A Jury Trial in Brazil

On September 3, 2008, Marcos Venicius Amon Barbosa finished his 48-hour shift at the shipyard. Before driving home, he stopped for a drink. Shortly after he resumed his trip, he ran a red light at an intersection in Vitoria, killing one woman and injuring eight more people.
Today, six years after the event, I attended his trial for vehicular manslaughter at the First Criminal Department of Vitoria. I was graciously invited by the prosecutor, Daniela Moysés, whom I had met the day before on our prison tour. Prior to her impressive legal career, Daniela had been a civil engineer, which requires five years of study in Brazil, and after a few years of working as the engineer of the court system she decided to change direction and studied law at UFES (another five years of education!). After passing a special competition for a prosecution position, she worked for several years in a rural area, and transferred to Vitoria as a special jury prosecutor.
In Brazil, jury trials are reserved only for crimes against life that involve criminal intent or recklessness. The state selects 25 people to serve on a jury, and they serve for two months. Every trial requires only seven jurors, which are elected from the 25-person panel by way of lottery. Employers have to eat up their employees’ two-month absence, even though they are unhappy about it. It is a big commitment, which is why Judge Victor Ribeiro Pimenta started the hearing by thanking everyone for their service.
At this point, after several weeks, the judge, the prosecutor, and the jurors know each other fairly well, and the judge told me that he tries to make it a positive experience for them even though the trials revolve around heavy matters. So, he joked with them a bit before the defendant was brought in.
Escorted by the military police, the defendant sat in front of the court on a chair with no table. His attorneys sat at a table to his left, requiring them to get up and approach him if they wanted to tell him something or confer with him. Today, he had three defense attorneys, all private, to speak on his behalf.
Then, the judge ran the lottery. He put labels with the jurors’ names in a special box, shook it, and removed labels one by one.

For each juror who was selected, the judge asked the defense attorney and the prosecutor if they had any objections. Each side gets three strikes, all peremptory, and they don’t need to offer an explanation. The prosecutor objected once, to a man whom she and the other prosecutors had seen falling asleep at the trials. I asked whether the challenges are sometimes used strategically. Daniela said that, in a drunk driving case, she preferred female jurors, whom she felt would be less sympathetic to a drinking man then male jurors. She got four women and three men. As each newly selected jurors stepped to the jury box—two rows of chairs behind tables—they wore black robes. The judge then announced the “jury winner”—the juror whose number had come up most frequently in the history of that particular panel—and awarded her a box of chocolates as gratitude for her service.

Everyone smiled and clapped. It was a nice, warm gesture to alleviate the stress and gravity of the trial to follow, and was very characteristic of the way Judge Pimenta runs his courtroom, always adding a smile and levity to the situation. Of course, the only person not laughing was the defendant, and conscious of his anxiety, Daniela muted her reaction to the joviality. Judge Pimenta swore the jurors one by one.

From the moment of selection, the jurors are prohibited from communicating with each other about the case. Deliberations are forbidden, and each juror votes secretly according to his or her own conscience.
Prior to the jury selection, the prosecution and defense conferred briefly on testimonies. Out of the eight surviving victims, four showed up for the trial. One of them testified that the traffic light was yellow when the defendant’s vehicle entered the crosswalk. The defense wanted that victim to testify. However, said the judge, if that’s the case we’ll want to testify all of them, and the rest will testify the light was red. Daniela didn’t want the witnesses to testify; she was concerned that they would go off on tangents and be unhelpful. One of them even said, shortly after arriving to the courtroom, that she did not want to see the defendant. The bottom line was that no witnesses testified at all.
The jurors were handed copies of the accusatory document, which already includes summaries of the evidence against the defendant and the judge’s “pronúncia” – the decision to bring the case to the jury in the first place. They were given some time to read it, and one of the court workers brought in a big tray with little cups of strong coffee for everyone to sip while they read. All parties, except the defendant, were served coffee, and small trays of cookies for everyone followed. Food is very meaningful in Brazilian culture, and eating together is an important social ritual. At cookie time, Daniela explained to me that the judge had the discretion to close the case based on police evidence, and sometimes does, and also the discretion to decide that the case was not befitting a jury panel and should be sent before the judge.
After the jurors familiarized themselves with the facts, the judge asked the defendant a few questions about his work, familial status, etc. He explained to the defendant that he had the right to testify and very respectfully presented everyone—the jury, the prosecutor, even me—to the defendant, as if we were all seated in the judge’s living room. He then asked the defendant whether he wanted to testify. The defendant replied that he did not, and that his testimony in the police station—in which he admitted to being drunk and falling asleep behind the wheel—could speak for him. He was visibly anxious and very miserable.
The judge allowed the prosecutor to speak, and she started by acknowledging every single person—even me—by name. She smilingly introduced the defense attorneys, referring to each by name, and gently needled them about being “three against one”. She started by expressing thanks to the jurors for their important service, and ended by saying to the defendant that we all wanted justice and that we were hoping to be fair to him.
Then, she proceeded to present to the jury her theory of the case. In the absence of witnesses, the attorneys were allowed to give lengthy speeches to the jury, walking them through the evidence. I was told that, had there been witnesses, they would first be examined by the judge to give their version, then by the prosecutor, and then by the defense attorneys. Parties are allowed to cross-examine the other side’s witnesses. Attorneys could object to questions and the judge could disallow them, and often judges would disallow questions on their own, not prompted by a party’s objection. In general, the judge plays a much more active role in conducting the trial, getting up frequently from his chair, conferring with the attorneys, addressing the jury, and attending to administrative matters (it also is possible that Judge Pimenta is particularly lively and engaged.)
In this particular case, the speeches pertained to an interesting question of substantive criminal law. Brazilian law allows for two types of criminal intent: a desire that the result occur, which is the equivalent of first/second degree murder mens rea in American common law, and awareness of the possibility that the result might happen. According to the prosecutor, this case fell into the latter category. Because the defendant had just left his shift and then decided to go drinking, he must have been aware of the possibility that he could commit an accident, and therefore assumed the risk of doing so. She combined her explanations of criminal doctrine with testimonies of the victims in the case, and the defendant’s own testimony in the police station. The jury attentively followed her, flipping through their materials. While obviously sympathetic to the victims and their suffering, the prosecutor was also sympathetic to the defendant, especially given the long time that had passed since the accident. After her speech was finished, she and I discussed her theory of the case. Brazil does not have plea bargains, except in very small cases, where they are legally proscribed “discounts” for pleading guilty and/or for providing information about the crime. Had the Brazilian system allowed them, she would probably had agreed to a guilty plea to a lesser charge of homicide, even though she thought her theory of the case was sound and the defendant acted with “conscious negligence” (the equivalent of recklessness in common law), because of the time that has passed since the accident and its effect on the defendant. She therefore told the jury that her argument was doctrinal-technical, but that they should vote with their conscience. She thought that her lucid but tempered argument may have communicated to the jury that, as opposed to other homicide cases they had seen during their two-month tenure, this one was not one of the serious ones.
After the prosecutor finished, the first of three defense attorneys, Joao Angelo, rose to speak. Like the prosecutor, he started his speech with a very gracious address to everyone in the room (including me). He thanked the prosecutor for her “calm and respectable” presentation (perhaps hinting to the jury that even the prosecutor was not out to get the defendant.) He then proceeded to argue the case. He spoke mainly of two things: the fact that the defendant obviously had not desired the lethal outcome and did not seek it, and the suffering he had been through in the years since the accident. Some of the argument was legal, but for the most part it was a plea for clemency. Criminal procedure in Brazil allows the prosecutor the opportunity for rebuttal, but doing that opens the door for a subsequent rebuttal by the defense. Because she didn’t feel the case merited a severe outcome, Daniela quietly made the decision not to rebut.
After the defense attorney’s speech, we all broke for lunch. When the judge invited me to eat with them—which was very kind of him—I didn’t quite know where we were headed. It turns out that, on days in which trials are heard in the morning, everyone—the judge, the prosecutor, the defense attorneys, the jurors—share lunch together in the courtroom, sitting around a large table. The court employee in charge of the jury, who also wears a little black robe, arranges for a very nice and rich meal, and so we all chatted amicably around the table, eating roasted chicken, rice, vegetables, plantains, and manioc flour. There was a tacit agreement that no one spoke about the case, and people just had a nice, companionable lunch together for almost an hour before the trial resumed.
When we returned to our seat, the two remaining defense attorneys proceeded with their argument. Their arguments were fairly theatrical and exaggerated, but their essence was the same as that of the first attorney: that the defendant should receive clemency. The second attorney even mentioned that the aftermath of the accident drove the defendant to a suicide attempt, which was not proven in any external materials (and the jury might or might not have believed.) He was divorced after the accident, but we did not know whether the divorce was related to the accident. The prosecutor felt that the attorney misquoted her, arguing a point of law she hadn’t actually made, but she clearly prioritized fairness in the defendant’s case over an ego battle and decided to let it go.
As the defense attorneys argued their case, the judge typed up a list of interrogatories for the jury. It was titled “Quesitos”, and for each of the nine victims it listed four questions:
1.     Had the victim suffered an accident?
2.     Did the defendant drive the vehicle that caused the victim’s death?
3.     Did the defendant assume the risk that he might cause the accident?
4.     Does the jury choose to absolve the defendant?
Questions 1-2 are matters of fact (and clearly were not in dispute in this case). Question 3 is a matter of law, and Question 4 is a matter of ethics and morals. The breakdown of jury decision into interrogatories is new to Brazilian law, introduced in a 2008 amendment. The judge shares the interrogatories with the parties and revises them if they express reservations he accepts.
After the attorneys were done, the judge emptied the room of audience (especially of the crime victims, because the vote is secret and there is concern about retaliation) and addressed the jury. He explained that he didn’t need their vote with regard to each victim, because the accident was the same. He also said that, since questions 1 and 2 were not in dispute, they were going to assume an affirmative answer to both, and start with question 3. He would ask question 4 only depending on the result of question 3. Each juror was handed a green ballot by the court employee, consisting of “sim” and “não” options. The judge asked question 3, again briefly explaining assumption of risk, and the jury voted. A court employee collected the ballots in a wooden box and closed the lid. The judge shook the lid and counted the votes. After 3 “sim” and 4 “não” responses, the deciding seventh vote was “não”, and the defendant was therefore declared not to have assumed the risk. The judge concluded that, in light of this decision, question 4 was not necessary. Daniela explained that, even though the interrogatory separates between the legal and ethical questions, juries frequently combine their answer in the legal vote.
With that, the jury’s part of the trial was over and I had to rush to the airport, but the judge and parties still had some work left to do. In the absence of a vote of intent, this was no longer a jury case, and the judge convicted the defendant of negligent homicide. The punishment was 4 years, but it was substituted by community work, and the defendant agreed to pay each of the living victims $250,00 dollars. The prosecutor walked away from the case feeling the decision was fair. Since the case presented a rather meaty legal question, as well as special personal considerations, no one was surprised that the vote came close. The jury faced a genuine dilemma and faithfully made an effort to follow the case and decide fairly.
“Is it crazy?” my friends, local academics and lawyers, asked me as they graciously gave me a lift to the airport. Crazy? I thought. Not really; that is, not necessarily less or more crazy than an American trial, or of any way which human beings orchestrate to pass judgment on their peers.
Many thanks to Daniela Moysés for inviting me to join her workday, to Judge Victor Pimenta for accepting me so kindly into his courtroom, and to everyone else involved in their trial for their graciousness.

Criminal Justice Bills Signed Into Law by Gov. Brown, 2013 Season

Image courtesy NBC San Diego.

A month ago we provided a brief overview of the criminal justice bills on Gov. Brown’s desk. With the end of the legislative session, we have some important updates on some of these bills. This is the first of two posts, reporting on bills signed into law; the second post reviews vetoed bills.

We’ve all heard the news about the passage of AB 4, otherwise known as the TRUST Act. Federal law authorizes federal immigration officers to advise state and local law enforcement agents that a given person under custody has to be held for deportation. Under the new bill, CA law enforcement officials are not allowed to detain someone based on an ICE hold after the person is eligible for release from custody, unless certain conditions apply, such as a conviction for specified crimes.

Regular readers may recall our failed attempt to restore voting rights to non-serious, non-sexual, non-violent offenders in jail or on community supervision. AB 149 requires each county probation department to maintain a link to the Secretary of State’s voting rights guide, explaining clearly people’s rights to vote, which is particularly important in the case of probationers, who are eligible to vote in California and may not know that.

And we all remember the happy announcement that AB 218, otherwise known as Ban the Box, passed and was signed into law. The bill prohibits state or local agencies from asking an applicant to disclose information regarding a criminal conviction until the agency has determined the applicant meets the minimum qualifications for the position. From the reentry perspective, it is a laudable initiative that gives formerly incarcerated people a fair shot at being considered for a position on their merits and qualifications. Fewer people are aware of SB 530, which prohibit employers from asking about convictions that have been judicially dismissed or ordered sealed, except in special circumstances.

There were a multitude of gun bills on the Governor’s desk, and the end result on those was fairly mixed. The higher-profile bills were vetoed, such as SB 374, which would have banned semi-automatic rifles with detachable magazines and require registration of even low-capacity rifles, and SB 567, which would have defined some rifles and shotguns as assault weapons. However, AB 231, which makes it a misdemeanor to store loaded weapons where children might have access to them, passed, and so did bills creating prohibitions for businesses from applying for assault weapons permits and two bills restricting firearms for mentally ill patients.

AB 494 increases CDCR’s accountability for literacy programs for inmates. Current law requires CDCR to implement literacy programs that would bring inmates, upon parole, to a 9thgrade reading level. ABA 494 requires CDCR to implement literacy programs that allow inmates who already have that level of literacy to acquire a GED certificate or its equivalent, as well as offer college programs through voluntary education programs. It also lists priorities. AB 624 is also a source of similar good news for inmate advocates. The bill allows sheriffs and other county directors of corrections to increase the number of programs that provide inmates with good credits toward release. Along the same lines, AB 1019 requires that the Superintendent of Education set goals for technical education programs in prison.

In helping folks reintegrate into their communities, record-cleaning and expungement issues are incredibly important. Now that AB 651 has been signed into law, defendants who did jail time for felonies may apply for expungement (withdraw their plea of guilty) after one or two years following the completion of the sentence, if they have an otherwise clean record; this makes their situation vis-a-vis expungements similar to that of defendants on probation. Defendants who completed prefiling diversion programs may also petition to seal the arrest records, under newly enacted SB 513. There are special rules about expungement of juvenile records, and AB 1006 creates an obligation to notify juvenile defendants of their rights to petition for sealing and destruction of the records.

There are other bills specifically geared toward juvenile defendants. SB 569 requires recording all interrogations of juveniles accused of murder (why only juveniles? why only murder? I suppose someone thought an incremental approach would be best.) And, of course, there’s SB 260, which, as we pointed out in the past, extends SB 9 to allow resentencing petitions for juveniles sentences to lengthy periods of time.

And more good news on the health care front: AB 720 requires the board of supervisors in each county to designate an entity to assist certain jail inmates to apply for a health insurance affordability program, and will prohibit county jail inmates who are currently enrolled in the Medi-Cal from being terminated from the program due to their detention, unless required by federal law or they become otherwise ineligible.

While SB 649, intended to reclassify simple drug possession as a “wobbler” (in order to allow it to be prosecuted as a misdemeanor) was vetoed (and more on that on the next post), there are some developments. AB 721 redefines drug transportation as transportation for sale purposes, effectively decriminalizing transportation for personal use.

There are also some expansions to police authority and some new criminal offenses, but at least from my perspective they seem fairly reasonable–a far cry from the super-punitive voter initiatives of elections past. SB 255 prohibits “revenge porn”, that is, distributing someone’s nude photo to cause them distress. [EDITED TO ADD: Notably, the law does not cover “sexting” situations, that is, redistribution of photos the victim took him/herself.] SB 717 allows issuing a search warrant to authorized a blood draw from a pesron in a “reasonable, medically approved manner, for DUI suspects who refuse to comply with police request for a blood draw. There’s also SB 57, which prohibits registered sex offenders from tampering with their GPS devices, which I suppose is good news for folks who think these devices are good tools for recidivism prevention (I have doubts.)

SB 458 tempers the legal requirements for including people’s name in gang databases. Under the new law, a person, or his/her parent/guardian in case of a minor, now gets notified that there’s an intention to include him/her in the gang member registry, and the person may contest, with written materials, said designation. Local law enforcement has to prove verification of the designation, with written materials, within 60 days.

And finally, SB 618 extends the ability to receive compensation for wrongful conviction to felons serving jail time. Also, the bill extends the time to apply for compensation to two years, requiring the Attorney General to respond within 60 days, and also removes the burden on the exoneree or pardoned person to prove that they did not intentionally contribute to bringing about the arrest or conviction.

Some important themes emerge. First, note the emphasis on reentry and reintegration in the job market, which is a healthy recession-era policy to allow formerly incarcerated folks at least a fighting chance finding employment and rebuilding their lives. We’re also seeing particular care with regard to juvenile offenders, especially those charged with or convicted of serious offenses. There isn’t a lot of hyperpunitive legislation, and the few new offenses seem tempered and reasonable. The next post deals with the vetoed bills.

·       

Bail: Freedom, Capitalized

This video, produced by the ACLU and Beyond Bars, was posted in a story that appeared this week on The Nation, titled, Should It Cost Less to Get Out of Jail If You’re Rich?  It is an introduction to the bail bonds industry, its budgetary backing, and the way it affects people of different economic backgrounds.

Bail research is fascinating. In the late 1980s, Michele Sviridoff found out that judges gave a “discount” to defendants making bail in cash. G.P. Monks found that the police was ineffective in assuring that people showed up for trial. But research from 2011 shows the extent to which the bond industry has been privatized. Mary Phillips, doing research in New York, finds that bail bondsmen’s share of the industry has significantly grown, and that their actions magnify the alredy-existing socioeconomic gaps.  Brian Johnson and Ruth Stevens find that states place very few regulations on the bonds industry and on licensing to become a bail bondsman. According to this Justice Policy Institute report, the bail industry is not cheaper than the alternatives, and it is incredibly prone to overcharging and corruption. It is also backed by powerful profiteers. Shadd Maruna and colleagues even predict that people will be able to leave prison on parole after posting “post-conviction bail.“

Conversations about prison privatization often ignore bail bonds, which are one of the first stops on the criminal justice train. It is worthwhile to take a look at costs, incentives, and class disparities even in these early stages of the criminal process.

———-
Props to Amir Paz-Fuchs for The Nation link.

Ashker v. Brown: Guest Post by Hali Ford

A long line of high school students filed into the courthouse at 2 o’clock.  One attorney told me she had never seen such a turn out for oral arguments.  Judge Wilken interrupted the attorneys’ appearances to welcome the high school students.  She highlighted the importance of their attendance at a case involving such serious issues.
A group of Pelican Bay inmates seeks class certification to bring two claims against Governor Brown and CDCR.  Under current CDCR protocol, tattoos, reading materials, associations with other prisoners, and other factors earn inmates “points” towards being “validated” as a gang member.  Validated inmates are placed in solitary confinement, or, “the SHU” (secure housing unit), indefinitely.  The inmates claim this “indefinite SHU time for constitutionally infirm reasons” violates due process.  The inmates also seek to certify a “subset” of the class: inmates who have been in the SHU for longer than 10 years.  This subset brings an 8th Amendment challenge, arguing that 10+ years in solitary confinement poses an “unacceptable risk to prisoners.”   
Judge Wilken took issue primarily with the inmates’ method for defining the 8th Amendment class.   A key question cannot be answered except through discovery: how many, if any, inmates have been in SHU for longer than 10 years for reasons other than gang validation?   The inmates’ counsel stated that he suspects, but must determine through discovery, that no inmates have been in the SHU beyond 10 years for any other reason.  Judge Wilken expressed concern about certifying the class without knowing the characteristics of its members with certainty.   To bring a class action, the inmate group must satisfy the conditions of commonality and typicality.  She also explained that the 8th Amendment test to determine whether punishment is cruel and unusual compares the severity of punishment against the gravity of the offense.  The 8th Amendment balancing calculus would differ for the inmate who has been in the SHU for longer than 10 years because he murdered another inmate, for example, and the inmate in the SHU 10+ years for gang validation, and gang validation only.
Judge Wilken preferred to visualize the due process and 8th Amendment groups as a Venn diagram instead of an umbrella group and subset: all of the members of the due process group challenging gang validation in one circle, in the other circle, all of the 8th Amendment group members challenging 10+ years in the SHU, and in the overlap, those who have been in the SHU for more than 10 years for gang validation only.  The inmates believe all of the 8th Amendment group members also fit within the due process class.  That fact will be determined in discovery.
Neither party objected to defining the potential due process class as “all inmates serving indeterminate sentences at Pelican Bay SHU pursuant to Title 15 as of x date, on the basis of gang validation only.”  For the 8th Amendment challenge, Judge Wilken suggested the parties amend the complaint once they have determined the number, if any, of inmates in SHU for 10+ years for reasons other than gang validation.

Discovery will involve interviewing more than 100 inmates.  The discovery deadline is set for late March, summary judgment June 19, and bench trial nov 3-21 bench trial.  Neither party expressed enthusiasm when Judge Wilken discussed settlement.

Litigating Solitary Confinement: Class Certification in Ashker v. Brown – Guest post by Brittany Stonesifer

Around a hundred people – family members, activists, lawyers, reporters, and even a group of high school history students – gathered yesterday outside the Oakland Courthouse to advocate an end to long-term solitary confinement in California.  The rally and press conference was organized by Prisoner Hunger Strike Solidarity, a coalition that provided support to California prisoners engaged in a recent 60 day long hunger strike.  With around 30,000 initial participants, the hunger strike centered around 5 core demands to end to the inhumane and unjust conditions of California’s Security Housing Unit (SHU) system.
The focal point of the prisoner hunger strike, Pelican Bay SHU, is also the subject of the lawsuit considered yesterday in Oakland.  In Ashker v. Brown, a group of prisoners is suing CDCR and Governor Brown to secure an injunction against indeterminate SHU sentencing based on gang validation.  The case, presided over by U.S. District Court Judge Claudia Wilken, is being litigated by Legal Services for Prisoners with Children (LSPC), the Center for Constitutional Rights(CCR), and other co-counsel from around the country. 

Yesterday, Judge Wilken heard oral arguments on a motion to certify a class of plaintiffs in Ashker who would assert due process violations based on gang validation, as well as cruel and unusual punishment of those prisoners who have been in isolation for more than ten years.  Granting the motion, under Federal Rule 23, would mean these claims would be brought on behalf of a large group of prisoners who have each suffered solitary confinement, rather than on behalf of individual plaintiffs.  Among other things, Rule 23 requires that there are grievances common to all class members and that the claims of the named plaintiffs are typical of others in the group.
In yesterday’s oral arguments (see the motion for class certification here), Judge Wilken’s questions focused first on how the commonality of the class is affected by CDCR’s new gang validation pilot program.  Specifically, since the commencement of the Ashker case, CDCR has created a Security Threat Group (STG) pilot program that it claims resolves the due process violations of the prior validation system.
Judge Wilken expressed concern that those prisoners sentenced to indeterminate SHU terms under the old validation system would constitute a different class from those validated under the STG pilot program.  However, as CCR Attorney Alexi Agathocleous – who argued today on behalf of the plaintiffs – pointed out, CDCR has yet to provide any evidence that the pilot program addresses any of the due process issues raised in the complaint, such as being able to use the possession of artwork to sentence prisoners to indefinite isolation.
In addition to the due process claim, the lawsuit asserts that the 8th Amendment of the U.S. Constitution is violated when gang-validated prisoners are kept in solitary for more than a decade.  Though the Ashker case defines these prisoners as part of a “subclass,” Judge Wilken questioned whether there were potentially prisoners who had been detained in the SHU for more than ten years who were serving determinate sentences. 

It is worth distinguishing here that those sentenced to SHU terms can either serve set, determinate sentences for behavioral violations under Title 15 or be assigned indeterminate sentences on the basis of suspected gang association.  Plaintiffs yesterday pointed out that it is unlikely that there is a separate class of prisoners who have been in SHU for more than ten years because, under Title 15, even the most severe rule violation – murder of a non-inmate – is punishable by a maximum of five years in SHU.  (As an aside, the UN has statedthat solitary confinement in excess of 15 days amounts to torture.)
To follow the litigation of Ashker v. Brown – including Judge Wilken’s ruling on the motion to certify the class – and the Pelican Bay Human Rights Movement, visit LSPC, PHSS, or CCR.

Ashker v. Brown: Solitary Confinement Lawsuit Seeking Class Certification

The struggle against long-term solitary confinement continues even after the end of the hunger strike. A group of inmates is suing Gov. Brown and CDCR, hoping for an injunction to end gang validations, confinement based on flimsy evidence, and solitary confinement for long periods of time. They did not get a preliminary injunction, but the motion to dismiss was denied as well.

In the lawsuit, the inmates bring up two types of constitutional arguments:

Due Process arguments, addressing the process by which people are placed in solitary confinement indefinitely. One can end up in solitary confinement for a defined period of time, for a violation of prison rules; this lawsuit addresses a different category of cases, in which people are classified as gang members based on problematic and scant evidence and placed in solitary confinement with no end in sight. If the court accepts this claim, it will order an overhaul of CDCR regulations regarding gang validation.

Eighth Amendment arguments, addressing the physical and mental health risks involved in confining human beings in segregated conditions for more than ten years. There is a solid body of evidence regarding the horrific and irreversible impact of spending dozens of years in a small cell by oneself for 22.5 hours a day, with no human contact, on a person’s body and psyche (see fact sheet). If the court accepts this claim, the best case scenario is a cap on using solitary confinement for periods exceeding ten years.

The first step in court is to have the lawsuit class certified under Federal Rule 23. What that means, in legal parlance, is that the lawsuit becomes a petition on behalf of a group of inmates, rather than the individual petitioners. With regard to the due process argument, the appropriate class consists of all inmates who are in solitary confinement for an indefinite period following a gang validation process. With regard to the Eighth Amendment argument, the appropriate class consists of anyone doing time in solitary for more than ten years. Here’s the petition for class certification.

Under Rule 23, the inmates will have to prove that they are too numerous a group to litigate individually, and that the representative inmates bringing the suit are adequate representatives with claims that are typical to the entire group. This has been a problem in the past sometimes, when inmates brought up common law questions that would require individually-tailored legal responses. It does not seem that this is the case here. What the petitioners are seeking is a change in validation policy and a cap on confinement length, a remedy that would address the concerns of the entire class. So, the petition for class certification seems to have a fairly good chance. As to the merits of the suit, we’ll continue following it.

Interested in attending the oral argument? 

When: Thursday, Sept. 26, 2013 at 2:00 p.m.
Where: Oakland Courthouse, Courtroom 2, 4th floor, 1301 Clay Street, Oakland, CA, 94612 before Chief District Judge Claudia Wilken.

The Center for Constitutional Rights wants people to attend the hearing. If you plan on showing up, do your best to arrive 30 minutes to one hour early, in order to go through security. Everyone will need a current form of identification in order to get inside the building.

For those of you who can’t make it, the CCC blog will cover the oral argument.
___________________________
Thanks to my colleague Morris Ratner for our conversation about class certification.

CCC Field Trip: Wrongful Convictions in Ecuador (and, SCOTUS tells Jerry off)

By now, many readers have already heard the news: Gov. Brown’s plea to modify the release plan and avoid releasing 10,000 inmates per the Plata mandate has failed in the Supreme Court. Justice Kennedy authored the decision.  Law enforcement is already grumbling.

I’m on Quito, Ecuador, on vacation and don’t want to get aggravated, so if you like, go read Scalia’s dissenting opinion for yourselves.

 Quito is a beautiful high-altitude city in the shadow of Mount Pichincha, with amazing art, colonial architecture, and marvelous parks. And, of course, as one does, the first thing I did this morning was read the local paper, El Comercio, which featured this amazing story about a wrongfully convicted man and his post-exoneration life.

Here’s the bit that caught my eye:

Según datos de la Defensoría Pública, el 65% de personas apresadas recuperó su libertad porque no se hallaron pruebas en su contra. Estos datos fueron levantados desde el 2007 hasta el 2010.

(According to data from the Public Defender, 65% of arrested people were freed because there was no proof against them. These data was collected between 2007 and 2010. My translation–H.A.)

In fact, the article notes that wrongful convictions are so common that the Public Defender’s office has a psychological department dedicated to help exonerated people deal with the stigma and reclaim their lives.

Expect more reports on the Ecuadorian justice system.

After Trayvon: Why a Guilty Verdict Is Not The Answer

Like many people of good conscience, I was angry and upset to hear the news last night. The acquittal of George Zimmerman, while not wholly unexpected given the trial coverage, has been a punch in the stomach for those of us who saw race relations in America dramatized yet again in this incident. It is also hard to see this as an isolated incident, and those of us who experienced frustration and rage at the verdict of Johannes Mehserle, who shot Oscar Grant in front of dozens of onlookers are even more enraged and hopeless today.

Which is why this post is a hard one for me to write. Because I have hard things to say, and they will not heal our broken hearts or silence our voices from crying out in indignation today. But maybe they are still worth saying.

Legal Truth and Factual Truth

We all know this, but it bears repeating: Criminal law doctrine–stripped of all realities and considerations and constraints and group effects–allows convicting people only if the evidence supports their guilt beyond reasonable doubt. What that means, exactly; whether it allows for majority decisions; whether jurors understand how to quantify it; and how it relates to actual innocence is a different question. But finding someone not-guilty at trial is not a factual statement that the person did not commit the crime. Also, which is less obvious, finding someone guilty at trial is not a factual statement that the person committed the crime. The legal system would have us believe that it takes legal guilt seriously. That is, that it hopes that legal guilt will approximate, as much as possible, factual guilt. And much of the premise behind the post-Warren court’s chipping away at the Bill of Rights was exactly that: No one wanted factually innocent people to go to prison, but we weren’t all that excited about the factually guilty going free. The legal system and the rule of law rely on legitimacy from the public, and to garner that legitimacy the façade of truth in convictions has to be maintained.

But deep down, the system knows it makes mistakes. Dan Simon’s In Doubt, which analyzes the causes of wrongful convictions, cites the astonishing statistic that we may be wrongfully convicting up to 5% of all people found guilty at trial. We acknowledge this to the point that habeas proceedings have an “actual innocence” exception to the cause and prejudice rule. Part of the reason for this may be that Doreen McBarnet is right, and that the system is inherently biased toward conviction. Throw in one more important factor: Six jurors is a lot less than twelve, which makes not only for cheaper trials but also for an increased tendency to come to a guilty verdict in weak cases. So, six people came to an unpopular decision, and we may disagree with them. But I certainly do not envy them. I have, perhaps, an inkling about the political culture these folks will be going back to this morning, but I still think it’s going to take a lot of guts to explain this legal decision to people who don’t believe the factual assertions behind it.

Facts and Symbolism

Do you know what happened in that Florida gated community the morning that George Zimmerman killed Trayvon Martin? And by “know”, I mean, are you absolutely certain of what happened? And can we be certain at all? I wasn’t there, and neither were you. And even if we were there, or saw a video, we could not be sure.

But you and I have a fairly good idea in our heads, and that idea differs from what six Florida residents decided yesterday. We listened to the tape, and we know that Martin was not armed, and we think that Zimmerman, who was motivated by hypervigilance and racial animosity, shot a defenseless man. And my fear this morning has been that we are allowing the symbolic value of this incident, as we did when Oscar Grant was shot, to fill in the gaps in our knowledge of what happened.

The much-awaited movie Fruitvale Station (trailer above) opened yesterday in Oakland theaters. I didn’t see it, but am planning to do so soon; yesterday I had a chance to talk to some people who saw it, and one of them told me that a relative who came with him wanted to know, at the end of the film, whether it was “romanticized.” Films are never an accurate description of the truth, because the truth is messy and does not make for a neat and coherent story. But the story in the film resonates very strongly with those of us who were in Oakland the night of the protests, because it epitomizes what we know and believe is true, namely, that racism is alive and well in America. This feeling would be valid whether or not Mehserle reached to the taser or Zimmerman was attacked by Martin. Because it goes to the heart of a problem, and not to the details.

I read some reviews of Fruitvale Station, which were for the most part laudatory. One of the few exceptions was this piece of drivel by the NY Post’s Kyle Smith. You don’t really need to see the movie to learn something from this review–namely, that Smith doesn’t see Oscar Grant as a human being worthy of life and dignity. To him, Grant is merely a “criminal” and a “recent San Quentin resident,” the “only remarkable aspect” of whose life “was its end.” I suppose that for Smith, as for many people (and, judging from his words to the 911 operator, for George Zimmerman), human life doesn’t have intrinsic value when the person living it has darker skin and a criminal record. I don’t think any of us needs to canonize Grant or even Martin to understand this terrible truth (even though an unarmed honor student is, perhaps, easier to canonize.) That their lives and deaths are a morality tale about the fragile concept of sanctity of life in America for black and brown men is important enough. They don’t have to be all good and flawless. No one is. Even the people we have canonized, like Malcolm X and Martin Luther King, Jr., were real human beings with flaws and weaknesses. And when we wear the hoodie, we are not, perhaps, making a factual statement about an interaction we didn’t witness, but about its symbolic meaning.

A Racialized Criminal Justice System

Perhaps the resentment about Zimmerman’s verdict comes not from this place of truth and symbolism, then, but from a bitter acknowledgment that a black defendant would not have received this careful consideration, determined defense work and benefit of the doubt. It is one more data point on our chart of racial inequities in the system. When we decry the correctional binge that has bloated America’s prisons for the last four decades, we highlight the obvious racial aspect of it. Some of us go to the extent of referring to the incarceration system as the new Jim Crow.

As James Forman reminds us, however, the picture is more nuanced. A growing number of white people are criminalized, incarcerated, and their lives savaged by the meth plague, much as the not-imaginary crack epidemic savaged African American communities in the 1990s. Black and brown young men are incarcerated at much higher rates, but the white population is rising steadily as well and possibly faster. Contrary to what we believe, the prison inflation is not solely or even predominantly due to nonviolent drug crimes; violent crimes play a big role, and African Americans perpetrate more of those crimes, which are less open to interpretation. All of this does not mean that the criminal justice system is not racialized or that racism does not exist. Of course it does. But the roots of racialization may be much deeper than merely incarceration rates or stop-and-frisk practices, and go back in history to a place of coercion, slavery, torture, and the resulting deep-reaching inequities. Convicting a white man who killed a black man, no matter how enraged his particular story makes us feel, would not do anything to fix this. It would merely add one more inmate to the population.

The Empty Promise of Punitivism

Why would convicting Zimmerman not make us feel better this morning? Some of us, especially Trayvon Martin’s family, would perhaps find some comfort in a conviction. Even this is not a certainty. Tragically, a conviction will not bring Trayvon back to them, or to any of us, and the anguish and despair experienced at the loss of a loved one is a personal experience that takes its own course toward healing.

And what about the rest of us? Would a conviction make for a better tomorrow? Let’s, indeed, imagine an alternative universe, in which a guilty verdict sends Zimmerman to prison. The racialized lines formed around the trial will accompany him to prison and intensify there. There is no truce or hunger strike in Florida, and Zimmerman is embraced by the Aryan Brotherhood, fueling whatever racial ideas he has about the world and crystalizing them forever. Vilified by some and canonized by those who believe in maintaining the racial caste system in America, Zimmerman would become one more pawn in the battles fought across racial lines in the criminal justice system.

Many of the good, angry, upset, frustrated people who will be in the streets this afternoon protesting spend much of their time protesting the excesses of our prison system. If we believe, generally, that the hyperpunitive character of America’s incarceration project is destructive, dehumanizing, and ultimately counterproductive, then sending one more person, deserving as he may be, to this system is no cause for rejoice.

So, a guilty verdict would not send me frolicking in the streets. It would push me into solemn contemplation of the futility of remedying years of slavery, lynching, discrimination, with one “right” act. And mostly, into contemplation of the immense well of suffering that is to become Trayvon Martin’s family’s life for many, many days to come. Healing doesn’t come from a guilty verdict.

Where Healing Comes From

Nothing good comes from punitiveness, and it will not change what we know or think about the world. Healing comes from taking the rage and hot, burning energy we all feel this morning, and channeling it toward sentiments that produce effective change. It comes from taking a hard look at the immense resources we spend in maintaining a carceral colossus and investing them in educating a new generation of people who do not hate, suspect and judge others based on the color of their skin. That is the commitment I’d like to see renewed today, after our anger subsides and we start asking ourselves where to go from here.

Healing comes from a deeper understanding of the role of implicit biases in our own lives. From asking ourselves why one of Victor Rios’ young interviewees did not get a fast food joint job at an interview in which he refrained from shaking his prospective boss’ hand, not wanting to alarm a white woman with physical closeness. From asking why reaching out to others across skin color lines is such a frightening concept. From taking a cue from California inmates, who have realized that the unfair, torturous, abysmal incarceration conditions they face is a common enemy that transcends race and needs to be fought together.

“Sorrow is better than fear. Fear is a journey, a terrible journey, but sorrow is at least an arrival. When the storm threatens, a man is afraid for his house. But when the house is destroyed, there is something to do. About a storm he can do nothing, but he can rebuild a house.”

Alan Paton, Cry, the Beloved Country

Three-Judge-Panel: State Must Comply with Population Reduction Order; Jerry Threatened with Contempt

Image from CDCR’s three-judge-panel page.

A decision came out yesterday from the three-judge-panel that issued the original Plata v. Schwarzenegger decision: The state must comply with the original order. Moreover, should it not do so, it will be held in contempt. The L.A. Times reports:

In a blistering 71-page ruling, the jurists rejected Brown’s bid to end restrictions they imposed on crowding in the lockups. The state cannot maintain inmate numbers that violate orders intended to eliminate dangerous conditions behind bars, they said.

Brown and other officials “will not be allowed to continue to violate the requirements of the Constitution of the United States,” the judges wrote.

“At no point over the past several months have defendants indicated any willingness to comply, or made any attempt to comply, with the orders of this court,” they said. “In fact, they have blatantly defied them.”

The judges gave the state 21 days to submit a plan for meeting the population target by the end of the year. Administration officials said they would appeal the decision to the U.S. Supreme Court.

The piece pretty much speaks for itself, but I do want to say something about this to readers wondering why the state hasn’t been held in contempt so far, which is a question I get asked a lot when I talk about this. I think it’s important to understand that, while federal courts–rather than state administrators–have pretty much been the go-to place for inmate rights suits, courts are not natural policy designers. The judicial system is built on the premise of case-by-case arbitration, with an outcome that “takes sides” in a dispute between two parties (Martin Shapiro calls this “the logic of the triad“). Their ability to generalize and supervise is limited. The ways they perceive the world, discursively, are limited to assessing whether state agencies behaved in a way that violated constitutional standards – yes or no. Orders, supervision, revisiting issues–courts do all of those, but they do them because they have to. The hard work has to be done primarily by the state. Which is why, whenever possible, having a consent decree is a priority, and if that is impossible, it is at least useful to get some cooperation from the state and refrain from steps that will escalate the animosity between the state and the courts.

The escalation here–actually threatening the Governor with contempt–is understandable if one considers what Jerry has done in the last few weeks. He has attacked the special masters and receiver, and even griped about attorney’s fees for the inmates’ advocates. When seen in the context of this public relations crusade to besmirch the other side and the court-ordered mechanism, a threat of contempt is a logical response. And of course, the state retaliates by threatening an appeal to the Supreme Court. This is a collision course that will not end well, and it would behoove the Governor, and the state representatives, to consider growing up and collaborating with the courts. As things stand now, everyone has plenty to lose.

Film Review: West of Memphis

I have just returned from watching West of Memphis, the latest film in the West Memphis Three saga. This is a case I care about a great deal, and I have been following it for eighteen years, until its surprising ending last fall in an Alford plea.

Those of you who have followed the case and were convinced, as I am, of the defendants’ innocence, may have been drawn to the case by Joe Berlinger and Bruce Sinofsky series of documentaries Paradise Lost (1996), Paradise Lost 2: Revelations (2000), and Paradise Lost 3: Purgatory (2011). What could a fourth documentary possibly add to those?

Plenty, apparently. West of Memphis, directed by Amy Berg and produced by Damien Echols and his wife and staunch supporter Lorri Davis, as well as supporters such as Peter Jackson, offers fresh perspectives on the case that were not highlighted in the previous documentaries. If you thought what you saw in Paradise Lost of the trial was an absolute travesty, wait until you see incredible footage of the trial not seen in the original documentary. This movie also benefits from the passage of time and the discovery of new forensic evidence, as well as recantations by several key witnesses from the original trial.

The film has many strengths, but the most interesting bit, to me, was the blow-by-blow documentation of the Alford plea process, and in particularly the excruciating dilemma faced by Jason Baldwin, who did not want to plead guilty to a crime he did not commit. We got to hear moving words from the judge accepting the pleas (who was clearly convinced of the defendants’ innocence) and some ridiculous statements from prosecutors, present and past.

The weakness of the film is in its overemphasis on the alternative theory, according to which Terry Hobbs, stepfather of one of the children, committed the crime. It is true that some forensic evidence ties Hobbs to the crime, and he is therefore a more convincing suspect than John Mark Byers, who was cast as a possible suspect in Paradise Lost 2. At the time, I thought that the case against Byers was no less a witchhunt than against the original defendants. While these filmmakers have a bit more to support their theory, including DNA from the alibi witness, I can see a talented defense attorney explaining away the DNA evidence. The crime does not necessarily make sense, there is no clear motive, and the hearsay evidence about a late confession could be as problematic as the bogus evidence about Damien Echols’ alleged confession in the original trial. I think we can easily come to believe in Echols’, Baldwin’s and Misskelley’s innocence without casting aspersions on new suspects without conclusive proof.

That said, the film is a masterpiece: Beautifully filmed, fast paced, intelligent, and providing a fascinating perspective into the case and the defendants’. I urge you all to see it.