Author Archives: Paul Seeman

LA County Moves Forward On “Fair Chance”

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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convictions until a conditional offer of employment is made, giving them an opportunity to appeal if an offer is rescinded and fining businesses that repeatedly flout the guidelines.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

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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

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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

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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

 

State-by-State Review of Restoration of Rights

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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

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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

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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

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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

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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

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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.