Interesting article in the Boston Globe about DA’s running unopposed in local races: eight of the state’s 11 prosecutors faced no one in their most recent elections, and most will run unopposed this year as well. Per the Globe, “Suffolk DA Dan Conley hasn’t had an opponent since he first ran in 2002. Ditto DA Jonathan Blodgett, in Salem. There hasn’t been a contested DA race in the Berkshire, Bristol, or Middle districts since 2006.”
However, while more than 80% of Massachusetts voters think there is a need for reform in the criminal justice system, according to a poll released by the ACLU – 88% think that people are treated differently based on who they know, 84% think that people are treated differently based on their race, and less than half (48%) think the state’s criminal justice system is working – voters showed limited knowledge of the power and budgets of District Attorneys, and few realized that DAs are accountable only to voters, with little in the way of checks-and-balances in between elections. Half of the registered voters believed individual District Attorneys have only a minor or insignificant impact on the functioning of the criminal justice system—and almost four-in-ten (38%) did not know that District Attorneys are elected and accountable only to voters.
As part of the polling, voters were then given some information about actual impacts that District Attorneys can have on individual lives and in communities – as the Globe put it, “They choose how hard to go after somebody and when to go easy. They decide the charges that are brought against those accused of crimes and what punishments to request of a judge. Many times, there’s no judge or jury involved at all: Nationally, over 90 percent of felony cases are dispatched via plea deals.” After this information was presented, 81 percent of voters said they were more likely to pay attention to their local District Attorney race in 2018.
Please read this excellent article from the New Yorker about the Underground Scholars Initiative at Cal Berkeley, a group formed by formerly incarcerated undergraduates at Cal to provide mentoring, support, and advocacy – and eventually, create a prison-to-school pipeline. About the experience:
“When Czifra first got to Berkeley, he went looking for his people, by which he meant ones who had grown up poor, but they were hard to find. He told an adviser he wanted to work with the incarcerated, particularly children—he believed that imprisoning a child for any kind of crime was counterproductive and wrong. The adviser suggested that he volunteer, but the sign-up form mentioned background checks, and he never went back.
He found big classes hard to take. For a long time after he left prison, he’d had a raw, aggressive energy about him that scared people. He still had to remind himself when he entered a new situation that nobody was going to attack him; he didn’t have to be constantly on his guard. When he walked into a crowded classroom, he felt a rush of paranoia: he felt that everyone was looking at him, and that if they knew what he’d done and where he’d been he would not be welcome. And, in fact, he was not always welcome. He went to see a professor early on to ask why he was getting B’s. “The professor made some kind of comment like he knew I was a gang banger who was trying to change my life,” he says. “He was, like, I got your number—not in an accusatory way, but not in a warm, Kumbaya way, either. He said, If you get an A-plus, I’ll write you a letter of recommendation, if you get an A, you’re grad-student material, and if you get A-minus or below, forget it.”
In an article by that title in “The Crime Report,” Matthew Mangino examines the issue of the Double Jeopardy Clause in the case of José Ines Garcia Zarate, who was acquitted in a California court of Kate Steinle’s murder but convicted of being a felon in possession of a firearm. Garcia Zarate has now been indicted on two federal charges similar to those he was convicted of in state court. The state conviction and new federal charges raise the issue of violating the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution.
As Mangino points out, this issue is virtually identical to Gamble v. United States, a case that the Supreme Court is currently considering for certiorari. Gamble was pulled over in 2015 by an Alabama police officer for a broken taillight. During the stop, the officer discovered both a gun and marijuana paraphernalia in Gamble’s car. Gamble, who had been convicted of second-degree felony robbery seven years earlier, was barred from owning a firearm. He was prosecuted for illegal possession of a firearm and served one year in state prison. Subsequently, the federal government also charged Gamble with illegal possession of a firearm for the same incident. Gamble asked the U.S. District Court to dismiss his federal indictment for violating double jeopardy.
The Federal District Court ruled against Gamble under the “dual-sovereignty” exception to the Double Jeopardy Clause, an exception created by the Supreme Court which permits a second prosecution for the same offense by a different “sovereign,” permitted the federal case to proceed. The rule dates back many decades, to a time when there was little federal criminal jurisprudence and so little overlap between federal and state crimes. Gamble and many Amici, including some conservative voices such as the Cato Institute along with traditional criminal justice advocates like the ACLU, are now asking the Supreme Court to reconsider the rule in light of the expansion of federal criminal statutes – “a stunning expansion of federal criminal jurisdiction into a field traditionally policed by state and local laws,” according to Justice Thomas in 1992.
Justice Hugo Black argued in a 1959 dissent, “If double punishment is what is feared, it hurts no less for two ‘Sovereigns’ to inflict it than for one.”
The Center on Juvenile and Criminal Justice has published an interesting report on crime trends in Los Angeles County during what they call the “justice reform era,” from 2010 to 2016, with major changes – Public Safety Realignment, Proposition 47, and Proposition 57 – in California’s justice system. The main findings:
- From 2010 to 2016, roughly half of LA County’s 89 jurisdictions showed an increase in crime (53%) and half showed a decrease (47%). Most jurisdictions elsewhere in California (259 of 422) showed decreases in their crime rates.
- The City of Los Angeles, which encompasses over 40 percent of the county’s population and over half its reported crimes, strongly impacts LA County crime rates. While Los Angeles County showed a modest increase in total crime (5%) from 2010 to 2016, this was made up of extreme variation among its 89 jurisdictions.
- The jurisdictions showing decreased crime from 2010 to 2016 had higher average crime rates at the beginning of the reform period than jurisdictions showing increased crime. This suggests that some jurisdictions, especially those that began with elevated crime, have developed successful policies and practices to improve public safety on a local level.
The overall conclusion: crime patterns in Los Angeles County, as well as the rest of the state, result from local policies and practices rather than statewide reform.
The Massachusetts Senate Friday passed an historic set of criminal justice reforms, including repeal of mandatory-minimum sentences for several drug crimes, legalization of sex between young teens close in age, and raising the age of criminal responsibility to 19, the highest in the nation. Reforms still require approval by the House of Representatives, and there is still a great deal of opposition – primarily from law enforcement officials – who hope the House of Representatives proposes a more prosecutor-friendly bill.
Massachusetts has already been a leader in combating over-criminalization and mass incarceration. In 2015, Massachusetts had the second-lowest imprisonment rate, with 179 sentenced prisoners for every 100,000 people, according to the federal Bureau of Justice Statistics. Nationally, 458 prisoners were sentenced to more than one year in state or federal prison per 100,000 US residents.
With the opioid crisis as a back-drop, the legislation also included a few tougher provisions, including heavier penalties for crimes such as trafficking fentanyl.
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.
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.”