According to the 2017 National Registry of Exonerations report, released this month, there were a record number of 166 exonerations in 2016. Exonerations increased even though the number due to DNA testing declined from 2015 to just 10% of the total. According to Open File:
“One possibility is that increased public awareness of the role prosecutors play has required DAs to be more engaged with claims of wrongful conviction. Another is that judges and other actors in the criminal justice system have finally awoken to the reality that there is an epidemic of prosecutorial misconduct in this country.
Misconduct by itself demands accountability. But, for those whose concern for individuals caught up in our justice system extends only to the innocent, the “Race and Wrongful Convictions” report underscores the importance of combating prosecutorial misconduct in all cases:
Seventy percent of the murder prosecutions that led to exoneration included official misconduct that we know about. We have identified many different types of misconduct. The most common is concealing exculpatory evidence—often called “Brady violations” after the landmark 1963 Supreme Court case Brady v. Maryland—which occurred in just over half the cases. The next most common type is witness tampering—everything from misleading a witness at a lineup, to threatening a witness, to suborning perjury—which occurred in 31% of murder exoneration cases; followed by perjury by a state official, which happened in 11% of the cases.
These numbers are jaw-dropping. Brady violations and perjury by state officials are not about technicalities; they are about getting to the truth. The NRE’s reports serve as a sharp rebuke to those seeking to narrow the circumstances under which the State’s suppression of exculpatory evidence results in a new and fair trial for the defendant. Soon the Supreme Court itself will weigh in on issues of prosecutorial misconduct and defendants’ due process rights. And the high-profile case it has chosen to hear could well end up in the Registry of Exonerations. Until accountability becomes a meaningful concept, one is left to wonder how many more wrongful convictions will be obtained by prosecutorial abuses right under our noses.”
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The Collateral Consequences Resource Center publishes a resource guide to restoration of rights, pardon, record sealing, and expungement in all 50 states, along with blog posts on collateral consequence related issues. There has been a recent uptick in state legislation on the topic: since 2013, 40 states and Washington, D.C., have enacted new or expanded second-chance legislation. What’s propelling this movement? Maura Ewing of the Pacific Standard thinks it is a growing “feeling that we’ve gone too far in imposing additional penalties and restrictions that don’t seem to have any end.”
This month the Supreme Court will hear oral arguments in two consolidated cases, Turner and Overton, that deal with prosecutorial misconduct and the State’s Brady duty to disclose exculpatory evidence very often. Here is an excellent analysis from Bidish Sarma in the American Constitutional Society Blog:
“Last year, I wrote for the ACS here about one of the chief concerns underpinning the case: that prosecutors decide whether to disclose exculpatory information pre-trial based on their prospective assessment of whether withholding it would make a “material” difference at trial. To recap the Brady test courts use post-trial: a new trial must be granted where the defendant has proven: (1) suppression—that the State actually failed to turn over the information at issue; (2) favorability—that the information would have helped the defendant; and (3) materiality (also known as prejudice)—that, had it been disclosed before the trial, there was “any reasonable likelihood” it could have “affected the judgment of the jury.” (Wearry v. Cain (2016) (internal citations omitted)). Tying prosecutors’ disclosure determinations to their own predictions about materiality is problematic for a bevy of reasons … But, what is truly worrisome is that the Supreme Court justices have not acknowledged or fully grasped how their Brady rulings influence prosecutorial disclosure decisions.
In the oral argument in Smith v. Cain in 2011, several justices expressed dismay when the prosecutor arguing the case informed them that the lawyers in her office making disclosure decisions did not simply consider whether information is exculpatory, but also gauged whether it was material. Some vocalized their concerns with this approach. Justice Kennedy posited a distinction between a Brady “obligation” to turn over evidence before trial and a Brady “violation” based on an appellate court’s post-trial assessment of materiality:
And with all respect, I think you misspoke when you – you were asked what is – what is the test for when Brady material must be turned over. And you said whether or not there’s a reasonable probability . . . that the result would have been different. That’s the test for when there has been a Brady violation. You don’t determine your Brady obligation by the test for the Brady violation. You’re transposing two very different things. And so, that’s incorrect.
If there is a distinction—and there surely should be one—the Court’s jurisprudence provides no guidance on how to identify it.
Indeed, consider what the Solicitor General has argued in Turner and Overton. Although there is no dispute that the prosecution failed to turn over several categories of exculpatory evidence, the Government’s brief on the merits states, “[t]he government complied with is obligations under Brady v. Maryland, 373 U.S. 83 (1963). Nondisclosures violate Brady only when withheld information is both favorable and material.” See how easily the Government elides that distinction between a Brady obligation and a Brady violation? In the first two sentences in the summary of its argument, the Government exploited a jurisprudential problem that the justices should address.
More on voting rights restoration in Florida: Hand v. Scott is a lawsuit filed by the Fair Elections Legal Network to automatically restore former felons’ voting rights and eliminate Florida’s arbitrary process for re-enfranchisement. The plaintiffs include seven former felons who have applied for restoration of voting rights and have been denied for minor infractions, like traffic violations, or for no provided reason at all.
The background: 1.68 million Floridians are currently disenfranchised—the highest state total in the nation—and over 10,000 are waiting for a hearing on their restoration applications. The Clemency Board only hears an average of 52 cases per quarter. At this rate, if no new applications were submitted, it would take the Clemency Board almost 51 years to hear the entire backlog of applicants.
The current voting rights restoration process requires former felons who have completed their full sentences to petition the Executive Clemency Board, which is comprised of the Governor, Attorney General, Chief Financial Officer and Commissioner of Agriculture. Once they have applied, they must wait an indeterminate amount of time to be placed on the Board’s quarterly meeting agenda. This can take as long as 10 years for some applicants or months for others.
Once an applicant is selected for a hearing, the Executive Clemency Board’s decision to accept or deny the restoration of voting rights is made through an arbitrary process, not regulated with any laws, rules or criteria. Some applicants, including some of the plaintiffs in this case, have had their applications rejected simply for receiving traffic citations after they finished their sentences.
The lawsuit cites the lack of any rules or time limits governing the Executive Clemency Board’s decisions to grant or deny applications. Without any rules, the system and the applicants are prone to arbitrary treatment, violating the 1st and 14th Amendments to the U.S. Constitution. Giving government officials unfettered discretion, according to the complaint, leads to unequal treatment of people in similar circumstances.
The 3rd District Court of Appeal says that Prop. 57’s requirement that juvenile court judges, rather than prosecutors, decide whether a youth should be tried as an adult applies to charges filed before the measure passed in November: “immediately”
Proposition 57, passed by 64 percent of California’s voters, allowed early parole hearings for prisoners serving long terms for crimes that the law defined as nonviolent, and reduced prosecutors’ authority to charge juveniles in adult court.
Juveniles as young as 14 who are convicted in adult court can be sentenced to the same terms as adults — up to life in prison for murder and some crimes involving guns. Those convicted in juvenile court must be released at age 23, except in rare cases when a judge finds that a youth poses a danger to society.
A 2000 ballot measure allowed prosecutors to charge juveniles aged 14 to 17 in adult court. Prop. 57 restored the pre-2000 law, requiring a prosecutor to seek approval from a juvenile court judge, who would assess the youth’s record, background and charges before deciding where the case belonged. The law presumes that youths should be tried as juveniles unless prosecutors can prove otherwise.
Florida’s Attorney General Pam Bondi took no position on the ballot initiative that would restore millions of formerly incarcerated individuals’ right to vote in Florida Supreme Court Monday, and for people working on the initiative that was very good news.
The court must decide whether the ballot initiative deals with only one subject and whether the title and summary that voters will see on the ballot fairly describes the amendment. The proposal, which would be on the ballot in 2018 if approved, would restore the voting rights of convicted felons after they have completed their sentences, including probation, and it would not apply to people convicted of sexual battery or murder.
Desmond Meade, a leader of Floridians for a Fair Democracy, the group directing the statewide petition drive to get the voting rights question on the ballot, told reporters that Bondi’s official neutrality was “a wonderful thing.”
“This is rooted in fairness,” Meade said. “Once a person has served their time and paid their debt to society, they should be given an opportunity to have their voices heard … But Florida is an outlier.”
Adam Liptak examines the origin of judicial endorsement of sex-offender registries in his NY Times article – “Dubious Data Belies Supreme Court’s Stance on Repeat Sex Offenders”. The takeaway is that Justice Anthony M. Kennedy’s influential majority opinion in the 2003 case, Smith v. Doe, that “the rate of recidivism of untreated offenders has been estimated to be as high as 80 percent,” is a 1986 article in Psychology Today, a magazine written for a general audience. The article was about a counseling program run by the authors, and they made a statement that could be good for business. “Most untreated sex offenders released from prison go on to commit more offenses — indeed, as many as 80 percent do,” the article said, without evidence or elaboration.
The actual statistics:
“There are many ways to calculate recidivism rates, and they vary depending on a host of distinctions. A 2014 Justice Department report found, for instance, that sex offenders generally have low overall recidivism rates for crimes. But they are more likely to commit additional sex offenses than other criminals.
In the three years after release from prison, 1.3 percent of people convicted of other kinds of crimes were arrested for sex offenses, compared to 5.3 percent of sex offenders. Those findings are broadly consistent with seven reports in various states, which found that people convicted of sex crimes committed new sex offenses at rates of 1.7 percent to 5.7 percent in time periods ranging from three to 10 years.
The Justice Department report said the risk of new sex offenses by convicted sex offenders rises over time, reaching 27 percent over 20 years.”
Nice exposition of the elements of an 18 USC 1001 violation – lying to a federal agent, or in this case, Congress, in this article in the Washington Post. Did Jeff Sessions violate the law in his confirmation hearing by denying contact with the Russians? As the article explains, prosecutors have brought charges in cases involving far more trivial misstatements and situations far less consequential than whether a nominee to be the nation’s chief law enforcement officer misled fellow senators during his confirmation hearings.
#cut50 is a national bipartisan effort to reduce America’s incarcerated population by 50 percent over the next 10 years. More than two million people are behind bars in the United States, which is close to 1 out of every 100 Americans, at a cost of $80 billion every year. Reliance on overly long sentences and tough on crime policies is both morally indefensible and economically unjustifiable. The statistical reality:
More than 70 million people living with some type of criminal record.
23 million bear the label “convicted felon”
5 million children have at least one incarcerated parent
2.2 million people in prisons and jails
$80 billion per year spent on prisons
The idea behind #cut50 is to foster connections between the expertise of criminal justice reform organizations and the media – and other influencers:
“By humanizing the narrative and pursuing transformative legislation, #cut50 is uniting the political machine of Washington DC, the financial reach of Wall Street, the innovation of Silicon Valley, and the cultural dominance of Hollywood to roll back the incarceration industry.”
From the Sentencing Project:
Florida: there is a new House bill to amend the state Constitution that would and automatically restore voting rights to Floridians with felony convictions three years after they have completed their sentence. If passed, the constitutional amendment would be placed on the next general election ballot. This is at the same time as a proposed constitutional amendment by Floridians for a Fair Democracy that would automatically restore voting rights on completion of an individual’s sentence, which is up for hearing this month in the Florida Supreme Court.
Florida is one of only four states in the nation – along with Virginia, Iowa and
Kentucky – there has been a 68% increase in disenfranchised Kentuckians since 2006
Over 300,000 Kentuckians are barred from voting due to a felony conviction, according to a recent report by the League of Women Voters (LWV).
Kentucky has the third highest felony disenfranchisement rate in the country, with one of every 11 adults disenfranchised. And the state has the highest rate for African Americans (26.2%—more than triple the national rate), with one in four disenfranchised. More than 92% of Kentucky’s disenfranchised population is not incarcerated, including 78% who have fully completed their sentence.
Virginia: A Senate bill to limit governor’s power to restore voting rights has been blocked in the House
Mississippi: A Bill to study changes to state disenfranchisement laws unanimously passes House but dies in Senate.
Nebraska: Half of state counties give misinformation on how people regain voting rights.