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

The Atlantic discusses the problem with plea bargaining: excessive prosecutorial power and over criminalization result in innocent people pleading guilty. The National Registry of Exonerations reports that of 2,006 recorded exonerations since the project started keeping track in 1989, 362 of those, or 18 percent, were based on guilty pleas.

The article discusses some possible solutions to make plea bargaining either more accountable or less common. They suggest the process could be altered to afford defendants more protection, or the jury trial could be simplified to ensure more people take advantage of this right.

1: Regulate the process. “Plea bargaining in the United States is less regulated than it is in other countries,” said Jenia Turner, a law professor at Southern Methodist University who has written a book comparing plea processes in several U.S. and international jurisdictions. As a result, states are independently adopting measures to inject the process with more transparency here, more fairness there. In Connecticut, for example, judges often actively mediate plea negotiations, sometimes leaning in with personal opinion on an offer’s merit. In Texas and North Carolina, along with a few other states, both sides share evidence prior to a plea.

On April 13, Montana Governor Steve Bullock signed HB 168, which gives Montana courts the power to “expunge” the records of misdemeanor convictions after completion of sentence, effective October 1 of this year. Montana is now the 30th state since 2012 to enact some form of record-closing law, or to expand an existing one. HB 168 is particularly broad compared to many other expungement statutes across the country in that is does not exclude certain types of minor offenses (e.g., Missouri‘s new expungement law excludes violent, sex, and driving offenses) or offer only limited relief (e.g., New York’s new sealing statute allows access for a variety of purposes), Montana’s law gives anyone convicted of misdemeanors, no matter how many or how serious, a one-time opportunity to clear their record entirely. The new law provides that expungement means “to permanently destroy, delete, or erase a record of an offense from the criminal history record information system maintained by the department of justice in a manner that is appropriate for the record’s physical or electronic form.” There is no exception for law enforcement, much less for licensing or employment, and only a person’s fingerprints remain “for investigative purposes.”

For all but certain specified serious crimes, expungement is “presumed” unless “the interests of public safety demand otherwise” — if five crime-free years have passed since completion of sentence, or if the petitioner is seeking opportunities for military service that are otherwise closed to him and is not currently charged with a crime. The presumption in favor of relief absent a public safety finding is similar to the new Missouri and Indiana expungement laws.

Two recent stories about the two different systems of criminal justice in America, for the haves and have-nots. From the Guardian, an article about the need for bail reform in California, “Wealthy murder suspect freed on bail as man accused of welfare fraud stuck in jail” –

and from the Marshall Project, a story about Kristen Anderson, a social worker at The Bronx Defenders, a public defense office serving low-income communities in New York City, who talks about the difference between her own experience with bipolar disorder and the clients she works with:

‘I was diagnosed with bipolar disorder the year I graduated from college. It happened after my first full-blown manic episode, in which I sped on a highway at over 100 miles an hour after buying a $3,000 engagement ring on a whim, planning to surprise my then-boyfriend halfway across the world. Needless to say, this plan did not come to fruition, and my spontaneity, risk-taking, and impulsivity soon morphed into terrifying psychosis. I was suddenly convinced that my reality was just a big stage and everyone was acting out a script, and I was hospitalized and prescribed anti-psychotics and mood stabilizers. About four years after my first episode, I pursued a master’s degree in social work with the intention of becoming an advocate for those like me. In a mental health policy class, I remember debating the use of physical restraints, and arguing vehemently against the practice. My classmates did not know that I myself had been strapped to ER beds and restrained in seclusion rooms.But it was in that same class that I learned about the deinstitutionalization and subsequent over-incarceration of people with mental illnesses, and began to slowly comprehend my privilege as a white woman whose circumstances had allowed her to lead a productive and fulfilling life in between episodes. Now that I am a social worker at the Bronx Defenders, I’ve met many people like Raheem: men and women of color struggling with mental illness while trying to survive in the South Bronx, one of the poorest districts in America. Many end up ensnared in the criminal justice and immigration systems instead of getting the health care they need.’

In Florida, one of four states where a felony conviction currently results in a lifetime loss of civil rights, the state’s Supreme Court has approved a ballot Initiative for 2018 that could help restore rights for more than 1.6 million Florida voters who are currently prohibited from voting.  For more information, see the Florida Rights Restoration Coalition: https://floridarrc.com/about

The Marshall Project lists “Five Things You Didn’t Know About Clearing Your Criminal Record“:

• In the Internet age, expungement only goes so far. There will always be Google. But  any bit you can pare down someone’s record helps them gain access to employment or housing.
• An expunged record can still hurt your chances of landing a job. Beyond doing a simple Internet search for your name, employers can use private information providers to run background checks on job candidates, even though an expunged record in many states does legally allow you to leave the box blank when a job application asks if you have ever been convicted of a crime.
• Congress is considering whether to make even more people eligible for expungement. Under the REDEEM Act people convicted of nonviolent federal crimes could apply to have them sealed, and nonviolent juvenile offenses would automatically be expunged or sealed, depending on age.
• If you aren’t a citizen, even an expunged crime can still make you deportable.Under immigration law passed in 1996, a “conviction” for the purposes of deportation includes any instance in which a person pleads guilty to a crime or some kind of punishment is imposed, such as some mandatory diversion programs. Even if the record was sealed or expunged, it could still be used as a reason to remove someone from the country.
• If you’re trying to clear your record — there’s an app for that.In Chicago, Maryland, and Louisiana, advocates and developers have built apps to help people understand whether or not they are eligible for expungement, and how to get in touch with a lawyer.

The “Grits for Breakfast” blog reviews John Pfaff’s criminal justice reform treatise “Locked In,” finding his recommendations wanting: specifically, that his two big recommendations cannot be followed simultaneously. Focus on reducing “admissions” to the criminal justice system requires a focus on nonviolent offenses. Focus on violent offenses, as Pfaff insists, and they are only a fraction of those annual criminal justice admissions. Per Grits these are contradictory suggestions. There is hope, though, in another suggestion: a Cap-and-Trade system for incarceration similar to the system used for pollution controls. Basically each county would receive an allocation of sentencing time, and if they wanted to punish people more they’d have to purchase it from other counties in a market setting. That would place financial responsibility for over-incarceration on the local actors most responsible for it. The idea comes from “The Small Prison” by  Cheryl Lero Jonson, John E. Eck & Francis T. Cullen, in  The American Prison: Imagining a Different Future
cited here.

The West Virginia legislature at the last minute passed a compromise bill – SB76, the WV Second Chance for Employment Act – that would allow individuals convicted of non-violent felonies to return to court after 10 years to have their convictions reduced to misdemeanors.

For several years the WV legislature has been considering how to improve employment opportunities for people with non-violent convictions, but the House and Senate had different ideas about how to do it. The Senate approach would have expanded the state’s expungement law, which now applies only to youthful misdemeanors, while the House preferred reducing nonviolent felonies to misdemeanors. On April 8, the Senate agreed to accept the “forgiving” approach favored by the House, creating a new category of “reduced misdemeanor” that need not be reported on employment applications but will be reflected in background investigations.

Adam Gopnik of the New Yorker favorably reviews John Pfaff’s book on the causes of and cures for mass incarceration, “Locked In.” The book was discussed in previous posts on this blog; Gopnik reiterates the central thesis, that the cause is not mandatory minimums, the war on drugs, or drug convictions in general: its the prosecutors.

“So what makes for the madness of American incarceration? If it isn’t crazy drug laws or outrageous sentences or profit-seeking prison keepers, what is it? Pfaff has a simple explanation: it’s prosecutors. They are political creatures, who get political rewards for locking people up and almost unlimited power to do it.”
One statistic among many, from “Locked In”: While violent crime was increasing by a hundred per cent between 1970 and 1990, the number of “line” prosecutors rose by only seventeen per cent. But between 1990 and 2007, while the crime rate began to fall, the number of line prosecutors went up by fifty per cent, and the number of prisoners rose with it. Its the central paradox of mass incarceration: fewer crimes, more criminals; less wrongdoing to imprison people for, more people imprisoned.

The NY Times reports on 5 Prosecutors With a Fresh Approach, newly elected local DA’s with a different approach: changing a justice system that jails too many people at the expense, they say, of common sense, public safety and even humanity. Its not an easy road,  and there has been some backlash, but it may be the best hope for real criminal justice reform.