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Over-the-counter “rape kits” are still illegal in Washington after a federal judge upheld the state’s ban on Tuesday, but the company responsible says this isn’t over yet. 

Leda Health issued a news release following the U.S. District Court’s decision, noting its intention to appeal the ban at a higher level.

The Pennsylvania-based company initially sued the state in June after the Legislature banned its over-the-counter sexual assault test kits last year. 

State officials concluded that the kits create false hope for victims and issues for investigators; however, Madison Campbell, Leda Health’s chief executive officer, argues otherwise. She called Tuesday’s decision another hostile approach toward survivors and their recovery. 

“Denying survivors the right to take their bodies back into their own hands after a traumatic event such as an assault not only denies them of their fundamental rights,” wrote Campbell, who’s also a survivor, in the news release, “but also undermines the integrity of the justice system.” 

Attorney General Bob Ferguson motioned to dismiss Leda Health’s initial lawsuit, which was granted Tuesday. In a news release following the decision, his office stated that “Leda Health’s over-the-counter rape kits gather evidence that is rarely, if ever, admissible in court.” 

While the kits face challenges to being admissible in court, several cases have upheld self-collected evidence. According to a 2022 KUOW article, one individual found justice after using a Q-tip to “clean up” at home after an assault, leading to the conviction of the rapist. 

“The law violates the First Amendment by restricting the truthful communication of the options available to survivors for using legal items at home to self-collect evidence of their assault,” according to Leda Health’s news release. “This case raises important questions about the future of survivor-centered solutions and the boundaries of governmental regulation.” 

Campbell argued against the AGO’s claims and told The Center Square that the courts never deemed her company’s kits inadmissible. While they haven’t been used as evidence in a high-profile case, they are used in pre-trial hearings, where many similar cases end in plea deals. 

She said that Leda Health was operating in Washington for less than two months before the state threatened to shut her down; it all started after more than 300 University of Washington sorority members unanimously decided to use her kits and other products. 

“Washington took those resources away, including emergency contraceptives,” she said, “and the attorney general asked us to take that away.” 

With abortion and other healthcare decisions sitting atop some legislators’ priorities, Campbell questioned why the state is limiting people’s bodily autonomy “after the worst incident of their life.” 

Leda Health is also suing New York and Pennsylvania over cease-and-desist letters sent by those states; however, unlike in Washington, Campbell said those lawsuits reached a trial, and her company was even granted an evidentiary hearing to cross-examine the state. 

Leda Health is awaiting a decision from the judge for those cases, but Campbell is optimistic. 

She said her company requested an evidentiary hearing in Washington to present its case but was denied, so they plan to appeal the decision to the 9th U.S. Circuit Court of Appeals instead. 

Campbell wants to cross-examine the legislators and experts to hold Washington accountable for limiting alternatives to individuals who may be afraid to come out after an assault. 

“They need to answer the questions to the public: have their kits ever been inadmissible? Has a survivor ever asked for these resources and not been able to get them?,” Campbell asked, listing off questions. “How many people were promised [the state’s] kits would end up in a conviction and then didn’t?” 

The Center Square contacted the AGO, asking how often the state’s kits are deemed inadmissible and whether the courts had rejected any of Leda Health’s, but did not receive a response. 

Leda Health has 30 days to appeal the U.S. District Court’s decision. Campbell said if that appeal ends the same as the last, she’ll take it to the U.S. Supreme Court.

On Monday, October 28, the Institute for Black Justice in partnership with EVERGREEN EMPOWERMENT GROUP, is offering a FREE workshop on Unlocking Justice – Records Expungement from 5:30 p.m. to 7:30 p.m. at the Bryant Neighborhood Center (1619 6th Ave.) in Tacoma. 

You’ll learn about how to vacate, expunge, and seal.

Here’s the event registration link: 

HTTPS://RB.GY/WLTVXX.

Washington state officials are turning to traffic-related cell phone data to monitor and potentially improve road safety, with many residents unaware of the new initiative.

Earlier this year, state legislators approved funding to purchase data from mobile applications that track traffic patterns, allowing officials to access information about drivers, such as their speed and cell phone usage while driving. This initiative aims to provide a clearer picture of driving behavior across the state.

“We can see a picture of behavior that we can’t get in any other way,” said Shelly Baldwin, director of the Washington Traffic Safety Commission, in a statement to KING-TV.

According to Baldwin, the data obtained does not contain identifiable information about individual drivers, ensuring privacy remains intact. However, the aggregated data, collected between June 2022 and June 2023, revealed startling findings. Half of the drivers studied were found to be driving at speeds more than 15 miles per hour over the posted limit on roads with a speed limit of 60 mph. Additionally, 25% of those drivers were using their phones while driving.

This figure is a significant increase from previous state estimates, which suggested only 9% of drivers were distracted by their phones.

Baldwin further explained that cell phone usage while driving was twice as prevalent on residential streets compared to highways. “Which is super-dangerous because that’s where all the kids are, and people are walking,” Baldwin said.

During a presentation to the Washington Traffic Safety Commission and state agency representatives on Thursday, Baldwin also shared data indicating Washington’s alarming position at the top of a national graph displaying traffic fatality rates across all 50 states.

“When we looked at this, we were alarmed,” Baldwin told KING-TV.

Despite some hope that 2024 could see a reduction in traffic deaths compared to 2023, Baldwin cautioned that it was too early to make definitive conclusions. The state is now exploring new strategies to address rising traffic fatalities and distracted driving, especially in residential areas.

Washington officials hope this data-driven approach will ultimately help reduce the number of lives lost on the state’s roads, though the balance between public safety and privacy will remain a subject of ongoing debate.

The Washington Board of Education has launched a multi-year initiative to rework the state’s high school graduation requirements, arguing that the current standards fall short of “fully preparing all students for success.” 

The initiative, “FutureReady,” is part of the Board of Education’s 2025 legislative platform, which was approved by members on Thursday. The board is requesting an additional $273,000 in the upcoming 2025-2027 budget from the Legislature for FutureReady. 

The board’s request points to “widespread concern” among students, educators and employers that current graduation requirements don’t prepare students with skills needed in a modern world, such as technology literacy, financial education and cultural understanding. 

“The state risks leaving its students inadequately prepared for the future, with consequences extending well beyond their high school years,” the board’s request warns. 

In 2020, only 51% of Washington’s high school seniors enrolled in college or other postsecondary education within a year of graduating, far below the national average and states with similar economies, like Virginia and Massachusetts. Rates of graduation and readiness for college coursework among certain students are also lagging behind the state’s goals. 

Lawmakers have tried to fill some of the gaps, introducing legislation in 2024 to add financial education and computer science competency as graduation requirements. But neither of the bills passed — and the board believes “piecemeal additions could strain the system without considering broader impacts.” 

“It’s not about simply tinkering and adding to current requirements,” says a memo on FutureReady from the board. “Instead, it involves taking a comprehensive approach to designing a framework that empowers students with the knowledge and skills they need to thrive in a changing world.” 

Current requirements are also rigid, complicated and difficult to navigate, in part due to “numerous additions over the past two decades.” That places a greater burden on marginalized students who already face barriers to their education, such as students who are Black, Indigenous or people of color, youth in foster care, refugees and students with disabilities. 

The Board of Education expects to propose new graduation requirements to the Legislature in 2027. The new requirements likely won’t take effect until the class of 2031 or later, according to the board’s budget proposal.

On October 16, 2024, 57 prominent constitutional scholars and retired federal and state judges submitted a letter to congressional leadership endorsing term limits for U.S. Supreme Court justices. The signatories, which include retired federal judges, former state chief justices, and broad swaths of the legal academy, warned of plummeting public confidence in the Court. The letter affirms that Congress has the constitutional authority to pass legislation limiting the justices’ active service on the Court.

Dear Majority Leader Schumer, Minority Leader McConnell, Speaker Johnson, and Minority Leader Jeffries:

We are constitutional scholars and retired judges writing to express our support for the adoption of Supreme Court term limits.

It is our considered opinion that Congress has the constitutional authority to establish by statute a system of term limits for justices’ active service on the Supreme Court (after which time members of the Court may continue to serve with limited duties). Congress likewise has the authority to provide for the regular appointment of a new justice to the Court every two years, subject to the advice and consent of the Senate.

While we are not writing to endorse any specific legislation, we believe that Supreme Court term limits are urgently needed at a time of plummeting confidence in the Supreme Court, and that it is within Congress’s constitutional authority to establish a system of Supreme Court term limits through legislation.

Respectfully,

Bruce Ackerman
Sterling Professor of Law and Political Science, Yale University 

Hon. Harry Lee Anstead (ret.)
Chief Justice, Florida Supreme Court

Hon. Mark W. Bennett (ret.)
U.S. District Court, Northern District of Iowa

Hon. Margot Botsford (ret.)
Associate Justice, Massachusetts Supreme Judicial Court

Kevin M. Clermont
Robert D. Ziff Professor of Law, Cornell Law School 

Hon. Sue Bell Cobb (ret.)
Chief Justice, Alabama Supreme Court

Wilfred U. Codrington III
Walter Floersheimer Professor of Constitutional Law, Cardozo School of Law

Hon. Patricia O’Brien Cotter (ret.)
Associate Justice, Montana Supreme Court

Hon. Fernande R. V. Duffly (ret.)
Associate Justice, Massachusetts Supreme Judicial Court

Garrett Epps
Professor of Practice, University of Oregon
Professor of Law Emeritus, University of Baltimore 

Hon. Stanley G. Feldman (ret.)
Chief Justice, Arizona Supreme Court

Caroline Fredrickson
Senior Fellow, Brennan Center for Justice

Hon. Carolyn K. Fulmer (ret.)
Florida Second District Court of Appeal 

Hon. Nancy Gertner (ret.)
U.S. District Court, District of Massachusetts

Tom Ginsburg
Leo Spitz Distinguished Service Professor of International Law, University of Chicago Law School 

Hon. Thelton Henderson (ret.)
U.S. District Court, Northern District of California 

Hon. Geraldine Hines (ret.)
Associate Justice, Massachusetts Supreme Judicial Court

Hon. Faith S. Hochberg (ret.)
U.S. District Court, District of New Jersey

Hon. Roderick L. Ireland (ret.)
Chief Justice, Massachusetts Supreme Judicial Court

Ted Kaufman
Former U.S. Senator, Delaware

Carlton F.W. Larson
Martin Luther King, Jr. Professor of Law, UC Davis School of Law

Hon. Barbara A. Lenk (ret.)
Associate Justice, Massachusetts Supreme Judicial Court

Gerald Leonard
Professor of Law, Boston University School of Law

Sanford V. Levinson
W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law, University of Texas at Austin School of Law
Professor of Government, University of Texas at Austin

Ira C. Lupu
F. Elwood and Eleanor Davis Professor Emeritus of Law, George Washington University Law School

Hon. Beverly B. Martin (ret.)
U.S. Court of Appeals, Eleventh Circuit

Hon. A. Howard Matz (ret.)
U.S. District Court, Central District of California

Hon. Carlos Moreno (ret.)
U.S. District Court, Central District of California
Associate Justice, Supreme Court of California

Hon. James C. Nelson (ret.)
Associate Justice, Montana Supreme Court 

Norman J. Ornstein
Senior Fellow Emeritus, American Enterprise Institute

Hon. Barbara Pariente (ret.)
Chief Justice, Florida Supreme Court

Michael J. Perry
Robert W. Woodruff Professor of Law Emeritus, Emory University School of Law

Lucas A. Powe, Jr.
Anne Green Regents Chair, University of Texas at Austin School of Law

David Pozen
Charles Keller Beekman Professor of Law, Columbia Law School

Hon. Peggy A. Quince (ret.)
Chief Justice, Florida Supreme Court

Hon. James M. Regnier (ret.)
Justice, Montana Supreme Court

Judith Resnik
Arthur Liman Professor of Law, Yale Law School

William Reynolds
Jacob A. France Professor Emeritus of Judicial Process, University of Maryland Francis King Carey School of Law

Kermit Roosevelt
David Berger Professor for the Administration of Justice, University of Pennsylvania Carey Law School

Mark D. Rosen
University Distinguished Professor, Professor of Law, Chicago-Kent College of Law

Eric Ruben
Associate Professor of Law, SMU Dedman School of Law

James Sample
Professor of Law, Maurice A. Deane School of Law at Hofstra University

Hon. Shira A. Scheindlin (ret.)
U.S. District Court, Southern District of New York

Eric J. Segall
Ashe Family Chair Professor of Law, Georgia State University College of Law

Cliff Sloan
Professor from Practice, Georgetown University Law Center

Christopher Jon Sprigman
Murray and Kathleen Bring Professor of Law, New York University School of Law

Joan E. Steinman
University Distinguished Professor Emerita, Professor of Law Emerita, Chicago-Kent College of Law, Illinois Tech

Nadine Strossen
John Marshall Harlan II Professor of Law Emerita, New York Law School

Hon. Marsha Ternus (ret.)
Chief Justice, Iowa Supreme Court

Laurence H. Tribe
Carl M. Loeb University Professor of Constitutional Law Emeritus, Harvard University

Mark Tushnet
William Nelson Cromwell Professor of Law Emeritus, Harvard Law School

Louis J. Virelli III
Professor of Law, Stetson University College of Law

Artemus Ward
Professor of Political Science, Faculty Associate, College of Law, Northern Illinois University

Hon. T. John Ward (ret.)
U.S. District Court, Eastern District of Texas

Adam Winkler
Connell Professor of Law, UCLA School of Law

Mary Ziegler
Martin Luther King, Jr. Professor of Law, UC Davis School of Law

Hon. Michael D. Zimmerman (ret.)
Chief Justice, Utah Supreme Court

The Supreme Court of the United States has agreed to hear a case in which a female heterosexual employee claimed an Ohio state agency discriminated against her in favor of employees who identify as LGBTQ+. The case, Ames v. Ohio Department of Youth Services, may shed light on what constitutes illegal bias against a majority group.

Specifically, the Supreme Court is likely to decide whether an employee must meet the “background circumstances” rule in cases alleging reverse discrimination, or if an employee may rely on the evidence surrounding his or her own employment circumstances to prove discrimination.

Quick Hits

• The Supreme Court recently agreed to hear a case brought by a heterosexual woman who claimed discrimination based on her sexual orientation after she was demoted.
• The federal law banning sex discrimination also bars discrimination based on a person’s sexual orientation and gender identity.
• It is anticipated that the Supreme Court will resolve the circuit split on whether a heightened evidentiary burden, highlighted in the background circumstances rule, can be applied to reverse discrimination cases.

Background on the Case

On October 4, 2024, the Supreme Court agreed to hear a discrimination case brought by a heterosexual woman who was demoted at the Ohio Department of Youth Services. The department oversees the confinement of juvenile felony offenders.

A heterosexual woman served as the department’s administrator of the federal Prison Rape Elimination Act (PREA). She applied and interviewed to be the department’s bureau chief of quality. The department terminated her employment as PREA administrator and offered her another job that amounted to a demotion with less pay, which she took. The department later hired a gay man to serve as PREA administrator and a gay woman to be bureau chief of quality. The heterosexual woman filed a discrimination lawsuit, alleging discrimination in violation of Title VII of the Civil Rights Act of 1964.

The district court granted summary judgment to the Ohio Department of Youth Services, finding that the employee had failed to present any background information or data to demonstrate discrimination in the department’s hiring practices or policies. The employee appealed, and on December 4, 2023, the U.S. Court of Appeals for the Sixth Circuit found she did not produce sufficient evidence to prove discrimination.

The appeals court acknowledged that being heterosexual is a legally protected status under federal law, but stated that plaintiffs must show “‘background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority,’” meaning heterosexual people in this case. The Sixth Circuit thus concluded the plaintiff didn’t prove the department exhibited a pattern of discrimination against members of the majority group.

The plaintiff’s “only evidence of a pattern of discrimination against heterosexuals is her own demotion and the denial of the bureau chief position,” the court stated. “Under our caselaw, however, a plaintiff cannot point to her own experience to establish a pattern of discrimination.”

The Sixth Circuit further found that the plaintiff had not shown that the employer’s stated reason for the demotion was a pretext for discrimination. In this case, the plaintiff argued that the reasons for demoting her were not based on fact, but the appellate court noted her performance evaluation shortly before the demotion was “lukewarm” and sometimes “critical.” Therefore, the appeals court agreed the department had grounds to demote her based on lackluster performance. In ruling for the department, Judge Raymond Kethledge filed a concurring opinion, arguing that the Supreme Court may want to address the issue of whether Title VII’s anti-discrimination laws “impose different burdens on different plaintiffs based on their membership in different demographic groups.”

On October 4, 2024, the Supreme Court agreed to hear the case. A circuit split exists on the evidentiary burden that employees must meet in reverse discrimination cases. Four circuits, including the Sixth Circuit, have adopted the background circumstances rule. Two other circuits have rejected the background circumstances rule, and five other circuits do not apply it, treating discrimination claims from majority groups similarly to claims from plaintiffs in other groups.

Next Steps

The Supreme Court will hear this case during its current term, which will end in late June 2025. A date for oral arguments has not been set yet.

While it is possible that the Supreme Court may decide the case on more narrow grounds, many legal scholars expect the court will resolve the circuit split that exists in the appellate courts and overrule the “background circumstances” rule.

Accordingly, the prevailing legal standard may be upended in many states. The Supreme Court’s ruling is likely to shed light on what evidence will be sufficient to prove discrimination against a majority group.

Employers may wish to consistently apply workplace policies and promotion standards to prevent discrimination lawsuits. Employers also may wish to review their workplace policies, practices, and training materials to ensure that they reflect how the law protects both straight and LGBTQ+ employees from discrimination and harassment.

Employers can review the most recent guidance regarding LGBTQ+ rights, which the U.S. Equal Employment Opportunity Commission (EEOC) released on April 29, 2024. The guidance states that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity as part of the law’s broader protections against sex-based discrimination. Heterosexual and gay are both legally protected classes.

The Supreme Court on Tuesday tossed out a lower court decision that shielded from liability Texas law enforcement officers who arrested a local citizen journalist after she sought information from a police source. 

The case of journalist Priscilla Villarreal, who is known to her readers in Laredo, Texas, as “Lagordiloca,” pits the First Amendment’s guarantee of a free press against the doctrine of qualified immunity, which provides legal protections for police and other government officials. 

Villarreal’s challenge attracted interest from a range of reporters, major news organizations and journalism nonprofits who have argued that the right to seek information from public officials is fundamental to the practice of journalism. 

In its brief order, the Supreme Court wiped away the lower court decision that protected the police officers involved in her arrest and ordered additional proceedings. 

Villarreal said in response to the high court’s order that it “marks a significant step toward rectifying the wrongs I have faced.” 

JT Morris, an attorney with The Foundation for Individual Rights and Expression, which is representing Villarreal, cheered the decision. 

“This case is vital for free speech, a free press, and ensuring officials are accountable when they trample the First Amendment,” he said. 

Villarreal has been described as the “most influential journalist” in Laredo, and publishes information about local crime, traffic and other news to her Facebook page, “Lagordiloca News.” Her reporting sometimes rankles local government officials, according to court papers, including the Laredo Police Department. 

In 2017, their frustrations boiled over. Villarreal had published two news reports based on tips from local citizens, one that named a U.S. Border Patrol agent who died by suicide and a second relaying information about a fatal traffic crash and Houston family that was hurt in the accident. For both, she reached out to a Laredo police officer who confirmed the information before the stories were published to her Facebook page. 

Months later, Villarreal was arrested for allegedly violating a state law that makes it a felony for a person to solicit or receive information from a government official that has not yet been made public if it’s with the intent to obtain a benefit. 

In the 23 years that it’s been on the books, the statute has never been enforced, according to her lawyers. 

Villarreal turned herself in, and the criminal charges were dismissed after a local judge ruled the law was unconstitutionally vague. She then sued the police and prosecutors behind her arrest, arguing her First, Fourth and 14th Amendment rights were violated. 

The officials sought to toss out the case, claiming they had qualified immunity. The doctrine shields public officials from lawsuits stemming from conduct on the job unless they violate clearly established constitutional rights. A federal district court agreed, but the decision was reversed by a three-judge panel on the U.S. Court of Appeals for the 5th Circuit. 

“If the First Amendment means anything, it surely means that a citizen journalist has the right to ask a public official a question, without fear of being imprisoned,” Judge James Ho, appointed by former President Donald Trump, wrote for the judges. “Yet that is exactly what happened here: Priscilla Villarreal was put in jail for asking a police officer a question. If that is not an obvious violation of the Constitution, it’s hard to imagine what would be.” 

But the full slate of judges from the 5th Circuit reheard Villarreal’s case and in January voted 9-7 to uphold the district court’s dismissal. 

The divided 5th Circuit found that Laredo prosecutors and police have qualified immunity, concluding that they reasonably believed Villarreal broke state law when she asked an “unofficial” government source for information, instead of waiting for an official police report, and benefited from it. The nine judges also rejected the panel’s finding that Villarreal’s arrest violated the First Amendment. 

Ho, in dissent, wrote the majority’s reasoning was “a recipe for public officials to combine forces with state or local legislators to do — whatever they want to do. It’s a level of blind deference and trust in government power our Founders would not recognize.” 

In appealing the 5th Circuit’s decision to the Supreme Court, Villarreal’s lawyers wrote in a filing that its long-standing precedent “leaves no doubt that arresting Villarreal for asking the government for information and publishing the response violated the First Amendment — and every reasonable official would have known that.” 

They warned that leaving the 5th Circuit’s decision in place entitles law enforcement to qualified immunity for using state laws as justification for First Amendment violations. 

“Without reversal, the chill from the decision below will only spread wider, as ever-growing criminal codes provide a grab bag of statutes officials can wield against disfavored speech,” Villarreal’s legal team warned. 

But Texas officials, led by Attorney General Ken Paxton, argued that they reasonably believed that Villarreal was seeking to solicit a leak of nonpublic information for her benefit.

Historically Black Colleges and Universities have been pivotal in providing educational opportunities for Black Americans since their inception over 150 years ago. A recent Pew Research Center report highlights a significant shift in enrollment patterns, which has implications for the future of HBCUs.

As of fall 2022, there were 99 HBCUs across the United States, collectively enrolling 290,000 students, according to data from the National Center for Education Statistics. This figure represents a 30% increase from 1976 when enrollment was just over 222,000. Enrollment peaked in 2010 at over 326,000 students, reflecting broader trends in U.S. higher education that saw total college enrollment soar during the same period. While overall college enrollment increased from about 11 million in 1976 to over 21 million in 2010, numbers have since receded, with approximately 18.6 million students enrolled in colleges as of 2022.

A Demographic Shakeup

Despite the growth in overall enrollment figures at HBCUs, the demographic makeup of their student bodies has changed markedly. Between 1976 and 2022, the percentage of Black students attending HBCUs increased by 15%, significantly lower than the 117% rise in students of other racial and ethnic backgrounds who chose these institutions. Consequently, the proportion of Black HBCU students has declined from 85% in 1976 to 76% in 2022. 

This trend mirrors broader demographic shifts in higher education. At all colleges and universities nationwide, Black student enrollment increased by 125% during the same period, indicating that while HBCUs remain crucial for many, more Black students are finding opportunities elsewhere. Even so, HBCUs accounted for 16% of the bachelor’s degrees earned by Black college students in the 2021-22 academic year.

A Challenging Shift for HBCUs

The decline in the percentage of Black students attending HBCUs reflects a broader context of desegregation and evolving financial landscapes that provide more options for Black Americans seeking higher education. Recent Supreme Court rulings may further complicate admissions policies, potentially impacting enrollment patterns at HBCUs.

Furthermore, many HBCUs face significant financial hurdles. According to a 2023 analysis, Black land-grant institutions have historically received substantially less state funding than their counterparts since 1987, leading to resource disparities that could affect their long-term sustainability.

In summary, while HBCUs continue to be vital in educating Black students, shifting demographics and funding disparities present ongoing challenges. As these historic institutions navigate changes in the higher education landscape, their role in fostering academic excellence and community support remains crucial. 

About 1,200 people in prison at any given time are there for violating the conditions of their parole, not because they committed new crimes. Critics are calling for change.

About 1,200 people in New Jersey prisons on any given day are parolees who got hauled back to prison — not for committing new crimes, but for missing curfew, relapsing in their addiction, not checking in with their parole officer, or breaking other conditions of their parole.

They remain behind bars for months, sometimes years, collectively costing taxpayers about $90 million a year, or almost $250,000 every day. If state officials quit reincarcerating people for violating their parole conditions — what’s known as “technical parole violations” — they could close an entire prison, critics say. 

“We’ve done a lot in New Jersey to address mass incarceration, but instead we have mass supervision. Extensive parole conditions breed the parole violator. But you’re not increasing public safety by incarcerating individuals on technical parole violations,” said Joseph Russo, director of the state Office of the Public Defender’s parole revocation and resentencing unit. “It’s a punitive model of parole supervision.”

Now, Russo and other advocates are calling on state parole officials and lawmakers to stop relying on reincarceration as the “knee-jerk response” to technical parole violators and instead keep people in the community while addressing the underlying reasons why they violate parole. 

“If parole was constructed as a helpful entity rather than a monitoring one, I think we would have much more success,” said Bonnie Kerness, coordinator of the American Friends Service Committee’s Prison Watch Program. 

Russo and Kerness both have issued reports urging policymakers to act on the issue. 

While legislators didn’t bite, Gov. Phil Murphy signaled he would act. In his budget proposal in February, he included funding for a consultant to develop a tool the state parole board could use to weigh the seriousness of a violation and the violator’s risk level, as well as “determine appropriate intermediary sanctions that can limit the overuse of revocation,” Murphy wrote.

A Murphy spokeswoman said Thursday that the administration is working on the issue now. 

“In addition to legislation signed last year to provide public defender representation at parole revocation hearings, this year’s enacted budget allocates $1 million for a consultant who will assist in the development of new tools to help streamline the State Parole Board’s process of reviewing parole violations, enabling us to both keep our communities safe and prevent people from being sent back to prison unnecessarily,” Murphy spokeswoman Maggie Garbarino said. 

The parole board reincarcerates 80% of the parolees who violate parole, even though it costs more than 10 times as much — $74,750 a year, on average — to incarcerate someone than to monitor them as parolees in the community, which costs about $6,351 per parolee a year, state budget documents show. 

Those pushing for change say reincarcerating technical parole violators also threatens to undo the progress New Jersey has made in reducing its prison population. 

The number of people New Jersey holds in state prisons, juvenile lockups, and halfway houses has fallen 55% in the past two decades, from almost 29,000 in 2000 to about 13,000 this year, Department of Corrections data shows. 

The downward trend came after lawmakers expanded community-based restorative justice programs, decriminalized some low-level offenses like marijuana use and possession, allowed judges to free pretrial defendants without cash bail, and released scores during the pandemic to curb contagions. Murphy also launched a new clemency program in June, with a goal of pardoning potentially thousands of New Jerseyans who are now both in and out of prisons and jails. 

A parole board spokeswoman did not respond to the New Jersey Monitor’s questions on the issue. 

Criminalizing addiction and poverty? 

People most often violate their parole conditions because they use drugs or alcohol, relocate without notifying their parole officer, fail to report for required check-ins, and fail to complete a rehabilitation or mental health program, according to Russo and testimony parole officials gave during state budget hearings. 

But, Russo added, reincarceration shouldn’t be the penalty, especially because these violations often stem from poverty, addiction, unaffordable housing, a lack of transportation, and other challenges people endure in the weeks and months after they leave prison. 

“We should not be criminalizing addiction. We should not be criminalizing housing insecurity,” he said. 

Al-Tariq Witcher, an Avenal resident who heads a returning citizen support group in Newark, remembers how tough it was to comply with some parole conditions when he was paroled in 1995. 

“Parole wanted me to report in the middle of the day, during the time that I was supposed to be working,” Witcher said. “I’m like: ‘I can’t leave the job to come report. First of all, I’m not driving. I’m relying on public transportation. I just came home after serving eight years, and I just can’t take off work.’ So that that became a contentious situation with me and my parole officer.” 

The bureaucracy and burdensome conditions of parole, as well as the threat of reincarceration, leave some incarcerated people reluctant to be released on parole, Witcher added. 

“We have people in jail that actually say, ‘I’ll stay an extra several months rather than deal with parole,’” he said. 

Compounding the parole problem is months-long delays in holding final revocation hearings, reformers said. Most people nabbed for technical parole violations get sent back to prison before the board has even confirmed a violation occurred and warrants reincarceration, Russo said. That means some parolees then spend months behind bars, even if the parole board eventually deems them not guilty of violating parole. 

“Even if they win, they lose, because they’ve been deprived of liberty for four or five months before the matter is finally resolved,” Russo said. 

In that time, they can lose jobs, housing, and relationships, erasing any progress they’d made since their initial release, he added. 

While reformers wait to see what the Murphy administration does on the issue, they hope he’ll follow New York’s lead. State lawmakers there passed the Less Is More: Community Supervision Revocation Reform Act in 2021. That law, which took effect in March 2022, limited the sanctions technical parole violators faced. 

Parole officer caseloads fell 40% and 13,000 parolees completed parole early after that law’s passage, according to an analysis by a coalition of advocates who support the law. Some critics, though, recently pushed for rollbacks in the law after a paroled killer absconded and returned to the community where he’d raped and murdered his victim in 1999. He was subsequently sentenced to seven days in prison for violating parole. 

But Russo and Witcher said New Jersey policymakers could act in other ways too to make parole fairer and increase parolees’ odds for a successful reentry. 

Russo urged parole officials to consider giving some parole officers specialized training to better handle parolees with mental health disorders, much like the state has invested in helping police officers better respond to people in mental crisis. 

Witcher called on correctional officials to help people save more money behind bars to ensure a smoother transition back to the community when they’re released. The state Department of Corrections recently boosted the wages incarcerated people make for prison jobs after at least two decades of stagnant salaries. Most still make just a few dollars a day though, Witcher said. 

“People inside should be able to save more money before they come home because they really don’t have a pot to piss in or a window to throw it out of when they get out,” Witcher said. “This would circumvent some of the parole violations, because people would come home with a little bit more cushion to land on.”

Only a handful of spots for new offenders are left at the state’s medium- and maximum-security juvenile facilities in the wake of site overcrowding problems and staffing shortages.

Criminal justice officials and lawmakers have called the state’s juvenile justice situation a “state of emergency.” A recent report presented in a state meeting estimated there’s only room for 15 more juvenile offenders left at one of the two detention facilities. As children in Washington deal with the impacts of the COVID-19 pandemic and the skyrocketing cost of living, public officials are scrambling to find answers to the juvenile justice crisis.

Echo Glen Children’s Center in Snoqualmie still has vacancies, but the juvenile detention center is “close” to maximum capacity, according to a presentation made this week by Dr. Lauren Knoth-Peterson, a senior research scientist with the Washington State Institute for Public Policy.

The state’s other juvenile detention center, Green Hill School in Chehalis, surpassed its capacity months ago and has kept operating well above its stated maximum. This week, Green Hill’s population was roughly 20% higher than its projected maximum capacity to properly care for juvenile offenders.

“There are no additional units possible,” Knoth-Peterson said. “There’s not the land or the ability to build new units there.”

Knoth-Pederson was one of several juvenile justice professionals who spoke Friday at a meeting of the Washington State Sentencing Guidelines Commission.

“Now Echo Glen, for example, that was once a highlight of how we should engage in juvenile justice in terms of a therapeutic environment, now has fencing around it.” King County Superior Court Judge Veronica Galván said. “We went from trying to have a therapeutic environment to literally building a prison for children.”

The state plans to open up additional units at Echo Glen as soon as next year, Knoth-Pederson told the sentencing commission Friday.

Of the two detention centers, Green Hill is the only one that houses older male offenders in the age range of 17 to 25.

State Sen. Claire Wilson, D-Auburn, chairs the Senate Human Services Committee and also sits on the state sentencing commission. At Friday’s meeting, she asked about how to solve staffing shortages she’s encountered on visits to Green Hill and Echo Glen.

One looming question for the commission, Wilson said, is where to put young adults in the 18 to 25 range whose brains are still developing and would be best suited to a facility somewhere between the juvenile rehabilitation and adult Department of Correction models.

“Our systems were never created to get people out of them,” Wilson said. “They were created to keep people right where they were.”

Norrie Gregoire, a Walla Walla County Juvenile Court Administrator and member of the sentencing commission, echoed Wilson’s concern about staffing shortages. He called on state lawmakers to do whatever they can to ensure the facilities are fully staffed.

“You can see we’re just kind of in a very tricky situation right now,” he said. “The double-whammy of being understaffed — I’m sure morale is probably not great. So I feel for those folks.”

Retired King County Superior Court Judge Wesley Saint Clair told his fellow sentencing commission members that Friday’s meeting should not be about pointing fingers.

“It’s really about: How do we proactively try to address things, actually use our most recent experiences,” Saint Clair said, “to help refocus a system from the intent of keeping people in .. to an intent to actually re-enter them into the community?

Some 96% of the people who are entered into the Department of Corrections will eventually be released back into society, Saint Clair added.

“We shouldn’t be trying to sentence or to impose sanctions to that 4%, but to the vast majority of folks who are returning to our community.”

Katie Hurley works as special counsel for criminal policy and practice in the King County Office of Public Defense. At Friday’s meeting, she said one clear step in solving the juvenile detention crisis is re-examining the state’s sentencing policy.

Washington state has the only determinant sentencing scheme in the country for kids, Hurley said, meaning that each different crime carries a predetermined jail or prison sentence that cannot be changed by a judge, parole board or any other agency.

“All other states bring more individualization into the decision of whether to take a young person from their community and incarcerate them in juvenile prison,” Hurley said.

Hurley suggested that the state change its sentencing policy to mandate that before a child is put into a juvenile detention facility, the judge should “at a minimum” make a finding that a community-based placement would not adequately protect the community.

“Right now, the juvenile scheme — just like the adult scheme — is driven by the offense that the child is convicted of, and then that drives their standard sentencing range,” Hurley added.

Per-capita rates of youth incarceration vary drastically between counties in the state. King and Snohomish counties are among those that have historically recorded lower counts of incarceration, on average, compared to other counties in Washington.

If other counties incarcerated children at the same rate as King and Snohomish counties do today, Hurley said the state would see a 57% reduction overall in the children who are sent to juvenile rehabilitation centers.

“I bring out that statistic to say that we can do this,” Hurley said. “Counties in the state are doing it, and we need to put in place pathways to take kids off the conveyor belt of, ‘You’ve committed a certain offense, and you do certain time.’ “