Category Archives: Paul Seeman

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.

 

 

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.”

 

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.