Should we have partisanship in the leadership of State courts? There are some states that have identified partisan labels on their Supreme Courts and then there are states that the partisan affiliation is the worst kept secret in the state. So who gets to decide what the rules should be for each state? Robert Barnes of The Washington Post has an article headlined “Fittingly, Supreme Court term starts with test of political affiliations for judges.” Delaware has decided that partisan balance on that state’s Supreme Court is essential to maintaining public trust. But can a state do that?
It is not often that judges are called upon to rectify centuries old injustices. But as illustrated by a story written by Amanda Coletta, perhaps the Supreme Court of Canada will be called upon to decide what to do about indigenous people who were here first.
It was a frosty October morning when Richard Desautel aimed his Mauser 98 bolt-action rifle at a cow elk in the Arrow Lakes area of British Columbia, shot the animal dead and phoned wildlife conservation officers to report what he’d done.That call, made a decade ago this month, set into motion a plan that was years in the making. Authoritiescharged Desautel, a U.S. citizen and member of the Lakes Tribe of the Colville Confederated Tribes in Washington state, with hunting without a license and hunting big game while not a resident of British Columbia.It was what Desautel wanted. It gave him the opportunity to argue thathe was exercising his right under Canada’s constitution to hunt for ceremonial purposes on the traditional land of his ancestors, the Sinixt, an Indigenous group that Canada declared extinct more than 60 years ago. Canadian government inquiry assails ‘genocide’ of Indigenous women, girls Now he’ll argue his case before Canada’s Supreme Court, in a proceeding that could have sweeping implications for Indigenous groups on both sides of the border. A victory could give more Native Americans in the United States the right to use their tribes’ traditional lands in Canada.
The war on drugs was never a good metaphor. as a result of that “war” a lot of people who were chemically dependent have been branded with criminal records. Those criminal records inhibit people from succeeding in life and ironically make sustained recovery more complicated. So how do we forgive effectively? Brittany Kelly, John Heinz, Anthony Singer and Aila Hoss have posted Promoting Expungements to Minimize the Adverse Impact of Substance Use Disorder Criminalization (Albany Law Review, Forthcoming) on SSRN. Here is the abstract: Research has already documented the irreparable harm of the criminalization of drugs. In the United States, these policies have led to disproportionate rates of incarceration of black men, separated children from their parents in foster care and custody proceedings, and often left people unable to secure employment and housing. Criminalization has also had harmful impacts from a public health perspective. Substance use disorder is a medical condition with established criteria for diagnosis. Criminalizing SUD instead of treating it often leaves people without access to treatment for their condition. Criminalization of drug paraphernalia possession has also undermined the efficacy of public health strategies, such as overdose immunity laws and syringe service programs.
Many advocates and scholars across human rights, public health, and other disciplines argue that decriminalization and legalization of drugs is necessary. While some states and localities have begun to decriminalize and legalize drugs, most do not. And, in many jurisdictions, this would be unrealistic in the near future. Indiana law, for example, makes possession of drug paraphernalia a misdemeanor offense. The state legislature in fact elevated syringe possession to a felony in 2015. What other legal strategies are available when decriminalization and legalization are not?
This article explores expungement as a tool in mitigating the harmful impacts of criminalizing substance use disorder. It discusses the inadequacies of current criminal-based strategies for responding to the SUD crisis and the public health impacts of criminalization and describes expungement law generally and provides an in-depth summary of Indiana’s expungement laws. Given the substantial nuances within expungement law, this article provides analysis on how they can be best structured to promote their use. It argues that Indiana could implement a variety of strategies to promote expungement laws and thereby support individuals with substance use disorder.
California Defeated the Bail Ballot, Unsure of What’s Next
The group behind the “no” vote on Proposition 25 wasn’t against it because they like the state’s cash bail system. They just wanted to enact reform from the ground up. But now there’s uncertainty about what happens next.
Jason Pohl, The Sacramento Bee | November 6, 2020 | Analysis
(TNS) — Lex Steppling and his team of criminal justice activists knew they wanted to undo California’s law abolishing cash bail. They said it would merely replace one oppressive system with another, worsen racial inequities and give too much power to algorithms and judges.
They were convinced they were right. But he didn’t think they’d actually defeat Proposition 25 — especially not by a nearly 11-point margin.
“We didn’t expect to win, let alone win by so much,” Steppling said in an interview. “I’m still wrapping my head around that part.”
The victory marked a surprising end to an unlikely marriage between an extreme “abolitionist” wing of the criminal justice reform movement and California’s billion-dollar bail bond industry. Traditionally enemies, together they undid a years-long effort from the California Legislature that could have created one of the most significant justice system changes in a decade.
The longstanding system of cash bail will remain in place indefinitely. As Steppling and others say they plan to push for county-by-county changes, the type of top-down change that would have followed Proposition 25 is on hold as uncertainty sweeps through the now-fractured criminal justice reform movement.
Advocates said Wednesday they were “poised to build our system anew.” But those advocates are facing severe criticism, including from more moderate justice reformers. They’re also feeling the pressure of a familiar problem: Once something is repealed, what exactly do you replace it with — and how?
Steppling is the co-chair of the No on Proposition 25 campaign and an advocate with Dignity and Power Now, a Los Angeles nonprofit that has sued the sheriff’s office over jail conditions, rallied against new jail construction, and pushed for taking funding away from police departments. They want to see radical, grassroots improvements to the justice system.
“Our fixation is not simply on bail,” Steppling said, criticizing the existing power that judges and police have. “We want to make a transformative change that disables the drivers of pretrial incarceration.”
Proposition 25 — and SB 10, the legislation it was a referendum on — came after years of work in the California Legislature to make that change. Besides doing away with cash bail, it would have brought mandatory audits to measure racial biases. The changes, which lawmakers could adjust as needed, could have opened a window into an often opaque system of justice where little information about cash bail bonds is ever made public.
By Thursday evening, roughly 55.6 percent of the counted vote was in support of keeping the current cash bail system indefinitely. No county south of Santa Cruz in the Bay Area supported Proposition 25. It was a resounding defeat and in sharp contrast to two other justice system measures that passed — one expanding voting rights to people on parole and another blocking tough-on-crime proponents’ plan to make stiffer penalties for low-level offenses.
“It was a case of the kind of far left and far right converging and not a lot of space left in the middle to get rid of cash bail,” said Keramet Reite, a criminologist at UC Irvine.
Proposition 25’s failure will likely cast a long shadow on justice reform in California. Lawmakers are barred from taking another crack at cash bail that is similar to the one voted down Tuesday. They might also be hesitant to take it up again, saying the voters have already spoken.
That has longtime advocates on edge.
“You fear what you think you can’t change,” said Sam Lewis, head of the Anti-Recidivism Coalition, among the most active criminal justice reform organizations in California. Lewis, who was released in prison in 2012 after serving 24 years, was among the fiercest supporters of Proposition 25. He said he thought the killing of George Floyd would have made people want to dismantle the system now more than ever.
“Instead,” Lewis said, “we kept a system that’s steeped in racism and criminalizes poor, black and brown people because we were afraid.”
What Happens Next?
Steppling’s organization says it has a plan to improve the jail system from the ground up. It’s unclear how exactly that plan would roll out and how much it could be deployed in counties across the state.
The replacement, he said, “does not begin and end in Sacramento.”
“If we let our sense of possibility be mediated by electeds, we would never get anywhere,” Steppling said. “We have to create a roadmap to something different, and then actually organize and do that work and build community pressure.”
Steppling said his group will work to replicate programs in other places like the one they helped push in Los Angeles County calling for jail diversion programs.
County-by-county, they plan to push a plan called Preserving the Presumption of Innocence. The plan calls for non-law-enforcement groups to evaluate people’s risk, counties to collect better data, and law enforcement to only detain people accused of serious or violent felonies. It is modeled, in part, from the bail reform law voters shot down Tuesday.
Sen. Robert Hertzberg, D- Los Angeles, who wrote SB 10 and has championed bail reform, was unconvinced that Steppling’s work would be successful. He said his yearslong effort that culminated with Proposition 25 was, in fact, a grassroots effort with people across the state. It prompted new county-level public safety assessment programs and was the type of sweeping change to state law that is needed for a broken system.
“The only way to solve this is at a statewide level,” he said. “You can’t fix the bail system on a county by county basis. It just doesn’t work. It has no legal authority.”
State-level bail fights aren’t over. The California Supreme Court has a case pending that would force judges to consider a defendant’s ability to pay bail before setting it. The Humphrey case could force a reckoning about how high bail is set, eroding some of the industry’s profits. It’s why Hertzberg said that, despite Proposition 25 failing, the bail industry “is on life support and the oxygen is running out of their tank.”
Any grassroots successes would also be scattered, said Jonathan Simon, a professor at UC Berkeley who studies law enforcement and was against Proposition 25. A so-called progressive prosecutor movement, like in San Francisco and Los Angeles along with other local reforms in the years since public safety realignment could prompt the kind of change Steppling described.
San Francisco District Attorney Chesa Boudin has committed to new policies targeting racial disparities in the justice system that include ending gang enhancement charges and charges where police find contraband through “pretextual” traffic stops. And in Los Angeles, George Gascón is leading in the race to head the largest district attorney’s office in the country on a progressive platform that includes eliminating cash bail.
“There’s plenty of opportunity for bail reform at the local level,” Simon said. “Counties can decide to adopt some level of this.”
It also means that conservative counties, such as Kern in Southern California or those in the north state — can ignore the changes altogether, indefinitely.
“That’s going to mean that some counties have some really regressive arrest and bail policies,” Simon said.
A Long Fight to Tuesday
For decades, California lawmakers have mulled ways to dismantle the cash bail industry, which is seen widely as unfairly harming lower-income families and people of color.
Judges generally follow what’s called a bail schedule, a preset grid that has dollar amounts attached to specific crimes. Those who do not have the money to post bond wait in jail for their case to end, whereas those with resources can get released.
Bail bond companies fill the gap in the middle for people who don’t have thousands of dollars on hand to pay to get out. Bond companies charge a fee — typically 10 percent — and arrange with the courts to have the defendant released from jail. The money is nonrefundable.
“We do not want bail being used as a form of punishment,” said Topo Padilla, president of the Golden State Bail Agents Association who has long said the problem is not with his industry but with local justice systems. “We do not want bail to be used to keep people in jail longer.”
Research has found minority communities and even families of domestic violence survivors can end up bearing disproportionate costs of cash bail. A Sacramento Bee investigation last month found that domestic violence survivors are paying cash to get their family members released from jail — a cruel twist in a pandemic that has devastated local economies.
Former Gov. Jerry Brown signed a bill into law in August 2018 that would have brought a sledgehammer to the system. To address concerns from groups like Steppling’s about racial bias in the risk assessments, lawmakers passed SB 36. They vowed to keep chipping away at the system to make things just and fairer.
Hertzberg wrote the 2018 law and last year’s addition aimed at repairing a broken system that benefits the bail industry.
“It may not be perfect, but we have the ability to come in and fix it. Let’s just get rid of the bail industry,” Hertzberg said in an interview Wednesday. “As much as they wanted to say they were for justice, they were for greenbacks, they were for money. That’s all they cared about. And that’s their business, I understand it, but it doesn’t make it right.”
That system fought back. Faced with the prospect of being outlawed, the state’s 3,200 licensed bail bondsmen and 7,000 employees gathered signatures for a referendum. With ample support from other groups, they collected enough signatures to put the future of the law up to the voters.
Soon came the unlikely marriage.
“Proposition 25 was not going to help get people out of jail, it was going to keep people in jail,” Steppling said. “And in some cases, many cases, thousands of cases, keep people in jail with no way out.”
“It was truly an honor to fight shoulder to shoulder with civil rights groups and law enforcement against this misguided legislation,” Jeffrey J. Clayton, Executive Director of the American Bail Coalition.
Reliable research about the effects of bail reform is hard to come by, in part because getting access to data is so fragmented.
But Heather Harris, a researcher at the nonpartisan Public Policy Institute of California who has extensively studied bail said roughly 11 percent of Latinos and 2 percent of African Americans would have likely been released sooner than they currently are.
While some people might have been detained slightly longer, the vast majority of suspects would have been released faster — risk assessments could propagate existing inequities, but those could be mitigated with other policies.
“Although our research does not address the question of whether risk assessment would have led to racially biased pretrial release decisions,” Harris reiterated Wednesday, “it does indicate that replacing money bail with a structured release process, would have mitigated some racial disparity in pre-arraignment release.”
While it is understandable that you might want to know who will lead our country for the next four years or know who will control the United States Senate 9or your state legislature) there are other things that were decided yesterday.
From the Marshal Project:
Justice on the ballot. Marijuana legalization comes to New Jersey, Arizona and South Dakota. In Mississippi, voters approve a medical marijuana measure. ABC NEWS Oklahoma voters roundly reject a reform measure limiting sentencing “enhancements” in certain cases. THE OKLAHOMAN California voters approved an initiative to let parolees vote. LOS ANGELES TIMES They rejected another measure that would have lengthened sentences in some cases. LOS ANGELES TIMES They also, however, rejected a measure that would have ended the state’s cash bail system. THE NEW YORK TIMES
More: Oregon legalizes psychedelic mushrooms. THE OREGONIAN Voters there also decriminalize small amounts of heroin, cocaine and methamphetamine. THE OREGONIAN Kentucky voters, by a wide margin, pass a new Marsy’s Law giving crime victims more rights in the courts. LEXINGTON HERALD-LEADER Montana voters appear evenly divided over a measure (Legislative Referendum 130) that would preclude local government from enacting gun regulations stricter than those under state law. MONTANA SECRETARY OF STATE Voters in Nevada approved an initiative to make it easier for prisoners to gain parole. THE NEW YORK TIMESTMP Context: Our updated tracker on seven key ballot measures. THE MARSHALL PROJECT
“Baker nominates Kimberly Budd as chief justice”: Matt Stout of The Boston Globe has an article that begins, “Governor Charlie Baker on Wednesday nominated Kimberly S. Budd to be chief justice of the Supreme Judicial Court, putting her in line to become the first Black woman to lead the state’s highest court in its 328-year history.”
Just like COVID-19 which has demonstrated that no matter where you live the pandemic will find you what is on the horrizon is a massive fiscal crisis. Court budgets will be cut but so too might be the things that drive the effectiveness of the justice system. Public defender offices, guardian ad litem programs corrections services don’t have natural constituencies to advocate for funding. That is unless the judiciary views our role as an advocate.
Wall Street Journal: “Nationwide, the U.S. state budget shortfall from 2020 through 2022 could amount to about $434 billion, according to data from Moody’s Analytics, the economic analysis arm of Moody’s Corp. The estimates assume no additional fiscal stimulus from Washington, further coronavirus-fueled restrictions on business and travel, and extra costs for Medicaid amid high unemployment.”
“That’s greater than the 2019 K-12 education budget for every state combined, or more than twice the amount spent that year on state roads and other transportation infrastructure.”
“Deficits have already prompted tax hikes and cuts to education, corrections and parks. State workers are being laid off and are taking pay cuts, and the retirement benefits for police, firefighters, teachers and other government workers are under more pressure.”
There are those who firmly believe there is nothing wrong with the United States Supreme Court. For those who applaud the appointment of Justice Barrett they very likely see nothing to fix. But there are others who are troubled. So what should we do about the United States Supreme Court?
From the blog How Appealing:
“How to Fix the Supreme Court”: The New York Times has posted online a series of seven essays along with an introduction from Emily Bazelon titled “How We Got Here.”
There was a now retired prosecutor who over his career developed the reputation that is goal in life was not revoke or suspend every diver in Minnesota’s license. And so it was with interest that I came across this article. William Crozier, Brandon L. Garrett and Karima Modjadidi (Duke University School of Law, Duke University School of Law and Duke University School of Law) have posted Understanding the Impact of Driver’s License Suspension: Lay Opinion in Impacted and Non-Impacted Populations on SSRN. Here is the abstract: The impact of low-level criminal enforcement on communities has been the subject of a growing body of scholarship and policy work, and awareness that even in petty cases, fines can impose unaffordable criminal debt affecting other important rights. Many jurisdictions suspend driving privileges for nonpayment of traffic fines or court nonappearance without linking to ability to pay, particularly in the United States where millions are impacted. To investigate the impact of such suspensions, we surveyed people in North Carolina (N=853), a state with large numbers of such suspensions. 18% of respondents have or have had a suspended license and we find both race and income predict suspension. We also find that such a suspension imposes difficulty on a variety of daily activities and reduces the ability to pay for housing. Thus, we find these suspension policies offer little benefit but impose great hardship for low-level offenses. The most straightforward policy change is to abolish suspension policies for non-safety reasons, as some states have done. However, other options exist – such as capping the length of suspensions, or the number of cumulative times a license can be suspended. Restoration efforts for those affected should be undertaken as well, but present unique challenges in contacting those affected and providing procedures to get their license back. Specifically, contacting suspended drivers is difficult because on-file addresses may not be current, and people who are suspended may be hesitant or unable to solve legal matters, such as failing to appear for court. As such, comprehensive local-level efforts, which we describe, are likely necessary to address the challenges and harms of driver’s license suspensions.
Should there be a green light for “Red Flag” laws? The late Chief Justice Warren E. Burger said, in 1991, that the idea that the Second Amendment conferred a right for individuals to bear arms was “a fraud on the American public.” But then in 2008, the United States Supreme Court, in a 5-4 decision written by Justice Antonin Scalia’s in District of Columbia v. Heller, rewrote its understanding of the Second Amendment, and concluded that the Framers of the Constitution had, after all, intended the Amendment to confer an individual right to bear arms.
Fast forward to today and there are those that forget how close the Heller decision was or that Scallia himself wrote in that opinion that of course there were exceptions to this individual right among those felons. So how should judges in the tenches implement “extreme risk protection orders?” Designed to get guns out of the hands of mentally ill people or those who pose a danger to themselves or others, the authors of this interesting law review article argue that these new laws do not violate due process rights. VIRGINIA LAW REVIEW
blog.amjudges.org 