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.
“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.”
(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!
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.”
Excellent op-ed, “Turn Prisons Into Colleges” by Harvard Professor Elizabeth Hinton in the New York Times this Tuesday. Hinton argues that education is a civil right that improves society and increases civic engagement, and that expanding educational opportunities to prisoners will reduce recidivism and government spending. She quotes a 2013 study from RAND showing that inmates who took classes had a 43 percent lower likelihood of recidivism and a 13 percent higher likelihood of getting a job after leaving prison.
Currently, the Senate Committee on Health, Education, Labor and Pensions is consideringpermanently reinstating Pell Grants for incarcerated students, who lost access to federal scholarships under the 1994 crime bill. Even Education Secretary Betsy DeVos calls providing prisoners with the chance to earn a degree “a very good and interesting possibility.”
“College presidents across the country emphasize the importance of “diversity, inclusion and belonging,” and they are reckoning with their institutions’ ties to slavery. Expanding prison education programs would link those two ventures in a forward-thinking way. It’s clear that education will continue to be a central part of criminal justice reform. The question we should ask ourselves is not “Will incarcerated students transform the university?” The better question is, “Will colleges begin to address and reflect the world around them?”
California State Senators Scott Wiener (D-San Francisco) and Henry Stern (D-Canoga Park) have proposed a bill to expand the use of conservatorships to deal with the issue of mental illness and homelessness. The bill would allow local governments to conserve individuals “who suffer from chronic homelessness, accompanied by debilitating mental illness, severe drug addiction, repeated psychiatric commitments, or excessively frequent use of emergency medical services.”
There are currently two kinds of conservatorships in California: Lanterman-Petrie-Short (LPS) conservatorships for individuals who are “gravely disabled” and thus unable to care for themselves, and probate conservatorships for individuals unable to care for themselves due to physical health issues, cognitive impairment, or elder abuse. The legislation, if successful, would create a third category specifically targeted at the at-risk homeless population. According to the authors:
“California faces an unprecedented housing affordability crisis, accompanied by significant untreated mental illness and drug addiction. These conditions, coupled with the limitations of our state and local social services, have left some counties searching for more tools to provide help and support to those Californians in the most need. In San Francisco, many of the successful programs and services have still fallen short of providing meaningful rehabilitation to a small population of residents with severe mental illness and drug addiction who are deteriorating on the city’s streets. Los Angeles faces similar challenges. The Los Angeles County Board of Supervisors is currently evaluating the efficacy and reach of their conservatorship system pursuant to a motion coauthored by Supervisors Mark Ridley-Thomas and Kathryn Barger.
Many of these people routinely use social and emergency services and find themselves in law enforcement custody, effectively converting a health issue into a criminal issue. By allowing greater flexibility to conserve these extremely disabled individuals – who are unable to make decisions for themselves – we can keep people out of the criminal justice system and focus on their health and well-being.”
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.”
Taking the lead in application of California’s Proposition 64, which legalizes, among other things, the possession and purchase of up to an ounce of marijuana and allows individuals to grow up to six plants for personal use, San Francisco’s DA George Gascon has ordered the review, recall, dismissal, and sealing of more than 3,000 marijuana-realted misdemeanors that were sentenced prior to Proposition 64’s passage. The law anticipated that individuals could petition the court to have their own records cleared, but the process is complicated and in SF only 23 petitions were filed in the first year. The preemptive action by the DA is, at this point, unique in California.
“So instead of waiting for the community to take action, we’re taking action for the community,” Gascón said.
The move will clear people’s records of crimes that can be barriers to employment and housing.
ProPublica reports that the Nevada Board of Pardons Commissioners has pardoned Fred Steese, 26 years (21 in prison) after his conviction on a murder charge in which the prosecutors had proof of his alibi hidden in their files, five years after an Order of Actual Innocence from a district court, and five years after the same Clark County prosecutor’s office required an Alford plea from Steese as a prerequisite for release after the order.
Steese was convicted in 1995 and sentenced to two life sentences for the murder of Gerard Soules, a Las Vegas performer with a costumed poodle act at the Circus Circus casino. At the time of Soules’ death, Steese was several states away. But prosecutors didn’t reveal that they had evidence that Steese was telling the truth, instead telling jurors that Steese had fabricated his alibi with the help of his look-alike brother. During the trial, the prosecutors also concealed the nature of several photo lineups pointing to Steese’s innocence and accused the defense of manufacturing evidence.
The men who prosecuted him, Bill Kephart and Doug Herndon, are now district court judges in Las Vegas.
Read the whole sordid story here.
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.