What Mass. lawmakers can learn from the battle to end death by incarceration across the country
by Jean Trounstine, DigBoston, March 3, 2020
With 2.3 million people behind bars, the United States is the world’s largest jailer. Yet after decades of holding this dubious honor, many Americans have begun to question what Fordham law professor John Plaff calls “this massive experiment in punitive social control.” Decarceration is being discussed in states across the country.
In the debate over decarceration, advocates have realized that it is not enough to merely push for “low-level nonviolent drug offenders” to be let out. Decarceration defies such “easy fixes,” Plaff said. Rather, in order to reduce our prison population, we must change how we respond to violent crimes. As a recent article in Slate argued, “replacing the death penalty with death in prison is not true progress.”
A growing movement is calling for an end to harsh sentencing, and in particular, an end to “death by incarceration.” Sometimes called a push to “Drop LWOP” or determination to “bring them home,” in recent years, education campaigns have taken hold to end what many call “perpetual punishment.” From Vermont to California, activists are finding ...
by Dale Chappell
The Supreme Court of California granted habeas corpus relief, vacating a conviction and death sentence in the 1983 murder of Los Angeles Police Officer Paul Verna, after finding ineffective assistance of counsel (“IAC”) once again, over three decades later.
Kenneth Gay was convicted of first-degree murder and ...
by Dale Chappell
Finally answering a question that had been left open in the Circuit, the U.S. Court of Appeals for the Ninth Circuit held on February 24, 2020, that a person may be “actually innocent” of an erroneous mandatory career offender sentence, opening the door for relief under the ...
by Douglas Ankney
The U.S. Court of Appeals for the Seventh Circuit held that a district court judge violated Ionel Muresanu’s Fifth Amendment right to be tried only on charges brought by indictment when the judge modified the jury instructions to permit conviction on offenses not charged in the indictment. ...
by Dale Chappell
More than 95 percent of state and federal prisoners plead guilty, and most of them do so on the advice of their lawyer. A successful attack on a guilty plea would then depend on showing that counsel’s bad advice to plead guilty rendered the plea not “knowing ...
By John W. Whitehead, The Rutherford Institute, March 24, 2020
“That was when they suspended the Constitution. They said it would be temporary. There wasn’t even any rioting in the streets. People stayed home at night, watching television, looking for some direction. There wasn’t even an enemy you could put your finger on.” — Margaret Atwood, The Handmaid’s Tale
You can always count on the government to take advantage of a crisis, legitimate or manufactured.
This coronavirus pandemic is no exception.
Not only are the federal and state governments unraveling the constitutional fabric of the nation with lockdown mandates that are sending the economy into a tailspin and wreaking havoc with our liberties, but they are also rendering the citizenry fully dependent on the government for financial handouts, medical intervention, protection and sustenance.
Unless we find some way to rein in the government’s power grabs, the fall-out will be epic.
Everything I have warned about for years—government overreach, invasive surveillance, martial law, abuse of powers, militarized police, weaponized technology used to track and control the citizenry, and so on—has coalesced into this present moment.
The government’s shameless exploitation of past national emergencies for its own nefarious purposes ...
by Dale Chappell
The Supreme Court of the United States held on February 26, 2020, that just as the elements clause of the Armed Career Criminal Act (“ACCA”) statute provides the criteria defining what prior offenses qualify as “violent felonies,” so too do the criteria defining what prior offenses qualify ...
by Dale Chappell
The Supreme Court of Kansas held on October 25, 2019, that the statute criminalizing speech determined to be a threat of violence is unconstitutional, at least as far as it prohibits “reckless disregard” for others.
When Timothy Boettger was angry about the police refusing to investigate the ...
by Douglas Ankney
The Supreme Court of the United States (“SCOTUS”) ruled that when a defendant argues before the trial court for a sentence shorter than that sought by the Government the defendant has preserved for appeal purposes his claim that the longer sentence ultimately imposed was greater than necessary ...
by Douglas Ankney
The New York Court of Appeals ordered that the defendant (not identified by name) be resentenced because the trial court had imposed an enhanced sentence based on testimony from the improperly unsealed record of a trial on another criminal charge that had resulted in an acquittal.
Defendant ...
by Douglas Ankney
The Court of Appeal of California, Fifth Appellate District, held that Senate Bill 1437 (“SB 1437”) abrogates the “natural and probable consequences doctrine” in attempted murder prosecutions, and this holding applies retroactively to cases on appeal.
After being physically threatened by four men at a local park, ...
by Douglas Ankney
The U.S. Court of Appeals for the Sixth Circuit ruled that cardiologist Richard E. Paulus’ Fifth Amendment right to due process was violated when the district court ordered the Government to not disclose to Paulus a third party’s expert evaluation of medical care Paulus had provided to ...
by Dale Chappell
Addressing what can often be a confusing issue for many pro se habeas petitioners, the en banc U.S. Court of Appeals for the Ninth Circuit held on February 24, 2020, that attaching a court order to a habeas application to support the claims is sufficient to allow ...
by David Reutter
The U.S. Court of Appeals for the First Circuit affirmed the suppression of evidence seized from a suspected drug dealer’s home as fruit of the poisonous tree.
Jamal Roman was alleged in a search warrant application submitted by DEA Special Agent Scott Smith to be “a known ...
by Anthony Accurso
The U.S. Court of Appeals for the First Circuit reversed a district court’s order denying a defendant’s motion to suppress on the basis that exigent circumstances did not exist solely because officers wanted to secure the defendant’s service weapon, absent the weapon’s proximate use to the crime ...
by Douglas Ankney
The Supreme Judicial Court of Massachusetts reversed Jean Carlos Lopez’s murder conviction because the evidence was insufficient to establish beyond a reasonable doubt that Lopez knowingly participated in the killing with the requisite intent.
When Lopez and Erving Cruz arrived at a convenience store around 11:30 p.m., ...
by Dale Chappell
I
n a question of first impression that implicated the Court’s jurisdiction, the U.S. Court of Appeals for the Second Circuit held on February 6, 2020, that a magistrate judge’s order denying a prisoner’s request to file a motion pursuant to 28 U.S.C. § 2255 under a ...
by Dale Chappell
T
he U.S. Court of Appeals for the Fifth Circuit held on February 3, 2020, that when a Louisiana state court grants an extension of time, even implicitly through other actions, a state post-conviction action remains “pending” to toll the one-year clock under the Antiterrorism and Effective ...
by Ed Lyon
State after state is legalizing the use and possession of small amounts of marijuana. Because of the revenues prosecuting low-level drug crimes saps from prosecutors, more and more of them in major jurisdictions are refusing to accept and prosecute these small-time crimes.
Examples include Rachel Rollins of ...
by David M. Reutter
A former Florida sheriff’s deputy was charged with 50 counts related to evidence tampering and discrepancies related to drug arrests made during his 11 months with the Martin County Sheriff’s Office.
During his tenure as a deputy from May 2017 to January 2018, Steven O’Leary made ...
by Jayson Hawkins
Imagine your alma mater was about to play its rival in the season’s biggest game. Imagine also that, the day before the game, it was revealed that the majority of the referees were alumni of the other school. Even though these individuals were sworn by their profession ...
by Daisy Luther, The Organic Prepper, March 22, 2020
Did you ever think we’d reach the point in the United States where you had to have papers to freely travel from one place to another? It appears we’re at the point.
The MTA issued “travel papers” to their workers
On March 17th, a few days before New York issued a shelter in place order, the Metropolitan Transportation Authority issued “travel papers” to their employees to prepare for a potential coronavirus curfew. The NY Daily News reports:
If non-emergency travel is restricted, workers can show law enforcement officials the letter if they’re stopped on the way to work.
“This letter along with current New York City Transit identification identifies this individual as an essential employee who is required to travel during the curfew imposed due to the Coronavirus emergency,” states the letter, which is signed by the Metropolitan Transportation Authority’s Police Department’s acting chief Joseph McGrann. “Please give this individual due consideration during this crisis.”
MTA spokeswoman Abbey Collins said the letter was distributed on Monday to a “limited number of NYCT bus employees living in New Jersey” because the state’s Gov. Murphy suggested imposing a statewide curfew between 8 ...
by Jayson Hawkins
A 2017 leak of FBI documents reveals a classification of domestic terrorism previously unknown to the public — “black identity extremism,” The Intercept reports. Although there have been no violent crimes connected to this category that would justify an official investigation, the FBI has spent considerable resources ...
by Anthony Accurso
The Supreme Court of California held that a defendant with alleged knowledge of a crime cannot be prosecuted under Penal Code § 32 as an accessory after the fact to the crime for refusing to testify when presented with a valid subpoena.
In 2006, Starletta Partee allowed ...
by Dale Chappell
The U.S. Court of Appeals for the Seventh Circuit held on January 28, 2020, that the unsupported statements by confidential informants (“CI”) about drug amounts and transactions outside the direct criminal charges were not enough to support a sentence based on a drug total 32 times higher ...
by Dale Chappell
The U.S. Court of Appeals for the Ninth Circuit held on January 30, 2020, that the “reclassification” of a prior conviction as a misdemeanor under Proposition 47 created a new judgment in the case that allowed a new federal habeas corpus petition attacking the entire case, which ...
by Anthony Accurso
The U.S. Court of Appeals for the Seventh Circuit vacated a defendant’s sentence because the district court failed to explain its reasoning for a 160 percent upward departure on remand where the original sentence involved only a 10 percent upward departure.
Jesse J. Ballard pleaded guilty to ...
by Austin Sarat, Professor of Jurisprudence and Political Science, Amherst College, The Conversation, March 19, 2020
The coronavirus outbreak is affecting broad swaths of American life, including all levels of government. On March 16 the U.S. Supreme Court took the unusual step of indefinitely postponing oral arguments scheduled for at least the next two weeks.
The court held oral arguments in 2012, when Hurricane Sandy had closed the rest of official Washington. It often continues to do business when other government agencies shut down due to snowstorms. In this latest move, the court’s statement said the justices were taking this action “in keeping with public health precautions recommended in response to COVID-19 … The Court will examine the options for rescheduling those cases in due course in light of the developing circumstances.”
The court said it would continue “to be open for official business,” and, as if caught up in the logic of legal argument, noted that “postponement of argument sessions in light of public health concerns is not unprecedented. The Court postponed scheduled arguments for October 1918 in response to the Spanish flu epidemic. The Court also shortened its argument calendars in August 1793 and August 1798 in ...
by Michael Fortino, Ph.D.
With consideration for the age-old adage, “nurture versus nature,” a recent study suggests that the single common characteristic shared by repeat offenders may be isolated to the structure and composition of the brain itself, suggesting “nature” may trump “nurture” as the key to identifying a future ...
by Dale Chappell
Answering a question certified to the Court by the U.S. Court of Appeals for the Ninth Circuit, the Supreme Court of Washington held on February 27, 2020, that a personal restraint petition (“PRP”) is not “final” until a certificate of finality (“COF”) is issued. The question was ...
by David M. Reutter
Prosecutors are the “most powerful actors in the criminal justice system” proclaims Hawaii House Bill 2749. That bill would follow the lead of Florida, Colorado, and Arizona in increasing transparency into court proceedings.
A Texas A&M Law Review article highlighted the need to increase transparency in ...
by Douglas Ankney
Forensic researchers from the University of Surrey in southeast England have revealed they can examine fingerprints to determine whether a person has ingested cocaine or merely touched cocaine. In 2017, Melanie Bailey and her team utilized a new test that used high-resolution mass spectrometry (“HRMS”) to examine ...
by Anthony Accurso
The Supreme Court of Wyoming held that a defendant’s counsel was ineffective for failing to challenge the extension of the traffic stop that eventually uncovered evidence resulting in his conviction on multiple drug-related charges.
On July 10, 2017, Deputy Kyle Borgialli received notification from DCI agents regarding ...
by Douglas Ankney
In a case of first impression in the Supreme Court of North Carolina, the Court announced that when a defendant forfeits the right to counsel, a trial court may forgo compliance with N.C.G.S. §15A-1242 (required court inquiry before allowing defendant to proceed without assistance of counsel).
Jeffery ...
by Kevin Bliss
The Los Angeles Times used traffic stop data released by the Los Angeles Police Department (“LAPD”) under a new California law to calculate racial breakdowns of stops. The newspaper found that blacks and Latinos had a much higher chance of being pulled over than whites, although more ...
by Jayson Hawkins
Forensic science was long considered a foolproof means of analyzing evidence to determine the identity of individuals involved in a crime or their methods of committing it. If the people in the lab applied their technical expertise to a case and the results pointed toward a certain ...
by Douglas Ankney
The Supreme Court of California held that an appellate claim of a confrontation clause violation based on an expert’s testimonial hearsay is not forfeited due to defense counsel’s failure to object where the trial occurred before People v. Sanchez, 374 P.3d 320 (Cal. 2016), was decided. ...
by Douglas Ankney
In these Orwellian times, the Detroit Police Department (“DPD”) has obtained a cell-site simulator (“CSS”). It’s a surveillance technology that locates and tracks phones by mimicking cellphone towers.
The DPD bought the technology for $622,000 and began using it in October 2017. From January 1, 2018, through ...
by Douglas Ankney
The Supreme Court of Georgia reversed the Walker County Superior Court’s dismissal of Joseph Samuel Watkins’ second petition for writ of habeas corpus.
Watkins was convicted in 2001 of felony murder, and his conviction was affirmed on appeal to the Georgia Supreme Court in 2003. Watkins subsequently ...
by Kevin Bliss
The NYC Medical Examiner’s office (“ME”) reviewed the DNA analysis procedure in a burglary case that was the only evidence used to charge Darrell Harris with the crime. They found that the DNA sample could have been contaminated, but only after Harris lost his job and $25,000 ...
by Kevin Bliss
Washington state has over 5,500 sealed juvenile records that are once again accessible to law enforcement agencies across the nation after a last-minute amendment for “officer safety” was added to a 2015 bipartisan sentencing reformation bill.
Tony Calero conducted an analysis when he was a graduate student ...
by Douglas Ankney
In 2014, Norma and Jim Gund were tricked by a Trinity County sheriff’s deputy into responding to a 911 call that the deputy said was “weather related.” Instead, the Gunds were confronted by a maniac who had just murdered two of their neighbors, and Norma was viciously ...
by Dale Chappell
Once something is on the internet, it can’t be deleted, they say. Enter the jail mugshot. Proven time and again to be an effective way to ruin someone’s life. Especially when they’re innocent. And news agencies have used them to drive traffic to their websites for years, ...
by Ed Lyon
On January 8, 2020, Kerry Robinson began the New Year and a new life as he left Georgia’s Coffee Correctional Facility a free man. He had spent nearly 18 years in prison for a brutal group rape he had nothing to do with.
As science in general ...
by Douglas Ankney
According to a report by sciencefriday.com, one in every two American adults is in a law enforcement facial recognition network. Most adults have unwittingly consented to the release of their photos that they have uploaded to social media, including dating sites.
While it’s impossible to determine the ...
by Douglas Ankney
According to November 14, 2019, news reports from dailykos.com and nytimes.com, the city of Grand Rapids, Michigan, will pay $190,000 to former U.S. Marine Jilmar Ramos-Gomez after he was illegally detained by Immigration and Customs Enforcement (“ICE”) for three days.
Ramos, who suffers from PTSD, was arrested ...
by Douglas Ankney
On the list of cops in California who are convicted felons, 20 former officers are shown as convicted killers.
Recent headlines told us of Joseph DeAngelo — the suspected “Golden State Killer”— charged with a dozen murders and more than 40 rapes, some of which occurred in ...
by Dale Chappell
The latest attempt by the California courts to “harmonize” the state’s brutally secretive police protection statutes with the U.S. Supreme Court’s ruling in Brady v. Maryland, the 1963 case holding that prosecutors must turn over favorable evidence to the defense in order to satisfy the Due ...
by Matt Clarke
A lack of standardization in crime statistics and the complexity of the causes of and cures for crime have made the use of crime statistics difficult.
For instance, whether using marijuana causes crime is an important question as more states consider legalizing recreational marijuana. Legalization proponents could ...
by Douglas Ankney
As of October 2019, Chicago’s 300 red light cameras netted $35 million in fines, penalties, and collection fees.
According to an investigation by ABC 7, the city is setting traps for unwary drivers by reducing the length of time the traffic lights remain green and yellow while ...
by Kevin Bliss
The New York Police Department (“NYPD”) has a history of denying freedom of public information requests, especially when it concerns surveillance equipment and information gathering technology.
Muckrock, an online records request monitoring database, showed that of the 500 requests monitored since 2017 only half were completed.
Vox ...
by Dale Chappell
While Illinois has legalized recreational marijuana and pardoned more than 11,000 people with marijuana cases, removing marijuana charges and convictions from your record may require more leg work from some who don’t qualify under the automatic clearing of certain marijuana records.
“We are ending the 50-year-long war ...
by Kevin Bliss
Louisiana has one of the U.S.’s toughest second-degree murder sentencing structures. If convicted, it is an automatic life without parole. The state currently has about 5,000 of its approximately 33,000 prisoners serving life sentences, 51 percent of those for a second-degree murder charge.
Hayward Jones is one ...
by Jayson Hawkins
There were many times Pablo Fernandez could have given up. Yet after spending over half his life behind bars, he never wavered in maintaining his innocence.
‘‘It was so difficult for me to be in prison for so many years when I knew the case against me ...
Loaded on
April 15, 2020
published in Criminal Legal News
May, 2020, page 50
Arizona: A sheriff’s deputy who roughed up a 15-year-old quadruple amputee during an arrest at a state-operated group home in September 2019 will not face excessive use of force charges, the Pima County Attorney’s Office announced March 10, 2020. “The teen, in a group home after being abandoned by ...
by Matt Clarke
On January 10, 2020, a judge in Cook County, Illinois, ordered the Chicago Police Department (“CPD”) to produce by the end of 2020 all misconduct files from 1967 to 2015. Judge Alison Conlon noted that the CPD had “willfully and intentionally failed to comply” with the Illinois ...
