Author Archives: Paul Seeman

“Changing defaults changes decisions”

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One legacy of the “tough on crime” era is the aging prison population. From 2009 to 2013, the number of federal prisoners over the age of 50 increased by 25 percent even as the figure for the incarcerated under age 50 dropped. More than 10,000 federal prisoners are in their 60s, 70s or 80s. Older inmates have significantly higher medical costs than younger inmates, and often need special accommodations (such as lower bunks or wheelchair-accessible areas) that prisons are ill-equipped to provide. In an effort to address these issues, AG Holder announced an expanded compassionate release program for inmates who were elderly, seriously ill or both. But the Washington Post reports that only 2 of the 296 release requests made by elderly inmates were granted during the first 13 months Holder’s expanded guidelines were in place.

What is the problem? In part its that the “default” for decision-making about compassionate release is that elderly and infirm prisoners do not receive compassionate release unless significant time and effort is expended by the inmate and multiple levels of the federal bureaucracy. If anyone at any level disapproves or indeed just doesn’t put in any effort one way or the other, the compassionate release isn’t granted. Likewise, if the bureaucracy is simply slow at reviewing even the most meritorious cases, the release isn’t granted, which is why a significant proportion of applicants die waiting for their case to wind its way through the system.

Changing defaults changes decisions, the most famous example being that employees save much more for retirement if they have to fill out a form to opt out of their company’s 401(k) plan rather than fill out a form to opt in. If Congress wants compassionate release more broadly employed, legislators could pass a law that shifts the default to granting compassionate release for elderly inmates instead of denying it.

Search Warrant Means There’s Evidence? Not So Much….

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The recent search warrant executed at Paul Manafort’s residence has generated a lot of speculation about how much evidence of criminal wrongdoing there must have been behind the search warrant affidavit justifying the search. But as the Washington Post  points out, what few systematic studies of the search warrant process there are suggest what most police officers, defense attorneys and  prosecutors will say: in most jurisdictions, it’s incredibly easy to get a warrant. Most judges exercise little to no scrutiny at all, and the few who do can be circumvented. You just take your affidavit to another judge. The federal process is described by former prosecutor Ken White:

“In the federal system, federal agents present search warrant applications to United States Magistrate Judges for review. Magistrate Judges aren’t nominated by the President and confirmed by Congress like United States District Court judges — they are appointed by other federal judges for set terms, and have a reduced level of authority and responsibility. They do a lot of the unglamorous day-to-day work of the federal judiciary.

The magistrate judge reviews the search warrant application and, almost always, signs the warrant approving it . . .  I think that magistrates can be a little rubber-stampy at times. But probable cause is a pretty low bar.”

As the article’s author points out, the impression that warrants for no-knock raids are carefully scrutinized and waged against only people for whom there is a significant amount of incriminating evidence just isn’t true.

NY Times Discovers Unaccountability

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The New York Times reports that of the 23 cases in which the Brooklyn DA’s Conviction Review Unit has asked judges to free defendants who were wrongfully convicted by their office, only a handful have asked for anyone to be held accountable. The Aug. 8 article by Alan Feuer recounts the case of Jabbar Wsahington, who spent 20 years in prison after a prosecutor intentionally withheld evidence and coaxed a witness into giving testimony that was purposefully misleading; in court, the chief of the Conviction Review Unit said: “There’s a lot of — perhaps blame is maybe the wrong word — but responsibility that goes around on that,” he said. Feuer says:

“It might seem like an obvious step for prosecutors seeking to reverse a tainted conviction to declare in open court who in law enforcement had a role in compromising the case. But assigning blame, at least in public, doesn’t happen often — even in troubled cases.”

One hopeful note in the article is that prosecutorial accountability has become an issue in the DA race in Brooklyn. Ama Dwimoh, one of six challengers seeking to defeat Eric Gonzalez, the acting district attorney, called for a sweeping review of how Mr. Gonzalez has handled bungled cases. And at the end of July, Ms. Dwimoh, who once worked in the district attorney’s office, accused her former employer of never holding anyone accountable for the many botched convictions it has helped overturn.

And, of course, accountability does not necessarily mean criminal liability. Professional discipline could be a powerful disincentive as well. And there is this:

“The accountability thing is often what stops people from embracing this process,” said John Hollway, a professor at the University of Pennsylvania Law School who studies wrongful convictions. “They think that accountability means punishment, but it can also mean improving the system.”

Mental Health Courts and the “Revolving Door”

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A three-year study of a Florida mental health court program found that the rate of recidivism dropped “significantly” after participants completed the court-ordered treatment program that the court offered as an alternative to jail.

The study’s authors, Julie Costopoulos and Bethany Wellman of the Florida Institute of Technology (FIT) suggested that the findings demonstrate the effectiveness of collaborative courts in helping end the “revolving door” which cycles many mentally troubled individuals between jail and the streets:

“The ‘revolving door’ has been exhaustive of institutional resources, resulting in such a poor system of treatment that many argue that the system …treats offenders with mental health challenges to the extent that recidivism is inevitable,”

The study followed 118 participants in an unidentified Florida mental health court. Three months after release, 90% had not been rearrested. After six months, the number dropped to 81% remaining free of any charges; and three years after release, 54% had not recidivated.

Perhaps almost as significant, the study found that participants were typically re-arrested  for much lesser offenses than those which originally sent them to the mental health court.

70 Million Jobs

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Have a criminal record? Need a job? You are not alone – according to 70millionjobs.com, there are 70 million Americans in the same situation. The website, created by a former Wall Street trader incarcerated for securities fraud, acts as a clearing house for job applicants and employers transparent about criminal record pasts. The principles of the organization:

• That having served a sentence, a person should be able to get on with his or her life.

• That past mistakes should not define life in the future.

• That all people have a right to a good job, decent housing, competent medical care and other human needs.

• That we will run our business transparently, with integrity and compassion.

• That the formerly incarcerated deserve the right to vote.

• That all folks that have done time are our brothers and sisters and that we’re stronger when we work together.

Another Call For “Open File”

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A lengthy article by Emily Bazelon in the NY Times Magazine examines in detail the case of Noura Jackson, a Tennessee woman convicted of murder after prosecutors withheld exculpatory evidence. Bazelon uses the case to illustrate a larger policy discussion of the dangers of a “win at all costs” culture in DA offices, the ways in which withholding evidence may become ingrained in the training oil new DA’s, the lack of meaningful consequences for prosecutorial misconduct such as withholding evidence. The article concludes with a review of the movement towards “open file” laws and policies, including the Michael Morton case that resulted in the prosecution of a former DA and sitting judge, and the implementation of an open file policy in the DA’s office n Tennessee   where Noura Jackson was prosecuted.

“A Shift in Thought”

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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

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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

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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

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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.