Four out of Nine Supreme Court Justices Are Okay With Executing the Innocent

By Paul Goodman
Back before I was a telco nerd, I was a criminal defense nerd, and I still follow developments in criminal justice.  While the criminal justice system evolves, one constant is that race still plays a huge role. If you want proof, there’s no better policy to examine than the death penalty. If you’re a member of a minority in this country, you’re far more likely to get the death penalty if you’re convicted of murder. For example, about fifty percent of murder victims are white; however, in cases which result in an execution, about eighty percent of the victims are white.  Similarly, a study of the death penalty in Georgia concluded the race of the defendant and the race of the victim play a huge role in whether the government executes the defendant:

Defendant’s Race	Victim’s Race	% Sentenced to Death
Black	White	22
White	White	8
Black	Black	1
White	Black	3

(That bottom statistic isn’t terribly trustworthy:  Out of 2,500 homicide cases in the study, only 65 involved a white defendant and a black victim, too small a sample to be reliable.)

Without getting into the whole death penalty debate, most people can agree that if we’re going to execute people, it should be people who are actually guilty.  We’ve almost undoubtedly executed innocent people.

Since 1973, over 140 people have been exonerated and freed from death row. There’s a host of reasons innocent people end up on death row, from the way memory works to bad science toprosecutorial misconduct. Like everything created by human beings, the justice system makes mistakes.

McQuiggen v. Perkins is a case about evidence of innocence. Under federal law, a defendant sentenced to the death penalty can only present new evidence of their innocence within a year of their last appeal. So if you uncover new evidence proving your innocence a year and one day after that appeal, you’re out of luck. On Tuesday, the Supreme Court, with a 5-4 vote, decided that in some circumstances, the one-year limit doesn’t apply.  That will save some innocent lives, but four justices were willing to strictly enforce the one-year limit even if it means killing people who have done nothing wrong.

In a dissenting opinion, Justice Scalia bitterly complained about the ruling. He takes his usual positions—the Court doesn’t have the authority to make the exception, the Court must strictly interpret Congress’ wishes, and so on. Here’s a particularly chilling excerpt:

There are many statutory bars to relief other than statutes of limitations, and we had never (and before today, have never) created an actual-innocence exception to any of them.

Scalia’s dissent argues that because Congress created the one-year limit, the Court does not have the authority to carve out exceptions to that limit.  The subtext, however is that Scalia has no problem with our government executing a perfectly innocent person. Neither do the three justices who joined the dissent. That’s a disturbing proposition, and completely ignores the pervasive racism of our criminal justice system.

Law is full of what we call “legal fictions.”  For example, when you click the “I agree” button when using the iTunes store, courts will assume you read and understood Apple’s terms and conditions, even if you didn’t.  Or get this one: If you buy a smart phone, by removing the shrink wrap, you agree to the terms and conditions which are printed in a booklet inside of the box. It’s one of those situations where courts decide, “we don’t know whether you agreed or not, but for the sake of efficiency, we’ll assume that you did.  Otherwise, courtrooms will be even more backlogged than they already are.”

There are times when the law shafts you for the sake of efficiency.  But what I’m most disgusted by is the fact that on May 29, 2013, there are Supreme Court justices who do not understand  that the government deciding to kill you should not be one of those times, especially when that government is more likely to kill you if you’re a person of color, and there’s a fair chance you don’t deserve to die.

via Greenlining.org

New Voter Registration Agency to Help Close Gaps in Communities of Color

By Michelle Romero

In a move that leads the nation in reducing barriers and expanding opportunities for voter registration, California Secretary of State Debra Bowen is designating the state’s new Health Benefit Exchange, Covered California, as a voter registration agency under the National Voter Registration Act (NVRA). In doing so, Covered California will reach millions of Californians who might not otherwise be given the opportunity to register to vote, most of whom are people of color.

“The timing could not be more ideal,” said Lori Shellenberger, director of the Voting Rights Project of the ACLU of California. “Covered California is already leading the country in implementation of theAffordable Care Act. Secretary Bowen’s decision to include the state’s Health Benefit Exchange as a voter registration agency is one of the most significant voter registration policy decisions in the state’s history and will bring millions of Californians into the democratic process in our state. We are hopeful that many other states will follow her innovative lead.”

According to simulations of the California insurance market, more than 2 million uninsured Californians who are newly eligible for health care coverage under the Affordable Care Act will enroll. About half of them will be covered through Medi-Cal, while 1.2 million will be reached through Covered California.

The Secretary’s voter registration agency designation comes at a time when Covered California is developing its online, phone and in-person application process for an anticipated October 1^st launch date. By incorporating voter registration services into all of its application processes, Covered California will lead the nation by offering voter registration services to millions of consumers from the outset.

About 74 percent of currently uninsured Californians are people of color. Asians and Latinos also have low voter registration rates. Effective integration of voter registration through Covered California can play a key role in helping to close the gaps in communities of color.

Because of the Secretary of State’s leadership in California, we could see as many as 68 millionpeople enfranchised across the country if other states follow suit and designate their Health Benefit Exchanges as voter registration agencies.

The Greenlining Institute’s Claiming Our Democracy Program will continue to work with theACLU of California and other partners to ensure this new designation is acted upon in a way that maximizes opportunities for all.

via Greenlining.org

One in Five California Seniors Live in Poverty

A new report from the Kaiser Family Foundation finds that one out of five California senior citizens lives in poverty. Nationally, the figure is 15 percent – far higher than the nine percent “official” figure (based on the federal poverty level) that is commonly used in such calculations.

This disturbing finding – which has serious implications for proposals under consideration in Washington to reduce cost-of-living adjustments to Social Security benefits – isn’t news to Greenlining. Two years ago, our report, “The Economic Crisis Facing Seniors of Color,” found much the same thing: Official stats greatly underestimate poverty among the elderly. And because they tend to have less in savings and are less likely to have a retirement plan at work, seniors of color are disproportionately likely to be poor.

We’ve said it before and we’ll say it again: With a fair tax system – for example, one that doesn’t reward corporations for stashing profits in overseas tax havens – we wouldn’t need to even thinking about balancing the budget on the backs of the elderly.

via Greelining.org

Supreme Court rules police can take DNA samples from arrestees

WASHINGTON (AP) — A sharply divided Supreme Court on Monday said police can routinely take DNA from people they arrest, equating a DNA cheek swab to other common jailhouse procedures like fingerprinting.

‘‘Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,’’ Justice Anthony Kennedy wrote for the court’s five-justice majority.

But the four dissenting justices said that the court was allowing a major change in police powers.

‘‘Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,’’ conservative Justice Antonin Scalia said in a sharp dissent which he read aloud in the courtroom. ‘‘This will solve some extra crimes, to be sure. But so would taking your DNA when you fly on an airplane — surely the TSA must know the ‘identity’ of the flying public. For that matter, so would taking your children’s DNA when they start public school.’’

Twenty-eight states and the federal government now take DNA swabs after arrests. But a Maryland court was one of the first to say that it was illegal for that state to take Alonzo King’s DNA without approval from a judge, saying King had ‘‘a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches’’ under the Fourth Amendment.

But the high court’s decision reverses that ruling and reinstates King’s rape conviction, which came after police took his DNA during an unrelated arrest. Kennedy wrote the decision, and was joined by Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Stephen Breyer. Scalia was joined in his dissent by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Maryland’s DNA collection law only allows police to take DNA from those arrested for serious crimes like murder, rape, assault, burglary and other crimes of violence. In his ruling, Kennedy did not say whether the court’s decision limits DNA only to those crimes, but he did note that other states’ DNA collection laws differ from Maryland's.

Scalia saw that as a flaw. ‘‘If you believe that a DNA search will identify someone arrested for bank robbery, you must believe that it will identify someone arrested for running a red light,’’ he said.

Getting DNA swabs from criminals is common. All 50 states and the federal government take cheek swabs from convicted criminals to check against federal and state databanks, with the court’s blessing. The fight at the Supreme Court was over whether that DNA collection could come before conviction and without a judge issuing a warrant.

According to court documents, the FBI’s Combined DNA Index System or CODIS — a coordinated system of federal, state and local databases of DNA profiles — already contains more than 10 million criminal profiles and 1.1 million profiles of those arrested.

Kennedy called collecting DNA useful for police in identifying individuals.

‘‘The use of DNA for identification is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene,’’ Kennedy said. ‘‘DNA is another metric of identification used to connect the arrestee with his or her public persona, as reflected in records of his or her actions that are available to police.’’

In the case before the court, a 53-year-old woman was raped and robbed but no one was arrested. Almost six years later, Alonzo King was arrested and charged with felony second-degree assault. Taking advantage of the Maryland law that allowed warrantless DNA tests following some felony arrests, police took a cheek swab of King’s DNA, which matched a sample from the 2003 Salisbury rape. King was convicted of rape and sentenced to life in prison.

King eventually pleaded guilty to a lesser charge of misdemeanor assault from his arrest, a crime for which Maryland cannot take warrantless DNA samples. The state courts said it violated King’s rights for the state to take his DNA based on an arrest alone. The state Court of Appeals said King had ‘‘a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches.’’ But the high court’s decision reinstates King’s conviction.

Maryland stopped collecting DNA after that decision, but Roberts allowed police to keep collecting DNA samples pending the high court’s review.

The case is Maryland v. King, 12-207.

via boston.com

CA Bill to Limit Solitary Confinement in Local & State Juvenile Facilities Passes Senate Floor 24-14

May 29, 2013

Historic SB 61 marks California as national leader in rethinking juvenile justice policies to maximize public safety

SACRAMENTO, CA -- Family members of youth who have languished in California's juvenile prisons released a collective sigh of relief as a historic bill made its way out of the Senate floor in a decisive 24-14 vote today.

Contact California Justice Director

Jennifer Kim (626) 215-6269

SB 61, which was authored by Senator Leland Yee of San Francisco, would limit and discourage the use of solitary confinement in local and state juvenile facilities.  The bill heads to the Assembly in the coming weeks.

The bill was met with staunch opposition in 2012 when it was first introduced, a demoralizing loss for incarcerated youth and their families.  Today’s vote represents a significant political and moral shift.

Senator Yee has persisted this second year to curb a practice that the rest of the world considers torture, stating, "Solitary confinement is a damaging and destructive practice that reinforces dangerous and anti-social behavior.  SB 61 is a common sense step towards a more effective juvenile justice system." 

Co-sponsored by the Ella Baker Center for Human Rights, Youth Justice Coalition, and the California Public Defenders Association, SB 61 will provide a uniform definition of solitary confinement, prohibit its use for punitive reasons, require data collection, and encourage the inclusion of family members on local juvenile justice commissions to help monitor such practices. 

"Keeping anyone in an isolated environment causes emotional damage to the youth and their loved ones.  I wonder if the guards and elected leaders feel this kind of treatment benefits anyone.  Would they do this to their own children?" said Alex Polo, a Books Not Bars Family Member.

Research has shown the traumatic toll and mental health breakdown caused by solitary confinement.  The United Nations has widely condemned and prohibited the practice.  Several other states have made strides in preventing the use of solitary confinement for punishment. 

The Ella Baker Center for Human Rights remains committed to transforming the justice system for our most vulnerable children.  SB 61 will take us one step closer. 
###

A Visit to California’s Budget

I visited California’s state budget over Memorial Day weekend. Okay, technically speaking I didn’t visit the budget itself; I visited some of what it pays for.

Specifically, I went for a hike inPortola Redwoods State Park, a lovely and little-known bit of nature nestled in the mountains about halfway between Cupertino and the Pacific Ocean. It’s one of the parks that nearly got closed in the state budget crisis a couple years ago.

Like most state parks, it’s not spectacular in the way, say, Yosemite is. It’s just a nice place to get away from city madness and see trees, creeks, squirrels and waterfalls. Clearly a lot of families – mostly families of color on the day I was there – felt the same way.

I’m glad Portola Redwoods got saved. I’m not glad that hundreds of millions of dollars inservices that make life a little more bearable for the elderly, disabled and poor still haven’t been restored. And I’m ticked off (feel free to mentally insert stronger language here) that these choices are even necessary.

They aren’t necessary, actually. Though the worst of our budget crisis is mercifully past, California needs more revenue coming in each year. That idea has been demonized by political factions bent on trashing government, but government is simply the things that we as a community decide to do together – things like schools, parks, child care and help for the elderly. Those things are worth paying for.

California can pay for these things if we choose to. There are lots of ways we could do it without putting the burden on working families, ranging from an oil severance tax to reforms to Proposition 13 regarding commercial property taxes. I’ll spare you a detailed discussion of these alternatives for now, but the point is they’re out there and we need to start thinking about them. Otherwise we’ll face an endless spiral of bad choices in a deteriorating state.

By Bruce Mirken via Greelining.org

One-Size: A Need for Prison Reform

One-size-fits-all is a concept that never made sense to me. How can something like a T-shirt be a good match for everyone from a small child to a 300-pound NFL lineman? The answer is that it’s obviously not. It will be way too big for one extreme and way too small for the other.

If one-size-fits-all is an illogical way to manufacture something as insignificant as an article of clothing, how can we possibly justify it as a reasonable way to handle something as serious as sentencing criminal offenders?

But one-size-fits-all punishments for crime are being widely used across the nation, and they’ve driven up the size of our prisons at an enormous cost to taxpayers. These punishments are called mandatory minimums and they force judges to impose mandatory prison time on offenders whose criminal behavior often spans extremes as mismatched as the little kid and the NFL giant.


There is no question that violent and serious offenders like murderers, rapists, and child abusers need to be locked up for a very long time. They pose a real threat to society and deserve severe punishment for their crimes. But adopting the same approach through mandatory sentences for nonviolent offenders like small-time drug offenders is counterproductive as it often leads to exploding costs and less public safety. Research by the Pew Charitable Trusts and others is clear that for many offenders prison terms can be decreased without affecting recidivism or crime. The extra time is all cost and no benefit to public safety.

The sad reality is that many nonviolent offenders simply learn how to become better criminals in prison, instead of reforming their behavior so they can become productive members of society. Even when a prison is well run, the unfortunate truth of locking up so many people together is that it is a place for criminals to earn their advanced degrees in crime.

There are many less costly, more effective alternatives to prison for nonviolent offenders that will help prevent them from reoffending and ending up back in our prison system. We can save taxpayers money and cut crime across the country by using options we know work, like drug courts, which combine intensive supervision with drug treatment and frequent drug testing, instead of expensive prison beds.

Most importantly, mandatory minimums can have a terrible impact on families. When someone serves a sentence that is disproportionate to the crime, it creates financial and emotional strain on his or her family, often for decades at a time. Often, the family doesn’t fully recover from the pain and hardship of separation and economic stress, and society has to deal with yet another broken family. The sooner we can reintroduce nonviolent offenders into society after they have served a reasonable punishment, the better it will be for their families, who too often bear the collateral cost of incarceration.

As a signatory of Right on Crime, a national campaign for better criminal and juvenile justice policies, I join conservative leaders who are supporting reforms that restore judges with their discretion to consider factors like the role of the defendant in the crime and his criminal history when imposing sentences. This accomplishes two important goals: it helps focus expensive prison beds on those who deserve them the most, and it helps restore the separation of powers between the judicial and legislative branches of government as required by our constitution.

Americans should always ask whether we are getting the best possible results for the lowest possible cost out of any government service. When our corrections spending is sky high because we are locking up so many nonviolent offenders for such nonsensical amounts of time, I think the answer is clear.

via townhall.com