Monthly Archives: July 2017

“A Shift in Thought”

That is the tag line on the Christian Science Monitor’s article  describing a “new breed” of prosecutor in the United States: “From Texas to Florida to Illinois, many of these young prosecutors are eschewing the death penalty, talking rehabilitation as much as punishment, and often refusing to charge people for minor offenses. While their numbers are small, they are taking over DA offices at a crucial moment… “It does seem to be a new and significant phenomenon,” says David Alan Sklansky, a professor at Stanford Law School, of the new prosecutors. “It’s rare to see so many races where the district attorney is challenged, where they lose, and where they lost to candidates calling not for harsher approaches, but for more balanced and thoughtful, more restrained, more progressive approaches to punishment.”

At this point only a few dozen DA’s out of  2,500 nationwide fit the Monitor’s description, but the paper suggests that those numbers could grow, as activists increasingly target DA elections, and a generational divide becomes apparent between younger prosecutors who came of age in an era of low crime, and older DAs shaped by the war on drugs.

One marker of the change is capital punishment. Aramis Ayala, the new district attorney in Florida’s Orange County, has received the most national attention for her refusal to seek the death penalty in any case, but she is not the only one. Beth McCann, the district attorney in Denver, is doing the same thing, and Larry Krasner, who is poised to become the next DA in Philadelphia, is an opponent of capital punishment as well.

There are other indicators in multiple jurisdictions: James Stewart, the district attorney in Caddo Parish, in Louisiana, took control of an office with a record of aggressive capital convictions and has quietly not gone to trial on a death penalty case since being elected in 2015; Kim Foxx, the new state’s attorney in Cook County, in Illinois, announced in March that her lawyers will not oppose the release of detainees from jails who can’t afford cash bonds of as much as $1,000; Kim Ogg in Texas, who took over an office plagued by a recent history of unethical prosecutions, dismissed three dozen prosecutors in leadership positions and has hired a former judge to lead a newly formed ethics office.

2017: 99 Bills To Restrict Voting Access

The Brennan Center’s “Voting Law Round-Up” for 2017 so far details 99 different bills in 31 states introduced for the purpose of limiting or restricting access to registration and voting. Five states have already implemented legislation:

  • Iowa’s governor signed a broad-based law that will require voter ID, restrict voter registration efforts, and impose new burdens on Election Day registration and early and absentee voting. Although not as restrictive as a North Carolina law that passed in 2013 (and was blocked by a federal court), Iowa’s law similarly restricts voting in a number of different ways.
  • Arkansas passed two bills to bring back voter ID to the state after a court struck down an earlier law.
  • North Dakota also enacted legislation to re-impose an identification requirement after a court blocked a strict ID law in 2016.
  • Indiana enacted a law that will implement a purge of registered voters from the rolls. The program will remove voters in a manner similar to purges in other states that have been criticized for being error-prone and inadequately protective of eligible voters.
  • Montana’s house and senate passed a bill that will prevent civic groups and individuals from helping others vote absentee by collecting and delivering their voted ballots. The bill now goes to voters as a November 2018 ballot measure.
  • Georgia’s legislature sent bill that would make voter registration more difficult to the Governor, and he signed it on May 9.

Disenfranchisement in Alabama

Alabama passed a law in May clarifying which felonies constituted “moral turpitude,” potentially enfranchising thousands of citizens, but Secretary of State John Merrill had said that his office wouldn’t take any action to make sure that people affected by the law actually know about it. The Campaign Legal Center, which is representing 10 plaintiffs suing the state over the moral turpitude law, has now asked the court to require Merrill to take meaningful measures to advertise the changes to the law, such as updating his website, election forms or advising local voter registrars. With a voter registration deadline for a special election for U.S. Senate approaching at the end of July, the Center said Merrill must act soon to educate voters.

Alabama had blocked people convicted of a crime of “moral turpitude” from voting since 1901 but never explicitly defined what constituted an offense of moral turpitude, although the law was limited to felonies in the 1990s. The ambiguity gave local election officials broad discretion to deny people the right to vote, which means some eligible voters may have been told in the past that they couldn’t vote and may continue to think they can’t.

“The state is responsible for correcting the confusion that has wrongly disenfranchised voters for decades. In order for HB 282 to have any meaningful effect, Alabama must notify voters about their right and ensure they are able to successfully cast a ballot going forward,” Danielle Lang, a lawyer at Campaign Legal Center, said in a statement. In addition to promoting the changes in eligibility, the Center has asked the court to require the state to automatically reinstate and notify voters who were disqualified to vote in the last two years but are now eligible. It also requests that the state produce a comprehensive list of all individuals who had been blocked from voting because of a conviction over the last two years and implement a public education plan targeted at people with convictions.

Eyewitness ID On Trial

For many years, experts such as Elizabeth Loftus have demonstrated experimentally and statistically the fundamental inaccuracy of eyewitness identifications, one of the time-honored foundations of the criminal justice system.  Five years ago, the Innocence Project gave real-world weight to these findings with an analysis showing that 71 percent of wrongful convictions involved some kind of mistaken eyewitness identification, both in and out of court, and that of that 71 percent, more than half involved an incorrect in-court identification. The result of these findings has been a move to limit the use of in-court eyewitness identifications.

A 2016 state supreme court decision in Connecticut held that witnesses cannot be asked for an in-court identification unless they knew the defendant before witnessing the crime or have already successfully identified the defendant in an out-of-court procedure, or the perpetrator’s identity is not contested.

In Massachusetts in 2014, the state’s top court largely banned the practice for cases in which witnesses had been anything short of unequivocal in identifying the defendant before the trial. It’s possible that Colorado will soon be joining them.

According to the Innocence Project, first-time in-court identification increases the risk of wrongful conviction. They argue that the powerful theatrics of pointing to the defendant can sometimes overcome the shortcomings of a weak case. The courtroom layout—with the accused seated next to defense counsel—leaves little doubt about who the state is trying to prosecute, and the defendant may be the only person in the room who matches the witness’s description. Instead of relying on what he remembers from the crime scene, a witness might guess or simply point to the defendant because he seems like the most obvious choice in the courtroom setting.



LA County Moves Forward On “Fair Chance”

The LA County Board of Supervisors is moving forward on several “fair chance” ordinances that would bar county government, businesses that contract with the county and businesses that operate in unincorporated L.A. County, from applying restrictions on employment  based solely on prior criminal records. This could include such policies as not asking job seekers about criminal convictions until a conditional offer of employment is made, giving them an opportunity to appeal if an offer is rescinded and fining businesses that repeatedly flout the guidelines.

According to the National Employment Law Project, an advocacy and research organization that tracks these policies nationwide, 28 states and more than 150 counties and cities now have “ban the box” policies, which eliminate the check box on job applications that asks about prior criminal convictions.

In nine states and 13 cities, including Los Angeles and San Francisco, these policies extend to private employers.

A California state law that went into effect in 2014 prohibits public employers from asking about criminal history on the initial application.

The state legislature is considering a bill that would make it unlawful for any employer, including private businesses, to ask about an applicant’s criminal history until a conditional offer of employment is made.


Police Unions Call For Crisis Training

The Los Angeles Times reports that the LA Police Protective League has joined more than a dozen other police unions, including those in New York, San Jose and Chicago, asking for federal funding  for crisis-intervention training, less-lethal devices and officers who team up with mental health professionals to respond to emergency calls. The proposal, “Compassionate and Accountable Responses for Everyone,” will be formally unveiled at a news conference Thursday morning in New York. Most police department already offer some training in how to appropriately respond to someone who has mental health issues — LAPD officers receive 15 hours of training specific to mental health while in the academy — but the issue continues to draw attention, particularly after several high-profile police shootings of people who were diagnosed with mental illnesses. In New York, for example, a police sergeant was charged with second-degree murder after fatally shooting a mentally ill woman who had a baseball bat.

Louis Dekmar, the police chief in LaGrange, Ga., and first vice president of the International Assn. of Chiefs of Police, commented: “We’ve taken what should be a public health issue and we’ve turned it into a criminal issue. And the sad commentary is, of the 900 and some fatal police shootings a year, about 25% are affected by mental illness.”

In Los Angeles, four of the 28 people struck by police gunfire in 2016 showed signs of mental illness, according to LAPD data. The previous year, nearly a third of the 38 people shot by police were perceived to be mentally ill.


New CA Regulations on Criminal History in Hiring Decisions

On July 1, new regulations took effect in California further limiting employer’s ability to use an applicant’s criminal history in hiring decisions. Under 2 CCR § 11017.1, adverse action based on criminal history may violate state law, closely tracking the 2012 guidance issued by the U.S. Equal Employment Opportunity Commission that consideration of criminal history by employers violates Title VII of the federal Civil Rights Act when it adversely impacts racial minorities and is not job-related or consistent with business necessity. Factors used to determine whether a particular practice is job-related and consistent with business necessity, including whether it takes into account “the nature and gravity of the offense,” “the time that has passed since the offense,” and “the nature of the job held or sought.” The text:

“(a) Introduction. Employers and other covered entities (“employers” for purposes of this section) in California are explicitly prohibited under other state laws from utilizing certain enumerated criminal records and information (hereinafter “criminal history”) in hiring, promotion, training, discipline, lay-off, termination, and other employment decisions as outlined in subsection (b) below. Employers are prohibited under the Act from utilizing other forms of criminal history in employment decisions if doing so would have an adverse impact on individuals on a basis enumerated in the Act that the employer cannot prove is job-related and consistent with business necessity or if the employee or applicant has demonstrated a less discriminatory alternative means of achieving the specific business necessity as effectively.”


263 Overturned Convictions – 16 New Suspects

A fascinating investigation by Hella Winston in the Daily Beast, looking at 263 of the 2,034 known exonerations in the United States since 1989 – based on criteria chosen by Winston: “did not hinge on DNA evidence…; murder cases because murder typically has no statute of limitations, and therefore can be prosecuted at any time…: the past 11 years on the assumption that it might be easier to get information about relatively recently vacated convictions than those overturned several decades ago.” The takeaway: 263 overturned murder convictions but only 16 new suspects charged. Why?

  • In 24 cases, the true perpetrators—determined either by credible confessions and/or objective evidence—were either dead or in prison, serving a long sentence for a different crime, sometimes in another state. While neither outcome represents justice for the victims in the wrongful conviction cases, those murderers are nonetheless “off the streets.”
  • In 8 other cases, the true perpetrators appear to be beyond the reach of law enforcement because of immunity or plea deals given to them by prosecutors (these cases tended to involve violence perpetrated by gangs).
  • In another 7 cases, the person who was wrongfully convicted was convicted along with at least one or more others who, it seems fairly clear, were actually responsible.

As for there rest, Winston argues:

  • Evidence grows cold as time passes.
  • Prosecutors don’t want to admit defeat by going after a second defendant for an old crime. They don’t have much credibility when they have to concede they got it wrong the first time around.
  • Defendants who are charged decades after an old crime typically point to the evidence introduced at the first trial and say to jurors: there’s your reasonable doubt right there