New Bedford PD unveils new policy for labeling gang members
October 21, 2021
Some six months after a Boston-based youth advocacy group released a critical report alleging the city’s police department over-polices Black people and youth in the city, the department announced a new policy for policing gangs and identifying members or affiliates. ... The New Bedford Police Department, like others, uses a “criteria list” to determine whether an individual is a gang member. Each criterion has a specific point value, and if individuals meet a certain number of points, they will be labeled by law enforcement as a gang member or affiliate. ... The new policy increases the minimum points needed to 20, which can be reached from 17 possible criteria, to be “verified as gang affiliated.” Some of the criteria have new point values that are at least half the value from those on the original list. ... Katy Naples-Mitchell, an attorney with the Charles Hamilton Houston Institute for Race & Justice, said the Boston Police Department also amended its policy in 2021 and now uses the term “associate.” Boston police currently use a 10-point threshold to verify someone as a gang associate, according to a policy document.
SJC overturns conviction due to limits of GPS data
June 3, 2021
Because the device’s ability to measure speed had never been formally tested, a judge should not have admitted evidence from a GPS ankle monitor that showed a defendant’s movements matched those of a suspected shooter, the Supreme Judicial Court has found. Prosecutors built their case in Commonwealth v. Davis on a somewhat wobbly three-legged stool...Applying “serious scrutiny” to technology is critical in cases like Davis, where the other evidence is circumstantial, raising the risk of a wrongful conviction, said Katharine Naples-Mitchell, staff attorney at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, which filed a joint amicus brief in Davis with the New England Innocence Project...Pointing to the court system’s evolving understanding of the limitations of cross-racial identifications and systemic racism more broadly, Naples-Mitchell noted that the SJC was more precise than prosecutors had been in distinguishing between braids and dreadlocks, which is the type of sweeping generalization that all too often inures to the detriment of Black and Latinx defendants.
Defense attorneys hope the Supreme Judicial Court’s recent decision on the constitutionality of a virtual suppression hearing winds up as just a footnote in history given the court’s concession that even the most fundamental of rights may be curtailed in response to the exigencies of a public health crisis...Katharine Naples-Mitchell, a staff attorney at Harvard Law School’s Charles Hamilton Houston Institute for Race and Justice, pointed out that the SJC was careful to narrow the scope of its ruling. “It’s a complex decision that I think is really limited to the moment that we are in. The court has built in a lot of qualifiers throughout the opinion, noting explicitly that it’s just limited to the COVID-19 pandemic,” said Naples-Mitchell, who co-authored an amicus brief in the case on behalf of the institute, Boston Bar Association and Massachusetts Association of Criminal Defense Lawyers.
Amid growing national awareness of the problems of racially biased policing, the Supreme Judicial Court will have a chance to weigh in on a tactic that is increasingly drawing scrutiny: the designation of someone as a gang member. The police say they use their knowledge of gangs to crack down on gang-related crime. But critics of police practices say the methods law enforcement uses to designate someone as a gang member are racially biased, and the designation then leads to aggressive over-policing, often of young men of color. Katharine Naples-Mitchell, of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, said gang membership “becomes a distorting lens through which all other facts are interpreted.” The SJC on Monday will hear arguments in a case stemming from a traffic stop in New Bedford, which has potentially broad implications for how police can use gang affiliation in making decisions about how to treat someone...The advocates say the criteria the police use to assign “gang membership” are unreliable and can include things like clothing color, social associations, and whether a family member has been murdered. Naples-Mitchell said the criteria also vary from city to city, illustrating how subjective they are.
Coalition asks SJC to review quartet of pat frisk cases
April 27, 2021
The Supreme Judicial Court in recent years has gone to great lengths to adjust the lens through which police interactions with people of color should be viewed. But the Appeals Court has not gotten the message, a coalition of criminal defense and community groups argue in a series of letters urging the SJC to grant further...The case bears at least a couple of the hallmarks of cases involving dubious pat frisks, according to the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, the New England Innocence Project, the Massachusetts Association of Criminal Defense Lawyers and others...But whether it is conscious or subconscious, the police tend to muddy the waters with the language they use, said Katharine Naples-Mitchell, counsel for the Charles Hamilton Houston Institute. In both Garner and Karen K., part of what the Appeals Court found justified the search was the defendants’ “bladed” stances as they walked away from police. That was interpreted as an attempt to shield a firearm in their waistbands. But the groups note in their letter that the police jargon “blading” “sounds far more intimidating, aggressive, dangerous, and intentional than the alternate descriptor, ‘turning away from.’”
Defense Perspectives on Virtual Hearing Inequities: Commonwealth of Massachusetts v. Vazquez-Diaz
April 12, 2021
Videoconferencing software, such as Zoom and Microsoft Teams, is increasingly used to facilitate access to the courts during the pandemic. While the software can bring physically distant parties together, not all connections are equal. A recent case in Massachusetts, Commonwealth of Massachusetts v. Vazquez-Diaz, highlights the potential inequities of virtual hearings...Agreeing that the case presented novel legal issues, the trial judge stayed the ruling to allow Massachusetts’ highest court to hear the appeal. A joint amici brief was filed by the Boston Bar Association, The Massachusetts Association of Criminal Defense Lawyers, and The Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. The Massachusetts Supreme Judicial Court held oral argument in December 2020 and, as of the writing of this column, has yet to issue its decision...While it is tempting to see virtual hearings as an inclusive solution for physical court access challenges, as Katy Naples-Mitchell, Esq. of the Charles Hamilton Houston Institute explains, existing societal inequities can be amplified by virtual technology. Judges may have quality broadband access and zoom-capable devices with large screens that enable them to see and hear all the hearing participants well. For others who appear before the court, what they see and hear may be qualitatively different.
A letter by David J. Harris and Katy Naples-Mitchell: Who counts when it comes to “mass shootings” and gun reform? The March 24 editorial “A new window for gun reform” misconstrued the crisis of gun violence. In particular, we take issue with the statement that “the last mass shooting incident in a public place was in March 2020.” Over the past year, if one defines a mass shooting as one in which there are multiple victims, there have been hundreds, more than in recent years, including at restaurants, gas stations, bowling alleys, and grocery stores. However, few have captured the national spotlight. Nearly 50 percent of these unprecedented yet unnoticed mass shootings have targeted Black people and communities of color. Evidently they don’t register when, as professor Charles Ogletree pointedly questioned more than 30 years ago, we “expect them to happen there.” According to data released in February by the Centers for Disease Control and Prevention, young Black men and teens are killed by guns at a rate 20 times their white counterparts. Black women and girls are also at highest risk: four times more likely to be killed than white women and girls. Stricter gun control laws won’t solve this public health crisis.
The number of prisoners in Massachusetts with active coronavirus cases has dropped to 13 from a high of 540 in December, according to data released this week. The number includes five inmates housed in state prisons run by the Department of Correction and eight held in county jails, according to a tracker run by American Civil Liberties Union of Massachusetts. Cases have been dropping since Massachusetts started to vaccinate people behind bars in January, becoming one of the first states in the nation to provide shots to prisoners...Katy Naples-Mitchell, a staff attorney with the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, worried that the drop in active COVID-19 cases could make people prematurely think the crisis is over. Some of the drop could be due to a slowdown in testing rather than an actual decrease in the number of people who are infected, she said, particularly in county jails. Naples-Mitchell also questioned state efforts to reduce prison populations. The number of pretrial prisoners in jails, for example, was actually higher in early March than at the same time last year. “It is true that counts are lower and more people are vaccinated. It is also true we don’t know about new strains," she said. "We are potentially looking at another wave of the crisis.”
More than half of workers in the state’s Department of Correction— about 3,000 — have refused a coronavirus vaccine, according to state data. The workers are part of the more than 5,400 correctional personnel and contracted healthcare staff employed across the state prison system. Corrections officials say some of the employees may have been vaccinated elsewhere and that the department is working to educate employees about the benefits of the vaccine. But prisoners advocates say the significant number of refusals reflect a weaknesses in a system that has contributed to the deaths of at least 19 people in the state’s prisons, with a population of about 6,500...Katy Naples-Mitchell, a staff attorney with the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, says correctional staff should be required to be vaccinated as part of their employment. At the same time, she says because of the lackluster number of vaccinations and an increase in COVID-19 variants, government officials should focus on reducing prison populations to stop the spread. Currently, there are more than 350 active cases of COVID-19 among prisoners statewide. “The state has a responsibility to make sure that people in its custody are safe,’’ she said.
Studying Justice Or Hurting It: The Fight Over A2J Research
January 26, 2021
Some defendants appearing in court in Dane County, Wisconsin, are given a risk-assessment score to reduce bias in decisions about bail and pretrial release. Other defendants in the same court — and even before the same judge — are not. The disparate treatment isn't because of discrimination or a lack of resources. It's because the defendants are members of two different groups in a scientific study. Randomized controlled trials like this one designed to evaluate the risk-assessment tool are the "gold standard" for research in most social sciences and in medicine, where they are currently being used to test COVID-19 vaccines, according to researchers. But similar studies in the field of access to justice have been few and far between, they say...In the Dane County study, Harvard Law School's Access to Justice Lab is evaluating the efficacy of a public safety assessment tool, which gives defendants a score to inform judges' pretrial bail decisions. Defendants are randomly selected to either be given the score before their initial court appearance or not, according to Jim Greiner, the lab's faculty director. Researchers then track defendants for two years to measure days spent incarcerated, failures to appear and new criminal activity, among other outcomes, to measure the impact those scores have on defendants, Greiner says...Activists, however, argue that we don't need to study reforms like doing away with pretrial detention or better funding public defenders to know that the absence of those interventions is harmful. "Abundant research already exists showing that pretrial incarceration causes harm to detained people and their loved ones," says Katy Naples-Mitchell, a staff attorney at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. "Denying a control group of people pretrial release, something we know will help them, and subjecting them to something we know hurts them in the interests of research is ethically insupportable."
After 17 years on parole in Massachusetts, Wayne Lane completed his parole in March of last year — at the start of the coronavirus pandemic. While on parole, Lane, 59, bought a house and began working to help others seeking release from prison on parole...Lane works with the group Families for Justice as Healing, which is among the more than 70 organizations that sent a letter to the Baker administration and legislative leaders Tuesday calling for reforms to the state's parole board to help prevent the spread of the coronavirus behind bars. The letter says while COVID-19 has affected 5% of the state's population, 21% of those incarcerated have tested positive. The signed groups recommend several steps state lawmakers could take, because, the letter says, the board will not act on its own... "The letter lays out policy proposals that should be low-hanging fruit: diversify and expand the parole board; eliminate technical revocations; track comprehensive data on race and ethnicity; above all release more people, release people on time, hold timely hearings, and issue timely decisions," said Katy Naples-Mitchell, with Harvard's Charles Hamilton Houston Institute for Race and Justice. "The proposed reforms are common-sense, evidence-based proposals, and the bare minimum the commonwealth must do to create a functioning parole system."
COVID Surges In Mass Prisons, Still No Plan To Decarcerate
December 7, 2020
For the second time since March, Prisoners’ Legal Services (PLS) is arguing against the Massachusetts Department of Correction (DOC) in the uphill battle to depopulate state prisons. Neither DOC officials nor Gov. Charlie Baker has put forth a plan to decarcerate despite litigation, legislation efforts, and soaring COVID cases in correctional populations. By Dec. 2, per a Special Master’s Report commissioned to fairly assess the situation from all angles, Mass prisons, jails, and houses of correction had four times the rate of infection as the general population of the Commonwealth. While the number of COVID cases in the state has risen to 3.6% of the general population, a total of 1,864 out of 13,049 prisoners—a whopping 14%—have been infected with coronavirus since March. (As of this writing, in the houses of correction and jails it is actually 1 in 5.5 prisoners who have been infected.)... While there have been some releases due to a court order from the CPCS lawsuit, the majority of releases were those awaiting trial and not sentenced prisoners. “The remedy is not working,” said Katherine Naples-Mitchell, staff attorney at the Charles Hamilton Houston Institute for Race and Justice. She added, “Jail populations are actually higher now than the second week of April. Real reductions in county populations have been from prisoners wrapping county sentences.” In other words, people are getting out because they’ve done their time—not because the state is acting prudently.
2 Mass. Prisoners Hospitalized With COVID-19 Die A Day After Being Granted Medical Parole
December 1, 2020
Criminal defense attorneys are criticizing how the Massachusetts Department of Correction handles medical parole cases and reports prisoner deaths from COVID-19 following several outbreaks of the virus inside state correctional facilities over the past six weeks. The attorneys pointed to the deaths of two prisoners who were granted medical parole only after they were hospitalized with COVID-19. In both cases, the men died less than a day after they were granted medical parole...Even without releases, advocates said the state could be more aggressive in preventing the spread of the virus in its correctional facilities. They pointed to an agreement reached this month with the correction officers' union to regularly test officers, but noted it does not apply to county jails. The correction officers' union did not respond to requests for comment. "I think that this is definitely a failure on the part of the state," said Katy Naples-Mitchell, a legal scholar at Harvard Law School. "The fact that these outbreaks are happening was avoidable had there been regular surveillance testing of staff, which are the primary vectors of bringing an infection into a largely closed environment. So the idea that there wasn't testing happening on a regular basis and that it took eight months for the DOC to get the union to negotiate on that is really disappointing, frankly, and an abdication of duty to people who are in the state's custody."
Bar Argues For In-Person Hearing Rights At Mass. Top Court
December 1, 2020
The Boston Bar Association has urged the Massachusetts Supreme Judicial Court to hold an upcoming hearing in a criminal case in-person, arguing virtual hearings can cause unconstitutional disparities for low-income communities and people of color. In a 40-page, Nov. 20 amicus brief, the bar argued that virtual hearings unfairly impact minorities and low-income households, compounding hardships they already face in light of the COVID-19 pandemic and systemic racial injustices. "Ensuring that defendants and communities of color have full and equal access to our courts and receive the protection of their fundamental constitutional rights is critical to our racial justice work, particularly during a global pandemic when they and their loved ones are specifically at heightened risk of death," the brief says. The bar filed its amicus brief in Vazquez Diaz's appeal of a trial judge's ruling rejecting his request that a hearing on evidence suppression be held in-person rather than online...Representatives for the district attorney's office and counsel for Diaz didn't immediately respond Wednesday to requests for comment. The Boston Bar is represented by Katharine Naples-Mitchell of the Charles Hamilton Houston Institute for Race and Justice, Harvard Law School, Chauncey B. Wood of Wood + Nathanson LLP and Meredith Shih of Harvard Law School.
Confronting allegations of racial profiling in Massachusetts
October 14, 2020
Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice recently co-authored amicus curiae briefs in two Massachusetts Supreme Judicial Court cases with significant impact on racial profiling.
Grappling with ‘driving while black,’ SJC offers help
September 18, 2020
The Supreme Judicial Court on Thursday issued a ruling that will make it easier for defendants to prove they are the victim of illegal racial profiling when pulled over during a traffic stop. The decision, hailed as a major victory for advocates for racial justice, came on the same day the court released an opinion building on a landmark 2016 decision in which the SJC held that flight is not evidence of guilt when a black man flees police because he may have reason to believe he is being racially profiled...Under legal precedent until now, a defendant trying to prove that he was subject to an illegal racially-motivated traffic stop had to rely on statistical evidence showing racial bias by that officer or in that jurisdiction. But that evidence is hard to come by, and the justices concluded, in a decision written by Justice Frank Gaziano, that it was too high a burden to meet. Under the new precedent set by the SJC in Thursday’s case, a defendant must establish “a reasonable inference” that the officer’s decision to initiate the stop was motivated by race, based on specific facts from the circumstances surrounding the stop. This could include the officer’s past patterns of enforcement, whether the officer was a traffic cop, whether the officer followed the car for an extended period of time, how the officer behaved during the stop, how serious the offense was, and whether the officer adhered to departmental policies...In the precedent-setting parts of the unanimous, 34-page ruling, written by Gaziano, it found that age – although not race – can be considered in deciding when the police are considered to have “seized” or stopped a person. The court found that a young person is more likely to feel coerced by the police early on in their interaction, but the justices did not reach a conclusion on whether race should be considered...Katharine Naples-Mitchell, an attorney with the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, who wrote a brief in the case, said she is disappointed that the court did not allow for the use of race in determining when a seizure occurred. But she said it is a new development that the court recognized that evasive behavior by a black person may be justified because “black people may be more likely to feel uncomfortable around police because of a history of racism and racial profiling.”
Revocation Nation: Reincarceration for Technical Parole Violations in the Age of COVID-19
September 17, 2020
Jonathan Best had been out of prison for two years when he ended a rocky relationship with his girlfriend. Like many men and women on parole—a form of early release, in which the remainder of one’s sentence is served in the community—he suffered from depression and anxiety. At the time, Best often had to choose between paying his monthly $80 parole fee and putting food on the table. He worried that if he got pulled over for speeding, a warning would go straight to his parole officer (PO). Like many who face the stress of reentry from prisons in the US, Best sometimes coped by using drugs or alcohol. He rarely felt free. Best never found out exactly what happened on Aug 16, 2012, the day he was sent back to prison. Nor does he know what part his ex-girlfriend played in his return, though Best suspects that she called his PO and told the officer that he was doing drugs. Unofficial protocol was for Best’s PO to appear at his doorstep; supervision often means giving up one’s Fourth Amendment right to privacy in one’s home. But on that occasion, his PO surprised him and demanded Best come to the parole office. When he arrived, Best was tested for drug use on the spot...Attorney Katy Naples-Mitchell said in a phone interview that “no one should have their liberty restrained based on the fact that they were trying to meet their parole conditions and life intervened.” The attorney and legal fellow at the Charles Hamilton Houston Institute of Race and Justice at Harvard Law School added, “In this country, we have the presumption of liberty.” As the nonprofit Prison Policy Initiative reported about revocations in 2018, there is often an impulse to extract those on parole from the community “at the first sign that they are struggling.”
Massachusetts House leaders receive hundreds of emails with testimony on Senate policing bill, days before end of legislative session
July 20, 2020
Massachusetts House leaders reviewing the Senate policing bill received hundreds of emails Friday with testimony ranging from police officers opposing changes to qualified immunity to civil rights activists who say the bill does not go far enough to tackle institutionalized racism in law enforcement. The Senate approved a massive omnibus bill early Tuesday after an all-night session debating the provisions, including how the bill would change qualified immunity standards when misconduct is alleged...Katy Naples-Mitchell, legal fellow at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, urged the legislature to extend its session beyond July 31 to ensure the omnibus bill includes provisions that involve the input of people affected by institutionalized racism. One concern Naples-Mitchell raised was the proposed temporarily facial recognition ban exempting the Registrar of Motor Vehicles. “The Registry may continue to suspend people’s licenses using a technology we know to be racist and unreliable, which the chief of police in Detroit says misidentifies people 96% of the time,” Naples-Mitchell’s testimony states. Perhaps one of the biggest concerns she raised was that the bill would create several commissions and councils to study problems she said are already known to exist, based on existing data and research. “These commissions are nothing but a delay tactic and a way to preserve power for an elite professional class, putting off for tomorrow what this body refuses to do today,” Naples-Mitchell wrote.