Category Archives: Reentry

Sixth Amendment, Typewriters, Carbon Paper….

Like typewriters, carbon paper, and other relics of the analog age, the Sixth Amendment right to trivial by jury has become a historical curiosity. According to a recent study published by the National Association of Criminal Defense Lawyers, “The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It“, over the last fifty years, trial by jury has declined at an ever-increasing rate to the point that they now occur in less than 3% of state and federal criminal cases:

“Trial by jury has been replaced by a “system of  guilty pleas, which diminishes, to the point of obscurity, the role that the Framers envisioned for jury trials as the primary protection for individual liberties and the principal mechanism for public participation in the criminal justice system.”

The reason for this fundamental change in the criminal justice system is straightforward: individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose. Faced with this choice, individuals almost uniformly surrender the right to trial rather than insist on proof beyond a reasonable doubt. Defense lawyers spend most of their time negotiating guilty pleas rather than ensuring that police and the government respect the boundaries of the law including the proof beyond a reasonable doubt standard, and judges dedicate their time to administering plea allocutions rather than evaluating the constitutional and legal aspects of the government’s case and police conduct. Equally important, the public rarely exercises the oversight function envisioned by the Framers and inherent in jury service.

Perhaps the most troubling effect of this trend is evidenced by “exoneration” research. In a study of 354 individuals exonerated by DNA analysis, 11% had pled guilty to crimes they did not commit, and the National Registry of Exonerations has identified 359 exonerees who pled guilty. Simply put, the extraordinary pressure defendants face to plead guilty can even cause innocent people to plead guilty to crimes they know they did not commit.

Voting in Jail Pt. 2

And in Los Angeles, the ACLU has partnered with LARRP, the Los Angeles Regional Reentry Partnership, on an “Unlock the Vote”  campaign to reduce barriers to registration and voting for justice-involved and justice-impacted folks in Los Angeles County as well as Orange County. The project volunteers go inside the LA and Orange County jails to to educate and register eligible voters, both the prisoners and the family and friends who are visiting, and reach out through reentry fairs and other community events to educate and register people who are returning citizens or otherwise criminal justice system-impacted. If you are an LA County resident and would like to get involved, here is the information to volunteer.

Voting in Jail: IL and CA News

In Illinois, the  Governor has on his desk and is expected to sign the recently passed HB 4469, which requires every jail in the state to provide voter education and make in-person or absentee voting available to all eligible incarcerated voters. Currently only eight counties in the state have any voting process for people in pretrial detention. “There is confusion around how election code actually applies to the jail,” says Jen Dean, who runs Cook County Jail Votes, the group that helps facilitate registration and voting in the largest jail in the country. “[This bill] creates a system of uniformity across the state to make sure there are systems in place so that everybody has access to the ballot.”

Meanwhile, in California, a bill to increase voter education in jails recently cleared the Senate Public Safety Committee. Assembly Bill 3115 would require jails to partner with at least one organization to provide “both written and verbal information about voting rights upon release from jail, providing affidavits of registration to eligible voters, assisting eligible voters with the completion of the affidavits of registration, and assisting eligible voters in returning the completed voter registration cards to the county elections official.”

“First Step” Prison Reform Passes House

The FIRST STEP Act, which includes a number of substantive changes to the federal prison and reentry system, was approved yesterday in the House by a vote of 360-59. Among other things, FIRST STEP would

  • allow inmates to accrue up to 54 days of good time credit a year. The changes would apply retroactively, resulting in the release of approximately 4,000 federal inmates, according to the U.S. Justice Action Network, a criminal justice advocacy group.
  • ban the shackling of pregnant inmates, including while giving birth and postpartum. It would also require Bureau of Prison facilities to provide female hygiene products free of charge and increase available phone and in-person visitations for new mothers.
  • require the Bureau of Prisons to place inmates in facilities within 500 driving miles of their families.
  • increase the use of compassionate release for terminally ill inmates, and require new reporting on how many applications for compassionate release are accepted or denied.

The bill has sharply divided criminal reform advocates. Some, such as Rep. Jeffries (D-N.Y.), the bill’s co-sponsor, say it would provide better conditions and the possibility of earlier release for the roughly 180,000 inmates serving time in federal prison. “Any objective reading of this bill is that it will improve inmates’ quality of life,” Jeffries said on the House floor prior to the vote.

Others contend the good provisions in the bill are outweighed by core concerns over how the overcrowded, underfunded Bureau of Prisons system would handle the new programs and changes.  Sen. Durbin (D-Ill.), Sen. Booker (D-N.J.), Sen. Harris (D-Calif.), Rep. Lewis (D-Ga.), and Rep. Jackson-Lee (D-Tx.) have written a joint letter saying that the reforms would fail without broader sentencing reforms.

Unlawful Voter Purges in…California?

All Of Us or None, a California a California-based grassroots organization fighting for the rights of formerly and currently incarcerated people, has sent demand letters to ten California county registrar’s offices –including Butte, Contra Costa, Kings, Los Angeles, San Diego, Santa Clara, Solano, Tulare, Ventura and Orange — asking them to reinstate the voter registrations of thousands of people with conviction histories that AOUON believes were unlawfully purged from electoral rolls. According to AOUON, there are at least 3,000 such eligible voters removed in 2017 in Los Angeles County alone.

In 2011, a major California criminal justice reform — commonly known as “Realignment” — changed the law to require that people with non-serious, non-violent, or non-sexual felonies be sentenced to county jail or probation, instead of state prison. Since the California Constitution disenfranchises only those who are “imprisoned or on parole for the conviction of a felony,” the voting eligibility of those serving felony sentences in county jail under Realignment was unclear for several years. Following a successful legal battle brought by AOUON and other community allies against the Secretary of State, the State Legislature ultimately passed AB 2466 to clarify that Californians who are convicted of county Realignment felonies retain their right to vote. As of January 1, 2017, state elections law requires local courts to provide to the county registrar a monthly list of people “committed to state prison.” The registrar is then required to cancel the registrations of people currently in prison or on parole. According to AOUON, county clerks appear to still be purging voters sentenced to county jail or probation on felonies.

The last day to register to vote in this June’s California primary election is May 21. For people who are currently in county jail, the deadline to request mail-in ballots is May 29.

Sending a Message

The Kansas City Star reports on new legislation in that state compensating wrongfully convicted individuals financially for time spent in prison. The bill, passed Friday, awards $65,000 per year for every year an exoneree was wrongfully imprisoned. Initial payments would be up to $100,000 or 25 percent of what is owed. Subsequent annual payments would be $80,000. The payment schedule plan is telling: several Kansas prisoners were wrongfully imprisoned for so long that legislators felt it would take too many years to fairly compensate them without the higher yearly payouts.

In addition to the financial payments based on years imprisoned, the compromise measure also would provide free college or vocational training and health insurance. The educational benefits include books, fees and housing. And mental health coverage would be a part of their medical care.

For the exonerates themselves, it is about much more than the money: “It hasn’t been about the money only, ever since I got home,” said one man who served 17 years for a robbery he did not commit. “This is about bringing change, sending a message.”

What justice will entail: holding accountable those who had a role in wrongfully convicting them.

Legislators appeared to agree. State Sen. Molly Baumgardner, a Republican from Louisburg, worked on the compromise and noted that legislators are aware of that objective:

“Compensation is another court saying you were wronged,” she said. “It will give even more weight to the process of going after those who had a direct hand in that wrongful conviction.”

 

Reducing Barriers to Professional Licensing

The Collateral Consequences Resource Center recently reported on a  new Indiana law regulating consideration of conviction in occupational and professional licensure in that state.  This is part of a trend, with eight additional states recently enacting or about to  enact similarly progressive occupational licensing schemes.  New general laws regulating licensure are in place in Arizona, Illinois, Louisiana, and Massachusetts.  Similar bills have been enrolled and are on the governor’s desk for signature in Kansas, Maryland, Nebraska, and Tennessee.  Arizona’s new 2018 licensing law follows on another law passed in that state in 2017 that authorized provisional licenses for individuals with a criminal record.  Massachusett’s new licensing law is part of a more general criminal justice reform bill.   Delaware and Connecticut have also recently loosened restrictions on licensing for cosmetology and related professions.

In California, AB 2138 is currently making its way through the legislature. The bill would reduce barriers to professional licensure for individuals with prior criminal convictions by limiting a regulatory board’s discretion to deny a new license application, or suspend or revoke an existing license, to cases where the applicant or licensee was formally convicted of a substantially related crime or subjected to formal discipline by a licensing board, with offenses older than five years no longer eligible for license denial or suspension or revocation with the exception of violent felonies, as currently established in statute. 

Stop what you’re doing and listen to this…

“Money respect money, thats the bottom f***ng line” says John Thompson, the Louisiana man who spent 18 years on death row after prosecutors hid exculpatory evidence in his trial. Its part of an unforgettable New Yorker Radio Hour podcast, “John Thompson vs. American Justice,” that lays out the history of the original case and the resulting Supreme Court case that overturned Thompson’s $14,000,000 verdict against the NOLA District Attorney’s Office for their actions in his case. As Thompson says, “the highest court in the land reached out and said ‘f**k you!'”

In the original case, Thompson was convicted of murder in a high-profile case where New Orleans prosecutors wanted a conviction and were not scrupulous about how they got it. After 18 years on death row at Angola State Prison, just weeks before his scheduled execution, his lawyers discovered that a prosecutor had hidden exculpatory evidence from the defense. It was a clear and purposeful violation of the Brady Rule, and ultimately Thompson was exonerated of both crimes. He sued the DA’s office for its practices and won a fourteen-million-dollar settlement, but the Supreme Court reversed the decision, declining to punish the D.A. for the Brady violation.

Here is the Radio Hour summary:

“Thompson’s case revealed fundamental imbalances that undermine the very notion of a fair trial.  Under the Brady Rule, prosecutors must share with the defense any evidence that could be favorable to the defendant.  But there is essentially no practical enforcement of this rule. In most states, prosecutors are the ones who hold the evidence and choose what to share, and disclosing exculpatory evidence makes their cases harder to win. We have absolutely no idea how many criminal trials are flawed by these violations.The staff writer Andrew Marantz, his wife, Sarah Lustbader, of the Fair Punishment Project, and the producer Katherine Wells reported on John Thompson’s story and its implications. They spoke with the late John Thompson (who died in 2017), with his lawyers, and with Harry Connick, Sr., the retired New Orleans D.A. who, despite having tried very hard to have Thompson killed, remains unrepentant.”

 

Underground Scholars at UCLA

(Paul Seeman is an advisor to the Underground Scholars Initiative at UCLA)

In its latest issue dedicated to incarceration issues, the UCLA student magazine “La Gente” has two articles on the Underground Scholars Initiative, the support and advocacy group for formerly incarcerated students. There is a profile of the group by one member, Humberto Flores:

“When I was introduced to the Underground Scholars, it gave me a space where I felt comfortable with people from my background and upbringing, prior to that, walking around campus, I felt like I didn’t belong.”

…and an individual profile of Daniel Cisneros,one of the founding members:

“I always try to promote higher education, like, Ay, if i could do it, then you could do it, man. You know, I’m not any smarter than you are.”

Check it out!

27 Years On Death Row…

On Monday the California Supreme Court granted the habeas corpus petition of  Vicente Benavides Figuero, a former farmworker who spent 27 years on death row, finding that medical testimony and an autopsy result used to convict him had been inaccurate. Most of the experts who testified against him have since recanted. “The evidence now shown to be false was extensive, pervasive and impactful,” Justice Carol A. Corrigan wrote for the court.

The outcome results directly from SB 694 (Leno), passed in 2015, which added as grounds for a writ of habeas corpus, new evidence exists which would raise a reasonable probability of a different outcome if a new trial were granted. This is a substantially different and easier burden to meet than the old standard, before 2015, when in order to prevail on a new evidence claim, a petitioner had to show that the new evidence undermined the prosecution’s entire case and “point[ed] unerringly to innocence with evidence no reasonable jury could reject” (In re Lawley (2008) 42 Cal.4th 1231, 1239). The California Supreme Court had stated that this standard was very high, much higher than the preponderance of the evidence standard that governs other habeas claims.

As the bill analysis for SB 694 explains, the old standard was: “nearly impossible to meet absent DNA evidence, which exists only in a tiny portion of prosecutions and exonerations. For example, if a petitioner has newly discovered evidence that completely undermines all evidence of guilt and shows that the original jury would likely not have convicted, but the new evidence does not “point unerringly to innocence” the petitioner will not have met the standard and will have no chance at a new trial. Thus, someone who would likely never have been convicted if the newly discovered evidence had been available in their original trial is almost guaranteed to remain in prison under SB 694 (Leno ) Page 4 of 6 the status quo in California. The proposed new standard in SB 694 addresses this anomaly. Our criminal justice system was built on the understanding that even innocent people cannot always affirmatively prove innocence, which is why the burden is on the prosecution to prove guilt when a charge is brought to trial, and absent evidence of guilt beyond a reasonable doubt, innocence is presumed. The new standard contained in this bill ensures that innocent men and women do not remain in prison even after new evidence shows that a conviction never would have occurred had it been available.”