Monthly Archives: June 2017

State-by-State Review of Restoration of Rights

The Collateral Consequences Resource Center has published a new and improved state-by-state analysis of  law and practice in each U.S. jurisdiction relating to restoration of rights and status following arrest or conviction. The jurisdictional profiles cover the loss and restoration of civil rights and firearms rights, judicial and executive mechanisms for avoiding or mitigating collateral consequences, and provisions addressing non-discrimination in employment and licensing. Links to many original sources are included. The analysis includes a set of 50-state comparison charts showing national patterns in restoration laws and policies.

This work is an invaluable resource for criminal justice practitioners in all phases of the system, particularly for policymakers and advocates interested in reentry and reintegration of convicted persons, and for the millions of Americans with a criminal record who are seeking to put their past behind them.

Supreme Court Rejects Brady Claim In Defeat For Prosecutorial Accountability

The U.S. Supreme Court handed down its opinion in the consolidated cases of Turner v. United States and Overton v. United States last week, rejecting the defendant’s “Brady” claims and affirming their convictions. The Court focussed on whether there was a reasonable probability that the disclosure of the exculpatory evidence would have led to a different verdict— the majority concluded that the suppressed evidence “is too little, too weak, or too distant from the main evidentiary points to meet Brady’s standards.” The conclusion is particularly troubling since a lot of evidence was suppressed in the case, and because the opportunity to make an important statement about prosecutorial accountability was missed.

From the amicus briefs:

Former prosecutors’ brief (34 of them):

  • Public confidence in the criminal justice system is particularly threatened at this time
  • Based on experience, this is not a close case—the Petitioners should win new trials
  • Prosecutorial suppression of exculpatory evidence is a perennial problem
  • The suppressed evidence here was quintessential Brady material

Cato Institute brief:

  • The Court should not permit lower courts to implicitly raise threshold for materiality; the court below “severe misapplied” materiality standard in this case
  • Lower courts keep getting Brady materiality wrong and SCOTUS has had to keep intervening
  • Brady violations are too common, and the ruling below encourages more of them

Brief for Texas Public Policy Foundation, FreedomWorks, Cause of Action Institute, and American Legislative Exchange Council:

  • The Court should replace its materiality test with the Chapman harmless-error standard
  • Long-running efforts to fix the Brady materiality have failed; the standard is susceptible to narrow reading and application
  • The Department of Justice has resisted reform efforts to broaden the prosecutorial duty to disclose
  • Court should make the prosecutors’ constitutional duty to disclose clear—all favorable evidence should be turned over
  • Requiring prosecutors to turn over all exculpatory evidence, regardless of materiality, solves the deep problem of asking prosecutors to apply materiality test in a pre-trial anticipatory posture

Innocence Network brief:

  • Brady promotes truth-seeking and fair trials
  • This case involves quintessential Brady material, and Brady material is key to preventing wrongful convictions
  • Evidence pointing to other possible perpetrators is of “paramount value”
  • This sort of alternate-perpetrator evidence should be considered presumptively material, particularly where physical evidence is lacking
  • Courts can, should, and do consider evidence discovered after trial when conducting Brady analyses

National Association of Criminal Defense Lawyers brief:

  • Defense attorneys could have used suppressed evidence to create a compelling and coherent narrative that the alternate perpetrator was responsible for the crime
  • The decision below improperly minimized the importance of each piece of exculpatory evidence
  • By withholding evidence, the Government was able to turn the defendants against each other rather than enabling them to come up with a cohesive strategy

Center on Wrongful Convictions of Youth:

  • False confessions cause wrongful convictions
  • This case presents the hallmarks of false confessions
  • The majority opinion below assumed the confession was legitimate
  • The Brady evidence of another possible perpetrator would help show a confession is false

Brief filed on behalf of Wilfredo Lora by G.W. Law School Dean Alan Morrison:

  • The Government should bear the burden of demonstrating why suppressed evidence did not influence the verdict

“Ban the Box” in Louisiana

Louisiana has become the first state to ban public colleges from asking about criminal history.  Last year the Department of Education asked colleges to voluntarily remove criminal history questions from their applications, and some large public university systems including California’s and New York’s – as well as some private colleges – have done so. But Louisiana’s is the first statewide ban. The Republican governor of Maryland, Larry Hogan, vetoed a similar law for college applications in May, saying “Parents have an expectation that the school to which they entrust their child will do everything possible to keep their students safe.”

As many as 70 to 100 million Americans have some kind of criminal record, with the highest proportion in minority communities. The “ban the box” movement is intended to open opportunities to these Americans by preventing discrimination on the basis of those records alone. Twenty-four states, Washington, D.C., and the federal government now prohibit asking about a criminal record on public job applications.

Two Stories About Mental Health and Criminal Justice

In Seattle, a pregnant woman with mental health issues was shot and killed by police after calling to report an attempted burglary, then “displaying” a knife when the police arrived.

Meanwhile, in Washington, the Supreme Court  agreed with a convicted murderer held on Alabama’s death row for three decades who argued he was entitled to an expert independent from prosecutors to gauge his mental health and possibly help him avoid execution.

The justices ruled 5-4 in favor of inmate James McWilliams, who was convicted of the 1984 rape and murder of a convenience store clerk in Tuscaloosa. It is the third recent case in which the Court has ruled in favor of a convicted inmate on death row, all involving African-Americans, a fact that civil rights advocates say points to problems in America’s criminal justice system that disproportionately affect minorities.


Texas: “Sandra Bland Act” Mandates Mental Health Facilities as Alternative to Jail

A new law in Texas, the “Sandra Bland Act” , requires jailers to immediately determine whether inmates suffer from mental illness and divert those who do to a mental health facility. The law is named after the Sandra Bland, who in 2015 was found dead in a Waller County jail cell after she was pulled over by a state trooper for a routine traffic stop, then arrested and jailed when the officer said she had become “uncooperative.” Her death was ruled a suicide, and later it became clear that Bland might have suffered from depression and had a history of mental health issues.


Lichtenstein Funds Criminal Justice Reform

Art collector Agnes Gund recently sold her 1962 Roy Lichtenstein “Masterpiece” for $165 million, among the 15 highest known prices ever paid for an artwork, and used the proceeds to to create a fund that supports criminal justice reform and seeks to reduce mass incarceration in the United States.

The Art for Justice Fund — to be announced Monday at the Museum of Modern Art, where Ms. Gund is president emerita — will start with $100 million of the proceeds from the Lichtenstein.

Salt Lake Tribune: “Prosecutors who break the rules must be held to account”

The Salt Lake City Tribune editorializes on the power, and immunity, of prosecutors:

“A modern prosecutor’s power reaches far beyond what the constitution contemplates as fair for defendants. Prosecutors choose which charges to file, which defendants to file them against and what plea deals will be offered. Prosecutors can withhold exculpatory evidence without anyone knowing, and can ignore a defendant’s right to an attorney, or even read through privileged communications in hopes of not getting caught. …  USA Today published an investigation in 2010 that uncovered 201 cases since 1997 where courts admonished federal prosecutors who violated laws or ethics rules. Only one was disbarred. In Utah, of 18 cases involving allegations of misconduct since 2015, courts ordered new trials in only three of those cases. And the current remedy is no remedy at all. … Courts rarely dismiss charges based on prosecutorial misconduct. Even further, the principle of absolute immunity protects prosecutors from being held civilly liable for the mistakes they make, even when they weren’t mistakes at all.”

In a companion editorial from June 4, the same paper documents the lack of accountability in a number of Utah cases, and discusses legislative remedies:

“The topic of prosecutor misconduct also was discussed among Utah’s lawmakers this past legislative session after Sen. Todd Weiler, R-Woods Cross, brought a proposed resolution that would allow sanctions for prosecutors who don’t give all of the evidence to the defense. He ultimately pulled the bill, Weiler said, to allow the state court’s criminal procedure advisory committee to look into the matter. He hopes that panel might implement a rule change, but if it doesn’t, the senator said he will likely revive the issue during the next session.”

Dallas PD Chief: “Tough on Crime” Doesn’t Work

Former Dallas Police Chief David Brown is publishing a book, Called To Rise, detailing his 33-year-career in law enforcement and suggesting directions for the next generation of policing. In an interview with The Crime Report, Chief Brown discusses criminal justice reform:

“I understand how people may not get it initially, including people who are policy makers. I [came] into the profession without a full range of knowledge and experience on what the shortcomings of traditional policing does to the community. I fully understand, for example, Attorney General Jeff Sessions wanting to revert (to tough sentencing guidelines). He doesn’t have that experience, so it just seems like the way to fight crime is to just lock people up. We know through research and experience that we weren’t any safer when we are in a “lock them up, tough-on-crime culture.” But human nature sometimes drives us to make decisions not based on facts. People generally sense that if you put a bad guy in jail, they’ll be safer, when that is absolutely not the case.

You have to find a way to peel back the layers, and find root causes, and mitigate the root causes where they occur, whether that’s mental illness, drug addiction, job training, opportunities in the community, or economic development. You have to find those root causes to have a really clean sense of what would make us safer, what impacts these communities. We criminalize poverty, we criminalize mental illness, we criminalize drug addiction, and those are treatable things that we can resolve with policy. Handcuffs are not the solution.”


The Mugshot Industry

A Marshall Project report on the uniquely American practice of publishing mug shots, even those of individuals never charged or later found innocent. As the Sixth Circuit Court of Appeals said last year in denying a newspaper’s request for U.S. Marshals’ booking photos: “Mugshots now present an acute problem in the digital age. These images preserve the indignity of a deprivation of liberty, often at the (literal) expense of the most vulnerable among us.”

In Illinois, a potential class action suit has been filed against “” describing the site as an extortion racket that, among other things, deliberately and routinely published inaccurate information in order to drive people to a prominently advertised “sister” site — — where, for removal services, they spent anywhere from $399 (for a single arrest) to $1,799 (for five).

As one of the attorneys in the suit said, “They were deliberately trying to use this information as a cudgel to beat people with because they are desperate enough to pay that kind of money,”

Nice Try in Nevada

The Nevada legislature passed two laws last week designed to counter prosecutorial misconduct – or at least give some defendants the ability to undo suspect plea agreements. Unfortunately, one was substantially gutted under pressure from prosecutors and police.

The bill that passed after being substantially watered down was AB376. If passed as originally drafted, it could have exacted penalties for the misconduct like withholding evidence, requiring prosecutors to share evidence with the defense 30 days prior to trial or risk exclusion, broadening the scope of favorable evidence they are required to share and mandating that courts dismiss charges when prosecutors showed bad faith in failing to turn evidence over. After objections from prosecutors and police, all that survived was a requirement that prosecutors press charges within 72 hours against defendants in custody.

Another bill allowing certain defendants to undo plea agreements, supported by prosecutors, also passed and was signed into law by the governor.