already agreed to drop dozens of cases in which prisoners' convictions were not yet final.
Some of the prisoners USA TODAY contacted — and their lawyers — were stunned to find out that they were imprisoned for something that turned out not to be a federal crime. And their lawyers said they were troubled by the idea that innocence alone might not get them out.
"If someone is innocent, I would think that would change the government's reaction, and it's sad that it hasn't," said Debra Graves, an assistant federal public defender in Raleigh. "I have trouble figuring out how you rationalize this. These are innocent people. That has to matter at some point."
WHO CAN HAVE A GUN?
Terrell McCullum conceded in interviews that he has made plenty of bad decisions — including having the two guns that sent him to federal prison. But there is little dispute that his criminal record wouldn't now be serious enough to make having the guns a federal crime.
Even so, government lawyers have said in court filings that he should remain in the Farmville, Va., jail where he is serving the end of his federal sentence.
"At most," the Justice Department said in an April court filing , McCullum "has become legally innocent of the charge against him." In other words, the law may have changed, but the facts of his case didn't — he did possess the gun, and he had a criminal record — so he isn't entitled to be released.
His request to be released is still pending. "I don't know what's going to happen," McCullum said during a recent phone call. "I'm just praying on it."
The key to McCullum's innocence lies at the complicated intersection of state and federal criminal laws.
Decades ago, Congress made it a federal crime for convicted felons to have a gun. The law proved to be a powerful tool for police and prosecutors to target repeat offenders who managed to escape stiff punishment in state courts. In some cases, federal courts can put people in prison for significantly longer for merely possessing a gun than state courts can for using the gun to shoot at someone.
To make that law work in every state, Congress wrote one national definition of who cannot own a gun: someone who has been convicted of a crime serious enough that he or she could have been sentenced to more than a year in prison.
Figuring out who fits that definition in North Carolina is not as simple as it sounds. In 1993, state lawmakers adopted a unique system called "structured sentencing" that changes the maximum prison term for a crime, based on the record of the person who committed it. People with relatively short criminal records who commit crimes such as distributing cocaine and writing bad checks face no more than a few months in jail; people with more extensive records face much longer sentences.
For years, federal courts in North Carolina said that did not matter. The courts said, in effect: If someone with a long record could have gone to prison for more than a year for the crime, then everyone who committed that crime is a felon, and all of them are legally barred from possessing a gun.
Last year, the U.S. Court of Appeals for the 4th Circuit said federal courts (including itself) had been getting the law wrong. Only people who could have actually faced more than a year in prison for their crimes qualify as felons under federal law.
The 4th Circuit's decision came in a little-noticed drug case, United States v. Simmons, but its implications could be dramatic. For one thing, tens of thousands of people in North Carolina have criminal records that no longer make having a gun a federal crime. About half of the felony convictions in North Carolina's state courts over the past decade were for offenses that no longer count as felonies under federal law.
No one yet knows precisely how many people were incorrectly convicted for having a gun, but the number could be significant. Rand, the U.S. attorney in Greensboro, estimated that more than a third of the gun cases his office prosecuted might be in question, either because the defendants didn't commit a federal crime at all by possessing a gun or because their sentences were calculated incorrectly.
"We're going to be addressing this for a while," he said.
The Justice Department and federal courts moved quickly to clean up cases that were pending when the 4th Circuit announced its decision. Prosecutors dropped pending charges against people whose records no longer qualified them as felons; the 4th Circuit reversed convictions in more than 40 cases that were on appeal at the time. Some of the men were given shorter sentences; others were simply let go.
But the next question has proved far harder to answer: What should the government do with the prisoners whose legal cases were already over?
STILL LOCKED UP
The men in McCullum's position have little hope of inspiring much public sympathy. All had racked up at least modest criminal records, frequently for selling drugs. Many only wound up in federal court because police had already arrested them for breaking state laws (including a state law, not affected by the 4th Circuit's ruling, barring them from having guns).
One man went to federal prison after a shootout; another led police officers on a high-speed chase. One shot a police dog.
McCullum hadn't done anything so serious.
His mother, Rebecca Farris, concedes he had a knack for getting in trouble, but said he's still "softhearted." McCullum, now 26, has been diagnosed as mentally disabled, and quit school in the 11th grade after he was kicked out for fighting.
On a recent afternoon, Elizabethtown Police Chief Bobby Kinlaw squinted at the computer in his small office and rattled through an inventory of McCullum's frequent encounters with his officers, including arrests for larceny, fighting, making threats and driving without insurance. "He seemed to be on the radar on a regular basis," Kinlaw said.
McCullum's most serious scrape with the law came in September 2007, when he pleaded guilty to stealing a gun and was put on probation. Under North Carolina law, he could have been sentenced to no more than 10 months in prison.
A month later, McCullum broke up with his girlfriend and came to her small house to collect his things. The two quickly got into an argument, and McCullum knocked over a cocktail table and yanked a telephone cord out of the wall, Kinlaw said. His ex-girlfriend's son called the police, and an officer waited outside to keep the peace while McCullum carried his belongings out to his truck. He carried out his clothes. Then, while the officer watched, he carried out a .22-caliber rifle and a shotgun.
Police checked the guns' serial numbers and learned the shotgun had been reported stolen, so they arrested McCullum. (They didn't realize until later that the gun had been stolen nine years earlier, by someone else, when McCullum was 12.) When they found out McCullum had a criminal record, they charged him with possession of a firearm by a felon, and turned the case over to the federal government .
McCullum says the guns weren't loaded, and he insists he didn't know he wasn't supposed to have firearms. He kept them because they had belonged to his grandfather.
In 2009, McCullum went to federal court and pleaded guilty to the charge of illegally possessing a firearm. At the time, even his lawyers thought that his prior conviction for stealing a gun made him a felon under federal law. The judge sentenced him to a year and a day in custody, and the government sent him to Big Sandy, a high-security penitentiary in the mountains of eastern Kentucky.
It was the first time McCullum had been to prison.
"I ain't no bad person. I made mistakes, but I ain't that bad," McCullum said. "I just was young back then, just made some stupid mistakes."
He got out in 2010 but quickly violated his supervised release by robbing a man. ("I saw him with a whole bunch of money and I just got him like that," McCullum said during one phone call.) The judge sent him back to prison. Now he's finishing his sentence at the local jail in Farmville, counting the days until he can go home.
SHUT OUT OF COURT?
Whether McCullum — or the dozens of others like him — can go home depends on federal laws that put strict limits on when and how people who have already been convicted of a crime can come back to court to plead their innocence.
Those laws let prisoners challenge their convictions if they uncover new evidence, or if the U.S. Supreme Court limits the sweep of a criminal law. But none of the exceptions is a clear fit, meaning that, innocent or not, they may not be able to get into court at all. Federal courts have so far split on whether they can even hear the prisoners' cases.
Habeas corpus — the main legal tool for challenging unlawful detention — is currently ill-suited to such cases, said Nancy King, a Vanderbilt Law School professor who has studied the issue. Habeas mainly safeguards people's constitutional right to a fair process, she said, and the problem is that "saying, 'I'm innocent' isn't, on its face, that type of constitutional claim."
Still, she said, "innocent people should be able to get out of prison."
Prosecutors don't disagree, though most said they are not convinced the law allows it.
Rand, the U.S. attorney in Greensboro, said he is "not aware of any procedural mechanism by which they can be afforded relief," though he said lawyers in his office "have not been pounding on the table" to keep the men in jail.
"No one wants anyone to spend time in jail who should not be there," said Thomas Walker, the U.S. attorney in Raleigh. That's why he said prosecutors were quick to dismiss charges that were pending when the 4th Circuit ruled. But cases in which convictions are already final "are in a totally different posture and require us to follow the existing statutory habeas law," he said.
But there's also an even more basic question: How would the prisoners even know?
Rand said he personally reviewed all of the gun-possession cases his office had filed in recent years, often bringing home stacks of documents to examine after his kids went to bed. A former state judge, he figured he would have the easiest time identifying problems. Some of the cases he looked at, he said, would no longer qualify as federal crimes.
But he said he did not notify those defendants.
Instead, courts have asked public defenders to seek them out. Those lawyers said the Justice Department should do more to help, because it has better information and more resources, an assertion prosecutors dispute.
"We're doing it with our hands tied," said Eric Placke, a federal public defender in Greensboro. "I appreciate the compelling considerations they have to deal with. But I do think in cases of actual innocence that it would be nice, to say the least, if they would be a little more proactive."
Placke and other public defenders said the reviews have been difficult because they often have limited access to records from the men's prior convictions, which has left them to hunt through files in courthouses across the state.
USA TODAY conducted a similar, though far more limited review, examining every gun conviction in western North Carolina between 2005 and 2011. The review was limited to people who had been convicted only of gun possession, and included only those cases in which federal prosecutors had specifically identified the prior offense that made possession a crime. USA TODAY used state court records to find those cases in which the men's prior convictions were, in hindsight, not serious enough to convict them of the federal crime.
'A BETTER LIFE'
Travis Bowman said he "got cold chills" when USA TODAY told him that he's innocent of the gun charge that landed him in a federal prison in Coleman, Fla., for 10 years. He said he'd never considered the possibility that what he did wasn't a federal crime. He pleaded guilty to illegally possessing a sawed-off shotgun.
He's not scheduled to get out of prison until 2016.
Police arrested Bowman in 2007 after a 110-mph chase through Murphy, N.C. It began when North Carolina Highway Patrol Sgt. Chris Wood pulled Bowman over for speeding, planning only to write him a warning. But a routine records check showed Bowman had been affiliated with a gang known as Folk Nation, and that he was wanted in Georgia. "I got a real eerie feeling," Wood said. He drew his gun and told Bowman to put his hands on the steering wheel.
Bowman took off.
With his pregnant, 15-year-old girlfriend in the seat next to him, he raced down the highway, swerved through a McDonald's parking lot and collided with four police cars. He didn't stop until his girlfriend threw the speeding car into park.
State officials didn't prosecute Bowman for the shotgun, or for the chase, or for crashing into the police cars, or for refusing to let his girlfriend out of the car. Instead, they turned the case over to the Justice Department, which sent him to prison for a decade just for having an unloaded shotgun on the floor behind the passenger seat. (Bowman said he was taking the gun to his brother.)
But Bowman's prior convictions — for habitual misdemeanor assault and having drugs in prison — aren't serious enough to make owning the gun a federal crime. Neither could have put him in prison for more than a year.
Bowman says he plans to ask a federal judge to declare him innocent and let him out.
"Hopefully I'll get the chance to be out there soon," Bowman wrote in an e-mail."I just want a better life than this. I have to prove to a lot of people that I'm not the old me. I want to be a person my kids will look up to and be proud of."
Going home is far from a safe bet. Even if a court ultimately decides to let Bowman out, he could still face all the charges state officials dropped when his case went to federal court.
Why There's an Even Larger Racial Disparity in Private Prisons Than in Public Ones
—By Katie Rose Quandt
It's well known that people of color are vastly overrepresented in US prisons. African Americans and Latinos constitute 30 percent of the US population and 60 percent of its prisoners. But a new study by University of California-Berkeley researcher Christopher Petrella addresses a fact of equal concern. Once sentenced, people of color are more likely than their white counterparts to serve time in private prisons, which have higher levels of violence and recidivism (PDF) and provide less sufficient health care and educational programming than equivalent public facilities.
The study compares the percentage of inmates identifying as black or Hispanic in public prisons and private prisons in nine states. It finds that there are higher rates of people of color in private facilities than public facilities in all nine states studied, ranging from 3 percent in Arizona and Georgia to 13 percent in California and Oklahoma. According to Petrella, this disparity casts doubt on cost-efficiency claims made by the private prison industry and demonstrates how ostensibly "colorblind" policies can have a very real effect on people of color.
The study points out an important link between inmate age and race. Not only do private prisons house high rates of people of color, they also house low rates of individuals over the age of 50—a subset that is more likely to be white than the general prison population. According to the study, "the states in which the private versus public racial disparities are the most pronounced also happen to be the states in which the private versus public age disparities are most salient." (California, Mississippi, and Tennessee did not report data on inmate age.)
Private prisons have consistently lower rates of older inmates because they often contractually exempt themselves from housing medically expensive—which often means older—individuals (see excerpts from such exemptions in California, Oklahoma, and Vermont), which helps them keep costs low and profits high. This is just another example of the growing private prison industry's prioritization of profit over rehabilitation, which activists say leads to inferior prison conditions and quotas requiring high levels of incarceration even as crime levels drop. The number of state and federal prisoners housed in private prisons grew by 37 percent from 2002 to 2009, reaching 8 percent of all inmates in 2010.
The high rate of incarceration among young people of color is partly due to the war on drugs, which introduced strict sentencing policies and mandatory minimums that have disproportionately affected non-white communities for the past 40 years. As a result, Bureau of Justice Statistics data shows that in 2009, only 33.2 percent of prisoners under 50 reported as white, as opposed to 44.2 percent of prisoners aged 50 and older.
So when private prisons avoid housing older inmates, they indirectly avoid housing white inmates as well. This may explain how private facilities end up with "a prisoner profile that is far younger and far 'darker'... than in select counterpart public facilities."
Private prisons claim to have more efficient practices, and thus lower operating costs, than public facilities. But the data suggest that private prisons don't save money through efficiency, but by cherry-picking healthy inmates. According to a 2012 ACLU report, it costs $34,135 to house an "average" inmate and $68,270 to house an individual 50 or older. In Oklahoma, for example, the percentage of individuals over 50 in minimum and medium security public prisons is 3.3 times that of equivalent private facilities.
"Given the data, it's difficult for private prisons to make the claim that they can incarcerate individuals more efficiently than their public counterparts," Petrella tells Mother Jones. "We need to be comparing apples to apples. If we're looking at different prisoner profiles, there is no basis to make the claim that private prisons are more efficient than publics."
He compared private prisons to charter schools that accept only well-performing students and boast of their success relative to public schools.
David Shapiro, former staff attorney at the ACLU National Prison Project, agrees. "The study is an example of the many ways in which for-profit prisons create an illusion of fiscal responsibility even though the actual evidence of cost savings, when apples are compared to apples, is doubtful at best," he says. "Privatization gimmicks are a distraction from the serious business of addressing our addiction to mass incarceration."
But in addition to casting doubt on the efficacy of private prison companies, Petrella says his results "shed light on the ways in which ostensibly colorblind policies and attitudes can actually have very racially explicit outcomes. Racial discrimination cannot exist legally, yet still manifests itself."
Alex Friedmann, managing editor of Prison Legal News, calls the study a "compelling case" for a link between age disparities and race disparities in public and private prison facilities. "The modern private prison industry has its origins in the convict lease system that developed during the Reconstruction Era following the Civil War, as a means of incarcerating freed slaves and leasing them to private companies," he says. "Sadly, Mr. Petrella's research indicates that the exploitation of minority prisoners continues, with convict chain gangs being replaced by privately-operated prisons and jails."
*The study draws on data from nine states—Arizona, California, Colorado, Georgia, Mississippi, Ohio, Oklahoma, Tennessee, and Texas—selected because they house at least 3,000 individuals in private minimum and medium security facilities.
KATIE ROSE QUANDT Katie Rose Quandt is a former senior online editorial fellow at Mother Jones.
the judicial system stinks ---
Innocent man wrongly jailed for 23 years dies days before lawsuit
By Josh Saul and Leonard Greene
Man wrongly jailed blames NYPD for killers’ murder spree
By Bruce Golding --- NY Post --- March 3, 2014
The real killers of a Bronx livery driver were free to murder at least four more victims because NYPD cops railroaded five innocent people in the notorious 1995 slaying, a stunning new lawsuit charges.
Eric Glisson, who spent nearly 18 years in prison before being exonerated, alleges in his Manhattan federal suit that Bronx homicide cops “fabricated evidence and false witness testimony” that convicted him and four co-defendants in the fatal shooting of Baithe Diop.
As a result, vicious gang members Jose “Joey Green Eyes” Rodriguez and Gilbert “Gorgeous Indian” Vega were never busted for Diop’s murder and went on to kill at least four other people before the feds busted them and they cut a deal, admitting they shot Diop from the back seat of his livery car, the court papers say.
The additional victims include two men who were gunned down in 1997 during an annual Thanksgiving Day football game between residents of two Bronx housing projects, according to court records. Rodriguez pleaded guilty in that crime.
That shooting, in which three others were wounded, was ordered by “Pistol” Pete Rollack, the imprisoned leader of Rodriguez and Vega’s gang — called Sex Money Murder, or SMM — to keep one of the slain victims from testifying against him.
Vega pleaded guilty to being the getaway driver for a 1999 robbery and murder at an auto-parts business in Hunts Point.
“I think it’s a tragedy that these other people had to lose their lives because of the negligence of the New York City Police Department,” Glisson said Sunday.
Cops also allegedly stymied a federal investigator who in 2003 tried to corroborate Rodriguez and Vega’s confessions to shooting Diop, the suit alleges.
“I guess if you’re sitting up there [in The Bronx] and you’re the cops who put five people in jail for something they didn’t do, you probably have an incentive to let sleeping dogs lie,” said Glisson’s lawyer, Peter Cross.
Glisson was freed from prison in 2012 along with co-defendant Cathy Watkins, but three others convicted in Diop’s murder are still serving time for unrelated crimes.
Glisson’s suit against the city and four NYPD cops doesn’t specify damages but came after he filed a $100 million notice of claim. The NYPD didn’t return a request for comment, while the city Law Department said only: “We will review the suit once we are served.”
There are many kinds of surety companies—bail is just one type—and their function is essentially to guarantee contracts between two parties. If you hire a "licensed and bonded" construction company to remodel your kitchen and it doesn't finish the job, the surety will make you whole. With bail, the surety company guarantees the agreement between the bondsman and the state—if a defendant skips court and the bondsman neglects to pay the bail amount, the state can go to the surety company to get what it is owed. In most states, bondsmen can't legally write bail unless they have a contract with a national surety corporation. In exchange for such a contract, the surety charges the bondsman 10 percent on each fee. So for every $1,000 bond, the bondsman gets $100 and gives $10 to the surety.
There are at least 32 surety companies that underwrite bail. When I reviewed their financial records, I found that they collectively underwrote more than $13.5 billion worth of bail bonds in 2012. Sixty percent of these bonds are controlled by members of the American Bail Coalition, a trade group to which Whitlock and Watson belong. According to an old ABC newsletter, the organization was formed when a handful of surety executives gathered in Florida in 1992. "They were worried," the newsletter read. There was a "jihad against commercial bail…Government pretrial service agencies had made deep inroads into the corporate surety market." Up to that point, the use of commercial bail had been steadily declining. The sureties committed to reversing the trend.
For starters, the new coalition sent letters to every single county that had a pretrial service agency. They cited data from the Bureau of Justice Statistics to claim that people released on a commercial bail bond were more likely to appear in court than those released into pretrial services programs. (The bureau said its data didn't support that claim.) ABC also contacted sheriffs, courts, chief judges, chambers of commerce, and rotary clubs. "It kicked [pretrial services'] butt," Watson told me. "Some of those counties began to cut back on the funding to pretrial service agencies. We began to turn the tide."
Indeed. Before ABC began lobbying, in 1990, commercial bail accounted for just 23 percent of pretrial releases, while release on recognizance accounted for 40 percent. Today, only 23 percent of those let go before trial are released on recognizance, while 49 percent must purchase commercial bail. Since 1990, average bail amounts have almost tripled for felony cases. Between 2004 and 2012, revenues of the ABC companies whose income comes almost entirely from bail increased 21 percent.
The only other country that allows someone to make a profit off bail is the Philippines.
ABC wasn't the only group fighting to resuscitate commercial bail. In Orleans, I visited the office of Graymond Martin, formerly a lobbyist for bail sureties operating in Louisiana. Now, he was Orleans Parish's first assistant district attorney. He told me about the "scheme" he'd concocted to protect the industry in the early 1990s, when there was talk in the state of eliminating commercial bail. In 1993, he successfully lobbied for a law that required defendants to pay an extra 2 percent on top of their 10 percent fee to the bondsman. That money would be divided up among the sheriff's department, the district attorney, the public defender, and the judges. "What that did," he said proudly, "is it gave every criminal-justice player a financial interest in commercial surety." The next time someone suggested limiting commercial bail, "then you have every judge, every DA, every sheriff, every public defender's office saying, 'Wait a minute, you're taking money out of my pocket,'" he said. "The bail lobby is very powerful both locally and nationally. [Bondsmen] go to their legislators and seek provisions which are advantageous to their business model."
It's easy to see why: Bail surety is unique in the insurance business in that it has virtually no losses. Watson's company, AIA Bail Bond Surety, underwrites nearly $700 million worth of bail a year. It has existed for 107 years. "You know how many checks has this company written to pay a bail loss?" Watson asked me. "Not a single one." In other forms of insurance, the agent's job is merely to sell policies. When you get into an accident, the company deals with it, not the agent. But with bail, it's the agent—the bondsman—who has to pay up when a defendant fails to appear in court. The only time a surety would have to pay would be if the bondsman went out of business—and to cover those losses, bondsmen have to contribute to a special "buildup fund."
Property and auto insurance companies typically pay out 40 to 60 percent of their revenue in losses. When I reviewed the financial records of 32 surety companies, I found that, in 2012, they cumulatively paid less than 1 percent in bail losses.
SHANE BAUER Senior ReporterShane Bauer is a senior reporter at Mother Jones, covering criminal justice and human rights. He has written for the Guardian, The Nation, Salon, Slate, the Los Angeles Times, the Christian Science Monitor and other publications. He is the co-author of A Sliver of Light, a memoir he wrote with his fellow hostages (one of whom is now his wife) about their two years as prisoners in Iran. Email him at sbauer (at) motherjones (dot) com. RSS | TWITTER