Sixth Amendment, Typewriters, Carbon Paper….

Like typewriters, carbon paper, and other relics of the analog age, the Sixth Amendment right to trivial by jury has become a historical curiosity. According to a recent study published by the National Association of Criminal Defense Lawyers, “The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It“, over the last fifty years, trial by jury has declined at an ever-increasing rate to the point that they now occur in less than 3% of state and federal criminal cases:

“Trial by jury has been replaced by a “system of  guilty pleas, which diminishes, to the point of obscurity, the role that the Framers envisioned for jury trials as the primary protection for individual liberties and the principal mechanism for public participation in the criminal justice system.”

The reason for this fundamental change in the criminal justice system is straightforward: individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose. Faced with this choice, individuals almost uniformly surrender the right to trial rather than insist on proof beyond a reasonable doubt. Defense lawyers spend most of their time negotiating guilty pleas rather than ensuring that police and the government respect the boundaries of the law including the proof beyond a reasonable doubt standard, and judges dedicate their time to administering plea allocutions rather than evaluating the constitutional and legal aspects of the government’s case and police conduct. Equally important, the public rarely exercises the oversight function envisioned by the Framers and inherent in jury service.

Perhaps the most troubling effect of this trend is evidenced by “exoneration” research. In a study of 354 individuals exonerated by DNA analysis, 11% had pled guilty to crimes they did not commit, and the National Registry of Exonerations has identified 359 exonerees who pled guilty. Simply put, the extraordinary pressure defendants face to plead guilty can even cause innocent people to plead guilty to crimes they know they did not commit.

Voting in Jail Pt. 2

And in Los Angeles, the ACLU has partnered with LARRP, the Los Angeles Regional Reentry Partnership, on an “Unlock the Vote”  campaign to reduce barriers to registration and voting for justice-involved and justice-impacted folks in Los Angeles County as well as Orange County. The project volunteers go inside the LA and Orange County jails to to educate and register eligible voters, both the prisoners and the family and friends who are visiting, and reach out through reentry fairs and other community events to educate and register people who are returning citizens or otherwise criminal justice system-impacted. If you are an LA County resident and would like to get involved, here is the information to volunteer.

Voting in Jail: IL and CA News

In Illinois, the  Governor has on his desk and is expected to sign the recently passed HB 4469, which requires every jail in the state to provide voter education and make in-person or absentee voting available to all eligible incarcerated voters. Currently only eight counties in the state have any voting process for people in pretrial detention. “There is confusion around how election code actually applies to the jail,” says Jen Dean, who runs Cook County Jail Votes, the group that helps facilitate registration and voting in the largest jail in the country. “[This bill] creates a system of uniformity across the state to make sure there are systems in place so that everybody has access to the ballot.”

Meanwhile, in California, a bill to increase voter education in jails recently cleared the Senate Public Safety Committee. Assembly Bill 3115 would require jails to partner with at least one organization to provide “both written and verbal information about voting rights upon release from jail, providing affidavits of registration to eligible voters, assisting eligible voters with the completion of the affidavits of registration, and assisting eligible voters in returning the completed voter registration cards to the county elections official.”

The Impact of Proposition 47 on Crime and Recidivism

The Public Policy Institute of California has published a study analyzing crime data since 2010, designed to determine the impact if any of Proposition 47 on crime rates in the State. Prop 47, passed in 2014, reduced the penalties for certain lower-level drug and property offenses and was intended to reserve prison and jail space for higher-level offenders. The debate around the policy centered on the questions of whether these policies would increase or decrease crime and recidivism. According to the PPIC study:

Did Proposition 47 increase crime?

  • We find no evidence that violent crime increased as a result of Proposition 47. While California saw an uptick in the violent crime rate from 2014 to 2016, this trend appears to have preceded the reform and is due in large part to unrelated changes in crime reporting after 2014.
  • We find some evidence that Proposition 47 affected property crime. Statewide, property crime increased after 2014. While the reform had no apparent impact on burglaries or auto thefts, it may have contributed to a rise in larceny thefts, which increased by roughly 9 percent (about 135 more thefts per 100,000 residents) compared to other states. Crime data show that thefts from motor vehicles account for about three-quarters of this increase.
  • Despite recent upticks, California’s crime rates remain comparable to the low rates observed in the 1960s—even with the dramatic reductions in incarceration ushered in by recent criminal justice reforms.

Did Proposition 47 reduce recidivism?

  • Recidivism rates decreased due to Proposition 47. Using data from 12 California counties, we find that among individuals released after serving sentences for Proposition 47 offenses, the two-year rearrest rate was 70.8 percent, 1.8 percentage points lower than for similar individuals released before the reform. The two-year reconviction rate for individuals released under Proposition 47 was 46.0 percent, 3.1 percentage points lower than their pre-reform counterparts.
  • These overall declines were driven by substantial reductions in recidivism rates for Proposition 47 offenses. Rearrest and reconviction rates for these offenses were 10.3 and 11.3 percentage points lower, respectively, than for similar individuals before the reform. Our findings suggest that the measure reduced both arrests by law enforcement and convictions resulting from prosecutions by district attorneys. However, we are not able to separate the reform’s effects on reoffending from its effects on the practices of criminal justice agencies.

 

Down-Ballot Races That Matter

Tomorrow, June 5, is primary day here in California, and this year there has been an unusual focus on county-level races for District Attorney and Sheriff, positions with critical impact on the criminal justice system that have historically often been uncontested or un-noticed. The District Attorney races in Alameda and Sacramento have drawn a particular amount of attention, with progressive candidates putting on strong challenges to the establishment candidates. In Los Angeles, with less public attention, there is a similar progressive challenge to the incumbent Sheriff from inside the Sheriff’s department. Lt. Alex Villanueva is challenging incumbent Jim McDonnell on a reform campaign highlighting  community policing and civilian oversight:

“Of all the pressing needs of the community and the LASD, here is a short list of the most critical:

  • Rebuilding the LASD from the ground up based on community policing principles and ethical standards of conduct.
  • Clean house of all sources of corruption, both past and present.
  • Develop a long term strategic plan for the organization that includes adding 3,000 patrol deputies and shrinking a massive bureaucracy
  • A coordinated recruitment drive targetting the County’s most under-represented communities
  • Meaningful civilian oversight

My priorities are straight forward:

  • Implement community policing countywide
  • Develop a new generation of leadership built on public service
  • Promote transparency, accountability, and meaningful civilian oversight
  • Demand fiscal responsibility and live within our budget
  • Improve the morale of the organization
  • Restore the reputation of the LASD as the premier law enforcement organization it can be”

“First Step” Prison Reform Passes House

The FIRST STEP Act, which includes a number of substantive changes to the federal prison and reentry system, was approved yesterday in the House by a vote of 360-59. Among other things, FIRST STEP would

  • allow inmates to accrue up to 54 days of good time credit a year. The changes would apply retroactively, resulting in the release of approximately 4,000 federal inmates, according to the U.S. Justice Action Network, a criminal justice advocacy group.
  • ban the shackling of pregnant inmates, including while giving birth and postpartum. It would also require Bureau of Prison facilities to provide female hygiene products free of charge and increase available phone and in-person visitations for new mothers.
  • require the Bureau of Prisons to place inmates in facilities within 500 driving miles of their families.
  • increase the use of compassionate release for terminally ill inmates, and require new reporting on how many applications for compassionate release are accepted or denied.

The bill has sharply divided criminal reform advocates. Some, such as Rep. Jeffries (D-N.Y.), the bill’s co-sponsor, say it would provide better conditions and the possibility of earlier release for the roughly 180,000 inmates serving time in federal prison. “Any objective reading of this bill is that it will improve inmates’ quality of life,” Jeffries said on the House floor prior to the vote.

Others contend the good provisions in the bill are outweighed by core concerns over how the overcrowded, underfunded Bureau of Prisons system would handle the new programs and changes.  Sen. Durbin (D-Ill.), Sen. Booker (D-N.J.), Sen. Harris (D-Calif.), Rep. Lewis (D-Ga.), and Rep. Jackson-Lee (D-Tx.) have written a joint letter saying that the reforms would fail without broader sentencing reforms.

Unlawful Voter Purges in…California?

All Of Us or None, a California a California-based grassroots organization fighting for the rights of formerly and currently incarcerated people, has sent demand letters to ten California county registrar’s offices –including Butte, Contra Costa, Kings, Los Angeles, San Diego, Santa Clara, Solano, Tulare, Ventura and Orange — asking them to reinstate the voter registrations of thousands of people with conviction histories that AOUON believes were unlawfully purged from electoral rolls. According to AOUON, there are at least 3,000 such eligible voters removed in 2017 in Los Angeles County alone.

In 2011, a major California criminal justice reform — commonly known as “Realignment” — changed the law to require that people with non-serious, non-violent, or non-sexual felonies be sentenced to county jail or probation, instead of state prison. Since the California Constitution disenfranchises only those who are “imprisoned or on parole for the conviction of a felony,” the voting eligibility of those serving felony sentences in county jail under Realignment was unclear for several years. Following a successful legal battle brought by AOUON and other community allies against the Secretary of State, the State Legislature ultimately passed AB 2466 to clarify that Californians who are convicted of county Realignment felonies retain their right to vote. As of January 1, 2017, state elections law requires local courts to provide to the county registrar a monthly list of people “committed to state prison.” The registrar is then required to cancel the registrations of people currently in prison or on parole. According to AOUON, county clerks appear to still be purging voters sentenced to county jail or probation on felonies.

The last day to register to vote in this June’s California primary election is May 21. For people who are currently in county jail, the deadline to request mail-in ballots is May 29.

Sending a Message

The Kansas City Star reports on new legislation in that state compensating wrongfully convicted individuals financially for time spent in prison. The bill, passed Friday, awards $65,000 per year for every year an exoneree was wrongfully imprisoned. Initial payments would be up to $100,000 or 25 percent of what is owed. Subsequent annual payments would be $80,000. The payment schedule plan is telling: several Kansas prisoners were wrongfully imprisoned for so long that legislators felt it would take too many years to fairly compensate them without the higher yearly payouts.

In addition to the financial payments based on years imprisoned, the compromise measure also would provide free college or vocational training and health insurance. The educational benefits include books, fees and housing. And mental health coverage would be a part of their medical care.

For the exonerates themselves, it is about much more than the money: “It hasn’t been about the money only, ever since I got home,” said one man who served 17 years for a robbery he did not commit. “This is about bringing change, sending a message.”

What justice will entail: holding accountable those who had a role in wrongfully convicting them.

Legislators appeared to agree. State Sen. Molly Baumgardner, a Republican from Louisburg, worked on the compromise and noted that legislators are aware of that objective:

“Compensation is another court saying you were wronged,” she said. “It will give even more weight to the process of going after those who had a direct hand in that wrongful conviction.”

 

Reducing Barriers to Professional Licensing

The Collateral Consequences Resource Center recently reported on a  new Indiana law regulating consideration of conviction in occupational and professional licensure in that state.  This is part of a trend, with eight additional states recently enacting or about to  enact similarly progressive occupational licensing schemes.  New general laws regulating licensure are in place in Arizona, Illinois, Louisiana, and Massachusetts.  Similar bills have been enrolled and are on the governor’s desk for signature in Kansas, Maryland, Nebraska, and Tennessee.  Arizona’s new 2018 licensing law follows on another law passed in that state in 2017 that authorized provisional licenses for individuals with a criminal record.  Massachusett’s new licensing law is part of a more general criminal justice reform bill.   Delaware and Connecticut have also recently loosened restrictions on licensing for cosmetology and related professions.

In California, AB 2138 is currently making its way through the legislature. The bill would reduce barriers to professional licensure for individuals with prior criminal convictions by limiting a regulatory board’s discretion to deny a new license application, or suspend or revoke an existing license, to cases where the applicant or licensee was formally convicted of a substantially related crime or subjected to formal discipline by a licensing board, with offenses older than five years no longer eligible for license denial or suspension or revocation with the exception of violent felonies, as currently established in statute. 

Election Day Registration in CT and IL

Two states, Connecticut and Illinois, began election day registration (EDR) with the 2016 election,[1]and examination of data and interviews from the experience at the county level in those states provides some evidence of the likely effect of implementing EDR in California in 2018:

  1. The number of people likely to use EDR is a small percentage of total in person votes cast.
  2. Data extrapolated from the 2016 EAC Election Administration and Voting Survey for Connecticut and Illinois shows a statewide percentage of voters who used the EDR process to register and vote to be approximately 2% of total in-person voting for both states:[2]
  Total Votes Cast Total In Person Total EDR EDR as % of Total in Person
CT 1,675,955 1,508,670 34,929 2.2%
IL 5,551,017 3,703,548 121,797 1.88%

 

In other words, based on the Connecticut and Illinois experience in 2016, on average local clerks can expect an additional 2 election day registrants for every 100 in-person voters with the implementation of EDR. This is consistent with other studies predicting a total increase in turnout where EDR is implemented of approximately 4%.[3]

 

  1. EDR may result in fewer provisional ballots, less registration at clerk’s offices

 

Comparison of EAVS data from 2016 with data from the 2014 election, before implementation of EDR, tends to support the theory[4]that any additional costs or staffing needs resulting from implementation may be offset by corresponding drops in provisional ballots and in-person registration at clerks offices. With respect to provisional balloting, there is a statistically insignificant change in Connecticut, but a significant drop in provisional balloting both in total and as a percentage of total voting in Illinois:

 

  Total Provisional Ballots

Cast, 2014

As % of total votes Total Provisional Ballots

Cast, 2016

As % of total votes
CT 19 .00002 66 .00004
IL 32,519 .0114 26,363 .0047

 

In both Connecticut and Illinois, there was a significant drop in in-person registration at clerk’s offices from 2014 to 2016, which tends to support the theory of a benefit from EDR though it is not possible from the statistical evidence alone to determine if there is a specific causal link compared to other possible sources, such as internet registration:

 

  Total Registration 2014 % In-person at office Total Registration 2016 % In-person at office
CT 558,056 .30 996,091 .22
IL 1,616,430 .20 2,237,296 .13

 

III. Anecdotal evidence from local election officials consistently report little to no additional staffing or costs associated with implementation of EDR

Interviews of local election officials in Iowa and North Carolina, where EDR was previously implemented, have reported few staffing or cost consequences from that implementation:[5]

“We really don’t have any extra costs. We don’t hire extra office help for any of it and I have the same number of poll workers I would have even if we did not have EDR.”– Marsha Carter, Shelby County (8,983 registered voters)

“There are none [costs] directly associated, as EDRs are processed along with regular voters.”– Jill Titcomb, Cherokee County (8,892 registered voters)

“… [SDR costs were for] printing of election day registration forms and sending notices to election day registrants after the election” – Jack Beeson, Dallas County (46,295 registered voters)

 

“Minimal cost, added expense for forms only.”– Dennis Parrot, Jasper County (26,779 registered voters)

 

“Very minimal [SDR costs]– extra forms, about 10 forms for the last election”– Pam Benjegerdes, Allamakee County (10,029 registered voters)

  1. EDR has significant positive effects on voter turnout

The Connecticut and Illinois experience supports a large body of research that suggest an “enduring turnout boost” from implementation of EDR:[6]

“Not only are there fewer reports of problems with voter registration in states with election

day registration, but both registration and turnout are higher in election day registration states.

Based on voter registration and turnout statistics provided by the Federal Election Commission,

77.3% of the eligible population was registered to vote in non-election day registration states in

2000; 88.8% of the eligible population was registered in election day registration states.

Furthermore, 50.5% of the voting aged population turned out in non-election day registration

states in the 2000 presidential election, while 65.6% turned out to vote in the election-day registration states.[7]

 

 

 

[1]National Conference of State Legislatures, “Same Day Voter Registration,” October 12, 2017

[2]Election Administration and Voter Survey Comprehensive Report, 2016

[3]Election Day Registration’s Effect on U.S. Voter Turnout,Brians and Grofman, Social Science Quarterly 2001 Vol. 82-1

[4]Small Investments, High Yields: A Cost Study of Same day Registration in Iowa and North Carolina, Rokoff and Stokking (2012) Demos.org

[5]Small Investments, High Yields: A Cost Study of Same day Registration in Iowa and North Carolina, Rokoff and Stokking (2012) Demos.org

[6]Brians and Grofman, supra

[7]Election Day Voter Registration in the United States, Alvarez, Ansolabehere, & Wilson, Caltech/MIT Voting Technology Report (2002), citing Federal Election Commission data, http://www.fec.gov/pages/2000turnout/reg&to00.html.