Author Archives: Alice Speri

Rape Victim Who Smuggled DNA Evidence Out of Rikers Wins Settlement

The first time she filed a sexual abuse complaint against a Rikers guard, Jane Doe told investigators from the Inspector General’s office that the man was handing out cigarettes to female inmates in exchange for oral sex. But she never heard back from them, and she figured that they hadn’t taken her seriously because she had no evidence.

But even when there was evidence, women’s formal complaints seemed to go nowhere. Jane Doe had witnessed guards retaliate against another woman who had accused a male correctional officer of raping her. The woman had filed a complaint and handed over her underwear as proof to Department of Correction staff — but they discarded it and dismissed the complaint. That wasn’t an isolated instance: Darcell Marshall, a Rikers inmate who was raped by yet another male guard, and whose story was first told last year in a New York magazine article, rubbed the semen of the officer who raped her on her jeans and turned them over to investigators, but the jeans went missing for four days, and when they finally came back after testing, they contained traces of male DNA but no semen — a sign that they had been washed, according to a forensics expert.

Women to whom rape and sexual assault at the hands of guards have become an almost routine component of life at Rikers know they probably won’t be believed if they report their abusers. Worse, they fear that jail staff will cover up their allegations and retaliate against them. So when Jane Doe was brutally assaulted during a second stint at Rikers in 2015, she took no chances trusting the system.

On Monday, Jane Doe settled a civil lawsuit against the city, which she accused of “deliberate indifference” to the plight of women sexually abused by Rikers guards, according to a complaint filed last summer. As is standard with monetary settlements, the city denied all liability. Jane Doe’s story — one of dozens by women who reported being sexually assaulted and raped while detained at the infamous city jail — reveals just how challenging it is for abused detainees to seek justice in a system set up to offer none.

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Illustration: Nicole Xu for The Intercept

Smuggled Evidence

The guard who sexually assaulted Jane Doe, Jose Cosme, had ejaculated onto her breasts. Back in her cell after the assault and still in shock, Jane Doe used a white T-shirt to wipe it off. Then she called for medical help and told a nurse that the officer had hurt her. Without examining her, a doctor decided that she was having a panic attack and instructed the nurse to “put ice on her,” then sent her back to her cell after less than 10 minutes. There, Jane Doe ripped the white T-shirt she had used to clean up and later that night, she went to an office at the jail where she worked a cleaning shift and mailed one piece of the shirt to her sister and another to a friend. Days later, during a visit, she gave that same friend another shirt she had been wearing at the time of the assault.

When she reported the assault, two weeks after it happened, investigators took Jane Doe back to the office where Cosme had cornered her. They videotaped her as she showed them how he had pushed her face against a Plexiglas wall in the room, smothering her 100 pounds with his 310. She told them she had screamed to be let go and banged on the Plexiglas, but that he had forced himself into her, taken a phone call while still inside her, and finally dropped her onto the floor and pulled her hair until it ripped to force her into oral sex. Then Jane Doe told the investigators that she had the DNA to prove it and that it was no longer at Rikers.

The DNA Jane Doe had smuggled out of Rikers matched Cosme’s, and in 2017, he pleaded guilty to a felony charge of sexually abusing her. As part of his plea deal, he was fired from his job, put on probation for 10 years, and required to register as a sex offender. But he served no prison time. Jane Doe had also accused a second officer, Leonard McNeil, of arranging for Cosme to rape her after Cosme discovered that they were having a sexual relationship — also considered rape under New York law. But she had no physical evidence against McNeil, and he was never prosecuted or disciplined, though jail authorities reassigned him to a different job at Rikers.

“If she hadn’t preserved the DNA evidence from the T-shirt, they never would have taken her seriously. And, of course, [Cosme] never would have been prosecuted,” said Marlen Bodden, a staff attorney with the special litigation unit at the Legal Aid Society, who represented Jane Doe. “At Rikers Island and at the DA’s office, they won’t prosecute corrections officers unless there’s DNA evidence, to our knowledge.”

In a complaint filed on her behalf by Legal Aid and the law firm Cravath, Swaine & Moore, Jane Doe accused the city of enabling her rape and subsequent retaliation against her. “The City has long been on notice that there is a significant risk that DOC staff sexually exploit women in its custody,” the complaint read. “The City, nevertheless, permits a culture of systemic rape, sexual abuse, and sexual harassment of women by staff to exist at the Rose M. Singer Center (”RMSC“), the women’s jail at Rikers.”

The lawsuit cited Mayor Bill de Blasio’s description of the jail — which after much pressure he pledged to close by 2027 — as a “dehumanizing environment” from which inmates are released “more broken than when they came in.” But the city’s recognition of Rikers’ problems did little to change the conditions there. “To date, neither policies and practices promulgated by the City nor the City’s approach to the women who brave retaliation from COs and other staff to complain of rape and other sexual abuse demonstrate any effort to change the status quo,” the complaint charged.

A spokesperson for the mayor’s office referred questions to the DOC and the New York City Law Department. A spokesperson for the law department, which handles lawsuits against the city, wrote in a statement to The Intercept that Jane Doe’s settlement is “a fair resolution of the claims against the city and in the best interest of all parties.” A spokesperson for the DOC referred questions about the settlement to the law department and questions about the internal investigation of Cosme and McNeil to the Department of Investigation. The spokesperson said that although McNeil remains employed at Rikers he no longer has contact with inmates. Cosme and McNeil did not immediately respond to requests for comment.

Diane Struzzi, a spokesperson for the city’s Department of Investigation (DOI), which oversees the Department of Corrections and investigates sexual abuse allegations involving corrections staff, told The Intercept in a statement that the DOI’s investigation resulted in officer Cosme’s arrest. She declined to comment on McNeil, writing that “this matter resides with DOC.”  Struzzi noted that since 2014, the DOI has arrested 62 correctional officers and DOC staff on an array of charges, including four over sexual abuse allegations.

Patrice O’Shaughnessy, a spokesperson for the Bronx District Attorney, which has jurisdiction over crimes committed on Rikers Island, wrote in a statement to The Intercept that the office “thoroughly investigated” the allegations against officer McNeil, but declined to comment further, citing sealed records in the case. O’Shaughnessy added that the Bronx DA has indicted a number of officers and a physician’s assistant for sexual abuse against inmates. “We take these cases seriously, investigate thoroughly and will prosecute if we have sufficient evidence to go forward with criminal charges,” she wrote. “We treat incarcerated victims as we would any victim of a crime.”

Attorneys for Jane Doe, who is currently serving a prison sentence upstate, declined to make her available for an interview. “This settlement is a small measure of justice for an exceptionally strong woman who has experienced unfathomable trauma,” said Brittany Sukiennik, an associate at Cravath. “Our hope is that her case will help foster reform aimed at ensuring both justice for other victims and protection of the rights of individuals in the City’s custody.”

Jane Doe’s $500,000 settlement follows a $1.2 million settlement last year with Darcell Marshall and another woman who had accused the same officer, Benny Santiago. After Legal Aid took on that case, more than 100 women contacted them about sex abuse at the RMSC, and attorneys there are planning to file more lawsuits. Santiago, who has denied the allegations of abuse, was not criminally prosecuted and according to New York magazine, continues to receive a paycheck from Rikers, even though, as of last spring, he appeared to be no longer reporting for work. Santiago didn’t immediately respond to a request for comment.

There was also the case of Kelly Spinelli, a former detainee who accused one guard of raping her and two others of sexually abusing her between 2015 and 2016. Surveillance video shows the first officer taking her into a broom closet in the middle of the night for several minutes, and a wire she wore per investigators’ instructions recorded another officer warning her “not to say anything to anybody,” according to her attorney. While Spinelli settled with the city, a criminal investigation of the officers’ conduct went nowhere, Paul Prestia, her attorney, told The Intercept. O’Shaughnessy, the Bronx DA’s spokesperson, did not specifically answer questions about Spinelli’s case, but said that the office’s Public Integrity Bureau, which District Attorney Darcel Clark created to investigate and prosecute crimes by public officials, civil servants, and members of uniformed services, including Rikers guards, has “a number of pending investigations.” Struzzi, the DOI spokesperson, declined to comment on the case.

Prestia, who also represented the family of Kalief Browder in their recent $3.3 million settlement with the city, said that when he last heard from prosecutors about Spinelli’s case, they were still investigating her allegations, two years after the abuse took place, and that all the officers involved continued to work at Rikers. “In my opinion that means they are not going forward with prosecuting them,” he said. “I can’t get over the fact that the Bronx district attorney refuses to or refrains from prosecuting these corrections officers when there’s evidence that would have any other civilian arrested.”

“It’s totally a double standard,” he added. “It’s completely baffling to me.”

More lawsuits alleging sexual abuse at Rikers are also pending, including that of a woman who accused two guards and a captain of taking her to an isolated part of the jail in 2013, handcuffing her to a broken toilet fixture, and assaulting her for hours, including by penetrating her with a flashlight, before one of the officers warned her, “This never happened.” In another case, a woman accused a transportation officer of raping her on a bus while another officer watched. In yet another case, first reported by The Intercept in 2015, a medical contractor working at the jail was charged with raping four women there, and the DOC was subsequently accused of regularly sending women to medical appointments with no chaperones, a violation of department policies.

Correctional officers were also accused of turning a blind eye as an inmate repeatedly raped fellow inmates, in full view of security cameras. And inmates aren’t the only ones experiencing sexual assault at Rikers: As The Intercept reported in 2015, female visitors there are also regularly subjected to invasive — and unlawful — strip searches.

But no matter how widespread, sexual abuse at Rikers is rarely criminally prosecuted — and internal investigations, when they happen, seldom result in the discipline or dismissal of those accused of misconduct. More often, the city settles with victims before their allegations can be tested in court and under public scrutiny.

“That’s why this has been such a problem for a long time, because of the failure to discipline and the failure to prosecute in a meaningful capacity,” said Barbara Hamilton, another Legal Aid attorney representing Jane Doe, in an interview. “Oftentimes, the victims of these types of crimes are detainees, so people don’t find them credible, or they don’t put their resources into proper investigations. Or even if there is a recommendation from the internal investigation at DOC to prosecute, the DA office often declines to do so.”

No Consent

There can be no consent between a guard and an inmate. New York law considers all sex between correctional staff and incarcerated individuals to be rape, a recognition of “the inherently coercive power that correctional officers wield” over incarcerated people, Jane Doe’s lawsuit notes. Still, forced, coerced, or transactional sex between inmates and guards, and particularly at the women’s wing of Rikers colloquially known as “Rosie’s,” is rampant.

A Department of Justice survey found that between 2011 and 2012, 8.6 percent of the women incarcerated at Rikers reported being sexually victimized there; 5.9 percent of the women said they were sexually assaulted by staff. That’s compared to 3.2 percent of incarcerated individuals reporting being sexually victimized nationwide. A different report by the U.S. Attorney for the Southern District of New York, while not focused on sexual assault, warned that the DOC was “under-reporting” sexual assault allegations and questioned the department’s compliance with the Prison Rape Elimination Act, or PREA.

But as evidence of abuse and neglect mounted in recent years, along with public scrutiny of the jail, some city officials appeared to dismiss the problem. In a 2016 meeting of the Board of Correction, the body tasked with oversight of the city’s correctional facilities, board member Gerard Bryant said that “as long as we are going to have prisons, we are going to have sexual abuse in prisons. That’s a reality. That’s what happens.” He added: “You can tell staff until they’re blue in the face, ‘Don’t have sex with inmates,’ and it’s still going to happen.”

That year, a “sexual safety assessment” report commissioned by the city was disclosed to the press. The report detailed “entrenched problems” in how officials dealt with sexual abuse allegations, including hotlines that were not private or were nonfunctioning, and investigations that didn’t include reviews of surveillance video or interviews with witnesses and the accused. The city didn’t move to implement national safety standards detailed under PREA until 2016 — 13 years after the bill was signed into law in 2003. Still, male correctional officers continued to be assigned to guard women, including in their dormitories at night, and “to posts in which they have unmonitored contact and complete discretion and control over incarcerated women,” Jane Doe’s lawsuit noted. To date, there have been no audits for compliance with PREA at Rikers — the first review, at the RMSC, is scheduled for this spring.

In fact, while the DOC acknowledged in 2016 that the reports of systemic abuse had been a “wake-up call,” change was slow to come to Rikers.

In a 55-page expert report filed in 2017 as part of the case against Benny Santiago, former prison warden Timothy Ryan wrote that the city’s practices showed “callous disregard for legal requirements and correctional professionalism and demonstrate deliberate indifference by the City to the sexual safety and well-being of the female detainees for which it is responsible.” Despite women reporting sexual assault at more than double the national average, Ryan found that their allegations were rarely substantiated and that department investigators quickly concluded that “assaults could not have occurred exactly as described and thus did not occur at all.”

Last year, the DOC quietly confirmed that assessment when it published statistics about the rising number of sexual assault allegations at city jails. According to the department, there were 374 allegations of sexual misconduct by staff in 2017, and 322 in 2016.

A separate report noted that in the first five months of 2016, medical staff alone reported 118 incidents of alleged sexual abuse, mostly by officers.

But it wasn’t just the number of allegations that raised red flags: The DOC report also showed that at the time, more than 1,850 allegations of sexual harassment or abuse were still unresolved months or years after being filed, including 90 percent of allegations from 2016 and 97 percent of allegations from 2017. The department is required to complete all investigations within 90 days.

The DOC claims that it is trying to fix the problem — even as in June 2018, it reported a 40 percent increase of sexual abuse and harassment complaints over the previous two years.

At a New York City Council hearing held last September, DOC Commissioner Cynthia Brann claimed that the department had made “significant progress” in addressing sexual abuse and highlighted “top-to-bottom reform initiatives” it had put in place in recent years, including free calls to 311, a fully monitored and anonymous hotline, and contracts with an independent victim advocacy organization to provide support to sexual abuse victims. The department also hired PREA compliance managers, trained 7,300 staff on its zero-tolerance policies, and pledged to open investigations into all sexual abuse allegations within 72 hours of a report being filed. Still, Brann conceded that as of June 2018, the DOC had a backlog of 1,216 cases. The spokesperson for the DOC told The Intercept that the office was working to provide an update on the backlog.

At the same hearing, advocates and the Board of Correction said the department’s progress was hardly enough, particularly when it came to properly investigating and addressing complaints. “Since the new standards on sexual abuse, there is little evidence that the investigations process has improved or become more effective,” said Martha King, the board’s executive director, noting that the rate of substantiated complaints in New York was lower than the national average. “Without effective investigations, DOC’s efforts at prevention, accountability, and discipline will also be unsuccessful.”

“This should be disturbing to the council,” Kelsey De Avila, a jail services social workers with Brooklyn Defender Services, wrote in her testimony to the council. “Over 1,000 cases are still pending, and DOC staff are allowed to remain employed despite pending allegations, and no action will be taken against them until the case is officially closed.”

De Avila noted the irony that accused guards were allowed to keep watching over detainees, a majority of whom are held in pretrial detention at Rikers and are therefore also only accused of having committed crimes. “Notably,” she wrote, “our detained clients are subject to extremely punitive treatment and conditions — and exposed to this epidemic of sexual violence — while they fight criminal allegations against them.”

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Illustration: Nicole Xu for The Intercept

A Coerced “Relationship”

Jane Doe was held at Rikers for eight months between 2015 and 2016, awaiting trial. Shortly after she arrived there, according to the lawsuit, McNeil “arranged to have undisturbed access to her” by requiring her to work for him as a sanitation worker, her lawsuit claims. McNeil would call Jane Doe into his station without filing the required paperwork and ordered her to stop working for other guards because he was “jealous,” becoming angry when she refused.

Jail staff were made aware of the sexual relationship between McNeil and Jane Doe on at least two occasions, the lawsuit contends. Once, a guard walked into McNeil’s office as he and Jane Doe were having intercourse, but never reported the incident. Another time, Jane Doe went to the jail’s health clinic to ask for an Abbott pregnancy test — which can detect a pregnancy early on — but was refused and given a different test because she had been in jail for two months, and staff “saw no need” for the early-detection one.

McNeil regularly gave Jane Doe contraband, including makeup, candy, and Starbucks coffee. He picked up clothes other detainees had left behind, told her “I want to see you in them,” and told her that when she was released, he wanted her to dye her hair blond and wear blue contact lenses. He let her use his cellphone to play games and call a friend, and even introduced her to his mother on the phone. He would go visit her in her housing area, and once he kissed her in front of two other detainees.

When Cosme learned of the encounters, he started making vulgar comments to Jane Doe, once asking her, in front of McNeil, for a “lap dance.” Then one day he passed her a note, threatening to report McNeil to superiors so that he would be fired and Cosme could take his place, the lawsuit alleged. When Jane Doe told McNeil, he became so angry, he flipped over a cart. Then a few days later, McNeil left Jane Doe alone at night in an isolated area of the jail, purportedly to make a call — even though he had made phone calls in her presence before, sometimes while she was performing oral sex on him.

There was a camera in that section of the jail, but it was not connected to the monitors in the control room, and it did not record or save footage. Staff and detainees knew that. That’s where Cosme, who was in a nearby office known as “the bubble” cornered Jane Doe. After raping her, according to the lawsuit, Cosme laughed at her and said, “At least my wife can have a break tonight.”

When she reported the sexual assault, Jane Doe was fired from her cleaning jobs at Rikers. A sign went up at “the bubble” warning COs not to take her out of her cell. Guards regularly refused to accompany her to religious services, group programs, and medical visits. Once, when she asked a guard why he wouldn’t let her go to church, he told her, “You run your mouth too much.” Guards also denied her toiletries, and on one occasion, they refused to escort her from a hearing back to the jail, leaving her behind at the courthouse.

There was verbal harassment too: Once, McNeil told another guard, in front of Jane Doe, “What you do with someone like her is two to the chest, one to the head, I can shoot.” Another time, he called her a “fucking snitch” and a “hoe.” Other COs called her a “bitch” and a “cracker,” and said that she was “just out for a pay day.” The retaliation followed her outside Rikers too, when she was sentenced to prison time at Bedford Hills, a prison in upstate New York. Someone there put a piece of onion in her pocket, and a CO said “that bitch stinks.”

Her attorneys said the experience made Jane Doe feel deeply isolated and left her suffering from nightmares and panic attacks. That’s far too common for incarcerated women, who often have a history of abuse even before arriving in jail.

Approximately 90 percent of incarcerated women have experienced sexual or physical abuse before being detained, and a majority are victims of domestic abuse, often leading to their incarceration in the first place, said Kandra Clark, who spent four months at Rikers in 2010. “There’s abuse before, during, and after incarceration,” she told The Intercept. Clark testified before the city council last year about how her experience at Rikers exacerbated her trauma. “Each and every night I spent on Rikers, I was fearful for my life and my body,” she said, describing how corrections officers would watch her go to the bathroom through the window of her cell or point a flashlight at her to watch as she tried to cover up with a sheet.

Clark now works with the Exodus Transitional Community and JustLeadershipUSA, one of the groups behind the #CloseRikers campaign that ultimately pushed the city to promise to shut down the jail within a decade — too slow a timeline, some advocates say. Clark also works with the “Beyond Rosie’s” campaign, an initiative of the Women’s Community Justice Association, which aims to tell the stories of women incarcerated at Rikers and is working with the mayor’s office and city council to ensure that the jails that will ultimately become substitutes are set up to combat abuse. “People are suffering every day while they’re in there so we definitely want it to move faster, but we also want to be really thoughtful about how we do it,” Clark said, listing top-down, trauma-informed training for all staff but also family-friendly spaces where incarcerated women’s children could spend a weekend. “What do we want these new facilities to look like? How can we really combat the trauma that so many women have faced?”

Yet others warned that until officers like those who abused Jane Doe face real consequences, the culture of impunity on the island will persist and simply spread to the smaller jails that will eventually replace it.

“These officers, they know that if they commit these heinous crimes, they’re going to get a slap on the wrist, and they’re not going to get fired. They’ll be moved around the island, they’ll still collect a paycheck, and they’ll still get a pension,” Redmond Haskins, a spokesperson for Legal Aid, told The Intercept. “Until corrections staff is truly held accountable, this will continue to happen.”

Update: Feb. 11, 2019, 3:05 p.m.

After publication, the New York City Law Department provided the following addition to its statement: “The health and safety of those in DOC custody remains a top priority. ”

The post Rape Victim Who Smuggled DNA Evidence Out of Rikers Wins Settlement appeared first on The Intercept.

Police Make More Than 10 Million Arrests a Year, but That Doesn’t Mean They’re Solving Crimes

Someone is arrested in the United States every three seconds. While arrests are the first entryway into a criminal justice system most acknowledge is in dire need of reform, we know remarkably little about who is arrested, where, and why. Advocates and legislators have pushed in recent years for policy changes at various points of the justice process, from pretrial to sentencing, but arrests remain one of the largest and least scrutinized contributors to the country’s mass incarceration and policing crises.

The FBI and Bureau of Justice Statistics collect arrest data from the country’s 18,000 law enforcement agencies — but those agencies self-report on a voluntary basis, and there are significant disparities in the information they share. The data, for the most part, remains inaccessible to the broader public, and statistics on crime are isolated from data about the effectiveness of enforcement.

In an effort to better inform conversations about criminal justice, a team of researchers from the Vera Institute of Justice, a nonprofit research and policy organization, took more than two years to combine eight different federal databases into a tool that allows users to analyze arrest trends at the national, state, and county levels against a series of variables, including offense types, demographic factors, and solved crimes.

The project was born “out of this moment of frustration over the past number of years that there isn’t very much information on policing, people feeling like it’s a black box,” said Rebecca Neusteter, co-author of a report Vera released Thursday alongside the new data tool. “We wanted to be able to demonstrate that there is some information. There are gaps in knowledge, for sure, but there are lots of pieces of information that the government is spending a lot of money to collect. It just hasn’t been released for people to look at previously.”

That data shows that of more than 10.5 million arrests made every year, the bulk are for noncriminal behavior, drug violations, and low-level offenses. Since 1980, arrests for drug violations have increased by 170 percent, and racial disparities in enforcement have grown even more stark. Still, a majority of victims don’t report their experiences to police, and police solve only a fraction of the crimes that are reported.

In recent years, after a series of police killings sparked nationwide protests, a growing movement for police accountability also exposed systemic problems with everyday policing practices. Most arrests are ultimately dismissed, but aggressive enforcement of low-level offenses, especially in communities of color, causes long-term damage to those communities and their relationship with police.

“There’s a growing understanding that the problems of policing are not limited to a few high-profile deaths but are the result of a broader problem of over-policing,” said Alex Vitale, a sociology professor at Brooklyn College and author of a book that argues for alternatives to policing rather than police reform. “The solution to this is not making police arrests friendlier or more professional: It’s to quit relying on arrests to solve any problem under the sun.”

The Persistent Harms of “Broken Windows”

The Vera tool analyzes arrest trends between 1980 and 2016. The data shows that overall arrests have declined by nearly 25 percent over the last decade. But it also shows that, while arrests for serious crimes have dropped consistent with declining crime rates nationwide, they are increasingly being substituted with arrests for minor misconduct.

Among the most common causes for arrest are low-level offenses like “disorderly conduct” and a broad, largely unexplained category the FBI refers to as “all other offenses,” which can include a variety of non-traffic offenses, violations of local ordinances, and civil violations like failure to pay fines or child support. Together with drug violations, these offenses account for more than 80 percent of arrests, while serious, violent offenses make up less than 5 percent of arrests.

“We really want to see a national conversation about whether or not this is a good use of resources,” said Neusteter. “Are we potentially creating more harm than good by arresting people for what are essentially really low-level, trivial offenses?”

While there is little integration between court data and police data, and it’s hard to track a case from arrest through prosecution, a majority of arrests are dismissed. Still, police continue to use them as an enforcement tool of their own, rather than a way to funnel criminal behavior into the justice system.

“That’s the broken windows theory,” said Vitale, referring to the largely discredited but still widely applied criminological view that low-level misconduct fuels more serious crime. “The arrest itself is the tool we are using to try to fix the problem.”

“There’s still profound political imperatives to use policing to solve every social problem, especially in poor communities and communities of color,” he added. “They’re getting complaints about kids on a street corner, so they are looking for any excuse to arrest these kids, and they don’t care if it’s prosecuted.”

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Graphic: Moiz Syed/The Intercept

What the FBI refers to as “drug abuse violations” lead to 1.5 million arrests annually, the Vera report found. And while the FBI doesn’t differentiate in how it categorizes drug violations, federal statistics have consistently shown that a vast majority of them are over simple possession, most often of marijuana.

The report also highlights the vast racial disparities in arrest rates, particularly when it comes to drug enforcement — and even in places where drug enforcement policies have been loosened. “In just about every state that’s made changes to how laws around marijuana are enforced, we see major racial disparities in enforcement,” Neusteter said.

Black people nationwide are an estimated 2.39 times more likely to be arrested for “drug abuse violations” than white people — even though drug use rates are similar across the two groups. The estimated number of arrests of black people across the country has risen by 23 percent in the last four decades. African-Americans now make up 12 percent of the U.S. population and an estimated 28 percent of all arrests.

Amid a push for more progressive polices in prosecutors’ offices, a growing number of district attorneys have announced that they will no longer prosecute marijuana possession. But that hasn’t necessarily translated into a drop in arrests yet.

“There’s some type of disconnect between what’s going on in the prosecutors’ offices and what’s going on with the police,” said Vitale, noting that police maintain significant discretion to make arrests over pretextual reasons. “Failure to prosecute doesn’t mean that the police can’t still arrest you, put you through the system, bring you to arraignment.”

“There’s this discourse out there that with the opioid crisis, there’s more openness to talking about treatment and how this is a medical problem, but this is not what we see in the arrests numbers,” he added. “There’s been some change in the discourse, but not in the actual underlying police practices.”

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Graphic: Moiz Syed/The Intercept

Arresting Everyone Doesn’t Make Anyone Safer

Perhaps the report’s most revealing finding, however, is that such aggressive enforcement doesn’t seem to do much to improve public safety or solve crime. Only 40 percent of crime victims report their experiences to police, Vera found, and fewer than 25 percent of reported crimes are cleared by arrests.

“This television-inspired myth-making that police are out there all day solving serious crimes is just completely erroneous,” said Vitale. “We have this myth that if we didn’t have the police, crime would be out of control, when the reality is very little crime is reported to the police, and even less is solved by the police. There’s just no reason to equate police with public safety in this way.”

Arrests have an enormous impact on individuals: They can exacerbate economic disparities, harm an individual’s capacity to retain housing and jobs, and lead to devastating consequences like the loss of child custody or deportation. The mental health cost, too, is significant. But the huge number of arrests also comes at a cost to the safety of the community at large: both at the moment of the arrest itself, which can put those arrested, bystanders, and officers at risk of harm, and in the long run, as relationships between over-policed communities and law enforcement deteriorate, sometimes irreparably.

While that seems far too high a price, police continue to focus their attention on the enforcement of low-level offenses and noncriminal behavior, reinforcing a cycle of mistrust. That’s in part in response to arrest quotas and other incentives police get for productivity, as well as financial gains for agencies and municipalities that rely on punitive enforcement for funding. Vitale pointed to the controversial “collars for dollars” practice, by which officers will sometimes make arrests toward the end of their shifts in order to earn overtime pay, as they are required to remain with the person they arrested through the booking process. “A marijuana possession arrest at the end of the shift can be worth several hundred dollars for the officer,” he noted.

But part of the problem is also that police are the go-to solution for all kinds of complaints in communities with no meaningful alternatives. “The vast majority of police work is in response to 911 calls for service,” said Neusteter. “I think that the major component of the large number of arrests for low-level offenses has to do with the fact that police are being called as the default responders for these quality-of-life issues.”

There are some bright sides to the Vera report, which the authors hope will inspire further analysis and reform. Arrests of minors, for instance, decreased by more than 50 percent between 1980 and 2014, as juvenile-specific offenses like running away or curfew violations were decriminalized, and non-punitive programs were instituted in lieu of arrest. The solution, the report makes clear, is to find alternatives to enforcement for much of the behavior police currently address with arrest.

“People do not go to jail, they do not go to prison, without being arrested first,” said Neusteter. “But we haven’t seen enforcement and arrests tied very clearly to those conversations and ultimately to the strategies that are attached to improving them. That’s our ultimate goal here.”

The post Police Make More Than 10 Million Arrests a Year, but That Doesn’t Mean They’re Solving Crimes appeared first on The Intercept.

Five Years After Ferguson, St. Louis County’s New Prosecutor Confronts a Racist Criminal Justice System

Wesley Bell was sworn into office as St. Louis County’s first black prosecutor just after midnight on New Year’s Day, and by the end of his second day on the job, he had ordered a sweeping overhaul of many of the office’s policies.

Effective immediately, he wrote in a detailed interim memo, his office would no longer prosecute the possession of less than 100 grams of marijuana. Prosecutors would end cash bail requests for misdemeanor cases, and they would issue summonses, rather than warrants, for all misdemeanors and class D and E felonies. They would no longer criminally prosecute the failure to pay child support. They would not overcharge defendants to pressure them into pleas, nor would they threaten witnesses to force them to participate in prosecutions. They would not impose further conditions on those failing to appear in court unless they were flight risks, and they would disclose the entirety of their files to defense counsel.

Bell also fired a veteran assistant prosecutor who had been a key figure in the case of Darren Wilson, a Ferguson police officer who shot and killed 18-year-old Michael Brown in 2014. The case, which after weeks of foot-dragging by police and prosecutors ended with a grand jury declining to indict Wilson, sparked massive protests in Ferguson and across the country. But almost five years later, Brown’s killing also inspired a steadfast movement for racial justice and police accountability, and exposed district attorneys as the most powerful players in the country’s criminal justice system.

Since then, several old-school prosecutors have been voted out of office across the country and replaced by a wave of criminal justice reformers, including in cities as large as Chicago and Philadelphia. In Chicago, Kim Foxx ousted Cook County State’s Attorney Anita Alvarez in 2016 after her botched handling of another police killing — that of Laquan McDonald. The grassroots campaign to run Alvarez out of office, and the viral #ByeAnita social media rallying cry that amplified it, became a model to build engagement around prosecutor’s races nationwide. Then, in 2017, Philadelphians elected Larry Krasner — a career criminal defense and civil rights lawyer who had never prosecuted a case but who had sued the Philadelphia Police Department more than 75 times — as their next district attorney. (Other prosecutors who have billed themselves as “progressive,” like former California Attorney General Kamala Harris and Manhattan DA Cy Vance, hardly deserve the title.)

FERGUSON, MO - MARCH 14:  Mia Swisher says a prayer during a visit to a memorial to Michael Brown outside the Canfield Green apartments where he was shot and killed by a police officer last August on March 14, 2015 in Ferguson, Missouri.  The town of Ferguson has experienced many protests, which have often been violent, since Brown's death. On Wednesday evening two police officers were shot while they were securing the Ferguson police station during a protest.  (Photo by Scott Olson/Getty Images)

Mia Swisher says a prayer at a Michael Brown memorial outside the Canfield Green apartments on March 14, 2015, in Ferguson, Mo.

Photo: Scott Olson/Getty Images

But the push to put progressive prosecutors into office really took off after Ferguson, where the disastrous investigation of Brown’s killing opened the public’s eyes to prosecutors’ unique power to decide whom and when to prosecute. With Bell’s election, the Ferguson protests’ impact on the politics of criminal justice finally came home to St. Louis County.

“I absolutely feel like I am part of a momentum that’s continuing to grow,” Bell told me in a recent interview, adding that he draws inspiration from Krasner, Foxx, and other progressive prosecutors who preceded him. “I think that we have a real opportunity.”

Now nearly a month into the job, Bell hasn’t slowed down. He announced treatment and diversion programs, in partnership with local health organizations, to address rather than criminalize addiction and mental illness. And after promising voters he would never seek the death penalty, he declared that he would seek life imprisonment in a murder and sexual assault case that took place at a Catholic Supply store and rocked the area last fall.

It’s hard to understate how radical these changes are in St. Louis County.

If the Ferguson protests made this collection of more than 80 municipalities and suburbs, home to just under a million people, synonymous with police brutality and racism, they also exposed ingrained inequities in a local government system that funds itself on the criminalization of its poor residents, and whose leadership and power structure are starkly unrepresentative of its population. The St. Louis metropolitan area, which includes both the city of St. Louis and St. Louis County, regularly boasts the grim record of being one of the most dangerous in America — though much of the violence happens in a few pockets of the city. Homicides and violent crime have also been on the rise in the county, which like the city is deeply segregated. Many go unsolved.

But other statistics are equally revealing of law enforcement culture in St. Louis County. Missouri has been one of the country’s leading executioners in recent decades, trailing only Texas, but local disparities can be stark within the state. A 2015 study found that a person convicted of homicide in St. Louis County is three times more likely to be executed than someone convicted elsewhere in the state — and 13 times more likely to be executed than a person convicted in St. Louis City. In 2017, there were 530 criminal prosecutions for nonpayment of child support in the county, versus about 40 in the city and 12 on average in other counties across the state.

In the aftermath of the Ferguson protests, the Justice Department issued a damning report denouncing “clear racial disparities” in the ways the county’s police and courts operated. “The evidence shows that discriminatory intent is part of the reason for these disparities,” the report stated, zeroing in on Ferguson. “Over time, Ferguson’s police and municipal court practices have sown deep mistrust between parts of the community and the police department, undermining law enforcement legitimacy among African Americans in particular.”

Three newly elected members of the Ferguson City Council, from left, Brian Fletcher, Ella Jones and Wesley Bell embrace after being sworn in during a monthly meeting of the council Tuesday, April 21, 2015, in Ferguson, Mo. With the election, half of the six-member city council in Ferguson, a town where two-thirds of the 21,000 residents are black, will now be African-American. (AP Photo/Jeff Roberson)

Three newly elected members of the Ferguson City Council, from left, Brian Fletcher, Ella Jones and Wesley Bell, embrace after being sworn on April 21, 2015, in Ferguson, Mo.

Photo: Jeff Roberson/AP

Bell, 44, is the son of a cop and has served as public defender, municipal court prosecutor, and judge. He ran for the Ferguson City Council after the protests and worked on a team that negotiated a federal consent decree following Brown’s killing. “That was a learning experience, working with the Department of Justice and seeing some of these same issues from a different light,” he said. “For the first time, being confronted with the idea that the culture that I was raised in legally did need to change.”

Voters seemed to agree. His campaign against Bob McCulloch — a seven-term incumbent first elected in 1991, when Bell was in high school — seemed improbable at first. But it was propelled by tireless grassroots organizing, a viral #ByeBob social media campaign modeled after Chicago’s #ByeAnita, and the backing of some national players that have prioritized transforming the culture of district attorney’s offices nationwide. His victory in the Democratic primary was both stunning and decisive. With a record turnout, he beat the incumbent by a 14 percent margin.

“There’s a lot of ways to approach a culture change, and that is often times a slower change,” Bell told me in his second week on the job. Yet he seemed to have no interest in taking it slow. His staff was still waiting for building access cards, and packed boxes lined the walls of the office, where a pink print thanked McCulloch for his 27 years of service. But the reforms already underway were transforming an office unaccustomed to change. “I think what we started with is setting clear expectations and making sure that people in this office understand what the policies are,” Bell said.

“He came out of the gate in a way that’s been overt and clear, and he has the support in the community for the stuff he’s moving,” said Montague Simmons, a longtime organizer in St. Louis County. “He’s going to be able to get some stuff done. The question is, what the resistance to that is going to look like.”

CLAYTON, MO - MARCH 13:  Robert P. "Bob" McCulloch, Prosecuting Attorney for St. Louis County speaks to the media during a news conference on March 13, 2017 in Clayton, Missouri. Tension and protest in Ferguson has arisen in response to video footage of slain 18 year-old Michael Brown in a recent documentary. (Photo by Michael B. Thomas/Getty Images)

Bob McCulloch, then-Prosecuting Attorney for St. Louis County, speaks to the media during a news conference on March 13, 2017 in Clayton, Mo.

Photo: Michael Thomas/Getty Images

Resisting Change

Resistance to Bell has already been fierce, a testament in part to the challenge he faces in reforming a system that many key players within the system itself do not want disrupted.

McCulloch, the son of a police officer who was killed in the line of duty, was criticized in the aftermath of the Ferguson protests for being too close to law enforcement. A traditional, tough-on-crime prosecuting attorney who billed himself as “the most experienced prosecutor in the country’s history,” McCulloch never prosecuted a police killing. And he looked a lot like most of the other 2,400 elected district attorneys in the U.S. It’s a remarkably homogeneous group: 96 percent are white, 80 percent are male, and 75 percent run for office unopposed, according to figures provided by the civil rights group Color of Change, which has become one of the leading advocates for prosecutor accountability in recent years.

McCulloch faced few challengers during his tenure, and he was re-elected for a seventh term just days before Michael Brown was killed in Ferguson. His handling of the investigation enraged the community that had come to the streets to protest the killing, but also illuminated the largely unchecked power with which prosecutors operate, as well as their deep connections to law enforcement. Although the next election was years away, many pledged that it would be McCulloch’s last.

McCulloch did not respond to an interview request, nor did Kathi Alizadeh, the lead prosecutor in the Darren Wilson case, whom Bell fired on his second day in office. Bell also fired two others prosecutors, including Ed McSweeney, who had posted on Facebook after the primary that “voters will soon regret what they did.” “My boss was shockingly defeated in Tuesday’s primary after 28 years,” McSweeney wrote in a thread that revealed the panic ensuing in some circles after Bell’s win. “Defeated by a Ferguson councilman with no trial experience.”

Bell declined to comment on the terminations, which he called “pending employee matters.” A spokesperson for his campaign pointed out at the time of McSweeney’s comments that Bell had plenty of trial experience — as a defense attorney. McSweeney declined to comment.

Last December, before Bell was even sworn in, prosecutors in his own office voted to join the St. Louis County Police Association, the county’s largest police union, which had endorsed McCulloch in the race. That was an unprecedented move, criticized as a conflict of interest by watchdog groups like the American Civil Liberties Union. The union called for the reinstatement of the terminated employees. “Despite Mr. Bell’s rhetoric about building bridges with career prosecutors, he has apparently decided to suddenly discharge three dedicated public servants in his first hours in office,” a union spokesperson said in a statement. The union did not respond to additional requests for comment from The Intercept.

FERGUSON, MO -  MARCH 4: Protestors demonstrate outside the Ferguson Police Department in Ferguson, Missouri on March 4, 2015. The Federal Department of Justice decided today not to charge then Ferguson Police Officer, Darren Wilson, of any wrongdoing in the August shooting of Michael Brown Jr. The Department of Justice investigation did happen to find Ferguson Police Departments involvement in racially based policing. (Photo by Michael Thomas/Getty Images)

Protestors demonstrate outside the Ferguson Police Department in Ferguson, Mo., on March 4, 2015.

Photo: Michael Thomas/Getty Images

Bell, for his part, told me that he supports prosecutors’ right to unionize, but that he has concerns with their particular choice of a police union. “As prosecutors, one of our obligations, one of our duties to the public, is to serve as a check on law enforcement, and so there are some concerns and potential conflicts with respect to the choice of their union.”

But the backlash — mostly from the police union — only seemed to intensify after Bell was sworn in. His interim policy memo, which he made clear was a work in progress pending internal feedback, was immediately leaked to the media, and the policies were quickly misrepresented. The union said in a statement that it was “disappointed and discouraged” by Bell’s policies and called on him to take “immediate action to stop some of these changes and find a better and safer path to implement this platform.”

In particular, Bell’s decision not to criminally prosecute failure to pay child support — a civil matter which he said should be pursued as such — prompted criticism and sensationalized headlines like “Deadbeat dads in St. Louis County are celebrating.” The union said Bell was putting the “livelihoods of hardworking single parents in jeopardy.”

To Bell, the child support policy, like his decision to end cash bail for misdemeanors, is consistent with his promises to the voters who elected him. “My guiding philosophy is that we cannot and will not prosecute poverty or operate the courts as debtors’ prisons,” he wrote in a Facebook post trying to clarify some of the rumors. “This type of misuse of prosecutorial discretion is why I ran for office in the first place. As we develop our final policies we will do exactly as promised: This office will no longer prosecute or recommend jail time solely because of someone’s lack of income.’”

Bell struck a conciliatory tone when asked about some of the obstruction he’s faced since coming into office. He called the leak and misrepresentation of his policies “unfortunate,” but said he’s received support for his plan both internally and from law enforcement, as well as from the broader public. “There’s going to be some pushback, but overall I’m very excited and very optimistic that everyone is getting on board,” he told me. “I think we’re all in the same place. We want to make sure that people are treated fairly regardless of where they’re from or their socio-economic situation or what have you. I think that we want to make sure we’re not contributing to mass incarceration and that we’re helping decrease prison populations.”

Bell’s hardly alone in facing pushback from law enforcement: Other reformist prosecutors have had to deal with a fair amount of resistance. In Philadelphia, the Fraternal Order of Police has gone to war with Krasner, most recently by suing him over his decision not to call on a list of police officers to testify in court who had a history of lying and racial bias. In Massachusetts, the National Police Association filed a wide-ranging bar complaint against Rachael Rollins, the newly elected district attorney of Suffolk County, which includes Boston, before she was even sworn in. And in Florida, former Gov. Rick Scott transferred more than two dozen cases from the jurisdiction of State Attorney Aramis Ayala after she pledged not to seek the death penalty. (Ayala sued Scott over the move, but the state Supreme Court sided with the former governor.)

“Watching local prosecutors align themselves so closely with the Fraternal Order of Police shows why these elections are so important,” said Rashad Robinson, executive director of Color of Change, which focuses on black voter engagement. “For so long, prosecutor offices did not believe that they had to serve the communities. In fact, many of these offices saw black communities as enemy combatants.”

In St. Louis, where the Ferguson protests sparked long-due debate about the area’s segregation and racism, resistance to Bell’s reforms was seen as evidence of just how badly that change is needed.

“Oppression here really tends to be intransient,” said Simmons. “As hard as we push, the opposition will reorganize in whatever way they possibly can.”

“We knew the police officers would act a certain way,” he added. “We didn’t expect to see the prosecutors marry themselves to literally the most racist police union in the region. They are sending a message when they do that.”

But while the police union’s opposition dominated headlines, some in law enforcement defended Bell’s efforts and called out critics for their biases. “The reality is … Bob McCulloch lost,” said Heather Taylor, the president of St. Louis’s Ethical Society of Police. Taylor noted that crime, including the murder rate, steadily increased under McCulloch’s watch, while police and prosecutors devoted resources to policing low-level offenses — criminalizing entire communities while failing to keep them safe. “We lock everybody up. But ‘Let’s lock them up’ has done nothing for our community,” she said. “At least give him a chance to do his job. He hasn’t been there a month yet. You gave Bob McCulloch a chance for 30 years.”

St. Louis County Prosecutor, Wesley Bell greets supporters during a Martin Luther King Jr. Celebration Event at the Monsanto Family YMCA on January 21, 2019 in St. Louis. (Photo: Michael Thomas for The Intercept)

Bell, left, greets supporters during a Martin Luther King Jr. Celebration Event at the Monsanto Family YMCA on Jan. 21, 2019 in St. Louis.

Photo: Michael Thomas for The Intercept

A Movement Born in Ferguson

If relationships between law enforcement and St. Louis County’s most heavily policed communities have not improved much since the Ferguson protests, what has profoundly changed is those communities’ resolve to make their institutions and elected officials answer to them.

Just days after Brown’s death, organizers used the Ferguson protests to register voters. For months after the killing, local town hall meetings were standing-room-only, and activists held voter engagement and civic education campaigns. In January 2015, after a grand jury had declined to indict Wilson for Brown’s death, and after prosecutors’ many missteps in the case were exposed, local activists staged a mock “black people’s grand jury” to educate residents about the grand jury process. Some of those who voted for Bell are now hoping he will reopen the investigation into Brown’s killing, a prospect he declined to discuss.

Bell’s election was a direct result of the political engagement that the Ferguson protests ignited in many people, but the bulk of the change happened in the community itself, said Kalambayi Andenet, one of many residents who were propelled into activism by Brown’s killing. “People now are talking about how we control our police,” she told me. “Those conversations weren’t happening before Ferguson but they’re happening on a regular basis now.”

“His election is a testament to the hard, hard organizing work of a lot of people who really pounded the pavement,” echoed Vernon Mitchell Jr., a Ferguson activist and professor at Washington University in St. Louis. “The point now is to make sure that while he has our support, we also hold him accountable.”

St. Louis County Prosecutor, Wesley Bell has breakfast with members of his staff at Bob Evans Restaurant on January 21, 2019 in Bridgeton, Mo. (Photo: Michael Thomas for The Intercept)

Bell, far left, eats breakfast with members of his staff at a Bob Evans Restaurant in Bridgeton, Mo., on Jan. 21, 2019.

Photo: Michael Thomas for The Intercept

Accountability to the communities they serve — and particularly the black, brown, and poor communities that bear the brunt of the justice system’s inequities — has had little impact on elected prosecutors’ careers in the past.

“What, often times, we have felt is that prosecutors were not nervous about how they treated black communities,” said Robinson. “We had to work to make them nervous.”

Color of Change launched a platform to track district attorneys’ records in an effort to counter the lack of transparency that surrounds their work; organized black communities across the country around local elections; and sought to influence the cultural debate about justice, including by connecting players in the justice system to Hollywood producers shaping the public’s understanding of how law enforcement works. For instance, Robinson said, the group connected Baltimore State’s Attorney Marilyn Mosby, who unsuccessfully prosecuted the officers responsible for the 2015 death in custody of Freddie Gray, to the writers of the show “Seven Seconds,” about a black teen killed by a police officer, “so they could actually see what a bail hearing looks like, and how the DA acts, and how the judge acts.”

The group got behind more than a dozen district attorney races across the country, but its larger goal is to empower those most impacted by criminal justice policies to shape those policies. “This is not about making heroes of prosecutors,” said Robinson. “This is about building a movement so that those in power realize that they are accountable to us.”

The post Five Years After Ferguson, St. Louis County’s New Prosecutor Confronts a Racist Criminal Justice System appeared first on The Intercept.