Category Archives: Jail

Federal Legislation to End Cash Bail

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Excellent news article by  of The Intercept discusses how Senator Bernie Sanders introduced legislation to end money bail on the federal level and create incentives for states to follow suit.

According to  , The No Money Bail Act is the latest example of the push from the Democrats to tackle criminal justice reform. It would prohibit money bail in federal criminal cases, provide grants to states that wish to implement alternate pretrial systems, and withhold grant funding from states that continue using cash bail systems.

Additionally, the bail reform “requires a study three years after implementation to ensure the new alternate systems are also not leading to disparate detentions rates,” according to a summary of the bill provided by Sanders’s office.

“It has always been clear that we have separate criminal justice systems in this country for the poor and for the rich,” the summary reads. “A wealthy person charged with a serious crime may get an ankle monitor and told not to leave the country; a poor person charged with a misdemeanor may sit in a jail cell. And this disproportionately affects minorities — fifty percent of all pretrial detainees are Black or Latino.”

In a statement accompanying the release of his bill, Sanders said the following:

“Poverty is not a crime and hundreds of thousands of Americans, convicted of nothing, should not be in jail today because they cannot afford cash bail. In the year 2018, in the United States, we should not continue having a ‘debtor prison’ system. Our destructive and unjust cash bail process is part of our broken criminal justice system – and must be ended.”

Also according to , the idea of eliminating money bail is controversial, even among Democrats, so it is unlikely that the legislation will soon be enacted into law. Indeed, Rep. Ted Lieu, D-Calif., introduced a similar measure in the House in 2016 and 2017, but his bills gained little traction. Last year, Sens. Kamala Harris, D-Calif., and Rand Paul, R-Ky., introduced a measure to encourage states to reform bail practices, though they did not go as far as calling to eliminate cash bail on the federal level.

Still, these efforts represent a growing sense of urgency among lawmakers to address the racial disparities that plague the criminal justice system. Senate Minority Leader Chuck Schumer last month introduced a bill to decriminalize marijuana at the federal level, removing the drug from the Controlled Substances Act. The House passed a tepid prison reform bill that was pushed by President Donald Trump’s son-in-law Jared Kushner in May, and the Senate has introduced similar legislation.

For-profit companies are “making a fortune” off indigent defendants, according to the summary of the Sanders bill. Indeed, the for-profit bail industry makes between $1.4 billion and $2.4 billion a year, the American Civil Liberties Union wrote in a 2017 report. An inability to afford bail leaves defendants across the country languishing in pretrial detention bars for extended periods of time; in 2014, about 60 percent of people in U.S. jails had not been convicted of a crime, the Department of Justice’s Bureau of Justice Statistics reported.

“Pretrial detention should be based on whether or not someone truly should not be freed before their trial,” the summary continued. “It should not depend on how much money they have, or what kind of mood the judge is in on a given day, or even what judge the case happens to come before. We also must insure that jurisdictions do not eliminate cash bail but find pretexts to continue unfairly locking people up before trial.”

State and local governments have made similar efforts in recent years. New Jersey has been at the forefront of the bail reform movement, largely eliminating its cash bail system last year. District attorneys in Brooklyn and Manhattan in January ordered prosecutors not to request bail in most misdemeanor cases. And Philadelphia District Attorney Larry Krasner also fulfilled one of his high-profile campaign promises when he announced an end of cash bail requirements for low-level offenses in February.

My opinion? The movement to end cash bail seems to be gaining momentum. If so, it’d eliminate a significant hurdle in gaining justice for defendants facing criminal charges.

California Eliminates Cash Bail

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Great article by Madison Park and Cheri Mossburg of CNN news covers how California will end the cash bail system in a sweeping reform for the state. Rather than requiring defendants to pay in order to be released before trial, their release will hinge on an assessment of their risk to public safety.

On Tuesday, the California Money Bail Reform Act, also known as Senate Bill 10, passed in the State Senate with a vote of 26-12, and the General Assembly by 42-31.
“SB 10 puts all Californians on equal footing before the law and makes public safety the only consideration in pretrial detention. This critical reform is long overdue,” said Toni Atkins, Senate president pro tempore.
“Today, California reforms its bail system so that rich and poor alike are treated fairly,” Gov. Jerry Brown said in a statement.
Brown signed the bill Tuesday, and the new law goes into effect October 1, 2019. California is the first state to eliminate money bail completely, according to the Pretrial Justice Institute, an organization that advocates for pretrial justice reform.
According to reporter Madison Park, critics have long contended that the money bail system perpetuates inequality. While some people are able to quickly get out of jail by posting bail, people who aren’t able to afford it sit in jail until the court takes action, or until they work with a bail bond agent to secure their freedom, which can leave them in debt.
“Abolishing money bail and replacing it with a risk-based system will enhance justice and safety. For too long, our system has allowed the wealthy to purchase their freedom regardless of their risk, while the poor who pose no danger languish in jail,” said Assemblymember Rob Bonta, one the lawmakers who introduced the bill, in a statement.
Under the new law, a pretrial assessment would be done by either court employees or a local public agency that has been contracted to determine a defendant’s risk. That entity would assess the likelihood that the person will not appear in court or commit a new crime while released, and would make a recommendation for conditions of release. The defendant will be assessed as high, medium or low risk. A person who is deemed as high risk, including those arrested for violent felonies, will not be released.
Surprisingly, the ACLU in California expressed disappointment over the bill, saying it “is not the model for pretrial justice and racial equity that California should strive for.”
“It cannot guarantee a substantial reduction in the number of Californians detained while awaiting trial, nor does it sufficiently address racial bias in pretrial decision making,” said the three executive directors of the California ACLU affiliates, Abdi Soltani (Northern California), Hector Villagra (Southern California) and Norma Chávez Peterson (San Diego & Imperial Counties). “Indeed, key provisions of the new law create significant new risks and problems.”
Indeed, the ACLU pulled its support for the bill earlier this month as the it underwent changes in the state legislature.
My opinion? This is a bold, progressive step. The subject of cash bail has always been a cantankerous subject which underscores how justice applies to the privileged vs. the non-privileged. For the underprivileged, defendants who cannot afford to pay bail are more likely to plead guilty to criminal charges. Jail is a terrible place, and getting out as soon as possible is an overwhelming desire for most defendants who find themselves there. There’s no justice in pleading guilty to crimes that we would otherwise not plead guilty to simply to get out of jail.
Let’s wait and see how California does. The success of  California Money Bail Reform Act could determine whether other states adopt similar legislation.
Please contact my office if you, a friend or family member face criminal charges and are held in jail pending the outcome of the case. Chances are, a competent attorney can persuade the judge to lower the bail or even release the defendant without bail on their personal recognizance. For more information, please read my Legal Guide titled, “Making Bail.”

ACLU Sues Whatcom County Jail

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Excellent article by Denver Pratt of the Bellingham Herald says the American Civil Liberties Union (ACLU)  filed a federal civil rights lawsuit Wednesday against the Whatcom County Jail and the Whatcom County Sheriff’s Office for allegedly denying inmates with opioid use disorder access to medication.

The lawsuit filed in Seattle in the U.S. District Court for the Western District of Washington alleges the jail’s policy of refusing to provide access to medication assisted treatment to treat opioid addiction violates the Americans with Disabilities Act (ADA).

Pratt reports that Opioid Use Disorder is classified as a disability under the ADA, and is also a recognized substance use disorder. A person qualifies as having opioid use disorder if they meet two or more criteria that reflect impaired health function over a 12-month period.

The lawsuit alleges that the jail has a policy for giving medication, such as buprenorphine (Suboxone or Subutex), or methadone, to pregnant women suffering from opioid use disorder, but has no policy for non-pregnant individuals, forcing them to go into withdrawal once they’re booked.

The lawsuit was brought on behalf of two inmates who were receiving medication assisted treatment before they became incarcerated. However, the ACLU is seeking class-action status for all non-pregnant people incarcerated who have Opioid Use Disorder.

“Defendants’ policy and practice of denying medications to treat opioid use disorder to non-pregnant individuals is both dangerous and discriminatory,” according to the complaint filed in the case.” It singles out a particularly vulnerable group of disabled people, forces them to suffer unnecessarily from painful opioid withdrawal, and subjects them to an increased risk of relapse and overdose death.”

Whatcom County Sheriff Bill Elfo said Thursday he believed several other jails in Washington state are under scrutiny by the ACLU for opioid treatment. He said the county had not been served with the lawsuit yet as of Thursday afternoon, but noted the ACLU has 20 days to do so.

Elfo said the 2019 opening of a new 32-bed crisis triage center for people suffering from mental health and substance use disorders will provide an alternative to taking people who use opioids to jail, and give them access to treatment.

“This is something that’s been asked for for 20 years. I’m glad it’s something that’s finally on the horizon,” he said.

The project will expand the current Crisis Triage Center and will be on Division Street in Bellingham. It will cost up to an estimated $9.5 million.

My opinion?

First, kudos to Ms. Pratt for her excellent and timely reporting.

Second, lawsuits like this reveal the pressing need for Whatcom County to construct a new jail. A larger facility with upgraded services would not only better serve the needs of the incarcerated defendants, but also the jail staff and police officers who work there on a daily basis.

I’ve heard the arguments against a new jail. Clearly – and unfortunately – the community has voted down numerous proposals. What most people don’t understand, however, is that the current jail is decrepit, unsafe and virtually inhumane. As a result, we see riots and suicides happen at the jail with unsettling frequency.

Good luck to the ACLU. Hopefully, they’ll be instrumental toward making positive changes happen for the inmates and hardworking jail staff here in Whatcom County.

Jail Mail

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In State v. Irby, the WA Court of Appeals held that an inmate’s 6th Amendment rights were violated and has case was prejudiced when jail guards opened and read his confidential “jail mail” letters written to his defense attorney.

BACKGROUND FACTS

In April 2005, Irby was charged with one count of burglary in the second degree, alleged to have occurred on March 6, 2005, and the following counts alleged to have occurred on March 8, 2005: one count of aggravated murder in the first degree with an alternative allegation of first degree felony murder, one count of burglary in the first degree, one count of robbery in the first degree, three counts of unlawful possession of a firearm in the first degree, and one count of attempting to elude a police vehicle. The latter charges arose out of a robbery and bludgeoning death.

In January 2007, a jury found Irby guilty of murder in the first degree with aggravating circumstances, felony murder in the first degree, and burglary in the first degree. Four years later, the Washington Supreme Court reversed the judgment of conviction and remanded the cause for a new trial in light of the court’s determination that Irby’s due process rights had been violated during jury selection. See State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011).

Irby’s retrial was held in 2013. The State prosecuted the same charges that were brought during the first trial and Irby was convicted as charged. Notably, at the retrial, Irby was allowed to proceed pro se. He also voluntarily absented himself from the trial. We subsequently reversed the judgment of conviction and remanded the cause for yet another new trial because the trial judge had erroneously seated a juror who had demonstrated actual bias against Irby during voir dire.

In March 2016, pretrial proceedings began for Irby’s third trial. He was represented by a public defender. In mid-March, the State filed an amended information charging Irby with one count of premeditated murder in the first degree and one count of burglary in the first degree. Two days later, Irby appeared in court and was arraigned on the charges. He entered pleas of not guilty.

In mid-March and again in late March, Irby requested to represent himself. Following a colloquy with the trial court in mid-April, Irby’s request was granted. Four months later, Irby filed a pro se motion to dismiss the charges against him. In his motion, Irby alleged misconduct by jail guards, claiming that (during the period of time during which his public defender represented him) they had improperly opened outgoing mail containing privileged legal communication intended for his attorney.

The trial court denied Irby’s motion. The trial court did determine that the jail guards had violated Irby’s right to counsel by opening and reading privileged attorney-client communications. Although Irby argued that the trial court’s determination mandated that a presumption of prejudice be imposed, the trial court placed on Irby the burden of proving prejudice and concluded that he did not do so.

One month later, Irby informed the trial court that he had decided not to attend the trial and waived his right to be present at trial.

After a jury was selected without Irby’s participation, the evidentiary stage of Irby’s third trial began. Irby did not attend the trial. The State presented its case in chief and gave closing argument. No defense or closing argument were presented on Irby’s behalf.

The jury returned verdicts finding Irby guilty as charged. Irby was sentenced to concurrent terms of incarceration of 388 months for the murder in the first degree conviction and 54 months for the burglary in the first degree conviction.

ISSUES

1. Did a State actor participate in the infringing conduct alleged by the defendant?

2. If so, did the State actor(s) infringe upon a Sixth Amendment right of the defendant?

3. If so, was there prejudice to the defendant? That is, did the State fail to overcome the presumption of prejudice arising from the infringement by not proving the absence of prejudice beyond a reasonable doubt?

4. If so, what is the appropriate remedy to select and apply, considering the totality of the circumstances present, including the degree of prejudice to the defendant’s right to a fair trial and the degree of nefariousness of the conduct by the State actor(s)?

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals decided  the “State actors” engaged in misconduct.

“Irby’s motion to dismiss alleged that the confrontation between himself and the State involved conduct by jail guards employed by the county jail in which he was being housed,” said the Court of Appeals. “Thus, Irby established that the conduct underlying his claim involved State actors.”

Second, the Court decided  that the jail guards’ conduct infringed upon his Sixth Amendment right.

“Plainly, a defendant’s Sixth Amendment right to assistance of counsel is violated when the State intrudes into a privileged attorney-client communication,” said the Court of Appeals.

The court reasoned that here, Irby’s motion to dismiss—and accompanying exhibits and addendum—alleged that he had sent 14 pieces of confidential correspondence containing privileged information to his attorney that, he argued, had been improperly opened and read by jail guards in the Skagit County Jail. The correspondence constituted Irby’s handwritten statements on both a “Public Defender Request Form” and jail kites—multi-purpose request forms available to inmates in the Skagit County Jail.

Prior to sending the correspondence, Irby folded each piece of paper in half, sealed each piece of paper with tape, and written on the outward facing side, “CONFIDENTIAL,” and “ATTORNEY BOX.” Consequently, the Court of Appeals said the folded and taped pieces of paper were intended to be confidential and included privileged attorney-client information. “Thus, the aforementioned correspondence from Irby to his counsel contained privileged attorney-client information protected by the Sixth Amendment.”

Third, the Court of Appeals held that the  jail guards’ opening and reading of Irby’s privileged attorney-client correspondence infringed upon his Sixth Amendment right to counsel. The parties do not dispute the trial court’s finding that jail guards had opened and read Irby’s privileged attorney-client communications. “Thus, the jail guards—and therefore the State—infringed on Irby’s Sixth Amendment right to counsel. This constitutes misconduct, within the meaning of CrR 8.3.

Finally, the Court of Appeals decided Irby was prejudiced by the misconduct:

“More than half a century ago, our Supreme Court ruled that, when State actors pry into a defendant’s privileged attorney-client communications, prejudice to the defendant must be presumed . . . We must assume that information gained by the sheriff was transmitted to the prosecutor and therefore there is no way to isolate the prejudice resulting from an eavesdropping activity, such as this.”

The Court of Appeals further reasoned that recently, our Supreme Court in Pena Fuentes reaffirmed this ruling and, in light of a State actor’s eavesdropping on privileged attorney-client communications, imposed a presumption of prejudice.

Furthermore, because the State actors here at issue—jail guards—infringed upon Irby’s Sixth Amendment right, prejudice must be presumed. Thus, the trial court erred by not imposing a presumption of prejudice after it determined that the jail guards had opened and read Irby’s communications containing privileged attorney-client information.

With that, the Court of Appeals reversed the order denying Irby’s motion to dismiss and remanded this matter for an evidentiary hearing with instructions to the trial court.

My opinion? Excellent decision by the Court of Appeals. It most certainly violates a defendant’s constitutional rights for state actors like jailers, law enforcement and Prosecutors to read mail from an inmate intended for an attorney.

Contact my office if you, a friend or family member face criminal charges and are incarcerated awaiting trial. Being in jail is never wise if it can be avoided. Chances are, a qualified and competent attorney can argue for personal release, lowered bail or convince the judge to release the defendant to a family member who is willing to supervise the defendant’s whereabouts.

Skagit County Jail: Who Will Provide Inmate Medical Care?

According to Stone’s article, Skagit County currently employs jail medical staff itself, saving money over contracting for services while accepting sole responsibility for union negotiations and potential malpractice lawsuits. At an estimated $1.9 million a year, county-provided services at the new jail would be cheaper than contracting with NaphCare, a private, Alabama-based jail healthcare company that has expressed interest in working with the county.

Private-sector estimates come in at about $2.1 million, Neill Hoyson said. Both the county and private-sector numbers factor in an expected increase in inmate population at the larger jail – with 400 beds, the new jail is much larger than the current 83-bed facility.

Both plans would provide for about 12 full-time equivalent positions. Neill Hoyson said county staff recommend hiring a consultant to evaluate the different models, but that recommendation was not discussed by the commissioners.

Dr. Marc Stern, an assistant professor at the University of Washington’s School of Public Health, told the commissioners Tuesday that by spending about $3,000 to $4,000 per inmate per year, Skagit County currently falls on the lower end of the spectrum for jail medical care. The new plans would increase that number to about $8,000.

Jail inmates tend to have more health issues than the general population, he said. Studies indicate that investments in medical care for inmates tend to save money for the public health system when those inmates return to the community, he said.

However, Mr. Stern, stakeholders from the jail and the commissioners were skeptical about privatization.

“I think privatization is more expensive,” Stern said. “(To make a profit), it has to be.”

Chief of Corrections Charlie Wend said he has worked to build relationships between the jail and mental health and drug addiction treatment facilities in the community. Those relationships may not carry over to a private provider, he said.

“There are just some functions of government that should stay with the government,” Wend said.

However, Stern anticipated NaphCare would have an easier time hiring medical staff because it would pay higher wages. The county has said it’s had trouble with staffing because it can’t offer competitive wages. Skagit County’s Jail Finance Committee, made up of city and county representatives, meets Sept. 20, and the commissioners are expected to come to the table with a suggestion.

My opinion? Granted, I know very little about the discussion and what the real issues are. My knee-jerk reaction, however, is that privatization is not the answer. In Prison Healthcare: Medical Costs, Privitization, and Importane of Expertise, author Kip Piper discusses the pros and cons of outsourcing medical care to prison inmates. I’m confident those involved will make the right decision.

Jail Calls Make Revenue

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Wonderful article by Brian Alexander of The Atlantic claims that private companies have much to gain from installing and maintaining video technology connecting inmates with visitors.

VIDEO CHAT TECHNOLOGY

Over the past decade, many prisons  have outsourced video chat the systems to private corporations, often as part of a package that includes phone services. As of 2014, according to a report by the nonprofit Prison Policy Initiative, over 500 jails and prisons in 43 states had adopted video visitation.

An unknown number of those 500-plus facilities have also adopted “remote” video visitation, something akin to Skype, in which a “visitor” can communicate with an inmate via a computer, from any location. Unlike the in-facility video visitation systems, these remote setups come with charges of up to a dollar per minute, not counting account-deposit fees and set-up charges—expenses that can be quite burdensome for the often-poor families of inmates.

Despite the expense, however, the benefits cannot be ignored. Many visitors may conclude that driving to the jail is a waste of time and gas, and opt to pay. And jailers argue that video visitation has obvious security advantages and improves staff efficiency, as deputies don’t have to remove a prisoner from a housing unit or check visitors in.

Additionally, the revenues cannot be ignored either. Video chat systems make jailers—whether local governments or private corporations—the de-facto business partners of the companies, while enriching private-equity firms (which own many video-visitation providers) and their investors. “Video visitation is a link in the whole system that sees inmates as a revenue opportunity,” says Daniel Hatcher, a law professor at the University of Baltimore and the author of The Poverty Industry: The Exploitation of America’s Most Vulnerable Citizens. “It’s part of a larger system that sees the broader vulnerable family as a revenue opportunity, too.”

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A LUCRATIVE BUSINESS
Reporter Brian Alexander says that inmate-communication services have proven to be a very lucrative business, and expensive phone charges borne by the families of prisoners have stoked controversy for years. In response, the Federal Communications Commission (FCC) capped per-minute rates in 2015. Prison-telecom companies sued. President Trump’s appointee to head the FCC, Ajit Pai, dropped the FCC’s defense of the rate-cap rules, and, in June, a court struck them down. Even so, the phone charges became a scandal and some in Congress vowed to take action. Administrators began to feel queasy about the rates. 
The procedural hurdles and the outright bans on in-person visitation seem designed to nudge visitors to stay home and visit remotely. This not only benefits providers, but jails, prisons, and local jurisdictions too, which can use income from company commissions or profit-sharing to benefit the facility, a county’s general fund, or some other local cause. For example, the Prison Policy Initiative uncovered a contract between Securus and Maricopa County, Arizona, that provided for a 10 percent commission to the county of gross monthly revenues, but only if the number of paid video visits reached at least 8,000 for that month. If Securus grossed $2.6 million or more, the county’s percentage rose to 20 percent.

VIDEO VISITATION NO REPLACEMENT FOR IN-PERSON VISITS.

Alexander emphasizes that video visitation is no replacement for in-person visits. As an oft-cited Minnesota Department of Corrections study from 2011 showed, “prison visitation can significantly improve the transition offenders make from the institution to the community. Any visit reduced the risk of recidivism by 13 percent for felony reconvictions and 25 percent for technical violation revocations.” Also, a report by the National Institute of Corrections (part of the U.S. Department of Justice) similarly concluded that video visitation “cannot replicate seeing someone in-person, and it is critical for a young child to visit his or her incarcerated parent in person to establish a secure attachment.”

INVESTORS ARE PIQUED

Meanwhile, because the largest inmate telecom-and-video providers generate a healthy flow of cash, they’ve attracted the interest of private equity, or PE. The fees that flow upward from prisoners and their families find their way to these firms and their investors. In 2013, for example, Global Tel Link, another major inmate phone-and-video provider, borrowed $885 million to fund dividend recapitalizations at the behest of its PE sponsor, American Securities; that debt would be paid back with the proceeds from inmate calls and video visitations.

VIDEO CHAT: GOOD OR BAD?

Alexander says that even a critic like Hatcher, the author and law professor, believes that video visitation has the potential for good. Such a service can complement in-person visits. It could allow an inmate to see a child’s school performance. It could substitute for an in-person visit when weather makes travel to a jail or prison hazardous. But Hatcher fears that it’s being used to restrict contact and drain money from people who are often already poor.

Immigrants Paid $1 a Day to Work in Tacoma Jail.

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Article from Andy Hurst of KUOW discusses a class action lawsuit says the company running an immigration detention center in Colorado is violating federal anti-slavery laws.

Interestingly, this same company runs the Northwest Detention Center in Tacoma, which is the scene of an expanding hunger strike.

Inmates joining the law suit are paid $1 per day for voluntary work. They want improved quality of food, improved medical care and higher paying jobs. The detention center is run by a private company, GEO Group, which operates under a contract with U.S. Immigration and Customs Enforcement. The group Latino Advocacy said more than 750 people at the Tacoma facility were refusing meals as of Wednesday morning.

Meanwhile, detainees at an Aurora, Colorado, detention center run by GEO Group have filed a class-action lawsuit. It claims the detention center violates federal anti-slavery laws.

Attorney Nina Disalvo is an attorney represents the detainees in Colorado. She said it’s illegal to pay them $1 a day.

“It’s not the market wage that GEO would have to pay if it were absorbing the real cost of running an immigrant detention center,” Disalvo said. “If GEO actually had to hire janitorial staff to clean its facility, it would have to pay that staff a market wage. And it’s not paying the detainees a market wage for this work.”

Disalvo said some of her clients were forced to do janitorial work and clean large areas within the facility without pay. “If they did not do so, they were threatened with or placed in solitary confinement,” Disalvo said. “Our clients allege that forcing people to work under threat of solitary confinement constitutes forced labor under the federal forced labor laws.”

GEO Group has denied the lawsuit’s allegations. A spokesperson for Immigration and Customs enforcement says the agency does not comment on pending litigation. Virginia Kice, ICE spokeswoman, confirmed that detainees at the Northwest Detention Center in Tacoma earn $1 per day for voluntary work. She said about 25 percent of detainees participate in the program, and that no detainees perform unpaid work at the facility.

The Colorado lawsuit could have implications for the Northwest Detention Center. Northwestern University political science professor Jacqueline Stevens said that if the plaintiffs prevail, GEO Group will need to pay out up to hundreds of millions of dollars in back wages and penalties.

“This could mean the end of government contracts with the private prison industry for housing people held under immigration laws, and the return to more sensible policies,” Stevens said.

My opinion?

I’ve never been a fan of private prisons.

For those who don’t know, a private prison or for-profit prison is a place in which individuals are physically confined or incarcerated by a third party that is contracted by a government agency. Private prison companies typically enter into contractual agreements with governments that commit prisoners and then pay a per diem or monthly rate, either for each prisoner in the facility, or for each place available, whether occupied or not. Such contracts may be for the operation only of a facility, or for design, construction and operation.

According to the ACLU, private prisons have been linked to numerous cases of violence and atrocious conditions. Also, according to the Bureau of Justice Statistics, for-profit companies were responsible for approximately 7 percent of state prisoners and 18 percent of federal prisoners in 2015 (the most recent numbers currently available).

While supporters of private prisons tout the idea that governments can save money through privatization, the evidence is mixed at best—in fact, private prisons may in some instances cost more than governmental ones.

Finally, it appears that immigrants are the ones filling these detention centers. U.S. Immigration and Customs Enforcement reported that in 2016, private prisons held nearly three-quarters of federal immigration detainees. In light of today’s anti-immigrant presidential administration, it’s no coincidence that private stocks for U.S. prisons have increased 100% since Trump’s election.

CXW

Pretrial Custody Held Unlawful

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In Manuel v. Joliet, the U.S. Supreme Court held that a person’s pretrial detention for alleged crimes can violate the Fourth Amendment if the judge’s determination of probable cause was based solely on fabricated evidence.

BACKGROUND FACTS

During a traffic stop, police officers in Joliet, Illinois, searched the defendant Elijah Manuel and found a vitamin bottle containing pills. Suspecting the pills to be illegal drugs, the officers conducted a field test, which came back negative for any controlled substance. Still, they arrested Manuel and took him to the police station.

There, an evidence technician tested the pills and got the same negative result, but claimed in his report that one of the pills tested “positive for the probable presence of ecstasy.” An arresting officer also reported that, based on his “training and experience,” he “knew the pills to be ecstasy.” On the basis of those false statements, another officer filed a sworn complaint charging Manuel with unlawful possession of a controlled substance.

Pretrial Detention

Relying exclusively on that complaint, a county court judge found probable cause to detain Manuel pending trial. While Manuel was in jail, the Illinois police laboratory tested the seized pills and reported that they contained no controlled substances. But Manuel remained in custody, spending a total of 48 days in pretrial detention.

For those who don’t know, pretrial detention refers to detaining of an accused person in a criminal case before the trial has taken place, either because of a failure to post bail or due to denial of release under a pre-trial detention statute.

Civil Rights Lawsuit

At any rate, more than two years after his arrest, but less than two years after his criminal case was dismissed, Manuel filed a civil rights lawsuit pursuant to 42 U. S. C. §1983 against Joliet and several of its police officers (collectively, the City), alleging that his arrest and detention violated his Fourth Amendment rights.

The Federal District Court dismissed Manuel’s suit, holding, (1) that the applicable two-year statute of limitations barred his unlawful arrest claim, and, (2) that under binding legal precedent, pretrial detention following the start of legal process  could not give rise to a Fourth Amendment claim. Manuel appealed the dismissal of his unlawful detention claim. however, the Seventh Circuit Court of Appeals affirmed the ruling. Manuel appealed to the U.S. Supreme Court.

ANALYSIS & CONCLUSION

The U.S. Supreme Court decided that Mr. Manuel may indeed challenge his pretrial detention on Fourth Amendment grounds even though he was in custody. It explained that the Fourth Amendment prohibits government officials from detaining a person without probable cause. Furthermore, where legal process has gone forward, but has done nothing to satisfy the probable-cause requirement, it cannot extinguish a detainee’s Fourth Amendment claim.

“That was the case here,” said the Court. “Because the judge’s determination of probable cause was based solely on fabricated evidence, it did not expunge Manuel’s Fourth Amendment claim.” Consequently, Mr. Manuel proved a valid a Fourth Amendment claim when he sought relief for his arrest and pretrial detention.

Furthermore, the Court reasoned that the Seventh Circuit Court of Appeals should have determined the claim’s accrual date, unless it finds that the City has previously waived its timeliness argument. In doing so, the court should look to the common law of torts for guidance while also closely attending to the values and purposes of the constitutional right at issue.

With that, the U.S. Supreme Court reversed and remanded.

My opinion? Good decision. Pretrial release is a huge issue in criminal law.  In Washington, both CrR 3.2 and CrRLJ 3.2.1 govern the release of people accused of crimes. The purposes of the pretrial release decision include providing due process to those accused of crime, maintaining the integrity of the judicial process by securing defendants for trial, and protecting victims, witnesses and the community from threat, danger or interference.

The judge or judicial officer decides whether to release a defendant on personal recognizance or unsecured appearance bond, release a defendant on a condition or combination of conditions, temporarily detain a defendant, or detain a defendant according to procedures outlined in these Standards.

Ultimately, the law favors the release of defendants pending adjudication of charges. Deprivation of liberty pending trial is harsh and oppressive, subjects defendants to economic and psychological hardship, interferes with their ability to defend themselves, and, in many instances, deprives their families of support.

Here, Mr. Manuel was held in jail for 48 days when police lacked probable cause on any charges. That’s awful. Fortunately justice was served when his case was dismissed and that the U.S. Supreme Court upheld his lawsuit.

For more information on getting released from jail, please read my Legal Guide titled, Making Bail. And please contact my office for a free consultation if you, a friend or family member find themselves in jail.

Jail Mail

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In Mangiaracina v. Penzone, the Ninth Circuit Court of Appeals held that prisoners have a Sixth Amendment right to be present when legal mail related to a criminal matter is inspected.

BACKGROUND FACTS

Nick Mangiaracina was jailed as a pre-trial detainee in Maricopa County’s Fourth Avenue Jail in Phoenix, Arizona. The jail’s stated policy is to open legal mail addressed to a prisoner only in the presence of that prisoner. Mangiaracina alleged, however, that his mail was repeatedly opened outside his presence in contravention of this policy. His complaint included descriptions of nine specific instances of the jail improperly opening his mail to/from his attorney.

In describing his injury resulting from the improper opening of his legal mail, Mangiaracina alleged that he and his two attorneys “are afraid to communicate by mail which is hard as I have so many cases and so much paperwork to go back and forth.” He further explained that his “right to confidentiality and privacy was violated” and that his “defense strategy and his rights in general were just shredded.”

PROCEDURAL HISTORY

Mangiaracina initially filed suit in Arizona superior court pursuant to 28 U.S.C. § 1983, alleging violations of his First and Sixth Amendment rights by a number of jail employees and John Doe defendants. The case was moved to federal court. Unfortunately, the U.S. district court ultimately dismissed Mangiaracina’s complaint with prejudice. it noted that Mangiaracina had failed to specifically allege that the pieces of mail were marked as “legal mail” and that, for most of the instances, he failed to explain how he knew the mail was opened outside his presence. He appealed to the Ninth Circuit.

COURT’S ANALYSIS & CONCLUSIONS

The Ninth Circuit reasoned that under the U.S. Supreme Court’s Wolff v. McDonnell  and the Ninth Circuit’s Nordstrom v. Ryan, that prisoners have a Sixth Amendment right to confer privately with counsel and that the practice of opening legal mail in the prisoner’s presence is specifically designed to protect that right.

Furthermore, other circuit courts have similarly recognized the importance of this practice. In Jones v. Brown, the Third Circuit recognized, in the context of a First Amendment challenge, that opening legal mail outside the addressee’s presence was unlawful.

The Ninth Circuit further reasoned that the jail failed to identify any legitimate penological interest that would be served by opening legal mail outside Mangiaracina’s presence: “As we have emphasized in the past, a criminal defendant’s ability to communicate candidly and confidentially with his lawyer is essential to his defense.”  By necessity, reasoned the court, prisoners and pre-trial detainees rely heavily on the mail for communication with their attorneys. Unfortunately, the Maricopa County jail system does not allow incoming phone calls or provide access to e-mail, and outgoing phone calls can only be placed as collect calls.

With that, the Ninth Circuit reversed the lower court’s dismissal of Mangiaracina’s Sixth Amendment and First Amendment claims with respect to some mail-opening incidents and affirmed the lower court’s dismissal of the remaining counts of alleged improper mail opening.

My opinion? Excellent decision. It’s extremely difficult to communicate with jailed clients. Some jails offer limited hours of visitation and/or phone calls. Reading a defendant’s jail mail deprives the expression of confidentiality and chills the inmates’ protected expression. This is wrong, and violates a defendant’s First Amendment rights.

With respect to phone calls, I don’t discuss important details over the jail phones because the conversations are recorded. Although recorded phone calls with my clients are inadmissible at trial, these conversations are still surveillance which can “tip off” prosecutors to the strategies and tactics I develop with my clients.

Kudos to the Ninth Circuit for a very well-reasoned and substantial decision.

State Senate Passes Bill Making Fourth DUI a Felony.

Image result for dui and politics

The WA State Senate has unanimously passed a bill that would make driving under the influence (DUI) a felony if the driver has three or more prior offenses on their criminal record within 10 years.

Senate Bill 5037 passed Thursday and now heads to the House, where it has stalled in previous years. The bill’s sponsors are as follows: Padden, Frockt, O’Ban, Darneille, Miloscia, Kuderer, Zeiger, Carlyle, Pearson, Conway, Rolfes, Palumbo, Angel, and Wellman.

Under the measure, a person who is charged with a fourth DUI, and has no other criminal history, would be subject to a standard sentencing range of 13 to 17 months in jail.

However, this bill allows first-time felony offenders to spend up to six months in jail, instead of nine, and finish out the rest of their sentence under supervision, such as attending Alcoholics Anonymous meetings and other programs.

My opinion? We shouldn’t be surprised. Over the past 20 years, Americans have seen a significant increase in the harsh penalties for intoxicated drivers. Perhaps this is necessary move given the thousands of lives lost to drunk drivers. Speaking as a criminal defense attorney, there’s serious question as to whether people commit these violations purely out of willful disregard for the law and for the safety of others or because of an untreated mental illness or alcohol addiction. Nevertheless, public outcry has led to increased sentences.

Many attorneys in Whatcom County and Skagit County claim to represent clients in DUI cases, but not all attorneys have the experience and successes of attorney Alexander F. Ransom.  To learn more about DUI laws or if you have been charged with a driving offense, make your first call count. Call the Law Office of Alexander F. Ransom today.