Monthly Archives: May 2009

Imprisoned Undocumented Immigrants May Soon Face Early Deportation

Hundreds of undocumented immigrants in Washington state prisons will be deported at the end of their sentences. But state officials want to deport many of them early — without serving prison sentences — to save money.

http://www.kuow.org/program.php?id=17596

State budget woes have forced legislators to get creative.  One option is the increased enforcement of a statute which allows for the early deportation of undocumented immigrants who’ve committed non–violent crimes.  Although this law has been on the books for years, it rarely is applied.  Generally, prosecutors do not agree to early deportations without jail because, in their view,  it greatly reduces the consequences for committing a crime.

Nevertheless, prosecutors may be warming up to these early deportations. The head of the Washington Association of Prosecuting Attorneys testified in support of the earlier legislation. Immigration advocates also favor the plan.  Finally, Governor Gregoire has called for a specific agreement between the Department of Corrections and federal immigration authorities which would facilitate such a plan.  It also requires approval from prosecutors and judges.

However, the statute carries a double-whammy: although deportees avoid jail time, they shall be charged with a federal felony if they return.  Additionally, they shall serve the maximum amount of jail which was suspended upon their deportation.  Government data show that illegal re–entry after deportation is the most prosecuted federal crime.  Arizona prisons use a similar deportation program, however, and the re–offender rate is about 2%.

As a side note, illegal immigrants are automatically deported if they commit crimes exposing them to 1+ jail sentence (gross misdemeanors and felonies).  In the case of nonviolent crimes and defendants with little or no history, some prosecutors will agree to a maximum exposure of 364 days instead of 365.  This solution altogether avoids the deportation of illegal immigrants whom the prosecutors deem worthy to stay in the U.S.  Typically, when it comes to the possible deportation of a defendant, prosecutors review the circumstances surrounding the crime, employment history, family ties, immigration status, etc.  These factors affect a prosecutor’s willingness to negotiate.

My opinion?  I support the legislation.  With some reservation.  My #1 concern is ensuring due process rights are not violated.  Defense attorneys MUST ensure the defendant/deportee knows they will serve a HUGE amount of jail — in a federal institution, no doubt — if they return to the U.S. after being deported early.

For that very reason, I believe we’ll see more undocumented defendants exercising their rights to jury trial.  After all, what do they have to lose when negotiations fail?  These defendant already face early deportation, coupled with the threat of prosecutors stacking federal charges if the deportee returns illegally.  Force the government to prove the charges!

Interesting times . . .

Ex-con’s Magazine Focuses on Advocacy, Prison Life

Paul Wright is a success story: Once a killer, then a prisoner, now a journalist with a cause. He has carved out a niche with his Prison Legal News, a self-help magazine.

http://www.seattlepi.com/local/6420ap_us_the_jailhouse_lawyer.html?source=mypi

PLN is a nonprofit tabloid dedicated to protecting the human rights of incarcerated individuals.  It uses lawyers, public policy experts, advocates and prison scribes as correspondents.

The publication is stuffed with legal advice, tips on staying healthy behind bars and news about court rulings that involve prison labor, medical treatment in prisons and suicide prevention programs in prisons. Its correspondents have ranged from late civil rights attorney William Kunstler to imprisoned Philadelphia police officer killer Mumia Abu-Jamal.

Wright, a former U.S. Army military policeman, started the monthly publication in 1990. Back then, he was inmate No. 930783 at Clallam Bay Correctional Center in Clallam Bay, Wash., where he served 16 years of a 25-year term for killing a cocaine dealer he was trying to rob.

In my practice, many defense attorneys chide and ridicule jailhouse lawyers.  I hear, ” . . . these defendants are not attorneys trained in the law . . .  they have limited access to limited legal resources . . . they don’t know what they’re talking about . . . ”

However, I think differently.

Sure, Mr. Jailhouse Lawyer’s legal analysis may contain flaws.  Sure, my clients discuss what Mr. Jailhouse Lawyer told them about their case.  Yes, my clients want to compare legal advice between myself and Mr. Jailhouse Lawyer.  GREAT!  Believe it or not, I enjoy these conversations.  I prefer clients who ask me questions.  I want clients to be active in their case.  It gives me more opportunity to develop a relationship and gain trust.

I congratulate Mr. Wright; and others like him, for the work they do.  He is a light in the dark, an advocate, an educator, and a hero to many.

Threats To Federal Judges, Prosecutors Soaring

Threats against the nation’s judges and prosecutors have sharply increased, prompting hundreds to get 24-hour protection from armed U.S. marshals.  Many federal judges are altering their routes to work, installing security systems at home, shielding their addresses by paying bills at the courthouse or refraining from registering to vote.  Some even pack weapons on the bench.

http://www.washingtonpost.com/wp-dyn/content/article/2009/05/24/AR2009052402931.html?hpid=topnews&sub=AR

Much of the concern was fueled by the slaying of U.S. District Judge Joan H. Lefkow’s husband and mother in their Chicago home in 2005 and a rampage 11 days later by an Atlanta rape suspect, who killed a judge, the court stenographer and a deputy. Last year, several pipe bombs exploded outside the federal courthouse in San Diego, and a drug defendant wielding a razor blade briefly choked a federal prosecutor during sentencing in Brooklyn, N.Y. In March, a homicide suspect attacked a judge in a California courtroom and was shot to death by police.

Although attacks have not recently increased, threats have.  Law enforcement is taking action to prevent these threats from happening.  The threats are emerging in cases large and small, on the Internet, by telephone, in letters and in person.

Worried federal officials blame disgruntled defendants whose anger is fueled by the Internet; terrorism and gang cases that bring more violent offenders into federal court; frustration at the economic crisis; and the rise of the “sovereign citizen” movement — a loose collection of tax protesters, white supremacists and others who don’t respect federal authority.

My opinion?   On a nation-wide level, people are scared.  They fear losing their jobs in a tough economy.  They fear losing their socio-economic standing in a nation undergoing dramatic changes (remember, gun sales have increased since Obama took office).  When fear increases, people tend to blame one particular individual or group as the reason for their problems.   Unfortunately, in the criminal justice system, judges and prosecutors are often the very individuals who get blamed.

Don’t blame judges and prosecutors.  They’re just doing their jobs.

The solution?  Defendants should seek legal representation from attorneys who (1) maintain good relations with judges/prosecutors, and (2) file Affidavits of Prejudice against judges who might hold biases towards the case.  Under Washington statute, any party may establish prejudice by filing a motion, supported by affidavit, that the judge before whom the action is pending is prejudiced to the degree that the party cannot, or believes he cannot, have a fair and impartial trial before such judge.  Once the Affidavit of Prejudice is entered, that particular judge cannot make any decisions on your case from that point forward.

I file Affidavits of Prejudice on a consistent basis.  Indeed, I would be ineffective if I didn’t!  I took an oath to bring justice to my clients using every tool and technique at our disposal.  Your attorney should do the same.  If not – or if you don’t know – then talk with them.  How well does your attorney know the judges and prosecutors they work with?  How willing are they to file Affidavits of Prejudice?

Go to www.avvo.com to research attorneys who you may consider hiring.  This free online resource will help streamline your decisionmaking process.  Good hunting!

State v. Hinshaw: Absent Exigent Circumstances, Cops Can’t Enter Your Home Without a Warrant & Arrest for DUI

Great opinion.

http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=269001MAJ

Here, the Moses Lake Police investigated reports of a car unlawfully driving on a bike path.  Police search the path.  They find Mr. Hinshaw on a bike close to the path.  He said he was a passenger in the suspect car, but denies driving.  They release him.   Later, the police find the suspect car in his driveway.  It had a flat tire.  They knock on the door.  He answers the door, yet refuses to come out.  He admits to drinking earlier.  Officers grab his arm, go inside of his home, and arrest him for DUI.  They are concerned his BAC level was dissipating.

The Court of Appeals rejected the State’s argument that “exigent circumstances” justified Mr. Hinshaw’s warrantless seizure.  The Court saw several errors in the police officer’s conduct.   First, the officers failed to establish how quickly the BAC would/could dissipate.  Second, the officers could not estimate how long it would take to get a warrant.  Third, although the police had probable cause to believe Mr. Hinshaw became intoxicated and drove home, the reckless operation of the car and consequent threat to public safety had ended.  Mr. Hinshaw was neither armed nor dangerous.  He posed no threat to the public or officers.  His car was disabled.  Consequently, exigent circumstances did not exist.

My opinion?  Great opinion!  The Court of Appeals saw through the State’s smoke and mirrors.  This was not a case about exigent circumstances.  An emergency never existed!  No, this was a bona-fide; unlawful exercise of “arrest first, ask questions later” on the part of the police.  Clearly unlawful.  Kudos to the Court of Appeals.

White House Czar Calls for End to ‘War on Drugs’

Unbelievable.  Awesome sign of the times.  Gil Kerlikowske, the new White House drug czar, signaled Wednesday his openness to rethinking the government’s approach to fighting drug use.

http://online.wsj.com/article/SB124225891527617397.html

The Obama administration’s new drug czar says he wants to banish the idea that the U.S. is fighting “a war on drugs,” a move that would underscore a shift favoring treatment over incarceration in trying to reduce illicit drug use.

“Regardless of how you try to explain to people it’s a ‘war on drugs’ or ‘war on product,’ people see a war as a war on them,” he said.  We’re not at war with people in this country.

Mr. Kerlikowske’s comments are a signal that the Obama administration is set to follow a more moderate — and likely more controversial — stance on the nation’s drug problems.  Prior administartions talked about pushing treatment and reducing demand while continuing to focus primarily on a tough criminal-justice approach.

My thoughts?  IT’S ABOUT TIME a U.S. drug czar made sense!!!

True story on Kerlikowske: I was living in Seattle when a big snow came.  Attending law school.  Walking around downtown Seattle with a friend.  A black SUV rolls by.  Stops by a car that was stuck in the snow.  Two police officers get out.  One looks highly decorated.  Both officers  push the skidding car off the ice.  It drives away, freed from its frozen trap.

I immediately recognizeD the decorated officer as then-Seattle Police Chief Gil Kerlikowske.  I say, “Yo man, that was cool!”  He smiles, salutes, and jumps back into the SUV.  Drives away.

As far as police officers go, Kerlikowske was a good one.  Had his head on straight.  Gained respect from Seattle’s black community.  he was an advocate, a reasonable guy, a bridger of differences.  Obama chose right.

Voting Rights Restored!

Thank you to all who took action on HB 1517!  This important measure will automatically restore the right to vote to citizens who were entangled with the criminal justice system.

Governor Chris Gregoire signed the bill into law on Monday, May 4, 2009.  The new law will reform Washington’s convoluted and unfair system for restoring voting rights.

Washington now becomes the 20th state in the last decade to ease voting restrictions for people with criminal histories who are living, working and raising families in the community.  Our victory is part of a nationwide movement to assure that our democracy reflects the voices of American citizens.

Let freedom ring.

DOC: Budget Cuts Will Force Offenders to go Unsupervised

http://www.king5.com/localnews/stories/NW_042809WAB-doc-budget-KS.11e17c7db.html

Department of Corrections (DOC) Secretary Eldon Vail says the DOC witll stop supervising 9,000 people due to decreased state budgets.  The group includes property, drug, and non violent offenders.  The most violent offenders and high-level sex offenders, however, will not see a change in supervision or management.  Additionally, inmate beds will be reduced.  One DOC prison will also be closed.

Some worry that crime will increase.

My opinion?  Again, the embattled economy has caught up with the criminal justice system.  It’s interesting what happens when we’re forced to tighten our belts, both individually and collectively.  On an individual level, we spend less on luxury items.  We hope that our sacrifices are enough to pull us through hard times.  If not, we consider more drastic measures, and perhaps (gasp) a total retooling of our spending habits.

Collectively, our weakened economy makes our lawmakers to realize that jailing low-level crimes is an expensive luxury.  I’ve often blogged that incarceration is THE MOST EXPENSIVE solution to crime and punishment.  We can’t afford to blindly warehouse people any more.  It isn’t the answer.

Study: Drug, Driving Charges Sap Nation’s Courts

Article criticizes why low-level drug and driving charges are a financial burden for misdemeanor courts.

http://www.seattlepi.com/local/405652_misdemeanor28.html

My opinion?  As a former public defender (and proud of it), I was dismayed when defendants were prosecuted and jailed on Driving While License Suspended charges.  Indeed, defending these kinds of cases exposed me to some ugly truths about the criminal justice system.

Here’s a typical situation: “Speeder” gets pulled over for speeding.  Speeder can’t afford to pay the ticket.  They miss their court date.  Court gives them a “Failure to Appear” for missing said court date.  The Department of Licensing catches wind.  Speeder’s license gets suspended.   He is now Speeder-Turned-Suspended Licensee (STSL).  Eventually STSL get pulled over – and possibly arrested – on the suspended license.  If STSL is lucky, police officer won’t (1) investigate STSL for DUI, and/or (2) search STSL’s car following the arrest.  If unlucky, STSL might have had a couple of drinks before being pulled over.  They get investigated for DUI.  Or STSL has contraband tucked away in the glove compartment that gets discovered on the search.

All of the sudden, “Speeder” is now a criminal.

The grinding wheels of justice.  Steel jaws gnashing away at people’s rights.  Police using a suspended license as probable cause to arrest you and search your car.  Unbelievable.

Now, more than ever, change is necesssary.  King County has implemented a program which simultaneously circumvents the criminal justice system and allows people get their licenses back.  Legal fees are waived if people successfully complete it.  The program is a success.  And it costs less than prosecuting/jailing people.

There’s more.  In 2007, the study’s authors found, 11,553 misdemeanor marijuana cases were filed.  Of those, 3,638 convictions were made, which resulted in about $7.6 million in direct costs to the state.

Again, unbelievable.  Taxpayers subsidize these enormous costs.  However, most people believe small-time drug cases should NOT be prosecuted.  Remember Seattle Initiative I-75?  The measure – which passed successfully in 2003 – directed police officers and prosecutors to treat the personal use of marijuana by adults as the city’s lowest law enforcement priority.

It’s time our court system caught up with the will of the people.