Category Archives: Race & Law

Life Sentences Increase

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Article by Samantha Michaels of Mother Jones discusses how one out of every nine prisoners in the United States is currently serving a life sentence—a record high—even as the overall prison population has fallen.

That’s according to a depressing new report by the Sentencing Project, an advocacy group that’s been tracking life sentences since 2004. Almost 162,000 people are now serving life behind bars, up from 132,000 about a decade ago and 34,000 in 1984.

To put that in perspective, for every 100,000 people in America, 50 have been locked up for life. That’s roughly the total incarceration rate—including inmates whose sentences are just a few months—in Scandinavian countries like Denmark, Sweden, and Finland.  And it doesn’t even account for the tens of thousands of Americans handed sentences of 50 years or more, which are considered “de facto life sentences,” says Ashley Nellis, a senior research analyst at the Sentencing Project who co-authored the report.

What’s driving the uptick? It’s not a rise in violent crime or murder—both have dropped substantially since the mid-1990s. Nor is it an increase in the number of criminals behind bars: A majority of states saw declining overall prison populations from 2010 to 2015.

According to Michaels, the continuing rise in lifers is a legacy of three-strikes laws and mandatory minimum sentencing.

“It may also be related to the shift away from capital punishment,” she says. She further elaborates that in some states that no longer allow executions, elected officials like governors and prosecutors have championed life-without-parole sentences—which account for the biggest increase in life sentences nationally—as a way to appear tougher on crime.

“Going forward, we will have a system that allows us to put these people away for life, in living conditions none of us would want to experience,” Connecticut Gov. Dannel Malloy, a Democrat, said in 2012 when his state abolished the death penalty. But these lengthy punishments probably aren’t keeping the public safer. “The impulse to engage in crime, including violent crime, is highly correlated with age,” the Sentencing Project notes. “Most criminal offending declines substantially beginning in the mid-20s and has tapered off substantially by one’s late 30s.”

The biggest losers of all this? Minorities. Of all the lifers and de facto lifers in the country, almost half are African American. What’s more, 12,000 of the total are locked up for crimes they committed as kids, though some are eligible for release thanks to recent court decisions.

In 2010, the Supreme Court ruled that life-without-parole sentences are unconstitutional for juveniles who didn’t commit homicide. In 2012, the justices went further, saying that mandatory life-without-parole sentences for kids, including those who committed homicide, are also unconstitutional. Nineteen states and DC now ban any kind of life-without-parole sentence for juveniles.)

Finally, according to Michaels, it’s important to remember that many of the prisoners serving these long sentences never actually hurt anyone: Two-thirds of lifers or de facto lifers in the federal system committed nonviolent crimes—and one-third of them are serving time for drug crimes.

With Attorney General Jeff Sessions at the helm of the Justice Department alongside his team of tough-on-crime advisers, there’s a good chance that won’t be changing anytime soon.

My opinion? I couldn’t agree more.

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

Race Bias Video for Jurors

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The King County Bar Association Bulletin reported recent efforts to tackle the problem of race bias in juries. In U.S. District Court Produces Video, Drafts Jury Instructions on Implicit Bias, Judge Theresa Doyle of the King County Superior Court discussed how our federal courts created an instructional video on race bias to be viewed by potential jurors.

RACE BIAS 

For those who don’t know, racial biases are a form of implicit bias, which refers to the attitudes or stereotypes that affect an individual’s understanding, actions, and decisions in an unconscious manner. These biases, which encompass unfavorable assessments, are often activated involuntarily and without the awareness or intentional control of the individual. Residing deep in the subconscious, these biases are different from known biases that individuals may choose to conceal for the purposes of social and/or political correctness.

“We all have biases,” writes Judge Doyle in her article. “These unconscious, instantaneous, almost automatic judgments can help us get through the day. However, when those unconscious biases stereotype a person because of race, gender, national origin, sexual orientation, age or other qualities, they are no longer helpful but harmful to the right to a fair trial.”

She discusses how results from the Implicit Association Test (IAT) and other research show a high and nearly universal preference of whites over blacks. Even with African-American test-takers, 40 percent showed a pro-white preference. “Jurors bring these biases to court when they report for jury service,” said Judge Doyle. “However, where race is never mentioned but lurks in the background, e.g., where a party in a case . . . is a person of color, that racial or ethnic bias is most likely to rear its ugly head.”

BACKGROUND TO THE CREATION OF THE VIDEO

Judge Doyle described how in 2015, then-Chief Judge Marsha Pechman of the Federal U.S. District Court of Western Washington appointed a committee to develop an answer to the question of what should courts do about the biases and prejudices that jurors bring with them to court.

Apparently, at the same time, the federal defenders were conducting a criminal trial. During jury selection, the federal defenders showed a videotape that dealt with potential race bias. After the trial was concluded, the committee spoke to Judge Jones, the federal prosecutors, defense lawyers and some of the jurors.

Judge Doyle said that based on all of the committee work, including the interviews, the committee developed a script and worked with a production company to produce a video presentation on the nature and impact of implicit or unconscious bias.” In February, after nearly two years of work, the video was finished and the committee had developed pattern jury instructions on implicit bias for use in criminal cases; which were adopted by the Court. “The instructions incorporate language regarding unconscious bias into a preliminary instruction, the witness credibility instruction, and a closing instruction,” said Judge Doyle.

THE VIDEO

A link to the video and jury instructions is here. It features Judge Coughenour, defense attorney Jeffery Robinson, and Annette Hays, acting U.S. attorney for the Western District of Washington. “These three explain how such automatic preferences and biases can influence our perceptions and decisions, threatening the constitutional right to fair trial and due process, and jeopardizing public confidence in the legal system,” says Judge Doyle. “Research shows that awareness of unconscious biases is key to minimizing their effects on perceptions and decision making.”

My opinion? My hat’s off to the judges and attorneys involved in the creation of this video. During jury selection, I’ve struggled to introduce these controversial and galvanizing topics. Talking about race is a difficult needle to thread. It can raise suspicion that defendants are trying to “play the race card” on behalf of my Client, which is exactly untrue: I’m trying to take the “race card” off the table. Fortunately, this video – a tool from the courts, and not an advocate – educates the jury and approaches the subject of race bias from a more objective place.

Kudos to the federal courts. Good work. I’m proud of you.

“No-Impeachment Rule” vs. Race Bias

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In Pena-Rodriguez v. Colorado, the U.S. Supreme Court held that when a juror says he or she relied on racial stereotypes to convict a criminal defendant, the Sixth Amendment requires that the “No-Impeachment Rule” give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.

BACKGROUND FACTS & PROCEDURAL HISTORY

In 2007, in the bathroom of a Colorado horse-racing facility, the defendant  Peña-Rodriguez allegedly sexually assaulted two teenage sisters. The girls told their father and identified  Peña-Rodriguez as an employee of the racetrack. The police located and arrested him. Each girl separately identified  Peña-Rodriguez as the man who had assaulted her.

At trial, a Colorado jury convicted the defendant  Peña-Rodriguez of harassment and unlawful sexual contact. During deliberations, a juror named “H. C.” had expressed anti-Hispanic bias toward the defendant and his alibi witness. Defense Counsel, with the trial court’s supervision, obtained affidavits from the two jurors who witnessed and heard the racially biased statements from juror “H.C.”

Defense Counsel motioned for a new trial on the grounds of juror bias. Although the trial court acknowledged racial bias, it denied Defense Counsel’s motion for a new trial on the ground that Colorado Rule of Evidence 606(b) generally prohibits a juror from testifying as to statements made by other jurors during deliberations. The case made it’s way to the U.S. Supreme Court

ANALYSIS & CONCLUSIONS

The U.S. Supreme Court held that when a juror makes a clear statement indicating that he or she relied on racial stereotypes to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.

Curing Racial Bias

The Court began by saying that the Civil War Amendments created the imperative to purge racial prejudice from the courts. It explained that ever since then, time and again, this Court has enforced the Constitution’s guarantee against state-sponsored racial discrimination in the jury system. The Court has interpreted the Fourteenth Amendment to prohibit the exclusion of jurors based on race, struck down laws and practices that systematically exclude racial minorities from juries, ruled that no litigant may exclude a prospective juror based on race and held that defendants may at times be entitled to ask about racial bias during voir dire.

The Court further reasoned this specific case lies at the intersection of the Court’s decisions endorsing the “No-Impeachment Rule” and the need to eliminate racial bias in the jury system. Those lines of precedent need not conflict. Moreover, the Court said racial bias implicates unique historical, constitutional, and institutional concerns and, if left unaddressed, would risk systemic injury to the administration of justice.

ER 606(b): The “No-Impeachment” Rule

Under ER 606(b), a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

However, exceptions exist. For example, a juror may testify about whether (a) extraneous prejudicial information was improperly brought to the jury’s attention; (b) an outside influence was improperly brought to bear on any juror; or (c) a mistake was made in entering the verdict on the verdict form.

“This case lies at the intersection of the Court’s decisions endorsing the no-impeachment rule and those seeking to eliminate racial bias in the jury system,” said the Court. “Racial bias . . . implicates unique historical, constitutional, and institutional concerns and, if left unaddressed, would risk systemic injury to the administration of justice.”

With that in mind, the Court reasoned that a constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after a verdict has been entered—when necessary to prevent a systemic loss of confidence in jury verdicts; which is “a confidence that is a central premise of the Sixth Amendment trial right.”

The Test

The Court reasoned that before the “No-Impeachment” Rule can be set aside, there must be a threshold showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict. “To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict.”

The Court explained that whether the threshold showing has been satisfied depends on the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence. In constructing this rule, the Court said that standard and existing safeguards may prevent racial bias in jury deliberations, including careful voir dire and a trial court’s instructions to jurors about their duty to review the evidence, deliberate together, and reach a verdict in a fair and impartial way, free from bias of any kind.

With that, the U.S. Supreme Court reversed Mr. Peña-Rodriguez’s conviction and remanded the case back to the trial court for further proceedings.

My opinion? Great decision. This case represents a substantial step toward eliminating racial bias in our courtrooms. Even better, this decision is consistent with pre-existing Washington law under Seattle v. Jackson.

The Most Charged Crime

Driven To Fail Report Cover

Apparently, the most commonly charged crime in Washington State – Driving While License Suspended in the Third Degree (DWLS III)- shouldn’t be a crime at all, the state chapter of the American Civil Liberties Union argues in a new report.

In “Driven to Fail: The High Cost of Washington’s Most Ineffective Crime – DWLS III” the report describes the costs of enforcing this law, explores how it burdens individuals and communities, and calls for policies that address the harm of driving with a suspended license without criminalizing it. According to the ACLU, taxpayers spend more than $40 million a year to prosecute cases of DWLS III.

“Not every social problem needs to be treated as a crime,” said Mark Cooke, the ACLU of Washington’s Campaign for Smart Justice Policy Director. “DWLS III enforcement costs taxpayers millions of dollars, yet does little to improve public safety. The crime is largely punishing people for being poor, not because they are scofflaws or dangerous drivers,” said Cooke.

Typically, a DWLS III charge comes about this way: A driver receives a ticket for a moving violation (such as speeding or rolling through a stop sign) and for various reasons does not follow through by paying the ticket or showing up in court to contest it. Hundreds of thousands of people in Washington have had their license suspended for not responding to a ticket for a moving violation. Those who continue to drive once their license is suspended may be arrested and charged with DWLS III.

The report estimates that Washington taxpayers have spent more than $1.3 billion enforcing this crime between 1994 and 2015. These costs stem from the filing of nearly 1.5 million DWLS III criminal charges, resulting in nearly 900,000 convictions. In 2015, there were nearly 40,000 DWLS III charges filed, costing taxpayers $42,199,270. The report also shows that the law is applied unequally across the state and disproportionately impacts people of color, the young, and the poor.

The report recommends that the crime of DWLS III should be taken off the books. Short of that, law enforcement, prosecutors and courts can exercise their inherent discretion and treat DWLS III as a civil offense and offer relicensing programs. Civil remedies and relicensing can be more effective and use fewer criminal justice resources. The data in the report also shows that some jurisdictions, such as the cities of Yakima and Seattle, have started to treat DWLS III as a non-criminal offense.

My opinion? It’s no mystery that DWLS III allows police to arrest people with suspended licenses. However, most don’t know that it allows police to search people’s vehicles after arrest.  Therefore, any contraband, guns or other illegal items found in people’s cars can be lawfully seized. Additionally, the defendant will face unlawful possession charges for whatever contraband found during the search. In my opinion, this is the essence of an unlawful pretextual search. And for that reason, DWLS III should be a civil infraction which circumvents the need for arrest and searches. It should not be a crime.

ACLU Proposes New Jury Selection Court Rule

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The Washington Supreme Court is considering a new court rule which would effectively end racial bias in jury selection.

Proposed General Rule 36 (“GR 36”) is proposed by the American Civil Liberties Union (ACLU), and is meant to protect Washington jury trials from intentional or unintentional, unconscious, or institutional bias in the empanelment of juries.

BACKGROUND 

In State v. Saintcalle, the Washington State Supreme Court expressed concerns that the federal Batson v. Kentucky test fails to protect potential minority jurors from racial bias during jury selection; specifically, the Prosecutor’s use of peremptory challenges to strike them.

The ACLU believes, however, that Batson has failed to adequately protect potential jurors and the justice system from biased use of peremptories. In proposing its new rule, the ACLU deftly cites and relies upon State v. Saintcalle, a Washington State Supreme Court case which admits that Batson was failing to end racial discrimination in jury selection. The  Saintcalle Court recognized there was ample data demonstrating that racial bias in the jury selection process remained “rampant”:

“Twenty-six years after Batson, a growing body of evidence shows that racial discrimination remains rampant in jury selection.  In part, this is because Batson recognizes only “purposeful discrimination,” whereas racism is often unintentional, institutional, or unconscious. We conclude that our Batson procedures must change and that we must strengthen Batson to recognize these more prevalent forms of discrimination.”

Saintcalle, 178 Wn.2d at 36.

In addition to the WA Supreme Court’s Saintcalle, the ACLU also argues that legal scholars have also long noted Batson’s failure to effectively eradicate discrimination in peremptory challenges.

THE “OBJECTIVE-OBSERVER” STANDARD

The ACLU proposes that GR 36 addresses this problem by employing a test that utilizes an objective-observer standard.  Apparently, the trial court would invalidate a peremptory strike if an objective observer could find that race or ethnicity was a factor for a peremptory challenge.  GR 36 also gives trial courts the necessary latitude to protect the justice system from bias by granting courts the freedom to raise objections to a peremptory strike sua sponte.  It would also bring greater diversity to juries, so that juries in Washington are more representative of the communities they serve.[12]  The rule would also improve the appearance of fairness and promote the administration of justice.

My opinion? I hope GR 36 passes. The Washington State Supreme Court has the flexibility to “extend greater-than-federal Batson protections” through its rule-making authority. Also, other states have adopted court rules dealing with the Batson issue.

GR 36 preserves the use of peremptory challenges as part of the right to a jury trial while at the same time addressing racial bias in jury selection.  Thankfully, the rule also provides guidance to the judiciary and attorneys about how to apply the rule. By adopting this rule, Washington will ensure that its justice system is not improperly tainted by bias, protect Washingtonians from discrimination, ensure diversity in juries, and address systemic, institutional, and unintentional racism in jury selection.

Exonerations On the Rise

 

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News reporters Alanna Durkin Richer  and Curt Anderson of the Associated Press wrote an article describing how last year, 68 out of 157 exonerations were cases in which the defendant pleaded guilty. In Trial or Deal? Some Driven to Plead Guilty, Later Exonerated the article describes the difficult dilemma of many defendants in the criminal justice system: either accept the Prosecutor’s plea offer or risk facing much harsher consequences if found guilty at trial.

Apparently, more than 300 of the more than 1,900 people who have been exonerated in the U.S. since 1989 pleaded guilty, according to an estimate by the National Registry of Exonerations. The registry is maintained by the University of Michigan Law School using public information, such as court documents and news articles.

Last year, 68 out of 157 exonerations were cases in which the defendant pleaded guilty, more than any previous year. The numbers reflect an overwhelmed criminal justice system with public defenders taking more cases than they can handle; as well as court officials who try saving the government money with plea bargains compared with costly trials.

The data is even more daunting. Last year, more than 97 percent of criminal defendants sentenced in federal court pleaded guilty compared with about 85 percent more than 30 years ago, according to data collected by the Administrative Office of the U.S. Courts. The increase in guilty pleas has been a gradual rise over the last three decades.

No one knows exactly how many innocent people are behind bars for pleading guilty. Sociologists have estimated that between 2 and 8 percent of people who plead guilty are in fact innocent.

The article emphasized how defendants who were exonerated after pleading guilty often have prior criminal records and come from poor backgrounds and are not well-educated. They’re typically represented by public defenders juggling dozens of cases in a day.

Many exonerees were cleared of wrongdoing by taking a new look at DNA evidence in blood or other body fluids, according to the University of Michigan database. Some were the victims of prosecutorial misconduct, while shoddy police work was to blame in other cases — such as a mistaken FBI hair analysis or falsified fingerprint evidence. Some falsely confessed because of improper interrogation techniques while others maintained their innocence throughout.

Making the matter worse, it’s not just prosecutors and defense attorneys who seek to cut plea deals. The article said many judges prefer that route, too. Judges who resolve cases rather than let them languish tend to be seen as more successful. Similarly, explained the article, prosecutors who close cases tend to rise faster in their careers.

My opinion? People facing criminal charges MUST seek experienced defense counsel to defend their rights, investigate the facts, interview witnesses, argue pretrial motions, put their clients in the best light possible and conduct an active; fair trial when necessary.

Contact my office as soon as possible if you, a friend or family member is facing criminal charges. The epidemic of increased exonerations due to injustice in our courts as well as our incoming administration’s trampling of individual rights shows a growing need for competent representation. Put simply, defendants should not plead guilty to criminal charges they are not guilty of.

Trump On Crime.

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Like it or not, Donald Trump won.

Criminal defense attorneys serving their clients must survey the aftermath and ponder how Mr. Trump’s administration approaches issues of criminal justice. What is Trump’s stance on the “War on Drugs?” How does his stance embrace the growing legalization of marijuana among the States? How does Mr. Trump view the Fourth Amendment’s protections against unlawful searches and seizures? How does Trump view the discord between police and communities of color? Will Trump’s administration seek the immediate deportation of illegal immigrants who commit crimes? How does he feel about the death penalty? These issues – and many others – affect many defendants facing criminal charges.

If the best predictor of future behavior is past behavior, we look no further than Mr. Trump’s comments over the years; especially his comments during his campaign.

THE WAR ON DRUGS: 1990 & 2015

In 1990, Trump argued that the only way to win the War on Drugs was to legalize drugs and use the tax revenue to fund drug education programs. As he put it, “You have to take the profit away from these drug czars.” In his 2000 book,The America We Deserve, he stated that he’d never tried drugs “of any kind.”

Fast-forward 25 years, and now Trump is opposed to legalization. “I say it’s bad,” he told the crowd at the Conservative Political Action Conference in June, in response to a question about Colorado’s legal weed. “Medical marijuana is another thing, but I think recreational marijuana is bad. And I feel strongly about that.” Regarding states’ rights, Trump said, “If they vote for it, they vote for it. But they’ve got a lot of problems going on right now, in Colorado. Some big problems. But I think medical marijuana, 100 percent.”

Source: On the Issues: Donald Trump on Drugs.

Apparently, Trump opposes recreational marijuana and endorses medical marijuana. Unfortunately, his stances can become problematic for states like Washington, Colorado and a handful of others which have already passed initiatives allowing its citizens to possess small amounts of marijuana for recreational purposes. Will Trump’s administration reverse these State initiatives? Will Trump’s administration violate federal court opinions which have slowly de-prioritized federal prosecutions of marijuana cases in states which have legalized marijuana? How will drug prosecutions and/or convictions under Trump’s administration affect citizens receiving federal benefits to include welfare, social security and financial aid?

Only time will tell.

CRIME, THE 4TH AMENDMENT AND THE RACIAL DIVIDE BETWEEN POLICE AND COMMUNITIES OF COLOR.

Trump’s recent comments at the First Presidential Debate at Hofstra University, Sept. 26, 2016, moderated by Lester Holt of NBC News gives telling insights on these issues.

Q: What should be done about crime?

TRUMP: “Stop and frisk worked very well in New York. It brought the crime rate way down. You take the gun away from criminals that shouldn’t be having it. We have gangs roaming the street. And in many cases, they’re illegal immigrants. And they have guns. And they shoot people. And we have to be very vigilant. Right now, our police, in many cases, are afraid to do anything. We have to protect our inner cities, because African-American communities are being decimated by crime.”

Q: “Stop-and-frisk was ruled unconstitutional in New York, because it largely singled out black and Hispanic young men.”

TRUMP: “No, you’re wrong. Our new mayor refused to go forward with the case. They would have won on appeal. There are many places where it’s allowed.”

Q: “The argument is that it’s a form of racial profiling.”

TRUMP: “No, the argument is that we have to take the guns away from bad people that shouldn’t have them. You have to have stop-and-frisk.”

Some background information and “fact-checking” is necessary to understand this discussion.

Recently, in Floyd v. City of New York, U.S. District Court Judge Shira A. Scheindlin ruled that New York City police violated the U.S. Constitution in the way that it carried out its stop-and-frisk program, calling it “a form of racial profiling” of young black and Hispanic men. Apparently, there were 4.4 million stops made by New York City police between January 2004 and June 2012, and 83 percent of them were made of blacks and Hispanics — even though those racial groups represented 52 percent of the city’s population in 2010.

During trial, Judge Scheindlin found that 14 of the 19 stops constituted an unconstitutional stop or unconstitutional frisk. Ultimately, Judge Scheindin found the NYPD’s execution of its stop and frisk policy was unconstitutional.

My opinion?  Sure, most would agree we want guns and criminals off our streets. However, if stop and frisk policies involve systematically targeting certain racial groups, then these policies are simply unlawful. Period. Given his statements during the debates, I fear Trump’s administration may create, endorse and execute criminal justice policies which ultimately violate Fourth Amendment protections against unlawful searches and seizure.

2. How do you heal the racial divide?

TRUMP: “We need law and order. If we don’t have it, we’re not going to have a country. I just got today the endorsement of the Fraternal Order of Police. We have endorsements from almost every police group, a large percentage of them in the US. We have a situation where we have our inner cities, African- Americans, Hispanics are living in he’ll because it’s so dangerous. You walk down the street, you get shot.”

3. Do you see a crisis in the US of white police officers shooting unarmed blacks?

TRUMP: “It’s a massive crisis. It’s a double crisis. I look at these things, I see them on television. And some horrible mistakes are made. But at the same time, we have to give power back to the police because crime is rampant. I believe very strongly that we need police. Cities need strong police protection. But officers’ jobs are being taken away from them. And there’s no question about it, there is turmoil in our country on both sides.”

4. Do you understand why African Americans don’t trust the police right now?

TRUMP: “Well, I can certainly see it when I see what’s going on. But at the same time, we have to give power back to the police because we have to have law and order. And you’re always going to have mistakes made. And you’re always going to have bad apples. But you can’t let that stop the fact that police have to regain control of this tremendous crime wave that’s hitting the US.”

THE SUPREME COURT

According to Politico Magazine, Trump will probably pick ultra-conservative judges to fill anticipated vacancies in the United States Supreme Court. In an article titled, “How President Trump Could Reshape the Supreme Court – and the Country,” reporter Jeffrey Rosen surmises that Trump’s lasting legacy could be his power to shape the Supreme Court.

Apparently, during the third presidential debate, Trump described the 21 judicial candidates he has identified:

“They will be pro-life. They will have a conservative bent. They will be protecting the Second Amendment. They are great scholars in all cases, and they’re people of tremendous respect. They will interpret the Constitution the way the Founders wanted it interpreted, and I believe that’s very important.”

Apparently, Trump’s judicial picks are pro-law enforcement on issues involving government searches and seizures. This bodes negatively for preserving Fourth Amendment protections against search and seizure.

Also, Trump vows to give more power to police to handle the racial divide between police and communities of color. My opinion? That’s similar to dousing a forest fire with gasoline. or allowing a fox to guard your henhouse. Police aren’t experts at policing themselves. What is needed are the reinforcement of police accountability policies as well as a substantial shift with the culture of today’s police departments.

Let’s be frank: the unjustified killing of citizens at the hands of police can no longer go unpunished, especially in the face of indisputable video evidence. In those cases, police must be held accountable for the crimes they commit against the citizens they are sworn to serve and protect. It’s the only way to rebuild trust between police and the communities of color.

Equally important, we need policies which increase training on de-escalation techniques and decrease police militarization models which involves the use of military equipment and tactics by law enforcement officers. This includes decreasing the use of armored personnel carriers, assault rifles, submachine guns, flashbang grenadesgrenade launcherssniper rifles, and Special Weapons and Tactics (SWAT) teams if more reasonable alternatives are possible.

THE DEATH PENALTY

Put simply, Mr. Trump as a staunch advocate of the death penalty.

“A life is a life, and if you criminally take an innocent life you’d better be prepared to forfeit your own. My only complaint is that lethal injection is too comfortable a way to go.”

“I can’t believe that executing criminals doesn’t have a deterrent effect . . . Young male murderers, we are constantly told, are led astray by violent music and violent movies. Fair enough. I believe that people are affected by what they read, see, hear, and experience. Only a fool believes otherwise. So you can’t say on one hand that a kid is affected by music and movies and then turn around and say he is absolutely not affected when he turns on the evening news and sees that a criminal has gone to the chair for killing a child. Obviously, capital punishment isn’t going to deter everyone. But how can it not put the fear of death into many would-be killers?”

Source: The America We Deserve, by Donald Trump, pp. 102-104, July 2, 2000.

JAILING AND DEPORTATION OF UNDOCUMENTED IMMIGRANTS.

According to the Huffington Post, Trump vows to immediately deport or imprison up to 3 million undocumented immigrants.  Trump said he would launch what could be the largest mass deportation effort in modern history, vowing to immediately deport a number of people comparable to the record-setting figure that President Barack Obama carried out over two terms in office.

This should come as no surprise. According to a recent article from the Washington Post, Trump’s proposal calls for the deportation of undocumented immigrants who have committed violent crimes. Trump said he would push for two new laws aimed at punishing criminal aliens convicted of illegal reentry and removing “criminal immigrants and terrorists,” including previously deported unauthorized immigrants. He said he would name these laws after victims killed by people in the United States illegally.

Although Trump’s removal of undocumented immigrants at this pace is apparently limited to convicted felons, his enthusiasm for removals suggests that overall deportations will likely rise when he takes office, after declining sharply last year.

Clearly, Trump’s presidency shall affect our nation’s approach to crime and punishment. Consequently, it’s imperative to hire defense counsel who is competent handling drug charges, death penalty crimes, violent crime, racial injustice and immigration issues. Today’s defense counsel must stay abreast of today’s ever-changing political landscape.

Felony Disenfranchisement & Voting.

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A new study conducted by professors Christopher Uggen, Ryan Larson, and Sarah Shannon and released by the Sentencing Project reveals that a record 6.1 million Americans are forbidden to vote because of felony disenfranchisement, or laws restricting voting rights for those convicted of felony-level crimes. The number of disenfranchised individuals has increased dramatically along with the rise in criminal justice populations in recent decades, rising from an estimated 1.17 million in 1976 to 6.1 million today.

Apparently, the United States remains one of the world’s strictest nations when it comes to denying the right to vote to citizens convicted of crimes. An estimated 6.1 million Americans are forbidden to vote because of “felony disenfranchisement,” or laws restricting voting rights for those convicted of felony-level crimes.

The study’s key findings include the following:

  • As of 2016, an estimated 6.1 million people are disenfranchised due to a felony conviction, a figure that has escalated dramatically in recent decades as the population under criminal justice supervision has increased. There were an estimated 1.17 million people disenfranchised in 1976, 3.34 million in 1996, and 5.85 million in 2010.
  • Approximately 2.5 percent of the total U.S. voting age population – 1 of every 40 adults – is disenfranchised due to a current or previous felony conviction.
  • Individuals who have completed their sentences in the twelve states that disenfranchise people post-sentence make up over 50 percent of the entire disenfranchised population, totaling almost 3.1 million people.
  • Rates of disenfranchisement vary dramatically by state due to broad variations in voting prohibitions. In six states – Alabama, Florida, Kentucky, Mississippi, Tennessee, and Virginia – more than 7 percent of the adult population is disenfranchised.
  • The state of Florida alone accounts for more than a quarter (27 percent) of the disenfranchised population nationally, and its nearly 1.5 million individuals disenfranchised post-sentence account for nearly half (48 percent) of the national total.
  • One in 13 African Americans of voting age is disenfranchised, a rate more than four times greater than that of non-African Americans. Over 7.4 percent of the adult African American population is disenfranchised compared to 1.8 percent of the non-African American population.
  • African American disenfranchisement rates also vary significantly by state. In four states – Florida (21 percent), Kentucky (26 percent), Tennessee (21 percent), and Virginia (22 percent) – more than one in five African Americans is disenfranchised.

My opinion? It makes no sense why convicts are prevented from voting if they’ve been sentenced and punished. It’s a terrible violation of civil rights. Period. Please contact my office if you’re a convicted felon who has paid your debt to society and want your voting rights and/or firearms rights restored.

I-873: Police Accountability

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We’ve all heard it. Killings by police in the line of duty have surged in Washington and the United States over the past decade, according to a Seattle Times analysis. During that period, only one police officer has been criminally charged in state courts with the illegal use of deadly force on the job.

In fact, that case is the only one to be brought in the three decades since Washington enacted the nation’s most restrictive law on holding officers accountable for the unjustified use of deadly force.

Not This Time! and Washington For Good Policing (W4GP) are a grass-roots movements that evolved from the  killing by the Seattle Police Department of Mr. Che Andre Taylor on February 21, 2016. The campaigns  are working to collect 350,000 signatures to put Initiative 873 in front of Washington State’s legislature in January 2017.

This is the first legislative initiative of its kind in the nation that would put forth police accountability. If passed, the legislative initiative may be a model for other states.

The initiative appears to be gaining momentum. It is endorsed by the Seattle Police Department, the ACLU of Washington, numerous state senators, Seattle Mayor Ed Murray, Seattle City Attorney Pete Holmes, Kshama Sawant and Lorena Gonzalez of the Seattle City Council, Lisa Duggaard of the Public Defenders Association, Jim Cooper and Jessica Bateman of the Olympia City Council.

Also, the following newspapers and media outlets have discussed and encouraged the passage of the bill:

It’s refreshing that I-873 has such a broad range of support, especially from the Seattle Police Department. Let’s move forward with the hope that holding officers accountable for unjustified shootings increases respect for police and professionalism within police ranks. For sure, it’s step in the right direction.