Category Archives: Criminal Justice

Study: Bail Reform Does Not Increase Crime

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A new study found no significant relationship between bail reform and crime rates. The study debunks the notion that bail reform led to the mid-pandemic spike in violent crime. The report, published by the Brennan Center, analyzed monthly crime data from 2015 through 2022. It included 22 cities that adopted bail reform and 11 cities that did not. Researchers looked at all major offenses across jurisdictions and then at specific types of crime.

The study also examined the impact of reforms according to whether they were implemented through legislation, court order, or changes in prosecutorial policy. Finally, the study focuses on cities where research shows reforms had large effects on how and when bail was set.

BACKGROUND

More than a dozen jurisdictions across the country have curtailed the use of money bail over the past decade. But after violent crime rose sharply in the first year of the Covid-19 pandemic, many politicians, police leaders, and pundits were quick to blame bail reform. Claims that bail reform undermines public safety ultimately led to a series of rollbacks. This study tested those claims.

“Ultimately this report finds no statistically significant relationship between bail reform and crime rates. In other words, there is no reason to believe that bail reform has led to increased crime. This holds true even when focusing on major policy changes that have drawn public scrutiny, like those in New York and New Jersey.” ~Bail Reform & Public Policy Study

Even after testing different types of reform, researchers still found no evidence to support a connection between bail reform and the uptick in crime since the pandemic.

In 2020, homicides surged 29 percent for the biggest one-year jump in FBI records. While some pointed the finger at bail reform, some experts suggested the massive disruption of the pandemic, gun violence, worries about the economy and intense stress were to blame. Fortunately, violent crime has been decreasing since 2022. FBI statistics released in June showed violent crime dropped considerably in the first few months of this year.

My opinion? The study’s findings add to a growing body of literature showing that bail reform is an unlikely explanation for recent trends in crime, whether increases or decreases. And they suggest that policymakers’ recent focus on weakening bail reforms as a response to crime has been misguided — and a distraction from smarter and more promising ways to enhance public safety.

Please review my Making Bail legal guide and contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Liberal Cities Are Embracing Conservative Anti-Crime Measures

Bellingham Defense Attorney, Criminal Justice, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

O.C. prosecutor aims anti-crime campaign at surrounding areas - Los Angeles Times

Politico journalists Paul Demko, Jeremy B. White and Jason Beeferman report that liberal cities are embracing conservative anti-crime measures.

The country’s biggest, bluest cities are embracing tough-on-crime policies that would have been politically heretical just a few years ago. They’re increasing criminal penalties and expanding police power amid fear over a rash of brazen crimes like theft, drugs and assaults.

These Democrat-led policy changes mark a stark reversal from 2020. At that time, the growing influence of progressives fueled a national effort to curb police powers and decreae police budgets following the murder of George Floyd.

Now, Democrats are in retreat on criminal justice.

“I don’t believe it’s progressive to allow people to get assaulted on the streets at night. I don’t believe it’s progressive to allow people to sleep in tents. This is not the city I grew up in. It’s not a city I recognize right now.” ~Mark Farrell, a moderate Democrat challenging San Francisco Mayor London Breed.

Blue cities are pushing these harsher policies even as crime has decreased significantly nationwide, following big spikes during the pandemic. It’s the perception of increased crime that is driving many of these changes as Republicans continue to pillory Democrats as weak on law enforcement in the run-up to the presidential election.

“What we’re seeing now is a recognition that we have to lean in and do more as government to provide for the safety and well-being of our residents.” ~Democrat Brooke Pinto, the Washington D.C Councilmember

CALIFORNIA

In San Francisco, voters passed a ballot initiatives to lift restrictions on police operations and screen welfare recipients for drug use — two traditionally conservative proposals that nevertheless resonated with an overwhelmingly Democratic electorate, illustrating voters’ frustration with public drug use.

NEW YORK

New York Gov. Kathy Hochul announced Wednesday she is deploying the national guard to New York City’s subway system after a violent string of transit attacks, including one instance where a subway conductor was slashed in the neck while on the job.

WASHINGTON D.C.

The nation’s capital has also been beset by angst over crime. Washington D.C. has highest number of murders in more than two decades last year. A series of high-profile crimes in recent months have further heightened anxiety.

My opinion? It appears that politicians are responding to constituents who are fed up with crime problems. The politicization of criminal justice is an important topic in today’s narrative. Democratic Party politicians and officials are trying to cover areas Republicans are successfully jabbing at them – with soft-on-crime policy being the most evident among political strategies the GOP is using against Democratic incumbents.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Support Legislation Ending Felony Charges for Missing a Court Hearing

Bail, Bail Jumping, Bellingham Defense Attorney, Criminal Justice, felony, Jail, Legislation, Mount Vernon Criminal Defense Attorney, Prison, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

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Did you know that a person who misses just one court hearing can be charged with Bail Jumping and be convicted of a new felony simply for missing that court hearing?

Fortunately, legislation proposed by WA Representative Mike Pellicciotti could possibly end this travesty.

THE PROBLEM

When the Legislature enacted the “Bail Jumping” statute, the intent wasn’t to criminalize every missed court date or failure to appear (FTA), rather lawmakers wanted to give the courts a tool to deter people charged with serious crimes from fleeing.

The legislature gave discretion to prosecutors to add a felony charge if someone “jumped bail.” Sadly, this prosecutorial discretion is being overused. The charge of “Bail Jumping” has now led to a long list of unintended consequences that disproportionately harm Washington’s low income and most marginalized citizens.

Research shows that most people charged with “Bail Jumping” were not intentionally avoiding court. Many had difficult life circumstances that made it hard or impossible to attend a court hearing on a particular day. They were not fleeing from the court, and they wanted to resolve their cases.

Research also shows that many people who miss court are experiencing difficulties with transportation, childcare, job disruption, homelessness, health problems, mental illness and other challenges related to poverty. Under current “bail jumping” laws, Washington disproportionally and unjustly allows for longer criminal sentences for people who are low-income or experiencing a crisis for the charge of “Bail Jumping” even though that was never the legislature’s intent.

THE SOLUTION

WA HB 2231 is legislation would would amend the current Bail Jump statute in two ways: (1) it makes bail jumping a misdemeanor, and (2) it requires the state to prove that a person received written notice of the court date that the person missed.

Here is a position paper about the bill. It is supported by the WDA, ACLU, WACDL, the Northwest Community Bail Fund and numerous other organizations.  This bill sponsored is by Mike Pellicciotti of the (Democratic Party). He is a member of the Washington House of Representatives, representing District 30-Position 1.

My opinion? This is great legislation.

Please contact my office if you face felony charges which include Bail Jumping. These charges are often used by prosecutors to coercively leverage a plea. Although there are substantive defenses to the charge, those who face barriers getting to court are frequently subject to this coercive manner of resolving cases that results in an unjust and disproportionate number of convictions for the most vulnerable.

Flowers v. Mississippi: Supreme Court Finds Race-Based Peremptory Strikes Unlawful

Bellingham Defense Attorney, Constitutional Rights, Criminal Justice, felony, Homicide & Manslaughter, Jury Selection, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, United States Supreme Court, Whatcom County Criminal Defense, , , , , ,

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In Flowers v. Mississippi, the U.S. Supreme Court held that the State’s peremptory strikes in the defendant’s first four trials strongly supported the conclusion that the State’s use of peremptory strikes in the defendant’s sixth trial was motivated in substantial part by discriminatory intent.

BACKGROUND FACTS

Curtis Flowers was tried six separate times for the murder of four employees of a Mississippi furniture store. Flowers is black. Three of the four victims were white. At the first two trials, the State used its peremptory strikes on all of the qualified black prospective jurors.

In each case, the jury convicted Flowers and sentenced him to death, but the convictions were later reversed by the Mississippi Supreme Court based on prosecutorial misconduct. At the third trial, the State used all of its 15 peremptory strikes against black prospective jurors, and the jury convicted Flowers and sentenced him to death.

The Mississippi Supreme Court reversed again, this time concluding that the State exercised its peremptory strikes on the basis of race in violation of Batson v. Kentucky. Flowers’ fourth and fifth trials ended in mistrials. At the fourth, the State exercised 11 peremptory strikes—all against black prospective jurors. No available racial information exists about the prospective jurors in the fifth trial.

At the sixth trial, the State exercised six peremptory strikes—five against black prospective jurors, allowing one black juror to be seated. Flowers again raised a Batson challenge, but the trial court concluded that the State had offered race-neutral reasons for each of the five peremptory strikes. The jury convicted Flowers and sentenced him to death. The Mississippi Supreme Court affirmed. Flowers appealed.

COURT’S ANALYSIS & CONCLUSIONS

Justice Kavanaugh delivered the opinion of the Court, in which Justices Roberts, Ginsburg, Breyer, Alito, Sotomayor and Kagan joined. Justices Thomas and Gorsuch dissented.

Kavanaugh began by discussing the history behind the landmark Batson v. Kentucky. In his majority opinion he explained that under Batson, once a prima facie case of discrimination has been shown by a defendant, the State must provide race-neutral reasons for its peremptory strikes. The trial judge then must determine whether the prosecutor’s stated reasons were the actual reasons or instead were a pretext for discrimination.

“Four categories of evidence loom large in assessing the Batson issue here, where the State had a persistent pattern of striking black prospective jurors from Flowers’ first through his sixth trial,” said Justice Kavanaugh.

The Court reasoned that here, a review of the history of the State’s peremptory strikes in Flowers’ first four trials strongly supports the conclusion that the State’s use of peremptory strikes in Flowers’ sixth trial was motivated in substantial part by discriminatory intent:

“The State tried to strike all 36 black prospective jurors over the course of the first four trials. And the state courts themselves concluded that the State had violated Batson on two separate occasions. The State’s relentless, determined effort to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.”

The Court also reasoned that the State’s use of peremptory strikes in Flowers’ sixth trial followed the same discriminatory pattern as the first four trials.

“Disparate questioning can be probative of discriminatory intent,” said the Court.  “Here, the State spent far more time questioning the black prospective jurors than the accepted white jurors—145 questions asked of 5 black prospective jurors and 12 questions asked of 11 white seated jurors.”

Consequently, along with the historical evidence from the earlier trials, as well as the State’s striking of five of six black prospective jurors at the sixth trial, the dramatically disparate questioning and investigation of black prospective jurors and white prospective jurors at the sixth trial strongly suggest that the State was motivated in substantial part by a discriminatory intent.

Furthermore, the Court reasoned that comparing prospective jurors who were struck and not struck is an important step in determining whether a Batson violation occurred. “Here, Carolyn Wright, a black prospective juror, was struck, the State says, in part because she knew several defense witnesses and had worked at Wal-Mart where Flowers’ father also worked,” said the Court. “But three white prospective jurors also knew many individuals involved in the case, and the State asked them no individual questions about their connections to witnesses. White prospective jurors also had relationships with members of Flowers’ family, but the State did not ask them follow-up questions in order to explore the depth of those relationships.”

Finally, the Court ruled that the State also incorrectly explained that it exercised a peremptory strike against Wright because she had worked with one of Flowers’ sisters and made apparently incorrect statements to justify the strikes of other black prospective jurors. “When considered with other evidence, a series of factually inaccurate explanations for striking black prospective jurors can be another clue showing discriminatory intent,” said the Court. Consequently, the trial court at Flowers’ sixth trial committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not motivated in substantial part by discriminatory intent. Pp. 26–30.

With that, the Supreme Court reversed Flowers’ conviction and remanded the case back to the trial court.

My opinion? Good decision. Although the facts and allegations are terrible for Mr. Flowers, prosecutors simply cannot use exercise race-based peremptory challenges to get justice.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Right to Impartial Jury

Assault, Bellingham Defense Attorney, Constitutional Rights, Criminal Justice, Domestic Violence, felony, Jury Selection, Jury Trial, Race & Law, Sixth Amendment, Skagit County Criminal Defense, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, Witness Tampering, , , , ,

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In State v. Phillips, the WA Court of Appeals held that the trial court did not violate an African-American defendant’s right to an impartial jury by dismissing a prospective juror despite the juror’s feelings that African American men are more prone to violence.

BACKGROUND FACTS

On July 1, 2016, Mr. Phillips came home late after his wife Ms. Philips was in bed asleep with their infant daughter. Ms. Philips told Mr. Phillips to leave her alone. Their daughter called 911 and reported that Mr. Phillips was hitting Ms. Philips. When Mr. Phillips saw his daughter was calling the police, he knocked the phone from her hands.

King County Sheriff’s deputies responded to the 911 call and found the house in chaos. Mr. Phillips was arrested and booked into jail. From jail, Mr. Phillips repeatedly called Mrs. Philips demanding that she get him out and expressing his anger at the police having been called. Mr. Phillips was charged with Assault in the Second Degree Domestic Violence (DV) and Tampering With a Witness.

Jury Selection

During jury selection, the trial judge asked if any of the jurors had personal experience
with domestic violence. Juror 10 was among the members who raised their hand. When asked to elaborate, he explained that his sister and his wife’s sister-in-law were both involved in abusive relationships with intimate partners.

Juror #10 also revealed an experience in college after an intramural basketball game when an African American player on the opposing team assaulted him. Juror 10 explained, “nothing came of it, but it left an emotional imprint.” He further elaborated,

“And this is an emotional truth. I don’t live this way; I don’t believe this; but I’m also aware that feelings happen in reality that black men are more prone to violence . . . It was also notable that afterwards when, you know, the gym supervisor was called and there was just a huddle on the spot, and then, of course there was denial and, you know, dismissiveness of it. And that’s another narrative; that those who are violent try to get out of it; so those are two personal emotions imprints that are there, as well.”

From these comments, both the State Prosecutor and Mr. Philips’ defense attorney asked numerous questions to Juror #10. Ultimately, neither the State nor defense counsel exercised a peremptory challenge or moved to strike Juror #10 for cause. Later, Juror #10 served on the jury.

Ultimately, the jury found Phillips guilty of second degree assault and found the State prove aggravating circumstances. The jury was unable to reach a verdict on the witness tampering charge, and it was dismissed. Mr. Philips was sentenced to 120 months.

He appealed. One of the issues was whether Juror #10 should have been struck from serving on the jury panel.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the Court of Appeals upheld Mr. Philips’ conviction.

The Court started by giving a substantial amount of background on the issue of jury selection. It said the Sixth and Fourteenth Amendments of the United States Constitution, and article 1, section 22, of the Washington Constitution, guarantee a criminal defendant the right to trial by an impartial jury.

Furthermore, in order to ensure this constitutional right, the trial court will excuse a juror for cause if the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The presence of a biased juror cannot be harmless; the error requires a new trial without a showing of prejudice.

Also, at trial, either party has a statutory right to challenge a prospective juror for cause. “Actual bias is a ground for challenging a juror for cause,” said the Court of Appeals. “Actual bias occurs when there is the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging.”

Furthermore, Under State v. Irby, RCW 2.36.110 and CrR 6.4 it is the judge’s duty to excuse potential jurors from  jury service if they have manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention or any physical or mental defect. These court precedents, statutes and court rules give a trial judge an independent obligation to excuse a juror, regardless of inaction by counsel or the defendant.

However, the Court of Appeals ultimately reasoned that the present case was distinguishable from Irby.

Also, the Court of Appeals reasoned that defense counsel was alert to the possibility of biased jurors.

“Defense counsel actively questioned Juror #10, including questioning whether, despite juror 10’s concerns, the juror would follow the court’s instructions and base his decision on the evidence presented,” reasoned the court of Appeals. “As a result, defense counsel did not challenge Juror #10. This suggests that defense counsel observed something during voir dire that led counsel to believe Juror #10 could be fair.”

Furthermore, the Court of Appeals said it was also significant that Phillips used his peremptory challenges to strike several jurors, but had one peremptory challenge remaining when he accepted the jury, including Juror #10. “Again, this suggests that defense counsel either wanted juror 10 on the jury, or did not want one or both the next potential jurors on the panel,” said the Court of Appeals.

Consequently, the Court of Appeals held that the trial court did not abuse its discretion in failing to excuse Juror #10 for cause and upheld Mr. Philips’ conviction.

My opinion? Bad decision.

I’ve conducted nearly 40 jury trials, which is more experience than most criminal defense attorneys have. In my experience, potential jurors have a tendency to mitigate, justify, deny, back-pedal and just plain cover up any biases they have. It’s human nature. Therefore, if any juror states they have a biases which prejudice a criminal defendant, then that juror should be excused. Period.

Unfortunately, it appears Defense Counsel also failed to strike Juror #10. That is unfortunate as well. As the judge said, however, this may have been strategic. Perhaps Defense Counsel wanted to avoid impaneling a potential juror who was actually more biased than Juror #10. We don’t know.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Midterm Elections Bring Criminal Justice Reforms

Bellingham Defense Attorney, Criminal Justice, Jury Trial, law enforcement, Legislation, marijuana, police, Skagit County Criminal Defense, Uncategorized, Voting Rights, Whatcom County Criminal Defense, , , , ,

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Excellent article from the Sentencing Project describes how voters in a number of states considered ballot measures during yesterday’s Midterm Election. Criminal justice reform measures ranged from voting rights to sentencing reform.

Colorado – Abolishing Involuntary Servitude as Punishment

Coloradans approved Amendment A with 65% support; the measure removes language from the state Constitution that allows slavery and involuntary servitude to be used as punishment for the conviction of a crime. Abolish Slavery Colorado organized a broad coalition in support of the constitutional change. Supporters included faith groups and civil rights organizations.

Florida – Expanding the Vote

State residents expanded voting rights to as many as  1.4 million Floridians with a felony conviction by approving Amendment 4 with 64% support; support from 60% of voters was required to approve the ballot measure. Justice involved residents now automatically have the right to vote once they complete their prison, probation or parole sentence; persons convicted of homicide and sex offenses are excluded from the measure.

The state’s lifetime felony voting ban was among the most restrictive in the country, along with Iowa, Kentucky and Virginia which maintain lifetime voting bans for all felonies unless the governor takes action. The Florida Rights Restoration Coalition, which organized broad support for the measure, was led by directly impacted residents and garnered more than 800,000 signatures to qualify Amendment 4 for the ballot.

Florida – Retroactivity & Sentencing

Also in Florida, voters approved Amendment 11 with 62% support, a measure that allows sentencing reforms to be retroactive. The amendment repeals language from the state’s ‘Savings Clause’ in the constitution that blocks the legislature from retroactively applying reductions in criminal penalties to those previously sentenced. Statutory law changes are not automatically retroactive; the legislature still has to authorize retroactivity for a particular sentencing reform measure.

Louisiana – Requiring Unanimous Jury Consideration

Louisianans approved Amendment 2, a constitutional change requiring unanimous juries for all felony convictions.  In all other states, except Oregon, a unanimous jury vote is required to convict people for serious crimes; Louisiana was the only state where a person could be convicted of murder without a unanimous jury. Advocacy for Amendment 2 was supported by a broad coalition that advanced criminal justice reforms in recent years. The state’s Democratic and Republican parties endorsed Amendment 2, as well as community groups including Voice of the Experienced, and Americans for Prosperity.

Michigan – Authorized Marijuana Possession

Michiganders approved Proposal 1, a measure that legalizes marijuana for adult recreational use. The change means residents over age 21 will be able to possess up to 2.5 ounces of marijuana on their person and up to 10 ounces in their home. The newly elected governor has signaled support to pardon justice involved residents with prior marijuana convictions and legislation is pending to require judges to expunge misdemeanor marijuana convictions.

Ohio – Rejected Felony Reclassification Measure

Ohio residents rejected Issue 1, a measure that would have reclassified certain drug offenses as misdemeanors and prohibited incarceration for a first and second offense. The measure failed with 65% voting against the sentencing reform. In recent years, voters in California and Oklahoma approved similar ballot initiatives to reclassify certain felonies as misdemeanors with a goal of state prison population reduction.

Washington – Strengthening Police Accountability

Voters passed Initiative 940 and repealed a provision in state law that made it difficult to bring criminal charges against police for deadly force. The Washington law required prosecutors to prove “evil intent” or “malice” when filing charges like manslaughter against police officers. Washingtonians approved the measure with 60% support. I-940 also requires training in de-escalation and mental health for law enforcement officers; requires police to provide first aid to victims of deadly force; and requires independent investigations into the use of deadly force.

My opinion? State initiatives provide an opportunity to civically engage communities on criminal justice policies and build momentum to challenge mass incarceration.

Midterm voters across the nation have spoken. For the most part, their decisions are a step in the right direction. We see an end to involuntary servitude in prison, granting voting rights to some convicted felons, jury unanimity, the legalization of marijuana and the strengthening of police accountability. Good.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.