Monthly Archives: March 2017

New Trends in Prosecution

The NY Times reports on 5 Prosecutors With a Fresh Approach, newly elected local DA’s with a different approach: changing a justice system that jails too many people at the expense, they say, of common sense, public safety and even humanity. Its not an easy road,  and there has been some backlash, but it may be the best hope for real criminal justice reform.


Moore v. Texas

The Supreme Court yesterday overturned the death sentence of Bobby Moore, imposed by the Texas Court of Appeal, rejecting Texas’ approach to deciding which intellectually disabled people must be spared the death penalty. Justice Ginsburg’s majority opinion said Texas had failed to keep up with current medical consensus, relied too heavily on I.Q. scores and took account of factors rooted in stereotypes: “Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual’s life is at stake.”

Moore further elaborates on the court’s 2002 decision in Atkins v. Virginia, which barred the execution of the intellectually disabled as a violation of the Eighth Amendment’s ban on cruel and unusual punishment. At the heart of the ruling is a disagreement about the presumptive value of IQ scores in cases like Mr. Moore’s where those scores are in the borderline definitional range for intellectual disability. Justice Ginsburg wrote that Mr. Moore’s I.Q. was in the range of 69 to 79, meaning that other factors had to be considered. In dissent, Chief Justice Roberts argued that two of mr. Moore’s I.Q. scores, at 78 and 74 both above the borderline “70” cutoff point, were enough to decide the case and to allow Mr. Moore’s execution.

Bail Reform Advances in California

Two bail reform bills in the California legislature, by Assemblyman Rob Bonta (D-Oakland) and Sen. Bob Hertzberg (D-Van Nuys), would essentially prevent criminal defendants from having to post money as a condition of release from jail and would shift some power from judges to pretrial services agencies to assess the risks they would pose if allowed out in the community.

Under the new legislation, counties would be required to establish pretrial services agencies to track inmates, remind them of court dates and develop “risk-assessment” tools to determine whether a defendant should be released. The programs, in use in other states, allow court and pretrial staff to use data and other evidence to determine whether a person is a risk to the public or likely to flee their charges.

In California, where at least two federal lawsuits over bail practices are pending, 2015 data from the Public Policy Institute of California found more than 60% of people in county jails were awaiting either trial or sentencing.

2017 National Registry of Exonerations Report

According to the 2017  National Registry of Exonerations report, released this month, there were a record number of 166 exonerations in 2016. Exonerations increased even though the number due to DNA testing declined from 2015 to just 10% of the total. According to Open File:

“One possibility is that increased public awareness of the role prosecutors play has required DAs to be more engaged with claims of wrongful conviction. Another is that judges and other actors in the criminal justice system have finally awoken to the reality that there is an epidemic of prosecutorial misconduct in this country.
Misconduct by itself demands accountability. But, for those whose concern for individuals caught up in our justice system extends only to the innocent, the “Race and Wrongful Convictions” report underscores the importance of combating prosecutorial misconduct in all cases:

Seventy percent of the murder prosecutions that led to exoneration included official misconduct that we know about. We have identified many different types of misconduct. The most common is concealing exculpatory evidence—often called “Brady violations” after the landmark 1963 Supreme Court case Brady v. Maryland—which occurred in just over half the cases. The next most common type is witness tampering—everything from misleading a witness at a lineup, to threatening a witness, to suborning perjury—which occurred in 31% of murder exoneration cases; followed by perjury by a state official, which happened in 11% of the cases.
These numbers are jaw-dropping. Brady violations and perjury by state officials are not about technicalities; they are about getting to the truth. The NRE’s reports serve as a sharp rebuke to those seeking to narrow the circumstances under which the State’s suppression of exculpatory evidence results in a new and fair trial for the defendant. Soon the Supreme Court itself will weigh in on issues of prosecutorial misconduct and defendants’ due process rights. And the high-profile case it has chosen to hear could well end up in the Registry of Exonerations. Until accountability becomes a meaningful concept, one is left to wonder how many more wrongful convictions will be obtained by prosecutorial abuses right under our noses.”


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Second-Chance Legislation in All 50 States

The Collateral Consequences Resource Center publishes a resource guide to restoration of rights, pardon, record sealing, and expungement in all 50 states, along with blog posts on collateral consequence related issues. There has been a recent uptick in state legislation on the topic: since 2013, 40 states and Washington, D.C., have enacted new or expanded second-chance legislation. What’s propelling this movement? Maura Ewing of the Pacific Standard thinks it is a growing “feeling that we’ve gone too far in imposing additional penalties and restrictions that don’t seem to have any end.”

Brady Back At Supreme Court

This month the Supreme Court will hear oral arguments in two consolidated cases, Turner and Overton, that deal with prosecutorial misconduct and the State’s Brady duty to disclose exculpatory evidence very often. Here is an excellent analysis from Bidish Sarma in the American Constitutional Society Blog:

“Last year, I wrote for the ACS here about one of the chief concerns underpinning the case: that prosecutors decide whether to disclose exculpatory information pre-trial based on their prospective assessment of whether withholding it would make a “material” difference at trial. To recap the Brady test courts use post-trial: a new trial must be granted where the defendant has proven: (1) suppression—that the State actually failed to turn over the information at issue; (2) favorability—that the information would have helped the defendant; and (3) materiality (also known as prejudice)—that, had it been disclosed before the trial, there was “any reasonable likelihood” it could have “affected the judgment of the jury.” (Wearry v. Cain (2016) (internal citations omitted)). Tying prosecutors’ disclosure determinations to their own predictions about materiality is problematic for a bevy of reasons … But, what is truly worrisome is that the Supreme Court justices have not acknowledged or fully grasped how their Brady rulings influence prosecutorial disclosure decisions.
In the oral argument in Smith v. Cain in 2011, several justices expressed dismay when the prosecutor arguing the case informed them that the lawyers in her office making disclosure decisions did not simply consider whether information is exculpatory, but also gauged whether it was material. Some vocalized their concerns with this approach. Justice Kennedy posited a distinction between a Brady “obligation” to turn over evidence before trial and a Brady “violation” based on an appellate court’s post-trial assessment of materiality:
And with all respect, I think you misspoke when you – you were asked what is – what is the test for when Brady material must be turned over. And you said whether or not there’s a reasonable probability . . . that the result would have been different. That’s the test for when there has been a Brady violation. You don’t determine your Brady obligation by the test for the Brady violation. You’re transposing two very different things. And so, that’s incorrect.
If there is a distinction—and there surely should be one—the Court’s jurisprudence provides no guidance on how to identify it.
Indeed, consider what the Solicitor General has argued in Turner and Overton. Although there is no dispute that the prosecution failed to turn over several categories of exculpatory evidence, the Government’s brief on the merits states, “[t]he government complied with is obligations under Brady v. Maryland, 373 U.S. 83 (1963). Nondisclosures violate Brady only when withheld information is both favorable and material.” See how easily the Government elides that distinction between a Brady obligation and a Brady violation? In the first two sentences in the summary of its argument, the Government exploited a jurisprudential problem that the justices should address.

Hand v. Scott

More on voting rights restoration in Florida: Hand v. Scott is a lawsuit filed by the Fair Elections Legal Network to automatically restore former felons’ voting rights and eliminate Florida’s arbitrary process for re-enfranchisement. The plaintiffs include seven former felons who have applied for restoration of voting rights and have been denied for minor infractions, like traffic violations, or for no provided reason at all.

The background:  1.68 million Floridians are currently disenfranchised—the highest state total in the nation—and over 10,000 are waiting for a hearing on their restoration applications. The Clemency Board only hears an average of 52 cases per quarter. At this rate, if no new applications were submitted, it would take the Clemency Board almost 51 years to hear the entire backlog of applicants.
The current voting rights restoration process requires former felons who have completed their full sentences to petition the Executive Clemency Board, which is comprised of the Governor, Attorney General, Chief Financial Officer and Commissioner of Agriculture. Once they have applied, they must wait an indeterminate amount of time to be placed on the Board’s quarterly meeting agenda. This can take as long as 10 years for some applicants or months for others.
Once an applicant is selected for a hearing, the Executive Clemency Board’s decision to accept or deny the restoration of voting rights is made through an arbitrary process, not regulated with any laws, rules or criteria. Some applicants, including some of the plaintiffs in this case, have had their applications rejected simply for receiving traffic citations after they finished their sentences.

The lawsuit  cites the lack of any rules or time limits governing the Executive Clemency Board’s decisions to grant or deny applications. Without any rules, the system and the applicants are prone to arbitrary treatment, violating the 1st and 14th Amendments to the U.S. Constitution. Giving government officials unfettered discretion, according to the complaint, leads to unequal treatment of people in similar circumstances.