probation – RI Future

December 3, 2015December 3, 2015

Four moves to make on probation reform, courtesy of DARE

It is difficult, if not impossible, to pursue the goals of punishment at the same time as rehabilitation and reentry.

Probation is a punishment, and Rhode Island is a national leader in this form of punishment. As noted recently in the Providence Journal, the Governor’s workgroup is looking at ways to amend the state’s practices. Hopefully, any suggestions that pass the legislature or Department of Corrections are substantial and impactful. The crux of this, however, will depend on whether the state has an appetite to reduce punishments and thereby increase rehabilitation and reentry. Keep in mind that some people get sentenced directly to probation while others serve that sentence following a stint in prison.

As a former member and organizer with Direct Action for Rights and Equality (DARE) who has been serving a punishment for 22 years, I can tell you that many Rhode Islanders have been thinking long and hard about this topic, long before anyone could imagine a reduction in punishments for any offense. People are hampered in their attempts to live a productive life because of the crimes we have committed in the past, as there is a natural tendency to exclude us; however, this is reinforced by a probation status that serves to deny jobs, deny homes, deny education, and deny opportunities to help others.

DARE is the only membership-based grassroots organization in Rhode Island with a focus on criminal justice policies. Since forming our Behind the Walls committee in 1998, we are the only policy organization with formerly incarcerated people in leadership, and played a critical role in re-enfranchising people on probation and parole, reducing prison phone rates, ending mandatory minimum sentences, unshackling pregnant women, reducing employment discrimination with Ban the Box, ending probation violations based on dismissed new charges, and (soon) ending blanket discrimination in public housing.

As community members who are overwhelmingly impacted by criminal justice policies, we want to generate stability, support individuals and strengthen our community. Our membership is reflective of the low income communities of color that have the fewest resources to deal with unemployment, homelessness, mental illness, physical health, and substance abuse; i.e. the primary drivers of mass incarceration. Our community members are often both victims and perpetrators of crime, generally excluded from victims’ services once we are convicted. We live this issue, multi-generationally, in a state that has issued over 150,000 prison ID numbers in recent decades.

Ten years ago, DARE took an analytical approach to probation reform in Rhode Island. We knew the stories and lived the lives of people on probation. We recognized patterns of structural discrimination, financial hardship, and mental anguish that make it hard for any normal person to succeed. We recognize that probation is punishment, and the lengthy punishment of our family members, people living in our homes and raising our children, has been a disaster.

DARE articulated a four-point interlocking probation reform platform:

Limit sentencing on violations to the time remaining on probation (Rule 32(f)). Thus, if one has a single day remaining on a 10-year probation term, they can only be sentenced to a single day. Whereas the status quo is that a judge may instead impose an entire 10-year suspended sentence, we believe this is not only morally flawed but also exceeds (in some cases) the statutory limits on certain crimes.
Eliminate the 120-day limitation on filing a motion for a sentence reduction (Rule 35). Circumstances rarely change to justify a reduction within four months of the original sentence, yet when someone is serving a ten or fifty year sentence- they will often change over the years. Although the DOC can put some people on low supervision or banked status, their sentence has not ended for any of the structural discrimination purposes such as housing, employment, or volunteering. Nor are they free of the punishment’s mental and spiritual impacts.
Extend Good Time to people on probation and parole (R.I.G.L. §42-56-24). This adjustment would have several effects, by (a) incentivizing good behavior, (b) naturally shortening sentences, and (c) allow probation officers and/or judges to take away earned Good Time for lower level infractions, similar to ACI discipline boards.
Allow for violations to be dismissed where the new underlying charge is also dismissed (Rule 32(f)). This proposal passed the legislature after several years of advocacy. It was particularly frustrating when few people believed it was happening, and momentum shifted after Rep. Patrick O’Neill (a criminal defense attorney) interjected during a committee hearing that it is true: sometimes a new allegation comes along and within a few weeks the prosecutor offers a “deal” to plead guilty. If they don’t take the deal, then a maximum sentence on the probation violation is guaranteed. Defendants believe that guarantee, knowing the extremely low standard of guilt, eroded rules of evidence, and notorious cases such as Richard Beverly and Meko Lincoln. Both involved the dubious testimony of police officers ultimately revealed as criminals themselves. Most are “smarter” than Richard and Meko, accepting a few years in prison rather than risk lengthy violations.

These four reforms would reduce the number of people on probation, reduce the number of violations, incentivize good behavior, and allow people a better chance at a second chance.

There is no such thing as a second chance, a fresh start, or anything of the like while on probation. There has long been massive investment in low-income communities, however it has come in the form of police and prisons. Millions of dollars are spent in each neighborhood, although none of that money is an actual local investment. We are not widgets for processing, nor animals for study, nor wetlands to be saved. We are parents, children, brothers, sisters, workers, voters, and even policy experts.

We want a criminal justice system that can protect us without hurting us, where cages are a last resort, where punishments can end, and people can overcome their mistakes. We are the number one stakeholder in reducing overall crime and punishment, and reinvesting resources into affordable housing, jobs, education, along with a health care approach to addiction and mental illness.

I’ve long acknowledged that my sentence will never end, and do not take issue with that. I left Rhode Island to get an education, as my applications were rejected by Brown, URI, RISD, Salve Regina, Providence College, and Roger Williams Law School. Furthermore, several arts organizations, mentorships, and the Training School would not let me volunteer. Regardless of my own saga, Rhode Island needs to look at the systemic issues, and not isolate a few cases. To that end, the Governor would be well served to pick the brains of people who have lived these issues, from cradle to grave.

April 8, 2015April 8, 2015

Prison policies put probation and vocation training at odds

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They say when we someone is sentenced to prison it is for rehabilitation. Yet I will be eligible for parole before I am eligible to participate in one of the vocational programs at the ACI. Here in medium security, there is a carpentry, HVAC and barbers’ apprentice program. But prison policy says only inmates with fewer than three years left on their sentence can participate and I’m serving a seven year sentence on a drug charge.

We know vocational programs reduce recidivism, but I must wait four years before I can enroll in such a program. I can go see the parole board, get parole, and not have learned a trade or skill before re-entering society. Where’s the rehab?

The three-year-and-under policy denies crucial opportunities for job training. When inmates, like everyone, are properly trained, it becomes easier to attain steady employment. This will help us not walk back through this revolving door. By not coming back and working, we can provide for our families and become a positive role model for our children, and also become a better person, father, husband, son, brother, uncle, and law abiding citizen to our family, friends, and community. Vocational programs should be expanded to include electrical, plumbing, welding, culinary arts, fitness training, auto mechanic training.

But the three-year-and-under policy also denies a critical opportunity to show we are ready to reenter society. Parole is sometimes contingent on participation in prison programs, and some inmates aren’t eligible for prison programs until after they are eligible for parole. How else do we show the Parole Board, which represents society, that we are ready to reenter?

Staff members’ efforts are being made within the bounds of the existing policy. A counselor may push for an inmate to participate in some programs, like mine did. Right now I am currently in General Sociology, Men’s Trauma and a few other programs that don’t give so called ‘good time credit’ that anyone may attend. To his credit, Lieutenant Lanoway does a good job at handling the programs, but the three-year- and-under policy makes it impossible for inmates like myself to participate in a vast majority of programs.

This post is published as part of the Prison Op/Ed Project, an occasional series authored by CCRI sociology students who are incarcerated at the Rhode Island Adult Correctional Institute. Read more here:

‘Prison Op/Ed Project’ teaches civic engagement, writing – Meghan Kallman
Does racial injustice still exist? Look at our schools – Aaron Carpenter
Rhode Island charges felons absurdly high court costs – Christopher Nemitz
Public school students and inmates need more vocational training – Darnell Hie

September 2, 2014September 2, 2014

Ruling may cost RI more time and money for convictions

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For most Rhode Island residents, plea bargains in criminal court are poorly understood. “They let him off easy,” some may say. Others may wonder why judges are not ordering the sentences unilaterally, and wonder why the defendant gets a say in the “bargain” process at all. The “If it bleeds, it leads” media have fed a culture of convictions, where criminals are “coddled” if getting nothing short of gruel before the lash. The inner workings of the system reveal that the bargain is generally for the sake of the State, not the defendant.

Providence Superior Court Judge Lanphear recently ruled that the prosecutors and defense attorneys must tell judges of all plea agreements, although the top judge (Presiding Judge Alice Gibney) stated that Lanphear’s ruling does not apply across the entire court system. What impact does that have on a defendant, the one who is afforded constitutional protections and attorney-client privileges?

How many past and potential defendants are in Rhode Island?

Not all criminal defendant’s pass through the Adult Correctional Institutions. Many will be arrested and released from the police station, so it is difficult to put a number on exactly how many people have been defendants in Rhode Island, a state of just one million people. The ACI has admitted over 150,000 people who were initially held without bail on a criminal charge. 90,000 of those people are over the past thirty years. But this is not all, because a decade ago the ACI began separately identifying people who were first admitted as probation violators; meaning, they had previously been arrested and convicted without having gone through the ACI. Now a subsequent issue (it could be a criminal allegation or as little as missing a meeting) has them being incarcerated. That tally is over 61,000.

ACI number 560421 — ACI unique identification numbers, showing both number systems (Screenshot: Aug. 29, 2014).

Where 210,000 people hold unique prison identification numbers, perhaps the plea bargain is not so mysterious after all. Those people have families as well, so the number expands even further. Realistically, however, only a few thousand of those people really know how the “deal” works. The rest, as well as those of you not yet to get an ID number, might only figure it out when it is too late.

Having confidence, and confidentiality, with a lawyer.

Most defendants I’ve known don’t trust their lawyer, even the hired lawyers. This is not out of the norm with America’s disdain for lawyers, generally, despite continually electing them to political office. (Caveat: some of my best friends are lawyers.) I should point out that I’ve known thousands of defendants and served as a consultant on hundreds of cases for free. They trusted me because I had a reputation for confidentiality and nothing to gain, not a paycheck nor favor with my boss. Many defendants believe that a lawyer, whether privately retained or public defender, is just going through the motions. The defendant’s goal is to be in the “good” stack of people, those the lawyer “fights” for rather than those the lawyer “sells out.” They often believe a plea negotiation is “Listen, I’ll let you get this guy for twenty years but you gotta let these two guys get out on probation.”

Judge Lanphear is playing right into the conspiracy fears of defendants. He is making the attorneys into employees of the Court, rather than the client. The judge is adding extra players into the negotiation. Rather than parties A and B reach an agreement that C ratifies, he would like parties C and D to be privy for the ratification. Adding parties and expanding the morass to navigate will require more delays, status conferences, pretrial hearings, and time spent at the ACI. A 2012 legal victory in the U.S. Supreme Court held that defendants need to be told of all plea offers made by the government, ensuring full communication between attorney and client, but this is where the openness ends. An attorney has no duty, on behalf of a client, to inform judges (including Judge Lanphear) of a guilty plea in other courts. To hold those attorneys in contempt is to rewrite the code of ethics.

The Power of the Plea Bargain

People often forget that a defendant gives up quite a lot when pleading guilty, and provides significant relief to an overburdened criminal justice system. Judges and lawyers rarely mention the lifetime of discrimination (including legal restrictions) following a guilty plea, and rarely explain how easy it can be to fall within those 60,000 probation violators returning to the ACI- this time with practically no constitutional protections as the rules of evidence are far more lax and the burden of proof is merely based on a judge’s reasonable satisfaction that a probationer failed to keep the peace. Many times the only evidence comes from the arresting officer. It is for this reason we needed to amend the law so that people could not be violated and given prison time for charges that are ultimately dismissed. Of course the court, who years ago said “change the law,” are not satisfied the law was changed. Nor is the Attorney General, despite the fact that the predecessor who wrote the law supported the reform. (See: State v. Nelson, pending before the RI Supreme Court).

Defendants may eventually “crash the system,” when too many people refuse too many plea bargains. In New York City, for example, each of the 600,000 people who were infamously Stopped and Frisked by the NYPD, where no contraband was found, could have filed a harassment and/or civil rights complaint. The number of plaintiffs and cases were twice the 300,000 cases New York City courts initiated last year. The sheer volume would be a logistical nightmare, and the court would have begged them to consolidate into one single class action. That class action, coincidentally, proved victorious for the plaintiffs.

Defendants in Rhode Island have little faith in the system. Most of those who have done wrong are prepared to admit as much, which is one reason cases rarely go to trial. Prosecutors are even more overwhelmed than defense attorneys as police departments continue to funnel people into the ACI and the courts. Rhode Island public defenders have consistently had a policy of presenting several cases “ready for trial,” while the state then requests a continuance. A good attorney will speak with witnesses, review crime lab reports, and request court funds for expert witnesses. But rarely is that done on either side. It can all be avoided by going straight to “The Deal.”

Here is an example of The Deal, from State v. Isom, 62 A.3d 1120, 1123 (R.I. 2013):

“THE COURT: Okay. Thank you. Mr. Isom, did you have plenty of time to discuss this with your lawyer.

“THE DEFENDANT: Yes, ma’am.

“THE COURT: And you understand that you have a right to the, a hearing on these violations?

“THE DEFENDANT: Yes, ma’am.

“THE COURT: And do you wish to give up your right to that hearing today and admit to the violations?

“THE DEFENDANT: Yes, ma’am.

“THE COURT: Okay. Understanding that you’re being sentenced to five years to serve on those violations, retroactive to the date of December 27th of last year?

“THE DEFENDANT: Yes, ma’am.

“THE COURT: Okay. Defendant admits and is declared to be a violator. That sentence just mentioned is imposed.

“THE CLERK: Five years, is that coming off one of the specific cases * * *?

“[THE PROSECUTOR]: That can come off of [the 2000 case], and that would leave a balance of eight years suspended with probation on that case. And the [2007] case may be continued on the same.

“THE CLERK: Thank you

“THE COURT: All set.”

In this case, the Defendant returned to court because he mistakenly (yet reasonably) believed that the new allegations and the probation violation would be all “wrapped up” in one deal. That is the common practice, to wrap it up prior to the probation violation hearing that few (if any) defendants believe they can win- regardless of their innocence or guilt. He gave the system what it wanted, efficiency, in exchange for very little.

The longer a defendant is held without bail at the ACI, the more leverage against him or her to take the deal. The more suspended time looming over their heads, the more pressure to take the deal… or get slammed at the probation violation hearing. A defendant will often have two different judges: a Superior Court judge to oversee the felony arrest, and a District Court judge overseeing a lesser probation violation they face. Defendants may find themselves in front of one judge with the opportunity to “wrap it all up” within one deal. This saves everyone considerable time and money. Judge Lanphear is proposing to nullify that, creating more work and expending more time for everyone.

Will the System reform or collapse?

Those who read my blog know that I have a bias, but may also respect that I bluntly call it like it is. I have long felt that the demise of the criminal justice system as we know it will come if it collapses under its own weight. I do not foresee defendants taking collective action to crash the system, but they do not need to. The system already collectivizes their actions, as each unique identifying number requires judges, lawyers, bailiffs, clerks, sheriffs, marshals, police officers, and prison guards to process. Recent years have seen some take a reform approach due to the tax burden, changing attitudes on drug use, and cameras capturing abusive treatment that went disbelieved for far too long.

I wouldn’t read too much into Judge Lanphear’s ruling. When the rubber hits the road, including if his decision is reviewed by the Rhode Island Supreme Court, the system requires considerable latitude for negotiating the deal. It is a system that every Rhode Islander, based on the numbers, should be familiar with; someone in your family could be next.

June 16, 2012June 17, 2012

Pot Decriminalization in RI: Just a Starting Point

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Rhode Island became the latest state to lessen the punishments for small amounts of marijuana, popularly known as “decriminalizing” it. Six years ago, there were many doubters and few reformers on board. Yet it appears America is fed up with many facets of drug policy. Organizations that have been seen as fringe radicals, such as Direct Action for Rights & Equality (DARE), are seeing their proposals become mainstream positions. This DARE, not to be confused with the other D.A.R.E., has consistently looked to change the misguided (or malicious) attempt to curb drug use through prisons. Once this seemingly impossible reform became inevitable, the members of DARE realized their work was all but done.

A key element to the new law is that people on probation or parole will not be violated and sent to prison. People without actual experience in the criminal justice realm had to be educated on this element. Cynically enough, those who wanted to pass this measure based on saving money (by less incarceration) had to be shown that most imprisonments are due to such violations. Remarkably, the Attorney General stuck to their story that nobody is sent to prison for marijuana… even as evidence and personal stories came forth.

It is likely that the Dept. of Probation and Parole will develop new guidelines for what to do when someone receives a $150 “pot ticket” (which doubles to $300 after 30 days, and to $600 after 90 days). They will likely need to pay even more to attend a mandatory drug program, and failure to do so will result in a violation. This may ultimately prove challenging for people who are unemployed or barely scraping by, as are many people released from prison.

There should be no surprise that the bulk of marijuana tickets will disproportionately come from highly policed areas, and disproportionately affect People of Color, who represent about two-thirds of Providence. DARE, ACLU, PrYSM, and others have consistently presented evidence of racial profiling in Rhode Island that has a similar ring to the NYPD’s “Stop and Frisk” program that is currently under scrutiny by the Justice Department and Gov. Cuomo. Marijuana decriminalization, however, did not gain momentum due to the disproportionate impact on the 21% of Rhode Island residents who are Black, Latino, or Asian. It passed because 12% of Rhode Islanders are willing to admit they smoke pot. The Providence Journal article poll tallies 29% of people who “already” smoke.

When former RI Republican Minority Leader Bob Watson was arrested in Connecticut last year, just prior to a hearing on this bill, some wondered what would have happened if Watson was pulled over in his hometown of Portsmouth… or if he had been before. Watson’s public defense was that he needed the pot for his ailments, i.e. he needed it to get by. Many of that 12% have said the same. I have never encountered a person who wants their friend or family member to be disabled through drug use of any kind, and so my last words to the legislators on the matter were, “if you caught your son, daughter, or colleague with marijuana, what would you do? Whatever it is, what’s good enough for your son, daughter, or colleague is good enough for the rest of Rhode Island.”

Nobody believed we could eliminate mandatory minimum drug sentences in Rhode Island. But we did. Nobody believed we could pass a law that would nullify a probation violation prison sentence if the new charges were ultimately dismissed. But we did. When we started down this road, few believed Rhode Island was ready to reduce penalties even on marijuana… and now some politicians openly call for regulation and taxation of this plant. The push to create a Study Commission (often the kiss of death) by Senator Josh Miller was crucial. It allowed reports such as the study by Harvard economist Jeffrey Miron to gain prominence and dissemination through Open Doors, a service provider for the formerly incarcerated. The study commission put major advocacy partners on notice, such as Drug Policy Alliance, Marijuana Policy Project, and Law Enforcement Against Prohibition- and let them know that we are making change in this tiny little state.

What is next in drug policy other than pushing for full regulation, and a potenial $300 million in economic impact? It is worth noting that marijuana has been a gateway drug to a criminal record, and once someone is on probation they no longer receive the full protection of the 4^th, 5^th, and 6^th Amendments; they are essentially guilty until proven innocent. For those who want to save dollars and those who want a rational or humane approach to drug policy in Rhode Island, we can look at ways for people to get out of what is one of the most regressive probation schemes in the country. RI is one of the leaders in percentages of people on probation and the lengths of sentences.

One proposal we put forth is limiting the probation violation to the time remaining on probation. Currently, someone with a 10 year suspended sentence can be given that term if violated on the last day of the 10^th year. This often violates the statute of limitations, carrying a punishment beyond what is permissible by law. Another proposal is to allow probationers and parolees the ability to earn Good Time credits off their sentences. Ultimately, the only ones who would receive credits are those “doing the right thing,” and it would allow Probation Officers more flexibility in curbing inappropriate behavior, short of incarceration. Another proposal, which gained momentum this year, is a Good Samaritan law that would not punish a drug user who calls 911 to save the life of another. This places a higher priority on life than on imprisoning those who are generally addicted to heroin (the most common form of overdose).

No matter what direction activists and politicians go after this key victory, it appears certain that the public is far ahead of the politicians on this matter. It is high time that harmless behavior be treated as such in the courts. It is also time for us to find medical solutions for health problems such as addiction, rather than putting someone in a cage until later.

Bruce Reilly is a member of DARE, Rhode Island’s only organization committed to (among other things) the development and empowerment of those directly impacted by the criminal justice system. He testified on this bill in both the House and Senate, along with other DARE members, and is a national steering committee member of the Formerly Incarcerated & Convicted People’s Movement. He attends Tulane University Law School, and is currently a legal intern at the Brennan Center for Justice.