Manhattan Borough President Scott Stringer called for a reduction in the city’s stop and frisk policy. Last year the NYPD made 600,000 stops and this year they will probably make 700,000.

Most of the stops are of young African American and Latino men. Over 85 percent of the stops are of non-whites. A young African American or Latino is nine times more likely to be stopped than a white person. Yet only seven percent of these stops result in arrests.

Under Terry v. Ohio in order to stop someone, an officer must have a reasonable suspicion that the individual is involved in criminal activity and in order to frisk that person the officer must have a reasonable suspicion that the person is carrying a weapon.

But all too often officers, knowing that they do not have a reasonable suspicion that the young person of color is involved in criminal activity of carrying an illegal weapon stops and frisks the individual any way. Sometimes they do it purely for harassment. Other times they do it because they hope to get lucky and find that the person is either on parole or probation with a search clause allowing the officer to search the individual without a reasonable suspicion of wrong doing. Third world members are often so used to being searched that they consent to what would otherwise be an illegal search. If they consent to the search anything found on them (drugs, guns, etc.) can be used against them in court. And sometimes, to be honest, police write false reports, alleging consent when consent was not given. Knowing that a DA, a judge or a jury is more likely to believe a police officer than a minority youth.

One of the problems with the extraordinary number of searches of minority youth is that they and their families learn not to trust the police. As a result they do not cooperate with officers who are investigating crime and do not reports criminal acts to the police.

Douglas Miller was convicted of aggravated murder and sentenced to thirty years to life. Under Oregon law he applied for early parole after twenty years. It was denied and he filed a habeas in Federal court after exhausting his state court remedies. The Ninth Circuit denied his appeal.

Following Ninth Circuit precedent it ruled that there is no Federal due process right to parole but that the Federal constitution guarantees that states will follow state derived due process rights. Thus the first question is whether Oregon law guarantees the right to early consideration of parole. Comparing the Oregon law to the laws of California, Montana, and Idaho where the Ninth Circuit has previously found a right to parole, it found that Oregon guarantees a liberty right to parole.

Under Oregon law any inmate with an indeterminate sentence can apply after spending twenty years for early parole. But first the inmate must show by the preponderance of the evidence that he/she is likely to bee rehabilitated within a reasonable amount of time. The State of Oregon argued that by putting the burden on the inmate the state denied early parole as a matter of right. But the Ninth Circuit found that in Oregon. like Montana, Idaho, and California, an inmate has a liberty right to parole if certain precursors are met. In the case of Oregon the precursor is that the inmate is rehabilitatable within a reasonable amount of time.

But the Ninth Circuit upheld the Oregon decision not to grant parole. Miller argued, following Ninth Circuit precedent that the Oregon decision is not supported by “some evidence.” However the Ninth Circuit decision holding that “some evidence” is necessary has been reversed by the Supreme Court which held that it is only necessary for the state to show that it complied with procedural due process. In Swarthout v. Cooke the Supreme Court held that it was only necessary to show that the inmate had a fair hearing and there was no evidence that Miller did not have a fair hearing. As a result the parole denial was upheld.

The Supreme Court, Friday, for the third time in the last ten days reversed a grant of habeas corpus by the Ninth Circuit Court of Appeals. It ruled that the Ninth Circuit cannot use habeas corpus to enforce a state given right, not recognized under Federal law. The Federal habeas statute prohibits Federal Courts from granting writs of habeas corpus for violations of state law that do not guarantee Federal liberty interests supported by Supreme Court decisions. It states that the Supreme Court can grant writs of habeas corpus:

only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States

The Supreme Court has not recognized a Constitutional substantive right to parole. It has ruled that if a states grants inmates a right to parole the state must procedurally provide for the inmate to be heard and the state must provide a statement of the reasons why parole is denied.

California court have ruled that in order to deny parole the state must have “some evidence” that the inmate is unsuitable for parole. Furthermore the state courts have rule that the some evidence standard must be met by current unsuitability. It is insufficient for the parole board or the governor to make a finding of unsuitability based purely on the gravity of the crime.

Damon Cooke was convicted of attempted first degree murder in 1991 and Elijah Clay was convicted of first degree murder in 1978 in California state courts. Both were given indeterminate sentences of seven years to life.

Damon Cooke and Elijay Clay filed writs in Federal Court challenging the Parole Board’s finding that there was some evidence that they were unsuitable. The Ninth Circuit granted both writs and the State appealed to the Supreme Court. The Supreme Court in its decision Friday ruled that the Ninth Circuit decisions must be reversed because there is no federal substantive right to parole and therefore Federal courts cannot review state denials of parole on the merits.

Saadiq Ibn Shabazz was convicted and sentenced to 21 months imprisonment and two years’ supervised release ¹ for conspiracy to utter and possess counterfeit securities.

He violated his supervised release and the court revoked the release. It then sentenced him to two years in prison and another year on supervised release. He violated his second supervised release and the court gave him another two years in prison. ²

On appeal he argued that two years was the maximum supervised release for the crime and therefore he could not be given a second two year period.

Prior to 2003 18 USC § 3583(e)(3) stated “that a defendant ‘may not be required to serve more than’ an enumerated number of years in prison based on the class of the underlying offense.” But the PROTECT Act changed the law to read: “that a defendant ‘may not be required to serve on any such revocation more than’ the relevant term of imprisonment for the underlying felony.” The Fifth Circuit ruled that the only possible reason the amendment was to allow courts to was to to give the maximum sentence on each violation without worrying about the aggregate total of violations.

Section 3583(h) states that the court:

may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.

Shabazz interpreted this to mean that the aggregate sentence, for all violations of supervised release could not exceed the maximum sentence for the offence which in this case is two years. But the court held that the limit in the above sentence only affects the maximum that can be imposed for any one violation of the supervised release. Otherwise the 2003 amendment would be meaningless.

Jamie and Gladys Scott will be released from a Mississippi prison for a 1994 armed robbery they say they did not commit. The sisters were convicted when Gladys was 19 and Jamie was 21 and sentenced to life in prison, an unusual and severe penalty for armed robbery.

But they will be released this year as a result of an order signed by Governor Haley Barbour suspending the remainder of their sentences. Jamie is suffering from severe kidney disease and needs dialysis on a daily basis. In fact one of the reasons Barbour is granting the release is the high cost of the dialysis. ¹ Well high medical costs are not a good reason to release prisoners ² but sometimes things done for the wrong reason are the right thing to do. Jamie and Gladys would never have been sentenced to life in prison for a juvenile armed robbery if they were middle class and White but they were poverty-stricken and African-American.

One of the conditions of the parole is that Gladys donate a kidney to Jamie. This is not an acceptable reason of parole. Parole conditions should be limited to those which increase the odds of an inmate not reoffending. But in this case it is probably immaterial. Gladys wants to donate the kidney to her older sister in any case. However, the requirement that Gladys donate a kidney raises a number of ethical and legal questions. What happens if the two sisters do not have compatible kidneys? Selling or giving something of value in exchange for a kidney is illegal. Is Barbour trading the remainder of Gladys’ sentence for a kidney? What, if Gladys changes her mind?

The Ninth Circuit upheld a District Court grant of habeas corpus after California Governor Arnold Schwarzenegger overrode a California Board of Prison Terms recommendation that Fred McCullough be released on parole.

McCullough was convicted for the 1982 murder of John Kukis. Kukis was asleep in his car when Kukis hit him in the head, killing him, in order to steal money to buy drugs. He was sentenced to fifteen years to life. During his early years in prison McCullough had a number of disciplinary actions but eventually he became a model prisoner, earning a GED and a college degree in social work. He learned how to finish furniture and drive a forklift. He went to AA meetings and he volunteered for the juvenile offender deterrent program.

The District Court released him on his own recognizance when it granted his habeas. He immediately got a job for a furniture manufacturing company and has since been promoted to supervisor.

In denying him parole the governor found that “McCullough committed an especially heinous second-degree murder because he preyed upon and bludgeoned a sleeping, unsuspecting, and unthreatening man — ultimately killing him — for the remarkably trivial motive of stealing his money.”

But the Ninth Circuit found that the denial of parole can not be based solely on the convicting offense. It must be based on current dangerousness to the community. Finding that California law grants McCullough a due process right to be released on parole unless there is “some evidence” of current dangerousness the Court denied the State’s appeal. It cited the prison psychologist’s finding that McCullough was less dangerous than the average citizen. It found that a murder 28 years ago did not meet the “some evidence” rule for current dangerousness and it upheld the district Court’s decision.

Arkansas Department of Community Correction Officer Craig Robie went to to a hotel in Fort Smith where he had heard one of his parolees, David Oteri was dealing drugs. They saw him enter and leave the hotel twice. When Officer Robie, accompanied by police approached Oteri he ran. When they caught him he had a large quantity of methamphetamine on him and he said he was dealing with DA in room 416. The only drug dealer Robie and the police knew with the initials of DA was Donnell Alston. As the officers entered the hotel they saw Alston leave. They detained him. When they checked at the desk they found out that room 416 was rented by Angela Groves. They went to the room and got Groves’ permission to search the room. They found more narcotic and Groves told them that the drugs belonged to Alston. They arrested Alston.

After he was indicted Alston moved to suppress the evidence as the fruit of an illegal detention. But at the time of his arrest he was on parole. Conditions of his parole included that he not associate with felons or people involved in crime and that he not change his address or sleep away from his approved residence without approval from his parole officer.

Under Arkansas law, parolees are subject to arrest if a police officer or a parole officer has a reasonable suspicion that the parolee is violating the terms of his/her parole. A reasonable suspicion is considerably less than probable cause. The court ruled that the fact that Oteri said that he was dealing with DA and that Oteri was a convicted felon provided a reasonable suspicion that Alston was associating with a convicted felon. Furthermore, Alston admitted to staying at the hotel, a violation of his parole.

As a result Robie had a reasonable suspicion that Alston was in violation of his parole conditions. Under the Federal Constitution parolees are considered to have waived their Fourth Amendment rights against illegal search and seizure. In any case Groves rented room 416 and she gave the officers permission to search the room.

The statistics are shocking. Human Rights Watch reported in 2000 that in seven states 80 to 90 percent of those sent to prison for drug offenses were African American. ¹ In at least fifteen states African Americans were sent to prison from twenty to fifty-seven times as often as white men. In 2000 twenty-six times as many African Americans were sent to prison for drug offenses as in 1983. Likewise the number of Latinos sent to prison increased by 22 times between 1983 and 2000. While the majority of drug users and drug dealers in this country are white over three quarters of those sent to prison are African American and Latino.

In another study published in 2000 white students used cocaine seven times as often as African American students, used crack eight times as often, and used heroin seven times as often. White youth between 12 and 17 are a third more likely to have sold illegal drugs than African American youth. Yet African American Americans are more likely to be prosecuted, convicted and imprisoned.

Among youth who have never been sent to prison, African American are more than six times as likely to be sent to prison for identical crimes. African Americans account for 16 per cent of all youth, 28 per cent of juvenile arrests, 35 per cent of juveniles tried in adult court and 58 per cent of juveniles sent to adult prisons.

Approximately 90 per cent of those sent to prison for drug crimes in Illinois are African American and 55 per cent of the African American men in Chicago have felony records. Nationwide one in three young African American men are either in prison or jail or on parole or probation.

Alexander says that the mass incarceration of the last thirty years serves the same function of racial control that slavery and Jim Crow held for prior generations. While it is no longer acceptable to openly express racist ideas, But the vast difference in drug arrests, prosecutions, and convictions between Whites and minority, despite evidence that Whites violate the law at least as often as African Americans and Latinos can leave no doubt that racism plays an important role in our criminal justice system.

While the laws appear to be colorblind, Alexander points out the tremendous degree of discretion granted to police and district attorneys in deciding which cases to arrest and prosecute. Recently there have been articles in press regarding the large database of citizens in New York City who have been stopped and who have either been frisked or consented to searches, some leading to arrest. The vast majority are African American or Latino. Consent searches or incidents where officers “stop and frisk” citizens happen nationwide. Despite the tremendous invasion of privacy that occurs when officers stop an individual without probable cause and often even without a reasonable suspicion, “consent” searches occur regularly and the police have the discretion to decide who to stop, search and frisk. The vast majority of times it is a young African American male who is stopped and searched. It is this discretion on who to stop and who to search that leads to the extraordinary increase in the number of African Americans who are incarcerated as part of the War on Drugs.

The lifelong effect of these convictions, as pointed out by Alexander is overwhelming. Once convicted of a felony the person can not get public housing or governmental benefits. They are unlikely to be able to get a job or schooling. Furthermore while incarcerated they learn skills to use in future crimes. The inability to get jobs affects their families and future generations.

Generally an inmate or a person on parole or probation must use a writ of habeas corpus to challenge their confinement or conditions limiting their freedom. The rules regarding the ability to file a writ of habeas corpus in Federal Court are complicated. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) set up a number of rules limiting the ability to file writs of habeas corpus in Federal Court.

One of the rules prohibits people from filing “second or successive” petitions. In Restucci v. Bender the First Circuit Court of Appeals found that the rule does not apply to petitions alleging deprivations of liberty which could not have been challenged in earlier petitions. William Restucci was convicted of voluntary manslaughter in 1995. This is his third petition for a writ of habeas corpus. In his first writ he challenged the constitutionality of the statute under which he was convicted. The Court considered the writ on its merits and denied it. In his second writ he challenged the competence of his counsel The Court rejected the writ because it was a “Second or Successive” writ in that the issue could have been considered in the earlier writ. Now he has petitioned to be allowed to file a “Second or Successive” writ in order to challenge the denial of parole.

The First Circuit denied the petition, last week, as being unnecessary. Since the denial of parole came after the denial of his previous writs it could not have been considered in either of the previous petitions. As a result, under the AEDPA, it is not necessary for Restucci to file a petition prior to filing his writ of habeas corpus challenging the denial of parole.

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.