Category Archives: Race & Law

Berghuis v. Smith: Defining the Hardship of Obtaining an Impartial “Cross Section” of the Jury Community

Constitutional Rights, Due Process, felony, Firearm, Homicide & Manslaughter, Jury Trial, Race & Law, United States Supreme Court, , ,

Jury Selection: How Social Media is Changing the Game | Richmond Journal of Law and Technology

In Berghuis v. Smith, the U.S. Supreme Court held that a Michigan state court did not create an unfair bias in jury selection for a murder trial. case.

The defendant was an African-American man charged with Second Degree Murder and Felony Firearm Possession.  He goes to trial.  At voir dire, the jury panel was composed of 60 and 100 individuals, only 3 of whom, at most, were African American.  At that time, African-Americans constituted 7.28% of the County’s jury-eligible population, and 6% of the pool from which potential jurors were drawn.  An all-white jury was selected.  The trial court rejected Smith’s objection to the panel’s racial composition.  The all-white jury convicted Smith of the crimes.  He was sentenced to life in prison.

For those who don’t know, the 6th Amendment gives criminal defendants the right to be tried by an impartial jury drawn from sources reflecting a fair cross section of the community.  The issue was whether, under the circumstances, the defendant’s right was violated by the all-white jury’s conviction.

The Court reasoned that a defendant raising a violation of the “fair-cross-section” requirement of the Sixth Amendment must establish that any existing underrepresentation was due to “systematic exclusion” of the group in the jury-selection process. Practices, such as excusing people who merely alleged hardship or simply failed to show up for jury service, reliance on mail notices, a failure to follow up on nonresponses, the use of old addresses, and the refusal of police to enforce court orders for the appearance of prospective jurors, are insufficient to establish “systematic exclusion.”  Consequently, the U.S. Supremes upheld Smith’s conviction.

My opinion?  Pollyannaish as it sounds, this opinion shows why it’s SO IMPORTANT for citizens to show up for jury duty.  Juries are the last bastion of objective, impartial justice.  We all experience moments when we are wrongfully accused; not because we intentionally did something wrong, but merely because we look/think/act outside the norms of the majority.

That’s exactly why juries MUST reflect a fair cross section of the community.  That “cross section,’ however, can only happen if YOU – the citizen – do your part and answer the call to serve on a jury.  Your lone perspective adds depth.  Your life experience – which, amazingly, might be similar to the defendant’s/petitioner’s/plaintiff’s – adds insight to their arguments.

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.

 

Washington State Felons Should Have Voting Rights, Federal Court Rules

Constitutional Rights, felony, Race & Law, Theft, , ,

Opinion | Restoring Voting Rights for Felons - The New York Times

Here’s some good news.  On Martin Luther King Jr. day, no less.

A federal appeals court tossed out Washington’s law banning incarcerated felons from voting, finding the state’s criminal-justice system is “infected” with racial discrimination.

Muhammad Shabazz Farrakhan was serving a three-year sentence at the Washington State Penitentiary in Walla Walla for a series of felony-theft convictions. Ultimately, five other inmates, all members of racial minority groups, joined as plaintiffs.

The plaintiffs’ brought studies and social-science data which showed that minorities in Washington are stopped, arrested and convicted in such disproportionate rates that the ban on voting by incarcerated felons is inherently discriminatory.

The federal court agreed.  The decision, written by Judge A. Wallace Tashima, said the studies “speak to a durable, sustained indifference in treatment faced by minorities in Washington’s criminal justice system — systemic disparities which cannot be explained by ‘factors independent of race.’ ”

Blacks are 70 percent more likely — and Latinos and Native Americans 50 percent more likely — than whites to be searched in traffic stops.  The research also showed that blacks are nine times more likely to be incarcerated than whites, despite the fact that the ratio of arrests for violent crime among blacks and whites is less than four-to-one. One result of that: 25 percent of black men in Washington are disenfranchised from voting.

My opinion?  I’m overjoyed with the decision.  Granted, convicted felons should face appropriate consequences if found guilty of committing crimes.  However, the Washington law stripping them of voting rights was simply Draconian.

Eventually, the convicts will serve their sentence and return to society.  Studies show that voting by incarcerated felons is the best tool to re-integrate them into society.  Why deny them the right to vote?  What good does that do?

The decision is a step in the right direction.  Let them vote.

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.

Prisons Are Still Growing and Racial Disparities Persist, Despite Availability of Cost-Effective Alternatives

Jail, Race & Law, Studies, , ,

Report identifying nonviolent offenders eligible for release sits on shelf during pandemic - New Mexico In Depth

Last week, the Department of Justice released its annual survey of prisons.

Reports showed that over 1.6 million people are incarcerated in federal or state penitentiaries.  The report shows that although the growth of imprisonment is down, the number of people in prison is still increasing, up more than 12,000 people from last year.  The number continues to grow even as crime goes down, despite lack of evidence that incarcerating people is an effective public safety strategy.

As states continue to grapple with budget crises, its time for policymakers to consider cost-effective alternatives to incarceration.

Highlights from the report:

  • Twenty states reported a reduction in their prison populations since 2007.
  • Fewer people were admitted to prison in 2008 than previous years.
  • The number of people released is still less than the number of people admitted.
  • Decreases in the number of blacks and increases in the number of Hispanics in prison have little effect on the disproportionate impact of the criminal justice system on communities of color.
  • Black men are 6.5 times more likely to be in prison than white men.
  • Prisons continue to grow even as crime continues to fall.
  • More needs to be done to address disproportionate minority contact with the criminal justice system.
  • Correctional agencies must address re-entry needs long before returning prisoners to the community.
  • Investing in effective public safety strategies can provide long-term, cost-effective solutions.

My opinion?  The findings speak for themselves, and galvanize the age-old issue in criminal jurisprudence: whether rehabilitation or punishment more effective deals with criminal defendants.  Some background: in the 60’s -70’s, our governments were more open to rehabilitating defendants away from their criminal lifestyles.

In the 80’s and 90’s, however, the rehabilitative approach was slowly abandoned.  This happened for many reasons.  First, it was difficult to quantify recidivism rates for “rehabilitated” defendants.  Additionally, states found ways to make money from the criminal justice system. 

In short, more prisons brought increased employment and government funds to states which badly needed the economic injection.  Third, it became popular to beat up on criminals.  Finally, the “War on Drugs” catapulted an outcry for more police, stricter drug laws, and a “lock ’em up & throw away the key” mentality.

These days are different.  We’re seeing the “War on Drugs” failed.  We’re noticing that incarcerating people is an expensive luxury.  We’re realizing that budget crises in the criminal justice system force us to be more creative.

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.

New Statistics From the Bureau of Justice Shows Overall Decrease In Prison Populations

Race & Law, Studies, , ,

U.S. Prison Population Trends: Massive Buildup and Modest Decline | The Sentencing Project

The Bureau of Justice just released two bulletins last week which examine the numbers of defendants under probation or parole supervision for 2008.  The report discusses related trends, including an overall increase in the number of individuals being released from federal and state prisons.

Highlights include the following:

  • The U.S. prison population grew at the slowest rate (0.8%) since 2000, reaching 1,610,446 sentenced prisoners at year end 2008.
  • Growth of the prison population since 2000 (1.8% per year on average) was less than a third of the average annual rate during the 1990s (6.5% per year on average).
  • Between 2000 and 2008 the number of blacks in prison declined by 18,400, lowering the imprisonment rate to 3,161 men and 149 women per 100,000 persons in the U.S. resident black population.

My opinion?  Politicians are finally acknowledging that (1) incarcerating people is an expensive luxury, and (2) the “War on Drugs” is not working.  Although I don’t know for sure, I’m confident the majority of these “early release” defendants were convicted of low-level drug crimes.  Similarly, I’m confident the courts are sending fewer people to prison if they’ve been convicted of drug crimes.

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.

Jails In Indian Country

Domestic Violence, Jail, Race & Law, Studies, , ,

Patchwork health care for reservation inmates raises concern | HeraldNet.com

The U.S. Department of Justice recently conducted a survey of jails in Indian Country.  The facilities included a total of 82 jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or the Bureau of Indian Affairs.

The report includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions in June 2008. It also summarizes rated capacity, facility crowding, and jail staffing. Trend data from 2000 to 2008 on facilities in the surveys are included.

Highlights include the following:

  • The number of inmates admitted into Indian country jails during June 2008 was about 6 times the size of the average daily population;
  • The number of inmates confined in Indian country jails declined by 1.3% at midyear 2008, dropping to 2,135 inmates;
  • Inmates held for aggravated and simple assault increased at midyear 2008; and
  • Domestic violence declined.

Upon graduating from law school in 2003, my first job was Deputy Prosecutor for the Lummi Nation.  Indian defendants were housed with non-Indian defendants at the Whatcom County Jail.  I learned the Tribe had a VERY proactive anti-domestic violence unit (ADV Unit).  This was considered a hot-button topic (and probably still is).  The ADV Unit worked with tribal police, educated the community, and advocated for survivors of domestic violence.

That said, the survey showed a decrease in domestic violence (DV) crimes in 2008.  That’s good news.  DV convictions bring particularly painful consequences: defendants lose gun rights, judges issue no-contact orders against family members, defendants must move from dwellings they share with alleged victims, etc.  Very nasty.

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.

Why Henry Louis Gates Should Sue

Constitutional Rights, Race & Law, Search and Seizure, Studies, , ,

Henry Louis Gates, Jr., Will Offer Presidential Colloquium | Smith College

Last week in Cambridge, Mass., Sgt. James Crowley arrested Henry Louis Gates Jr., a professor at Harvard, for Disorderly Conduct while responding to a reported break-in at Gates’s home.  The charges were subsequently dismissed.  Nevertheless, media pundits are asking the question:  should Mr. Gates sue?

Not surprisingly, the article’s author advocates legal action.  A lawsuit from Gates could lead to formal examination of the troubled history of police interactions with African-Americans.  The suit would also oppose systemic injustice and benefit the larger community.  Finally, lawsuits can be an important tool for reform when coupled with advocacy and public education efforts when the circumstances are conducive to change.

My opinion?  Personally, I also believe Gates should file suit.  Some police officers wrongfully become offended when questioned by citizens.  These same officers consider it unlawful when citizens exercise their Constitutional rights.   In short, citizens have the 4th amendment right to refuse illegal searches/seizures by police.

We also have the 5th Amendment right to remain silent upon arrest.  In other words, we may legally refuse to provide police with information which may incriminate ourselves.   When and why did it become unlawful to exercise our rights?  Where is the Disorderly Conduct in that?

It could be problematic, however, for Mr. gates to prove damages.

In order to prevail, Mr. Gates must show that he was (1) injured before/during/after the arrest, and (2) that his injuries led to quantifiable damages.  Admittedly, the damages portion is difficult to quantify.  Was Mr. Gates physically injured at any time?  Was he incarcerated?  If so, did his incarceration cause him any other injuries?  Did Mr. Gates undergo mental trauma?  The answers to these questions should determine whether his lawsuit has merit or is frivolous.

Good luck, Mr. Gates.

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.

New National Report: 1 in 11 Prisoners Serving a Life Sentence

Jail, Race & Law, Sentencing, Studies, , ,

How long is a life sentence in the UK, what's a whole life order and when is a prisoner eligible for parole?

A new report released by The Sentencing Project finds 140,610 individuals are now serving life sentences in state and federal prisons, 6,807 of whom were juveniles at the commission of the crime.  In addition, 29% of persons serving life sentences (41,095) have no possibility of parole, and 1,755 were juveniles at the commission of the crime.

No Exit: The Expanding Use of Life Sentences in America represents the first nationwide collection of life sentences data documenting race, ethnicity and gender.  The report’s findings reveal overwhelming racial and ethnic disparities in the allocation of life sentences: 66% of all persons sentenced to life are non-white, and 77% of juveniles serving life sentences are non-white.

The report notes that legislators have expanded the types of offenses that result in a life sentence and established a wide range of habitual offender laws that subject a growing proportion of defendants to potential life terms. The authors note how the politics of fear has largely fueled the increasing use of life without parole (“LWOP”) sentences. This is described as an increasing willingness to impose life sentences on juveniles, an increasing reluctance on the part of parole boards and governors to release parole-eligible life prisoners and how, as a consequence, the population of life prisoners is both growing and aging, with ever-increasing costs to society.

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.

 

US Supremes Rule Convicted Defendants Have No Right To Test DNA

Assault, Constitutional Rights, DNA, Due Process, felony, Forensics, Legislation, Race & Law, Rape, Sex Crimes, Uncategorized, United States Supreme Court, , ,

How Reliable Is DNA Evidence? | The Marshall Defense Firm

In Yeager v. United States, the U.S. Supreme Court ruled that convicts have no constitutional right to test DNA evidence in hopes of proving their innocence long after they were found guilty of a crime.

The decision may have limited impact because the federal government and 47 states already have laws that allow convicts some access to genetic evidence. Testing so far has led to the exoneration of 240 people who had been found guilty of murder, rape and other violent crimes, according to the Innocence Project.

The court ruled 5-4, with its conservative justices in the majority, against an Alaska man who was convicted in a brutal attack on a prostitute 16 years ago.

William Osborne won a federal appeals court ruling granting him access to a blue condom that was used during the attack. Osborne argued that testing its contents would firmly establish his innocence or guilt.

In parole proceedings, however, Osborne has admitted his guilt in a separate bid for release from prison.

The high court reversed the ruling by the 9th U.S. Circuit Court of Appeals in San Francisco. States already are dealing with the challenges and opportunities presented by advances in genetic testing, Chief Justice John Roberts said in his majority opinion.

“To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response,” Roberts said. Alaska, Massachusetts and Oklahoma are the only states without DNA testing laws. In some other states, the laws limit testing to capital crimes or rule out after-the-fact tests for people who confess.

But Justice John Paul Stevens said in dissent that a simple test would settle the matter. “The court today blesses the state’s arbitrary denial of the evidence Osborne seeks,” Stevens said.

My opinion?  HORRIBLE DECISION.  Although the crime in question was heinous, there is no doubt that a small group of innocent people — and it is a small group — will languish in prison because they can’t get access to the evidence.  This directly violates a defendant’s 6th Amendment rights.  Unbelievable.

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.

Voting Rights Restored!

ACLU, Constitutional Rights, felony, Legislation, Race & Law, Voting Rights, , ,

Voter Information for WA State Residents Who Are or Have Been Incarcerated, Unhoused, Disabled, Need Language Assistance, and more | The Church Council of Greater Seattle

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

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

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

Let freedom ring.

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.

New Findings: Decline in Black Incarceration for Drug Offenses

Department of Corrections, Drug Offenses, Jail, Legislation, marijuana, Race & Law, Studies, , ,

INCARCERATION | BlackDemographics.com

For the first time in 25 years, since the inception of the “War on Drugs,” the number of African Americans incarcerated is state prisons for drug offenses has declined substantially.  According to a recent study released by The Sentencing Project, there exists a 21.6% drop in the number of blacks incarcerated for a drug offense.  This presents a decline of 31,000 people during the period 1999-2005.

Why the decrease?  The study shows that many states are softening their approach to crime by reconsidering overly punitive sentencing on defendants.  Diversionary programs are also being re-examined.  The changing approach is, not surprisingly, inspired by fiscal concerns.  Policymakers recognize that skyrocketing corrections costs cut into public support for higher education and other vital services.

Second, at the federal level, the U.S. Sentencing Commission has enacted changes in the sentencing guidelines for crack cocaine offenses, and members of Congress are considering proposals to reform the mandatory penalties for crack offenses.

My opinion?  Ironically, the economic recession has spurred positive changes in the criminal justice system.  Many lawmakers realize the foolishness behind incarcerating people for low-level drug offenses.  Also, I believe the “War on Drugs” has changed tactics.  Nowadays, police are more interested in busting defendants for methamphetamine (meth) than crack cocaine.  Meth is considered  a much larger risk to public safety and health.

Meth is also largely used/possessed by non-minorities.   This is partially because most meth labs are found in rural destinations; which have more Caucasians, and not so much in the inner city, where more minorities dwell.

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.