Monthly Archives: February 2017

Papers, Please….

For the moment, its still a “voluntary” request, as this article from The Atlantic points out – referring to Customs and Border Protection agents requesting ID from passengers deplaning on an SFO to JFK flight. As the author, Garrett Epps of the University of Baltimore Law School, points out, “voluntary” in legalese does not mean what ordinary people think it means. Supreme Court caselaw makes clear that officers may block an exit and ask for ID or permission to search. They aren’t required to tell the individual stopped that he or she may refuse: “while most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.”

Epps concludes: “Justice William O. Douglas once wrote that a regime of liberty includes “freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf.” A shadow is falling over that freedom, both for aliens and for citizens. Its loss will be devastating.”

State Bar Discipline For Prosecutorial Misconduct?

Prosecutorial misconduct is rarely the subject of formal discipline, but the California State Bar recently moved to discipline former LA County DA Carmen Trutanich for failing to disclose eyewitness information to the defense in a 1985 murder trial. The disciplinary action follows a ruling last year where a a federal judge threw out the conviction and death sentence, ruling that Trutanich’s “deeply troubling” behavior during that case had deprived Barry Williams, a South L.A. gang member, of a fair trial.


In that case, Jerome Dunn was shot and killed on a street in South Los Angeles by someone in a passing van. Patricia Lewis, who was a passenger in a car driving nearby, was the only eyewitness to testify.At the trial, Lewis identified Williams as the van’s driver and said she saw him, not others in the van, fire at Dunn, but she also lied on the stand about the identity of the person who was driving her, giving a fake name to protect her friend, Arlean McKay, who was afraid of getting involved.

The judge found that Trutanich was aware of the deception before and during the trial – in notes, Trutanich wrote both McKay’s name and the fake name Lewis made up, next to each other and in quotation marks — which the judge said indicated Trutanich knew there were doubts about the woman’s actual identity. However, he did not provide this information to the defense.

Florida: Mandatory Minimums “Waste of Taxpayers Money”

The Miami Herald reports the Florida Senate Criminal Justice Committee has unanimously passed  SB 290, which would end minimum mandatory sentences for nonviolent offenses. The measure represents a major shift from the tough-on-crime bills of the last two decades that filled prisons and created what both liberals and conservatives now believe has been a subclass of lifers in jail and a waste of tax money.

The “prison diversion bill” would save the state $131 million in avoided costs and put 1,001 fewer people in jail, said Sen. Daryl Rouson, D-St. Petersburg, the bill’s sponsor. Judges would no longer be bound by 118 minimum mandatory sentences in Florida law. It also restores the Florida Sentencing Commission, which existed from 1982 to 1997, but limits its scope to determining the severity ranking that adds points to an offender’s record based on certain offenses. Anyone who commits a violence offense, is not eligible for the court’s leniency.

“We are in an interesting juncture in our society and the Legislature, where Democrats and Republicans in both chambers agree that it’s really time to look at our criminal justice system and start to make some reforms,” said Sen. Randolph Bracy, D-Orlando, chairman of the committee.

Fry v. Napoleon

The Supreme Court rules in favor of a student with a disability and her family, holding that the parents do not need to exhaust administrative procedures before suing a school district with a claim of disability discrimination.

The Fry case was brought by the parents of a Michigan grade school student with cerebral palsy who wanted their daughter to be able to bring her service dog Wonder to school. Wonder is trained to help the student with many life activities, including helping her pick up dropped items and assisting with balance when she uses her walker. After the school refused to allow Wonder at school, the parents filed a lawsuit in federal court alleging disability discrimination under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. Lower courts dismissed the case because they considered the Frys’ claims educational in nature, and so held they were required to file an administrative IDEA complaint and pursue it to its conclusion – in other words, to “exhaust” the administrative process.

The Supreme Court said no, discrimination claims, such as those asserting rights to equal access to public programs or services under the ADA and Section 504, can be brought directly in court even when such claims arise in schools. The Court held that parents need not use the IDEA administrative process and exhaust IDEA claims when the crux, or “gravamen,” of their complaint does not involve the failure to provide the student a free and appropriate public education (FAPE). Even if the alleged discrimination occurs in a school setting, in non-FAPE cases parents may go directly to court to protect the student’s rights.


A Judge On Sentencing

Former Federal Judge Shira A. Scheindlin offers some thoughts on sentencing and mandatory minimums in a recent Washington Post op-ed. Its no surprise that judges don’t like mandatory sentences, but Judge Scheindlin took the time to look at the data from her own sentencing history:

“After I left the bench, Peter Dubrowski — my last law clerk — and I decided that we would review the sentencing protocols for each of those 200 [drug case] defendants. As I expected, we found strikingly similar storylines. The overwhelming majority of the defendants were indigent. Seventy-two percent had children to support, and many of the defendants were under the age of 25 — barely adults themselves. More than half had not graduated from high school, most had not obtained a GED, and barely 5 percent had attended college. A majority battled alcohol addiction, drug addiction or both, and had begun abusing substances by age 14. Most were unemployed. Most came from single-parent homes, and most had at least one parent who was, or had been, incarcerated.

These common characteristics suggested that the defendants needed a brand of justice that would allow them to get their lives back on track, rather than deprive them of future jobs, roles supporting their families and chances to become productive in their communities. The right punishments would have given them a chance to achieve those goals. But many of the defendants in my courtroom were charged with crimes requiring a mandatory minimum sentence. As with Fabre, there was nothing I could do other than impose the required term.”

Juvenile Justice Reform in France

Juvenile Court magistrate Jean Pierre Rosenczvieg of Bobigny, a suburb of Paris, discusses efforts to lower the age of criminal responsibility in France from 18 to 16 in this blog post in Le Monde. Rosenczvieg rebuts the proposal by Nikolas Sarkozy, made  as part of his current presidential campaign, pointing to facts that should sound familiar to us here in the US: the crime rate is falling, not rising; there are adequate penal consequences for all ages in existing law; the “super predator” concept of more mature criminals at younger ages has been debunked; and the United Nations Convention on the Rights of the Child (of which France is a signatory) prohibits it.

Why Nobody Cares…

…about the lies from the President: per Charlie Sykes, it is the corrosive influence of years of criticism of the mainstream press from conservative media. Sykes argues in his NY Times op-ed that the cumulative effect of attacking the perceived bias and double standards of mainstream journalism was to delegitimize those outlets and “essentially destroy much of the right’s immunity to false information.” Instead of creating  a more skeptical audience, Sykes argues, the conservative news strategy (of which Sykes himself was a part) created an audience that could be easily misled – and opened the door for President Trump

Sykes’ takeaway is prescient: the more the fact-based media tries to debunk the president’s falsehoods, the further it will entrench the battle lines.

Scholars Behind Bars

Two new books discussing Bard College’s prison education initiative: College in Prison: Reading in an Age of Mass Incarceration by Daniel Karpowitz, and Liberating Minds: The Case for College in Prison by Ellen Condliffe Lagemann, are reviewed in this article in the New York Review of Books. The article documents how few college-in-prison programs there are in the US, and looks at the background of increasingly punitive views of criminal justice over the past several decades, coupled with a simultaneous drop in public commitment to higher education:

“Since the 1960s, America has incarcerated more people—and for longer periods of time—than at any time in its history, and more than any other nation on earth. Many criminals were seen as beyond rehabilitation, so the only seemingly reasonable thing to do was to lock them up for many years. And even as states and the federal government plowed more money into prisons, they cut funds for colleges and universities. They also slashed student aid, shifting the cost burden from grants to loans—that is, from public to private hands. The imprisoning widened, and the educational state withered.”

Locked In

John Pfaff, professor of law at Fordham, whose research on mass incarceration I have covered several times before in this blog, has published a new book – “Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform” – which uses empirical data and statistical analysis to show that most of what we think we know about the subject is wrong. It is not the war on drugs, mandatory minimums, or the prison-industrial complex, but too much discretion resting with prosecutors. Most reform efforts focus on getting people out of prison by shortening or abolishing minimum sentences, hastening the work of parole boards, awarding “earned time” for good behavior, and the like. Pfaff’s most potent — and perhaps contentious — argument is that reforms should instead focus on bringing fewer felony charges against Americans in the first place. And that means zeroing in on prosecutors.Pfaff’s major data epiphany was that, during the 1990s and 2000s, as violent crime and arrests for violent crime both declined, the number of felony cases filed in state courts somehow went up. A lot. “In the end, the probability that a prosecutor would file felony charges against an arrestee basically doubled, and that change pushed prison populations up even as crime dropped,” he writes. Pfaff suggests several explanations for this. There were tens of thousands more prosecutors hired across the country in the 1990s and aughts even after the rising crime of the 1980s had stalled out, and the position of district attorney simultaneously became a more politically powerful one. Prosecutors’ discretion, always great, was expanded by courts and legislatures. And public defenders, stuck at the same or lower levels of funding, have not kept up with the growing caseload.Reformers have overlooked the role of prosecutors, Pfaff reasons, in part because there is no good data on how they use their discretion, and in part because they are simply less visible; about 95 percent of cases end in plea bargains worked out behind closed doors. “We see the police every day; no one is more high-profile in the criminal justice system,” he said in an interview. “Then we think of the judge imposing the sentence.” But prosecutors, and how they work, remain something of a mystery.Pfaff’s plea, then, is for advocates of reform to look for ways to curb the aggressiveness of prosecutors. He offers a tentative menu of options: establish guidelines for charging and plea bargaining, which New Jersey has already done; make prosecutors pay from their county budgets for the bed space they use in state prisons; and provide more funding for public defenders. And, last but not least, attack public complacency. In 46 states, prosecutors are elected — and 85 percent of them run without opposition.

“Conjoined Polarization…”

… or, how to escape the uneasy mix of race and party in court challenges to partisan redistricting, as suggested by Rick Hasen of the Election Law Blog in this article posted at SSRN. Hasen suggests three ways to approach the issue of race in gerrymandering:

  1. Race or party: In this approach, a court’s task is to decide whether a case is “really” about race rather than party, with certain legal consequences flowing from the determination. Some of the racial gerrymandering cases fit into this category. Based on Easley v. Cromartie,  courts need to decide whether race or party predominated in drawing district lines. If race predominated, the lines are likely impermissible.
  2. Party as a proxy for race, equating proof of discriminatory partisan intent with proof of discriminatory racial intent. The Fourth Circuit used this approach in a recent case involving the constitutionality of a major North Carolina voting law which imposed a strict voter identification requirement and made cutbacks to other voting rules. The Court held that the state legislature acted with a racially discriminatory intent because legislators relied upon racial data to achieve partisan ends in designing this law, and this reliance made party discrimination a form of race discrimination.

  3.  The party all the time approach: courts shift toward policing partisan election laws more directly. It is not that race does not matter on the ground in states and areas with conjoined polarization, but that a legal focus on the racial aspects of the dispute obscures rather than elucidates the stakes and the appropriate remedies. A move toward party all the time would have courts focus on partisan gerrymandering and dilution in the redistricting context, and on partisan intent and effect as to voting restrictions.