Wednesday, October 2, 2019
A graphite drawing stands out among the accolades and art that line the bright, two-toned blue walls of Hinds County Circuit Judge Faye Peterson's chambers. It depicts four women—Peterson, Tomie Green, Denise Owens, Patricia Wise—with block letters spelling out "First Ladies." Peterson, who was sworn in last year, is commemorated in the drawing for being the first black woman to serve as Hinds County district attorney, from 2001 to 2007. Previously, Peterson had worked in legal services, as a public defender and assistant district attorney for long-time and controversial Ed Peters.
"I saw how everything was inter- related," Peterson told the Jackson Free Press in her chambers as she reflected on her trajectory within the Hinds County criminal-justice system.
With former Jackson Police Chief Lee Vance the likely new sheriff and new District Attorney Jody Owens assuming office in January—both vowing to reform the pretrial detention system in Hinds County—the conversation shifted toward Peterson's past and philosophy as prosecutor.
"When I took office ... Hinds County didn't have a pretrial intervention program. ... We had a (county) jail that was under a consent decree. They were housing people for worthless checks for years," Peterson said. "So the first couple of years for me were about dealing with the things you don't want to deal with."
One priority was to reduce the pretrial jail population, both to protect the rights of victims and defendants, who have a right to a speedy trial, but also to ensure that her office could focus resources on prosecuting more violent, complex cases. Reducing the jail population also saved the county money.
Peterson appointed a criminal-court facilitator who communicated with other agencies to ensure that all evidence was submitted in a timely fashion. The facilitator tracked who was in jail, for how long, for what crimes—and if there was a delay, what was causing it. Peterson's office also enacted vertical prosecutions, which meant that the same prosecutor oversaw an entire case from start to finish.
Peterson streamlined communications between law enforcement, which conducts investigations, and the district attorney's office, which receives those investigations. Law enforcement could turn to assistant district attorneys, who answered questions about specific crimes during the critical investigation period.
Eventually, a judge lifted the consent decree. But Robert Shuler Smith defeated Peterson in 2007, after a contentious campaign and with public support by former DA Peters and then Mayor Frank Melton. By the time she left the job, Peterson's office was resolving most non-violent cases within six months of a crime, from initial arrest to disposition, she said. County records from 2006 also showed an 84% conviction rate for cases that did go to trial.
"It was because I put rules in place," Peterson said. "It worked well because it was done discreetly, never to embarrass anybody, just to ask the questions," she said.
585 Days Until Trial
Within the first nine years of her successor Smith's 12-year administration, the U.S. Department of Justice ruled that the county jail violated the constitutional rights of detainees through lengthy pretrial detention. In 2016, the Hinds County Detention Center was again placed under a federal consent decree.
A 2015 BOTEC Analysis Corp. report on crime and the judicial and jail systems in Hinds County sheds light on the backlog. Funded by the Mississippi Legislature and contracted by Attorney General Jim Hood, the researchers found that it took around 585 days for felony cases to move to disposition within the Hinds County Circuit Court.
"Practices in the Hinds County courts are consistently the opposite of those shown to make cases move faster," the report stated. Systemic problems involving the district attorney's office, judges and law enforcement caused the delays, BOTEC found, detailing a lack of transparency in Smith's office.
It is unclear how many of the people currently in the Hinds County jail are held pre- or post-indictment or how many are waiting for mental-health evaluations. But May 2019 data collected by the MacArthur Justice Center at the University of Mississippi School of Law show that, on average, people in the county are incarcerated for 469.3 days and up to 5.8 years.
Smith's office did not cooperate with BOTEC, so there is no data on its efficiency. Nevertheless, in analyzing criminal cases that took more than one year to resolve within the Hinds County Circuit Court in 2014, BOTEC found that 36% of cases ended with a non-guilty verdict, and only 2% total actually required trial.
The report also found flawed and outdated case-management systems within the courts, even citing loss of documents and "failure to docket papers promptly and accurately." Journalists from this newspaper have seen disorganized piles of files in the private hallways of the courthouse, and it is not uncommon historically for investigative and police files to turn up missing.
Peterson had tried many of the recommendations in the 2015 study when she was lead prosecutor: vertical prosecutions; installing a liaison between the DA and law enforcement agencies; and assigning prosecutors to certain crimes.
DA Smith did not respond to BOTEC researchers, making it difficult to know which of the recommendations he did or did not try during his tenure.
He also did not return a call for this story by print time.
The DA's Obligation
"When I [talk] about the backlog in our jail, or the kids being prosecuted, our system is not working. ... And I've realized that we have a unique opportunity to take a different approach to criminal justice," Owens said in his campaign headquarters in downtown Jackson.
Owens, a former attorney for the Southern Poverty Law Center, ran for district attorney on a reform platform. "I think the DA has an obligation to make sure that individuals are not in jail because of debtor's prison," Owens said, vowing instead to "[make] sure there's not an overcrowded prison" together with the new sheriff.
As a driver of 95% of the increase in the United States' jail population within the last 20 years, pretrial detention has come under increasing scrutiny. The Bail Project found that 90% of people who are held pretrial on bail end up pleading guilty, versus 2% for those bailed out.
As states move toward criminal-justice reforms, many are focusing on bail reform. In August 2018, California passed legislation to eliminate cash bail. Advocates have praised Philadelphia prosecutor Larry Krasner for ending cash bail for most low-level offenses. And last spring, the state of New York passed a law that would phase out cash bail for most misdemeanors and non-violent felonies, beginning in January 2020.
In Mississippi, where more than half of the county jail population is awaiting trial, bail is administered according to a schedule, requiring people with the same charge to pay the same amount, even if they cannot afford it. Since there is no limit on how long a person can be jailed, people languish for months or years, unable to pay bail. Recent bail-reform attempts here—including House Bills 949 and 1081—have died in committee.
Owens wants to tackle the issue of pretrial detention from the ground up, by refocusing criminal-justice policy through the lens of public safety. He plans to prioritize violent crimes over low-level offenses and expand alternatives to incarceration for kids and first-time offenders through pretrial diversion and other programs.
"When we look through the lens of public safety, we're not looking (at) public safety simply in the sense of simply saying 'am I making the public safe today?' We're looking at it through the lens of saying 'are we making the public safe for the next decade, the next two decades?'," Owens said. "... Because I know that if you come in here with a gun, (and) I take the gun from you, that I might be safe that day, but I might not fix the issues that gave you that gun in the first place," he added.
Owens acknowledged that reform requires working closely with judges and law enforcement to address "this collective problem that we share."
Hinds County has too few alternatives to incarceration, Owens said, so he plans to roll out programs that target veterans, who may end up in the system because of homelessness, and children who are tried as adults. He is also fundraising to create new positions in diversion and restorative-justice, an approach centered on reconciliation between victims and the accused.
Expanding the use of ankle bracelets is also a possibility. "We know (electronic monitoring) is a more cost-effective thing. It costs us about $10 a day in this county, compared to the $40 we're paying to house, feed (people in jail)," Owens said.
Owens also wants to refer more cases to drug courts so people with substance-abuse problems can access treatment. "Right now, we have so many people realizing the damage that opiates are doing to our community, ... but we didn't see that same concern with the crack-cocaine epidemic," he said. "If we know that addicts need help and people make (poor) decisions ... let's get them help, because we know that prisons and jail are not helping them."
Drug-related prosecutions would look different, too, especially for low-level marijuana possession. "We do think that it does not make sense to ruin someone's life all for a dimebag of weed or a joint," he said.
The current bail system is used "to tax poor people" in Mississippi, Owens maintains. "My general rule is that bail, period, is for public safety and a deterrent (to) flight risk," he said, adding that he believes there should be no bail for people who have committed murder.
Asked whether he would consider installing a court facilitator to keep track of cases, he responded that his office would track this information itself.
Vance, who hopes to solidify his new job as the Hinds County sheriff in the November election, views lengthy pretrial detention as a constitutional violation. "American citizens should be entitled or have the right to speedy trials," Vance told the Jackson Free Press. He said he is excited to work together with the new DA to tackle this issue, which he regards as "the most important thing" as sheriff.
"If you're going to have a facility that's faulty, it ... certainly doesn't need to be busting at the seams with inmates," Vance said. "... Let's get these people through the system, and get them their day in court, get them before a judge, whether they're going to be acquitted or convicted, let's get them out of the system, where they either go home or go to the Mississippi Department of Corrections."
'Not Just Rough Justice'
Mississippi's criminal-justice system has a long way to go toward reform. The state has the third-highest incarceration rate in the country and a struggling public-defender system without adequate oversight, with local governments providing almost all its funding, a report from the Sixth Amendment Center found. Some experts are also concerned that, in Mississippi's typical courtroom culture, elected judges can feel pressured to take a tough-on-crime stance to satisfy their constituents. Municipal courts have the power to set bail but no authority to accept guilty pleas or resolve cases—another obstacle to reform.
But prosecutors do still hold a lot of influence, including in Hinds County.
Forging a regular working relationship with law enforcement is crucial. Prosecutors also have discretion over who to release pending trial or whether to charge cash bail. They can choose to set bail only in cases where a person is a flight risk or poses a danger to the community, which is, in fact, the appropriate way to administer bail.
Cliff Johnson, director of the MacArthur Justice Center, is optimistic about the incoming district attorney.
"Jody Owens is an excellent lawyer, and I am convinced that he cares deeply about doing justice," he said.
"Indeed, there are things that Mr. Owens can do to correct policies and practices that have plagued Hinds County for years. He can be selective about the cases he chooses to bring in the first place, he can seek pretrial detention only in those cases where he believes the person is a legitimate flight risk or danger to the community, and he can move his cases to indictment quickly and efficiently rather than dragging cases for months or years as has been done in Hinds County for years."
"(Owens) knows as well as anyone that business as usual is both unacceptable and unconstitutional," Johnson added about the incoming district attorney.
But changing people's hearts and minds around criminal justice will take time, Johnson pointed out.
"What I'm worried about is that as soon as Jody Owens begins making changes in the system, that he's going to experience backlash from impatient Hinds County residents who have become convinced that the only way to implement our criminal justice system is by locking up everyone you can for as long as you can," he said.
"It's about smart justice and not just rough justice."