Felon Disenfranchisement and the California Realignment

In 1974,  California voters passed a constitutional amendment extending voting rights to all Californians with criminal records, save for those “imprisoned or on parole for the conviction of a felony.” Prior to the amendment, disenfranchisement was permanent in CA once you were convicted of a crime. The impetus for the amendment was, hard as it may be to believe in the days of public safety rhetoric and redball crime panic, the wish to help people regain their full citizenship after they complete their parole. In a landmark 2006 case, the CA Supreme Court interpreted this provision as follows: Folks in state prison, and under state parole, can’t vote. Folks in jail or under probation (or in jail for a probation violation) aren’t considered “imprisoned” and therefore can, and do, vote.

A new piece I’m working on (coauthored with Jessica Willis) for the upcoming Loyola Constitutional Law Colloquium examines the application of this provision, and this interpretation, to a new population of offenders created by the Criminal Justice Realignment in California.

Let me present the legal dilemma. In the aftermath of Brown v. Plata, and in order to resolve the serious financial crisis faced by the state (corrections eat up about 7% of CA’s entire budget), the California Penal Code has been amended to sentence non-serious, non-violent, non-sexual offenders to do time in county jail rather than in state prison. Are these people “imprisoned” for the purpose of the constitutional provision?
Constitutional provisions that give people fundamental rights should be interpreted broadly, right? Whenever there’s ambiguity, we should support people’s right ot vote, right? Wrong. The CA Secretary of State instructs felons that, if they are among the realigned group, they cannot vote.

Several civil rights organizations, and several folks doing time in jails or on community supervision, petitioned the CA Court of Appeals for an original writ allowing them to vote (full disclosure – yours truly and coauthor Jessica Willis wrote an amicus brief on behalf of thirty criminal justice scholars in support of the petitioners). The Director of Elections for the City of San Francisco – one of the respondents – actually agreed with petitioners that they should be allowed to vote, and merely asked the Court for instructions what to do. The court threw the case in petitioners’ faces with no reasoning. Petitioners took to the CA Supreme Court, and received pretty much the same response.

In the Article I go in depth into what the Court should have weighed and considered if it took these Californian citizens’ rights seriously. But in a nutshell, here’s what I think is going on: There are two visions of Realignment. You can see it as a technical way to resolve a budgetary problem and warehouse people on someone else’s dime. Or, you can see it as  a real opportunity to bring people back to their communities, through a correctional method that actually might make sense for people who will eventually come out of prison and reintegrate into society. And by throwing the case out, the Court has opted, regrettably and apparently without much thought, for the former vision. A huge opportunity has been missed. People who could, and should, have been reintegrated into society; who could’ve channeled their experiences into civic engagement; and who could’ve started to care about their communities and neighborhoods will remain isolated and alienated.

In the movie Recount, a fascinating flick about the Bush v. Gore election, a person mistaken for a felon is sitting at home, watching Bush’s acceptance speech. His face is difficult to read. Is he angry? Sad? Disillusioned? Robbed of the promise of a voice or full citizenship? When you vote in November, think about the immense number of U.S. citizens behind bars, or under supervision, from whom this right has been denied.
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cross-posted on PrawfsBlawg.

Bill Allowing Resentencing of Lifer Juveniles Passes Assembly

Excellent news: SB9 – a Senate bill allowing lifer juveniles to have their life without parole sentence reevaluated by a judge – has passed the California Assembly.

This is a major achievement. Leland Yee has been pushing this issue for years. The full text of SB9 is here. And there is more information on the Fair Sentencing for Youth website.

In order to pass, the bill needs to be reaffirmed by the Senate (which has already approved it) and signed into law by the Governor, who is already being pressured by opposition groups.

Here’s what you can do to help: Click here to contact the Governor, and your Senator, and express your support for the bill.

And: Regarding our last post – the California Supreme Court has done the right thing. In CA v. Caballero, the Court has held a 110-year sentence to violate Graham v. Florida. This case joins CA v. Mendez, in which the Court struck down a 84-year sentence for a juvenile who did no harm.

Once you’ve emailed your Senator and the Governor, rejoice with all Californians who believe that everyone, especially at a very young age, should be offered a glimmer of hope and redemption.

Arrested? Your Naked Glory is Fair Game

Comic courtesy http://www.nwclu.org. 

Today’s Supreme Court decision in Florence v. Board of Chosen Freeholders of County of Burlington authorizes correctional personnel to strip-search each and every detainee, regardless of any actual suspicion that he or she might have contraband on his or her person. It was, unsurprisingly, a 5-4 decision, with Justice Kennedy as the author of the Opinion of the Court and Justices Breyer, Ginsburg, Kagan and Sotomayor in the dissent. Classifying such searches as “special needs” searches, Justice Kennedy relies on prior decisions that allow constitutional violations of inmates when these are “reasonably related to legitimate penological reasons.” The risks for safety, staff, and inmates who might need medical treatment, requires allowing such strip searches; also, at the booking stage it might be difficult to tell what the inmate had been arrested for.

This decision comes as no dramatic surprise to anyone who’s read Samson v. California (2006), which allows suspicionless searches of parolees. In keeping with the general crime control rationales, to treat the presumably guilty harshly and set innocent people free, people who are already in the claws of the correctional apparatus may be searched and seized with no suspicion.

As an aside, the facts in the cases are a great example of judicial storytelling. To justify the penological interests behind such searches, Justice Kennedy paints a picture of jail as a dangerous, gang-infested place, where according inmates their privacy is a luxury we can scarcely afford. Justice Breyer, in his turn, paints an invasive and unpleasant picture of the strip search. You can easily predict which way an opinion is going to go by carefully reading the words Justices use to frame the facts.

Toward a Jurisprudence of Plea Bargaining Defense

The above scene from David Simon’s masterpiece The Wire shows Levy, an attorney for a drug cartel, at the top of his game, negotiating a structured plea for drug kingpins. It’s only one of several examples of media representations of plea bargains, which tend to highlight the ingenuity of defense attorneys who use their experience and savvy to get their client off as cheaply as possible. But is this representation true to the quality of defense provided to clients thinking on whether to take a plea bargain?

Last week, the Supreme Court decided Lafler v. Cooper and Missouri v. Frye, which bring up issues pertaining to the quality of defense counsel in the context of plea bargaining. In Lafler, the defense attorney advised the client not to take the plea, supposedly by convincing him that the prosecution would not be able to prove intent to kill given that the defendant shot the victim below the waist. Both parties agreed that this advice was deficient; the client took his attorney’s advice and ended up convicted of murder and sentenced to a lengthy mandatory minimum. In Frye, defendant was charged with driving with a revoked license and had one prior. The prosecutor conveyed two possible plea bargains, one of them including a misdemeanor charge in lieu of a felony charge; the lawyer failed to communicate the offers to Frye, and a week before the preliminary hearing, Frye was caught driving with a revoked license again. He pled guilty to a felony with no underlying agreement and was sentenced to three years in prison; on appeal, he argued that, had he known of the offer, he would have pled guilty to the misdemeanor and would therefore not be convicted of the felony.

To understand the decisions in Lafler and Frye, it’s a good idea to provide a bit of background on quality of defense, an issue we’ve tackled here before. Arguments about ineffective assistance of counsel often come up on appeal and in habeas corpus proceedings, where they serve as gatekeepers for other arguments; for example, since Fourth Amendment arguments are not allowed in habeas proceedings, petitioners will often argue ineffective assistance of counsel instead, thus bringing the Fourth Amendment argument in through the back door (e.g., rather than “the cops had no warrant to search my home”, the argument would be, “my lawyer was so deficient that he didn’t try to suppress the evidence the cops found in my home with no warrant.”) But arguing ineffective assistance is tricky. Under Strickland v. Washington (1984), the appellant or petitioner has to prove two things: That the attorney did such a poor job that it falls below a minimum of competence (“the performance prong”), and that had the attorney provided competent services, the outcome of the trial would be different (“the prejudice prong”).

Both of these arguments are very difficult to make. The Court has repeatedly ruled that defense work is art, not science, and excused many examples of abysmal lawyerly performance as “strategy”. The Court has also often assumed that even an improved performance by the attorney would not change the result of the trial, thus making the argument more difficult.

Recently, the Supreme Court seems more concerned with the quality of defense, and with good reason. In Padilla v. Kentucky (2010), the court ruled that advising a Green-Card-holding client to take a plea whose collateral consequence could be deportation is inefficient assistance of counsel. Last week’s decisions are a continuation of this trend, and great news in two important ways. First, they raise the standard of performance for defense attorneys. And second, they bring plea-bargaining defense–a huge deal of what defense attorneys actually do–from the shadows into the light, and require accountability for professional dealings in the plea bargaining context.

The problem Lafler faced was convincing the court that his failure to accept the plea bargain was prejudicial. The government made an effort to argue that the trial Lafler received was fair, but the Court argued that defendants are guaranteed efficient assistance of counsel even in pretrial stages, including during plea bargaining. The government, and lower courts, also maintained that after having rejected the plea bargain Lafler received a fair trial, which eliminates any gripes he might have about the plea bargain process. But such an interpretation, said Justice Kennedy, ignores the reality of criminal practice, in which the vast majority of cases are settled via plea bargain. Fixing this problem is tricky; you can’t merely resentence the defendant, as he might have been charged with a less severe offense had he taken the plea. So, the correct solution is for the state to re-offer the plea, and for the defendant to consider anew whether to take it.

This understanding of the basic duties of defense attorneys in the plea bargaining process is repeated in Frye, where the Court yet again highlights that the duty to provide effective assistance pertains to all critical stages of the criminal process, not just criminal trials. How, then, is prejudice to be judged? An older case, Hill, requires that the defendant show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” But that’s not the only path for prejudice; in Frye, the defendant shows that, but for counsel’s errors, he would have actually taken the earlier plea. Because of the subsequent offense, though, Frye might face some challenges showing that the prosecution would not have withdrawn the plea upon hearing of the new arrest.

The remarkable thing about the decisions is their willingness to talk about the plea bargaining process as one that requires competence and professionalism, and to provide defendants with relief when their plea bargaining was botched by faulty defense attorney performance. This is hugely important, as much socio-legal research shows that an important reason why people plead guilty is pressure by defense attorneys. While prosecutors have an immense amount of discretion in charging, and therefore many bargaining chips during the negotiation process, defense attorneys play a huge role in interpreting the bargain and bringing the clients to agree to the plea. This process, largely unregulated so far, will now attract more attention and scrutiny. And that is a very, very good thing.

Both decisions were given as an unsurprising 5-4 majority, with Justice Kennedy writing for the majority and supported by Justices Breyer, Ginsburg, Kagan, and Sotomayor. Justice Scalia wrote resentful dissents about the creation of a new “jurisprudence of plea bargains.” Well, it’s about time. Since 94-97% of all trials end in plea bargains, where else should we focus our efforts when attempting to raise the bar for quality defense lawyering?

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Props to Rory Little and Amanda Leaf for motivating me to write this post, and to Dmitry Stadlin for our conversations about plea bargains in popular culture.

BREAKING NEWS: Amicus Brief Submitted in Felon Disenfranchisement Case

“Vote” by Anthony Papa,
http://www.15yearstolife.com

Today I filed an amicus brief on behalf of a list of leading criminal justice scholars, supporting petitioners in All Of Us Or None v. Bowen. AOUON and other organizations have filed a petition asking that the Secretary of State allow people serving their sentences in jails post-realignment, or under community post-release supervision, to vote in the elections. In doing so, they rely on the California Constitution, which grants the vote to everyone except those “imprisoned or on parole for the conviction of a felony”. The Secretary of State, however, guides inmates not to vote if they are felons, even if they are serving their sentence in jail.

Here’s the summary of our argument in support of the petition:

Following the California Criminal Justice Realignment, inmates convicted of non-serious, non-violent, non-sexual offenses will serve their sentence in county jails, rather than in state prisons. The legislative history of AB 109, as well as its language and the practices it directs and encourages, suggest that the legislature intended to use local facilities not merely as a cost-saving measure, but rather as a tool in recidivism reduction through community corrections, reentry and rehabilitative programming. Amici posit that the local setting of jails is an ideal locus for implementing community reintegration goals, and that civic involvement, including enfranchisement, is paramount to these goals. A broad interpretation of the right to vote as including all population in local jails—convicted of non-serious, non-sexual, non-violent offenses, felonies and misdemeanors alike—is fully congruent with these goals. Moreover, enfranchising a broader population, as a result of AB 109, would increase democracy and encourage participation of underserved low-income communities and communities of color in the political and civic process. Finally, Amici rely on empirical research findings to suggest that enfranchisement of all jailed and formerly jailed individuals can positively contribute to recidivism reduction, a socially and economically desirable outcome.

The full brief can be downloaded from Dropbox.

BREAKING NEWS: Felon Disenfranchisement Policy Challenged

Today, several Californian civil rights organizations filed a new lawsuit with the First District Appellate Court, arguing against Secretary of State Deborah Bowen’s policy of disenfranchising all felons, including those who, after realignment, serve time in jail.

And… CCC is involved! A group of criminal justice scholars, represented by yours truly, will be filing an amicus brief shortly in support of the lawsuit.

Here’s what is going on: As some readers may know, Californians imprisoned in state institutions, or on parole, are disenfranchised, but jail inmates and probationers have a right to vote. The realignment, as we know, puts many formerly imprisoned felons in county jails, for part or all of their sentence.

The legal language gives the right to vote to all inmates who are not “imprisoned”. Nonetheless, the California Secretary of State interprets the law as if the felons who will be doing time in jail should remain disenfranchised, and instructs the inmates accordingly. Several inmate rights organizations are now petitioning the Court of Appeals for an original writ, asking that voting rights be extended to everyone serving time in jail or on post-jail community supervision, whether felon or misdemeanant.

We are putting together an amicus brief on behalf of criminal justice scholars to support the petition. The main argument in the brief is that the Realignment was informed by a perspective of reentry and community-based corrections, and as such should encourage civic engagement. We also argue that jails, especially post-Realignment, are the ideal setting for encouraging reintegration through civic rights. The Realignment gives us the opportunity to make that argument on sound legal ground at least with regard to non-serious, non-violent, non-sexual offenders doing time in (or out on supervision from) county jails.

I will post the finished brief after filing. For now, here’s a link to the petition.

California Prison Population Reduction: First Benchmark

December 27th was the first benchmark for reporting the progress in prison population reduction to the federal three-judge panel. CDCR’s press release on the matter reports:

As of December 14, the state’s 33 prisons held 134,804 inmates and were at 169.2 percent design capacity. Since October 1, the state prison inmate population has been dropping by an average of 933 inmates per week without the early release of any state prison inmates.

This comes fairly close to the 167 percent set by the federal panel, and CDCR is confident that it can meet the June 12 benchmark. More data and the graph are available here. Here are the actual numbers of inmates, measured weekly:

Make no mistake; 169.2 percent capacity is still very, very overcrowded. But it is, indeed, an improvement from the statistics that started off the litigation. What remains is to figure out how this has impacted county jail population. If the realignment has merely displaced people, or worse, increased their numbers elsewhere, the trend has not really been reversed, and we may be looking at a county-level version of Plata at some point in the future.

New Execution Procedures Deemed Unconstitutional

Those who have been following up on death penalty practices in California recall that, after a six-year hiatus, CDCR instated new proceedings. Now, a Marin County judge has found the new proceedings unconstitutional, which might mean a longer delay.

The L.A. Times Blog reports:

A judge on Friday threw out California’s new lethal-injection protocols, which have been six years in the making, because corrections officials failed to consider a one-drug execution method now in practice in other death penalty states.


The action by Marin County Superior Court Judge Faye D’Opal sends the state back to square one in redrafting procedures for lethal-injection executions. The death penalty has been on hold for six years in California after a federal court ruling deemed the previously used three-drug method unconstitutional because it might inflict pain amounting to cruel and unusual punishment.


D’Opal said in her 22-page ruling that the state’s failure to consider replacing the former execution practice with a single-injection method violated state law and ignored the courts’ and public criticism of the previous protocols.

Readers who are fed up with the new moves to tinker with the machinery of death, and who find themselves exasperated with the prospect of a CDCR appeal of Judge D’Opal’s ruling, might find the SAFE voter initiative to abolish the death penalty in 2012 an attractive option. It would certainly put an end to the quibble over technicalities.

If you are on the fence about this, perhaps the humonetarian argument from the L.A. Times story will convince you:

A three-year study published earlier this year by a federal judge and a Loyola Law School professor reported that taxpayers have spent $4 billion to carry out 13 executions since capital punishment was reinstated in 1978, and that it costs at least $184 million a year to maintain death row and the capital defense system.

May the State Force Feed Hunger Strikers?

The CDCR memos did not provide a clear answer as to whether the authorities will seek a court order to force-feed striking inmates should the strike last long enough to jeopardize their health. During the July strike

I got to think about this a bit this week when I got a phone call from a reporter from the Examiner, resulting in this story. The man in question is not taking part in the Pelican Bay solidarity hunger strike, and apparently this is the last in a long series of hunger strikes he has undetaken individually. I am unclear on the extent to which hospital personnel felt comfortable force-feeding him, but apparently the sheriff is seeking a court order to do so.

Apparently, there is no clear answer as to whether, legally, hospital personnel may force-feed a hunger-striking inmate, and under which conditions. This has come up in the context of a large-scale hunger strike in Ireland in 1981, and later in the context of Guantanamo in 2005. A 2007 note by Tracey Ohm provides a concise summary of the law in the matter. In the early 1980s, the courts had ruled that the state had no right to intervene with a hunger-striking inmate, and it could allow him/her to starve him/herself to death; however, just a few years later the court tried to draw a distinction between a strike aimed at death and a strike aimed at a manipulation of the correctional system, with a right to intervene in the latter. Ohm suggests that correctional institutions adopt a four-part standardized test, based on the principles in Turner v. Safley (1987):

  1. A “valid, rational connection” between the prison regulation and the legitimate governmental interest put forward to justify it;
  2. the existence of “alternative means of exercising the right that remain open to prison inmates”;
  3. the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally; and
  4. the absence of ready alternatives is evidence of the reasonableness of a prison regulation. 

Cases decided after the publication of Ohm’s note, such as this Connecticut decision, this Illinois decision, and this Pennsylvania decision (also see this summary) have tended to allow prison authorities to force-feed inmates when there was imminent danger to their health or life. All decisions emphasize the need to grant a court order on a case-by-case basis. There doesn’t seem to be any California case law on the matter. This case may be the first time such an issue is tackled by California courts, and it’s worth following up not only because of the fate of the individual defendant, but because of the possible implications for Pelican Bay strikers and their supporters in other institutions.

Hunger Strike to Resume September 26

As reported last month on KQED (click above for report), CDCR is reconsidering its isolation policy at SHU units. But according to an open letter by Pelican Bay inmate Mutope Duguma to the Bay View, plans are in place for inmates to resume their hunger strike beginning September 26.

We had our last and final meeting with Undersecretary Scott Kernan on Aug. 18, 2011. Sitawa and the rest of the negotiators were very disappointed with the outcome because the undersecretary’s horns came out for real!


All the same, we are going forward with our indefinite hunger strike, which will start on Sept. 26, 2011. We know they probably have manipulated some new attempt to deal with us, but what they fail to realize is that we were never playing. If these people think we are going to remain under this tortuous treatment, then they will get the body count that they seek or a bunch of hospitals filled up throughout the state.


This is the only way to expose to the world how racist prison guards and officials have utilized policy in order to torture us. And we have the material to expose them because many of us suffer from serious medical conditions or a lack of medical treatment, which we inherited right here in SHU.

This letter would suggest that the meeting with Kernan, held a day after the announcement about reconsidering the conditions, failed to satisfy the inmates. I wonder what piece of the puzzle we’re missing; that is, whether the inmates were told different things than suggested in the media. Do any of our readers have any information about the new strike plans?