The Ninth Circuit Court of Appeals ruled that Washington’s law banning felons from voting violated the Voting Rights Acts since the criminal justice system is racist and tends to search, arrest and convict African Americans in a greater number than their proportion of the state’s population.

In Farrakhan et al v. Gegroire et al that the racist nature of the state’s criminal justice system was the only possible reason for the high percentage of African Americans arrest and convicted of crimes in Washington.

The Court stated that Congress passed the Act for the “broad remedial purpose of ridding the country of racial discrimination in voting” as part of its duty to enforce Section Two of the Fifteenth Amendment. Section 2(a) of the Act as it is currently amended states:

No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a
manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . .

The plaintiffs, all parolees, provided “compelling” by expert witnesses that:

the racial disparities in the state’s criminal justice system cannot be explained by “legitimate” factors, such as racial minorities’ higher level of involvement in criminal activity. . . evidence of “unwarranted” racial disparities in the rates of vehicle searches, . . . and “observable racial differences” in the processing of criminal cases (e.g., charging and bail recommendations, lengths of confinement, and alternative sentencing) . . .

Among the findings of the experts is that

African Americans in Washington State were over nine times more likely to be in prison than Whites, even though the ratio of Black to White arrest for violent offenses was only 3.72:1, suggesting that substantially more than one half of Washington State’s racial disproportionality in its criminal justice system cannot be explained by higher levels of criminal involvement as measured by violent crime arrest statistics. A
study of the Washington State Patrol shows that Native Americans were more than twice as likely to be searched as Whites; African Americans were more than 70 percent more likely to be searched than Whites; and Latinos were more than 50 percent more likely to be searched. A study of the Vancouver, Washington Police Department (“VPD”) indicated that of those stopped for traffic violations by the VPD, African Americans are nearly twice as likely to be searched as Whites, and Latino were three times more likely to be searched. This,despite the fact that searches of Whites more frequently resulted in the seizure of contraband than searches of African
Americans and Latinos.

The witnesses also proved that “blacks and Latinos are overrepresented, and whites underrepresented, among Seattle’s drug arrestees,” and that “the organizational practices that produce these disparities” — specifically, the police’s focus on crack cocaine, on outdoor drug activity, and on the downtown area — “are not explicable in race neutral terms.”

The effect of racism in the criminal justice system is that more African Americans, Latinos and American Indians are denied the right to vote and therefore the law banning felons from voting violates the Voting Rights Acts and therefore the law banning felons from voting is void.

The decision creates a split in the circuits and Washington officials have announced their intention to appeal the decision.

The California Assembly on the last day of its 2009 session passed a statute cutting prison expenditures by 300,000,000 dollars and calling for the early release of 17,000 inmates. The state budget called for a reduction in the prison budget of 1.2 billion dollars. Approximately $700,000,000 can be saved by administrative actions controlled by Governor Schwarzenegger. This leaves the budget $230,000,000 dollars in the red.

Last August Governor Schwarzenegger and Democratic leaders came up with a plan to reduce the prison budget by 1.2 billion dollars. Specifically the plan would have required that:

— Inmates with less than 12 months to serve, who are over age 60 or who are medically incapacitated could be released from prison and given home detention with electronic monitoring.

— Sentences for certain property crimes will be lowered to misdemeanors, meaning convicts won’t have to spend time in prison. Those include vehicle theft, petty theft with a prior conviction, receiving stolen property and check-kiting, a scam that primarily targets banks with fraudulent deposits.

— Allow more inmates to gain early release by completing educational, vocational or substance abuse rehabilitation programs.

— Ease supervision for thousands of parolees, making it more difficult to send them back to prison for violations.

This plan was approved by the State Senate last month. But the Senate caved in and accepted the State Assemblys plan which will leave a $230,000,000 hole in the budget and will release less prisoners. The Assembly plan would allow the reduction of parole supervision of some low level offenders thus preventing them from being sent back to prison and it would allow some offender to earn reductions in their prison sentence by completing rehabilitation programs. But it would not provide an early release program for elderly or medically incapacitated inmate and it would not redesignate some crimes currently chargeable as either felonies or misdemeanors as misdemeanors.

But more importantly it does not solve the problem of the two ton elephant in the middle of the room. A panel of Federal judges has found that state prisons are unable to provide medical and psychiatric care to all of the inmates in the vastly overcrowded prison facilitities. They ordered the state to reduce the prison population by 40,000 within the next two years and to provide a plan on how this will be done before the end of the month. The state is appealing the order to the U. S. Supreme Court. The Supreme Court denied a request by the state to delay the formation of a plan to reduce the prison population.

California Governor Arnold Schwarzenegger upheld a State Board of Parole Hearings decision releasing Deborah Peagler from prison. Peagler was serving a 25 year to life sentence for the murder of an abusive boy friend. She has lung cancer and according to doctors she has only months to live.

California rarely grants parole to inmates with life sentences. According to UC Berkeley Law Professor and associate dean of the campus’s Jurisprudence and Social Policy program Jonathan Simon there are currently approximately 30,000 “lifers” such as Peagler in California prison but on the average only five are released each year and 1000 more are sentenced to indeterminate life sentences each year.

In 1982 Peagler lured her boyfriend, Oliver Wilson, to a park where two men killed him. Wilson beat Peagler with a bull whip and forced her into prostitution. He repeatedly raped her a few days before he was murdered and he sexually abused her six year old daughter.

Peagler’s release is over the opposition of the Los Angeles District Attorney’s office which points out the Peagler’s testimony has been inconsistent in regard to the abuse and to whether or not she knew that the men were going to kill Wilson. Furthermore they point out that Peagler had other reasons for wanting to see Wilson dead. She was jealous about Wilson’s new girl friend and she was the beneficiary on Wilson’s life insurance policy.

The men who killed Wilson are still serving 25 to life sentences.

Friday, we looked at the problems that immigrants have with the law. Today we look at another aspect of the problem.

Juan Teresco was convicted of attempted assault, an aggravated felony, much like the thee problem of Satbir Singh we discussed, Friday.

As a result of his 1997 conviction, Turesco, a citizen of El Salvador was deported. After being deported he came back to the country. In 2006 he was arrested in New York and he gave the name of Danny Ortega. After being told that it was a crime to lie to a Federal agent, he admitted that he was Juan Turesco. He also admitted that he was born in El Salvador and that he had been deported. At the time of his arrest the officers found an ID in the name of Danny Ortega on him. He was indicted for illegally reentering the country.

But Turesco’s troubles were just beginning. He told his lawyer, a Federal Public Defender that his name was really Danny Ortega and that he was a US citizen. He gave his lawyer a copy of a birth certificate for Danny Ortega. His lawyer then forwarded the birth certificate to the US attorney expecting a dismissal of the case.

But instead the US attorney got a superceding indictment charging Turesco with illegally entering the country, falsely claiming to be a United States citizen and an aggravated identity theft.

At trial, the government called the real Danny Ortega and Ortega’s mother to show that Turesco lied about his identification. They also called the INS agent who witnessed Turesco’s being placed on a plane and being deported in 1997.. Furthermore they called a fingerprint expert to testify that Turesco’s fingerprints were identical to the fingerprints of the person deported in 1997.

Turesco was convicted on all three counts. He was sentenced to 125 months on the illegal reentry and lying about his citizenship. He was give a 24 month consecutive sentence on the aggravated identity theft count,

The trial judge refused to give an instruction that the jury had to find that the government had to prove beyond a reasonable doubt that Turesco knew that the identification belonged to someone else. Therefore the appellate court reversed the conviction on count three which was an aggravated identity theft based on the recent Supreme Court decision in Flores-Figuroa v. Holder (See post of May 6, 2009) finding that the government had to prove beyond a reasonable doubt that the defendant knew that the false ID belonged to someone else.

After the trial judge gave most of his instructions he adjourned the court for the day. The next morning he told the lawyers that the marshals told him that Turesco refused to come to court. Turesco’s lawyer asked the court to wait until he could go to the detention center to get his client. The court refused. The judge instructed the jury to ignore Turesco’s absence from the court. While a co-counsel represented Turesco, his lawyer went and got him. Although Turesco had earlier begged to come to court, the marshal had refused to double cuff him which was necessary due to a shoulder injury. His attorney asked for a mistrial on Fifth and Sixth amendment grounds. The court denied the motion. During deliberation the jury asked to see Turesco and their request was granted.

The appellate court found that Turesco had a right to be present but that the right could be waived. It further found that the trial court had not held the necessary evidentiary hearing to determine if Turesco waived the right. But it also found that due to the overwhelming amount of evidence and due to Turesco’s presence when the jury wanted to see him the error was harmless and he would have been convicted anyway.

The lesson is don’t lie to the authorities. Don’t talk to the authorities but in any case don’t lie to them. The second lesson is don’t lie to your lawyer. It sure got Turesco is a lot more trouble when he said that Ortega’s birth certificate was his. And the third lesson is does anyone really believe Turesco deserves 125 months for his violation of the law?

California First District Court of Appeal, in People v. Smith, ruled that a search by police officers inside the underwear of a parolee in a hotel parking lot, not exposed to the street, is reasonable under the Fourth Amendment.

Craig Smith was sentenced to ten years in state prison on drug charges after he was arrested in the parking lot of the Vallejo Inn in Vallejo, California. Two police officers saw a man attempting to gain entrance to a hotel room through a window leading out into the parking lot. At the same time they saw another man, Smith, sitting in a car outside the room. They decided to investigate. They asked Smith if he was on parole and he answered in the affirmative. The hotel being in a high crime neighborhood and Smith being on parole for a drug related offense, led the officers to search him. Initially they did a pat search but found nothing. Then they searched his vehicle and again found nothing. Then with Smith standing in the crock of the police car, that is the area between the open door and the body of the vehicle, they removed his belt, opened buttons, unzipped his zipper, lowered his pants and searched inside his underwear where they found a bag containing twelve baggies containing crack cocaine, heroin, and methamphetamine.

An officer may search a parolee, even without reasonable or probable cause as long as the officer knows the person is on parole. But such a search cannot be arbitrary, capricious and/or harassing. Here the court balanced the defendant’s limited privacy rights as a parolee against the state”s “overwhelming” interest in preventing recidivism on part of the parolee. The court pointed out that searches of parolees are a means of carrying out the officer’s duty to closely supervise a parolee.

A search, according to the judge, is only arbitrary, capricious or harassing if the officer carries out the search for an improper purpose. Generally the means or place used to perform the search is immaterial. Therefore since the officers had a legitimate law enforcement reason to perform the search the search and since it was carried out in relatively unintrusive manner it was reasonable under the Fourth Amendment

Interestingly while the court found the location and the nature of the search reasonable, it did not discuss whether the defendant’s privacy rights under the Fourth Amendment and California’s constitutional guarantee of privacy were violated when the officer put his hand inside the defendant’s underwear and retrieved the bag which was sitting on the defendant’s penis.

California courts have again, in In re Lazor, reminded the California Board of Parole Hearings (Board) of the requirement that it must either set a date for the release of an inmate sentenced to an indeterminate period or it must find that one of the statutory factors related to suitability provides some evidence that the inmate remains a danger to society.

In re Lazor, like many of the cases coming before the courts in recent months relates to a case that was heard before the Board prior to the California Supreme Court decisions in In re Shaputis and In re Lawrence In Lawrence and Shaputis the Court explained the “some evidence rule.” Prior to Lawrence and Shaputis all the Board had to do was show that there was some evidence that one of the factors related to release of a prisoner existed. But as Lawrence and Shaputis made clear the Board must show that some evidence of the factor exists and that it indicates that the prisoner if released will be a danger to society.

Thus the Superior Courts and the Courts of Appeal are reviewing many of the Board’s decisions made prior to Lawrence and Shaputis on writs of habeas corpus and sending them back for rehearings in cases where the Board did not relate the suitability factors to a claim of current dangerousness to society.

In In re Lazor, decided by the Board on February 23, 2006, it merely pointed out several suitability factors related to release without stated whether it was relying upon the factors to determine that Lazor remained a danger to society. Perhaps, chief among these was the nature of the crime. The Superior Court in deciding the original writ of habeas corpus reviewed the trial transcript and found that as murders go, Lazor’s may have had an imperfect self defense claim that was not sufficient to justify his acts but which was not particularly horrendous. The appellate court rejected the Superior Court’s claim since the courts must give deference to the findings of the Board. But nevertheless the Appellate Court returned the case to the Board, ordering a new hearing, on the ground that the Board did not make a finding that Lazor is currently a danger to society.

Scanning the internet looking for something to discuss today I ran across the story of Lola, the chihuahua who was stolen from Brianna when a couple of auto burglars broke into Briana’s boyfriend’s truck..

But the story I want to tell is not the story of Lola who was found when the thieves were arrested using credit cards stolen from a car parked near Briana’s boyfriend truck. The story I want to tell is the story of Beanie Baby. Beanie Baby belong to one of my clients. A man named Gordon. One night in 1997 or 1998 at approximately 3:00 am, I get a call from the Sacramento Police Department asking me to identify Beanie Baby, Well identifying Beanie Baby is not difficult. Beanie Baby is a Shar-Pei. Shar-Peis are not exactly beautiful animals. Beanie Baby was deformed and therefore the ugliest of Shar-Peis.

As I got the story that night and in the following days here’s what happened. Gordon was driving his truck on the interstate through Sacramento. The truck broke down and Gordon did what you would expect him to do. He took his dog and found the nearest bar. I don’t know how many drinks he had. But eventually the waitress call the police and accused Gordon of stealing Beanie Baby from her. Well the officers came to the bar and took Beanie Baby away from Gordon and gave it to the waitress.

Well I described Beanie Baby to the Sacramento police They realized they made a mistake–a big mistake. They had mud on their face. They spent the next several days looking for Beanie Baby. Of course the waitress had given the dog to a friend. But eventually the police, with help from Gordon’s friends found Beanie Baby and gave her back to Gordon.

I don’t believe the waitress was ever charged. It would have been embarrassing for the police.

Recently California Courts have taken some steps towards correcting a situation in which parolees with indeterminate sentences were rarely if ever released from prison. Prior to the California Supreme Court’s August 2008 decision in In re Lawrence the Board of Parole Hearings and the governors had a free hand in dealing with parolees. Rarely did the courts set standards governing the release of parolees. As a result the chances of a prisoner with an indeterminate sentences getting parole was practically nil.

In 1977 California adopted a sentencing scheme in which most prisoners were sentenced to determinate terms. Most prisoners upon sentencing knew when they would be released. But some prisoners, usually those with more severe sentences would receive an in determinate sentence where they might be sentenced, for example, to fifteen or twenty-five years to life.

The Board of Parole Hearings could deny parole by merely saying that the original crime, often occurring 20 years before the parole hearing, was heinous. The governor would then agree that it was heinous and the courts would not touch the decision. This would be repeated at annual parole hearing and the defendant would die in prison. In 2006, for example, according to an article in the Yale law and Policy Review the Board of Prison Hearings rejected 99.5 per cent of the applicants for parole. During the four years that former Governor Gray Davis was governor only five inmates sentenced to indeterminate sentences were paroled. It has improved somewhat under the current governor, Arnold Schwarzenegger. Forty paroles were granted in his first five years. But the number is still minuscule, with approximately 34,000 inmates sentenced to indeterminate terms in California.

In In re Lawrence the California Supreme Court held that the primary factor in deciding whether to release an eligible lifer on parole is the danger that the inmate presents to society. It is no longer possible to say that an inmate committed a heinous crime twenty years ago and throw away the key. The courts are beginning to recognize that the norm must be that the Board of Parole Hearings should set dates for the release of parolees unless their is a reason to believe that they will be a danger to society upon release. The sole reason for denying parole cannot be the egregious nature of the committing offense. Each factor used in denying parole must be considered in light of its effect upon the dangerousness to the public of the inmate if he/she is released.

Within the past week writs of habeas corpus citing Lawence have been decided in the Court of Appeal. In In re Palermo the Third Appellate District granted the inmate’s writ of habeas corpus and ordered a new hearing for him. Palermo had been convicted of the 1987 murder of his ex girlfriend. He shot her with what he thought was an unloaded gun through an open bathroom door. He was sentenced to fifteen years to life. At his third parole hearing in 2006 the Board of Prison hearings denied his parole. The hearing officers gave three reasons: 1) the nature of the committing offense, 2) his disciplinary history, and 3) a lack of insight. The San Joaquin superior Court denied his writ of habeas corpus but the Court of Appeal granted the writ. It found that the Board wrongly considered the committing offense to be the major reason to deny parole. As to his disciplinary history, he had only three disciplinary actions in nearly 20 years of incarceration and they were for non-violent acts. As to the degree of insight it is true that he feels that he committed manslaughter and not second degree murder but the facts are arguable and he has consistently showed signs of remorse.

On the other hand the First District Court of Appeal denied a writ of habeas corpus in In re Gregory Dwayne Reed. The Court denied the writ of habeas corpus finding the inmate to be a danger to society. Reed was sentenced to twenty=-six years to life for the 1984 felony-murder of a john during a robbery. Reed and his brother observed a prostitute flag down a john. While the couple were having sex in the john’s car, Reed’s brother opened up the door, pointed a gun at the victim and ordered him to give him money. When the victim claimed he did not have any money the prostitute offered Reed the twenty dollars she had received from the victim. He was unable to grab it and his brother shot the victim in the heart, killing him. While in prison he received 11 form CDC 115 disciplinary reports, the most recent in 1995. Form 115 reports are for events that are believed to be violation of law or in any case are not minor. He also received 19 form CDC 128-A reports for minor misconduct. At his first parole hearing in 2001 the Board found him unsuitable for parole and gave him a three year denial. At the second hearing in 2005 the Board gave him a one year denial and he was told by one of the hearing officers to “remain disciplinary free, not even a 128.” But in April 2005 he received a 128-A for leaving work early. At his June 2006 hearing he admitted he should have gotten approval from his supervisor before leaving work early.He was again found unsuitable and the current writ followed. The Court noted that he was no longer that he had a favorable psychological review and that he had completed a number of classes while incarcerated. But the appellate court found that Reed’s inability to remain discipline free, after he had been warned, reflected poorly on his ability to comply with the terms of parole and the law if he was released and therefore it denied his writ.

While there has been a change in the way the courts look at parole hearings in the past six months, it is unclear what the future holds. What is clear is that important decisions affecting the future of parole are being made in the Court of Appeals and that these decisions will affect the release of many people in the future as well as the crowded conditions in the prisons.

The Pew Center on the States issued a new report, One in 31: The Long Reach of American Corrections. According to the report one out of every 31 people in this country are under supervision of the criminal justice system. This includes 1,512,576 in prison, 780,581 in jail, 4,293,163 on probation and 824,365 on parole. The total number who are either incarcerated or on supervision is 7,328,200. That is 3.2 per cent of the adult population. The figures, however vary widely by state and location from 1 in 13 in Georgia to 1 in 88 in New Hampshire.

The report points out that the more people we imprison the less we benefit from the incarceration. There are certainly individuals who’s incarceration protects lives and property. But the more people we incarcerate the less the value to society of the additional incarcerations. Thus many prisoners can be released with relatively little harm to society.

To make matters worse the system is quite racist. Over nine percent of African Americans and 3.7 per cent of Hispanic Americans are either incarcerated or under supervision. This can be compared to only 2.2 per cent of White, non-Hispanic, Americans.

The Pew report concentrates on the cost of maintaining a huge number of people in prison and jails. The 50 states spend approximately 52 billion dollars on corrections, a 300 per cent increase over the last 20 years. When we consider all levels of government the cost has increased by 330 per cent since 1986. This can be compared to a 205 per cent increase in education, an 82 per cent increase in transportation, a 125 per cent increase in higher education and a 9 per cent increase in public assistance. Only Medicaid costs have grown faster than the cost of corrections. While they could only find statistics for 34 states the cost of keeping a person in prison or jail was $79 per day. The cost of supervising a parolee is $7.47 and a probationer is $3.42.

The report recommends a six step program that will reduce crime and at the same time reduce the cost of corrections. First, it suggests that we sort offenders by the risk they pose to public safety. According to report there are a number of risk assessment tools that take into consideration factors such as age at the time of their first arrest and current drugs use that while not being perfect help to predict danger to society.

Second, community treatment modalities must be based on current scientific models. Individualized evidence based plans can reduce crime by 10 to 20 percent and in some cases recidivism can be reduced by 30 per cent.

Third, the use to technological innovations such as electronic monitoring, GPS, and substance testing can be used to inform probation officers of the whereabouts of individuals and their alcohol or drug use.

Fourth, research has found that the use of swift, certain, and proportionate sanctions for criminal activity and supervision violations are more important than the lengthy incarceration.

Fifth, incentives for success are necessary. It is not only necessary to provide benefits for successful defendants but it is also necessary to reward successful agencies and to have means to measure results.

Finally, It is necessary to measure progress It is necessary to determine tje results by measuring recidivism and by increasing the amount money available to use on budget items other than corrections.

A relatively reasonable reduction in prison populations can result in major savings to the state, a decrease in crime, increased money for other budgetary needs and a significant increase in community treatment for offenders.