Crimmigration Meets Sentencing: Assimilating the Apprendi Doctrine to Simplify the Categorical Analysis

As part of my visitorship at Harvard, I’m having the great pleasure of auditing Philip Torrey‘s terrific Crimmigation class and learning a lot about this relatively new, but hugely important, legal field. After Padilla v. Kentucky, knowing the immigration consequences of criminal convictions are not just “nice to know”–they are an ethical obligation for criminal attorneys, and our shameful immigration policy means that many, many criminal cases will have immigration consequences.

Because removal from the U.S. is one of the most severely destructive things you can do to a person’s life–far more destructive than the domestic sentences for many offenses–it is imperative that these consequences be foreseeable. Indeed, when you read caselaw written about crimmigration the judges will often say “this is obvious”, but it is not obvious at all. The categories are nebulous and complex, the overlap between federal and state law is far from complete, and on the receiving end of this are people who have to figure out their criminal case strategy with an eye toward the immigration consequences. So, simplifying the analysis is overall a good thing.

In this post I’m presenting one idea/suggestion on a possible simplification of crimmigration, which in the grand tradition of the field, requires importing an idea from the criminal to the immigration realm–namely, planting the Apprendi analysis regarding the definition of an “element” of the offense to the categorical analysis done in immigration removal cases. Let’s explain.

When a person is removable from the United States on criminal grounds–whether as “inadmissible” (having not been legally admitted into the country) or “deportable” (having initially arrived here legally)–the law governing the removal can be found in sections 212 and 237 of the INA. These sections enumerate the sorts of criminal consequences that trigger removal. In general–and this is hugely simplified–“inadmissible” noncitizens can be removed following a conviction for a “crime of moral turpitude”, a controlled substances offense or two or more convictions of some seriousness, or for being known as a controlled substance trafficker or a trafficker in persons or engaging in prostitution or other commercialized vice. “Deportable” noncitizens can be removed following a conviction for a recent crime of moral turpitude (or a combination of older crimes of moral turpitude), an “aggravated felony” (which need not be aggravated nor a felony), high-speed flight from an immigration checkpoint, failure to register as a sex offender, or an offense involving controlled substances, firearms, or domestic violence (more detail on all this in my colleague Richard Boswell’s excellent book.)

The challenge in applying these categories lies in that the federal definition of these offenses, as well as of the concept of “conviction”, can differ from the state definition where the person was tried and convicted. Setting aside the issue of “conviction”, which in itself is complicated, how can we tell whether a state conviction for a violation of a particular state statute is the equivalent of a conviction for an “offense involving controlled substances” as per immigration law?

To resolve this question, immigration courts recur to the “categorical approach”: the analysis focuses on the content of the relevant statutes (the state criminal statute and the federal immigration statute) rather than on the facts that gave rise to the incident. Basically, the court will analyze the offense from the immigration statute, analyze the elements of the criminal statute, and if the former is narrower or equal to the latter (at its least culpable version), the person is deportable on criminal grounds. This kind of analysis is reminiscent of the analysis of several criminal procedure and sentencing doctrines, starting with the application of the ACCA (Descamps, despite having nothing to do with immigration, is regarded as precedent for immigration cases) and continuing with the Blockburger test for “same offense” in the double jeopardy context.

But wait! Things get complicated, because state statutes are seldom straightforward. They often include several alternative actions, circumstances, or mental states. When faced with such complexity, immigration judges have to figure out whether it is a “divisible” or an “indivisible” statute. A “divisible” statute is a statute that includes several alternative elements, in which the jury has to find positively, beyond a reasonable doubt, that a particular subset of these alternatives (as opposed to the other alternatives) occurred. If that’s the case, the “modified categorical approach” allows the court to go beyond the face of the statute and look at actual documents from the case–say, the indictment, the plea colloquy, the jury instructions–to figure out which version of the divisible statute the person was convicted of. Then, the court proceeds with the categorical analysis with respect to that particular subdivision. By contrast, some statute will enumerate alternative features, but those don’t rise to the level of “elements”–they are merely “means”, which is to say, a criminal jury is not required to specify which of these they found occurred in the case. If so, the regular categorical analysis stands and the court won’t be permitted to go beyond the language of the statute.

Corollary: It is very important, for immigration law purposes, to know whether the alternative wording in the statute constitute “elements” or “means”.

For an example of this analysis, look at the Ninth Circuit decision in Rendon v. Holder (2014). The case involved the California burglary statute, which prohibits entry with intent to commit “grand or petit larceny or any felony.” Because not any felony is larceny, there’s a possible argument that this is a divisible statute; but the Ninth Circuit analogized this case to Descamps, which deals with the exact same statute in the ACCA context, to say that it is not a divisible statute. The reason? A California jury deliberating a burglary case would not be required to unanimously decide between “larceny” versus “any felony,” or to unanimously agree as to the “felony.”

How do we know this? One tell-tale sign would be if the burglary statute affixed different sentences to people entering to commit “larceny” and people entering to commit some other felony. That would be an indication that these elements have to be found by a jury. But this is not the case here, so the courts in Descamps and Rendon have to go into the statute and into jury instructions etc.

The thing is, we don’t actually need the middle man. In 2000, SCOTUS decided Apprendi v. New Jersey, which is not an immigration case but a sentencing case. The story was as followed: Apprendi fired several shots into the home of an African-American family and made a statement–which he later retracted–that he did not want the family in his neighborhood because of their race. He was charged under New Jersey law with second-degree possession of a firearm for an unlawful purpose, which carries a prison term of 5 to 10 years. But New Jersey also had a hate crime statute, which was not mentioned in Apprendi’s charge, and which doubles the sentence of a crime if a trial judge finds, by a preponderance of the evidence, that the defendant committed the crime with a hate motive. Apprendi pleaded guilty, the prosecutor filed a motion to enhance the sentence, and the judge found by a preponderance of the evidence that the shooting was racially motivated. As a consequence, Apprendi got 12 years – 2 more than the maximum sentence for the basic firearms conviction. On appeal, Apprendi argued that the hate motive should have been mentioned in the charging document and proven to a jury beyond a reasonable doubt–in other words, according to the classification that was valid at the time, that the “hate motive”, despite appearing in a separate statute, was an “element of the offense” and not merely a “sentencing enhancement.” Writing for the majority of the Court, Justice Scalia found that the distinction between an “element” and an “enhancement” was unclear and unnecessary, and that the 6th Amendment, as well as the principle of legality, required a jury decision beyond a reasonable doubt regarding “any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction.”

Apprendi yielded a whole series of cases dealing with the question of what counts as an “increase in penalty”, but that’s not of concern here: what I argue is that the same test can be used in the immigration context, and it renders unnecessary the whole distinction between “elements” and “means.” If the ruling in Apprendi is adopted in the immigration context, immigration judges looking at a complex statute need only ask about a particular part of the statute: does this part impact what sentence the person’s going to get? If so, the statute is divisible, and this fact is the subdivision we have to apply the modified categorical approach to. If not, the statute is indivisible, and we don’t have to worry about this part and we apply the straightforward categorical approach.

Why is this a good suggestion? Well, for one thing, it makes things simpler. This in itself is a virtue in immigration, and the reason why the categorical approach was adopted to begin with: clear administrative decisionmaking and uniformity. This is especially important, because while the logic behind not getting into the facts was supposedly to make things easier, it hasn’t, and courts bumbling through doctrinal analysis don’t necessarily do a better job than courts bumbling through case facts. If there’s something we can do to simplify the doctrinal analysis, we’re actually helping.

In addition, adopting Apprendi in immigration removal cases the trend of adopting criminal law logic in immigration contexts, and would do something to correct the imbalance in the interface between the two areas of law. It would also harmonize the tendency to prefer these kind of clean, element-based analysis with other areas of criminal law, such as double jeopardy. 

Finally, this is not a bleeding-heart-open-borders suggestion: presumably, if you are the “you do the crime, you do the time, you leave the country” type, without fair warning as to what the “crime” consists of, you don’t have much of a moral basis for your retributive stance.

I’d love to hear your thoughts.

Book Review: Mona Lynch’s Hard Bargains

Jeff Sessions’ career as Attorney General started exactly with what you would expect from him: a revocation of the Obama Administration’s commitment to end reliance on private prisons for domestic inmates and the promise to ramp up marijuana enforcement. Both of these are examples of this government’s effort to find the most reasonable, fiscally responsible, and decent thing that should be done and then do the exact opposite.

We know that private prisons in the federal system are not big players in the overall incarceration picture. The Obama Administration’s declaration that they would cease to rely on them seemed more a symbolic move than something that would actually make a difference (not that they could intervene in state incarceration matters anyway.) Moreover, throughout that period, private facilities were still used (and are still used) for incarceration of immigrants before deportation, and there was never any talk of stopping that practice.

We also hear the federal government arguing for a dinosaur-era approach to marijuana, featuring a new lie: that marijuana usage is related to opioid overdosing, which is unsupported by research and harkens back to the dark days of the Anslinger war on drugs in the 1920s.

These developments make Mona Lynch‘s new book, Hard Bargains, remarkably timely. In the book, Lynch conducts a careful and perceptive ethnography of three federal district courts: one in the Northeast, one in the Southeast, and one in the Southwest. Lynch is well aware that federal prosecutions are not the driving force behind mass incarceration, but she uses federal drug enforcement as an interesting laboratory for the study of prosecutorial discretion.

Indeed, the main takeaway from the book is the unhealthy combination of two seemingly contradictory factors: the existence of tough sentencing laws, which presumably bind discretion (albeit less so since 2005), and the existence of broad prosecutorial discretion, which allows them full use of these draconian sentencing provisions. On the back cover, Kate Stith, whose excellent book with Jose Cabranes Fear of Judging was a well-informed and passionate cry against sentencing guidelines,  interprets Lynch’s analysis as pointing to lack of discretion. I think the lack of discretion is only half of the problem. With the advent of extreme sentencing laws, how they are deployed is up to individual prosecutorial ideology, and as an outcome, a different culture of federal sentencing develops in the three different districts.

Not that any of these is particularly appetizing. Lynch’s account of the Northeast depicts a court that is captive in the hands of a zealous prosecutor on a mission to “rescue” people from themselves and from the streets, who basically wrangles minor drug cases out of the states’ hands and pushes them into the federal system, sometimes in violation of the Petite policy of refraining from double prosecution. In his enthusiasm to end the drug epidemic, he imposes lengthy and unreasonable restrictions on their freedom, which the court almost invariably approves. In the Southeast, there isn’t even a pretense of rehabilitation: an elderly judge delivers moralizing lectures to defendants on the receiving end of obscene, decades-long sentences for nonviolent drug crimes. And in the Southwest, marijuana backpackers–poor, undocumented immigrants carrying marijuana by foot as payment to their coyotes–are rounded up, summarily shifted to “flip flop court” for misdemeanor charges, where they are made to plead guilty in batches and march off to detention before deportation.

It’s difficult to figure out which of the three models is the most horrible. The variations confirm, though, that when outrageous mandatory minimums, unreasonable calculations of criminal histories, and breathtaking arbitrariness in terms of offense categories, come together, the problem is not, or at least not exclusively, lack of discretion. The problem is that a dazzling array of options, including very frightening and oppressive ones, is on the table, and prosecutors get to pick and choose which of these to deploy.

The extent of prosecutorial power here cannot be underrated. The publication of Hard Bargains coincides with the publication of John Pfaff’s Locked In, which looks at the unfettered discretion and power of county prosecutors (and which I’ll review in a future post). Lynch and Pfaff’s analyses are complementary.

As in her previous book Sunbelt Justice, Lynch is not only a meticulous and perceptive observer but also a master storyteller. The defendants, prosecutors, and judges come to life in her vignettes from court cases she witnessed. Her description of the poor, disenfranchised immigrants forced to plead guilty in batches is particularly disheartening (my students were in tears when I read this section aloud in class yesterday.) Lynch has a keen psychologist’s eye for personalities and motivations, and she realistically captures the ideologies and worldviews that make her characters tick.

It is horrifying to think of how this system, already bloated, draconian, and rotten in the Obama years, could wreak more havoc and destruction in Trumpistan, and the news from the last two days suggest at least two directions in which things could get even worse: reintroducing the profit mechanisms that drove private incarceration by improving these companies’ relationship with the feds, and inflicting the awful drug sentencing scheme on marijuana defendants to an even greater extent (with the obvious potential victims being the people at the bottom of the Trumpistani social ladder: poor immigrants from Mexico.) I dread to think that the horrors and inhumanities described by Lynch could be something we might come to miss in the years to come.

More on Governor Brown’s Sentencing Initiative

This is a follow-up to my initial comments on the proposed initiative, titled The Public Safety and Rehabilitation Act of 2016,  I’ve had a chance to read the text, and also to peruse my rockstar colleague David Ball’s terrific comments.

There are basically two parts to the reform. One of them, which I covered in my previous commentary, is the move away from determinate sentencing and toward parole hearings–and as I said in my previous post, this is only a good thing insofar as we believe that parole commissioners will make better decisions than prosecutors. Granted, any decision that takes into account the particular individual’s situation is better than a rubber stamp based on severity of the offense, one’s rap sheet, and these two factors alone, but I have come to see the way parole boards exercise unfettered discretion regarding lifers as something to worry about, and would like to see some supervision and standards (not to mention more training) for commissioners.

The other part is the abolition of direct filing and placing the decision whether to try a juvenile as an adult in the hands of the court, not the prosecutor. As Ball points out, the numbers are pretty small, but for the individual, how discretion is applied could matter a great deal.

I remain overall optimistic, even enthusiastic, about this–but only to the extent that we’re not merely transferring the exercise of unfettered discretion from one actor to another without thinking about effective guidelines and supervision for its application.

BREAKING NEWS: Has SCOTUS Lost Its Appetite for Sentencing Enhancements and Risk?

Amidst the good news that are not this blog’s topic, about which you can read here and here, the Supreme Court also decided an important sentencing case, Johnson v. U.S.

The case involves the federal Armed Career Criminal Act, a habitual offender law that provides a sentencing enhancement upon committing the third violent offense. The residual clause of the law defines “violent offense” as any offense that “involves conduct that presents a serious potential risk of physical injury to another.”

In Johnson’s case, the sentence was enhanced because his third offense was possession of a firearm (Johnson is a felon, and the firearm in question was a sawed-off shotgun. If you want more background, Johnson was being monitored for belonging to a white supremacist organization and being a source of concern re terrorism, and confessed to some pretty scary plans in that regard–so you can be sure thta this decision is not about his niceness).

The initial question put before the court was whether possession of a firearm fits the definition in the residual clause, but the Supreme Court asked the parties to brief on a broader issue: the definition of “violent offense” itself. Today, the Court sided 8-1 with Johnson, finding that the definition of “violent offense” was too vague and did not provide sufficient warning about conduct.

The vagueness, according to Justice Scalia who wrote for the majority (!!!), lies in the fact that the clause provides no guidelines for what counts as “risk” posed by the crime (statistics? similarity to enumerated offenses? precedents have taken various and different tacks) and for assessing the amount of “risk”. Even seemingly easy issues turn out to be difficult to call. Notably, Scalia gives the example of “prison rioting”, which he is willing to say is an offense that is defined so broadly that it doesn’t necessarily generate “risk” of injury (!!!). Moreover, it is not necessary that a vague statute be “vague in all its applications”.

The court also rejects the suggestion that “risk” be interpreted based on what each defendant actually did, rather than based on the average case. This is important in the facts of Johnson itself: It may well be that many felons in possession of a firearm don’t pose as much risk as Johnson, a white supremacist with violent plans against progressives and minorities, but Johnson needs to be judged by the overall risk of the offense, not by his particular plans.

Finally, the court states that its decision is prompted by the massive confusion among lower federal courts on how to interpret the clause.

Justice Thomas arrives at the same conclusion via a different path–finding that possession of a firearm does not the definition in the residual clause. He agrees with the sole dissenter, Justice Alito, that the statute is not so vague as to merit its invalidation.

A few thoughts:

  1. It’s hard to ignore the particular facts of this case given the tragic events of last week in South Carolina. Johnson’s plans were similar to those that Roof put into action. Is the 8-1 decision here explainable, politically, via pro-gun sentiments among the conservative Justices?
  2. This decision might suggest that the Court has lost its appetite for sentencing enhancements. In Criminal Procedure II, I teach cases that have bent over backwards to uphold enhancements–including, in the case of California’s Three Strikes, the ability to add two strikes at the same time (which obviously can’t be justified by the need to deter–just by the wish to incapacitate.) Here we see that the Court pays a lot of homage to the idea of behavior modification, invoking the principle of legality. If I were teaching first year criminal law next year, I’d teach this case on the first day of class.
  3. The decision also highlights a disenchantment with the language of risk and panic, which has characterized so much of American criminal justice in the era of the “New Penology“. 
  4. Many commentators on the new state of criminal justice, including me in Cheap on Crime, have pointed out that much of the new project of scaling back mass incarceration addresses nonviolent offenders, and retrenches opinions about violent offenders by lumping them all in the same category. I find it remarkable, and heartening, that this decision strikes at the heart of the issue, arguing against an overbroad category of violent offenses. I’m not sure Johnson should necessarily be on that side of the distinction, but as the Court states, this is about the offense, not about the offender.
  5. Finally, I find it notable that Justice Scalia–who, in Brown v. Plata referred to inmates as “speciments”–chose, as one of his examples, prison rioting, explicitly stating that the definition of rioting is so broad that it is not necessarily a violent offense. Attorneys in Ashker v. Brown, the lawsuit against long-term solitary confinement, should take note of this comment. I think it’s important. It’s the third Supreme Court statement this week that is sympathetic to prisoners.

Correcting the Crack/Powder Cocaine Sentencing Disparity

Yesterday, SB 1010 passed in the California Senate, and it is on its way to the Assembly. The purpose of the bill is to eliminate all disparity between the sentences for possession with intent to sell of crack  and powder cocaine, by reducing the sentence for the former from 3, 4, or 5 years, to 2, 3, or 4 years. It also eliminates the differences in quantities (a 1:2 ratio in California) between the two drugs for a variety of manufacturing offenses and mandatory prison sentences.

For those unfamiliar with California sentencing, we do not have a sentencing commission. Our sentences are meted out by the legislature, and felony sentencing follows a “triad” of offenses. After Cunningham v. California (part of the Apprendi line of cases), the judge can pick any of the three sentences (but nothing above, below, or in between).

The passage of SB 1010 is a reminder of how much the zeitgeist has changed. Four District Attorneys–in Los Angeles, Santa Barbara, Santa Clara, and San Francisco–are supporting the proposition. In a few short years, the crack/cocaine disparity has lost favor fairly dramatically.

That the disparity is proxy for racial discrimination is now a commonly held perspective (see here and here), but it is not a wall-to-wall consensus. There are still commentators who believe that the addictive power per molecule justifies a disparity, and others who attribute the rise in urban crime in the 1990s to the crack epidemic. As many readers know, the Obama administration reduced the federal disparity from 100:1 to 18:1. With public climate about crack sentencing considerably altered since the 1990s, I think we can expect SB 1010 to pass in the Assembly in August and reach Governor Brown’s desk soon.

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cross-posted to PrawfsBlawg.

Big Developments on the Federal Sentencing Front

The last few months in Federal sentencing have been rather monumental, at least in rhetorical terms. In 2010, as readers may recall, Congress enacted the Fair Sentencing Act, famous particularly for the diminished crack/powder cocaine sentence disparity. And just recently, the Department of Justice announces a clemency initiative that could have far-reaching consequences.

Last December, President Obama took steps toward addressing this situation by granting commutations to eight men and women who had each served more than 15 years in prison for crack cocaine offenses. For two of these individuals, it was the first conviction they’d ever received – yet, due to mandatory guidelines that were considered severe at the time, and are out of date today – they and four others had received life sentences. Since that time, the President has indicated that he wants to be able to consider additional, similar applications for commutation of sentence, to restore a degree of fairness and proportionality for deserving individuals. The Justice Department is committed to responding to the President’s directive by finding additional candidates who are similarly situated to those granted clemency last year, and recommending qualified applicants for reduced sentences.

We are launching this clemency initiative in order to quickly and effectively identify appropriate candidates, candidates who have a clean prison record, do not present a threat to public safety, and were sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate. While those sentenced prior to the Fair Sentencing Act may be the most obvious candidates, this initiative is not limited to crack offenders. Rather, the initiative is open to candidates who meet six criteria: they must be (1) inmates who are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense today; (2) are non-violent, low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels; (3) have served at least 10 years of their sentence; (4) do not have a significant criminal history; (5) have demonstrated good conduct in prison; and (6) have no history of violence prior to or during their current term of imprisonment.

Check out this reaction from the Brennan Center:

“With this initiative, the president is making better use of his clemency powers to reduce our exploding prison population,” added Inimai Chettiar, director of the Brennan Center’s Justice Program. “This is an excellent use of executive power by the president. Additional opportunities to use clemency to reduce mass incarceration exist. Specifically, in addition to these important steps forward, the Justice Department should work to identify and seek out the estimated 5,000 Americans who languish in federal prison because they were sentenced before the 2010 Fair Sentencing Act reduced the unjust sentencing disparity between crack and powder cocaine crimes. It should then solicit, review, and expedite clemency applications from these prisoners, instead of waiting for them to identify themselves.”

We can’t help but agree, and add another comment about the difference between executive clemency and other ways of ending the war on drugs: Providing a legal solution that would be retroactive would be incredibly tricky. Many of the cases of people who might receive clemency under this new order are already final, in the sense that all direct appeals of them have been exhausted (or not pursued.) Reopening cases that are final can only occur under very, very rare circumstances. It is exactly in these sort of situations that clemency is a better solution than a necessity for the legal apparatus to admit its defeat and lose legitimacy.

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.

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Assembly to Consider Bill Allowing Parole for Juveniles Sentenced as Adults

SB 260, proposed by Senator Loni Hancock, offers the possibility of judicial review of sentences of juveniles who were tried as adults. From the bill [cleaned-up text]:

This bill would require the Board of Parole Hearings to conduct a youth offender parole hearing to consider release of offenders who committed specified crimes prior to being 18 years of age and who were sentenced to state prison and. The bill would require parole consideration to be given during the 15th year of incarceration if the person meeting these criteria received a determinate sentence, during the 20th year if the person received a sentence that was less than 25 years to life, and during the 25th year of incarceration if the person received a sentence that was 25 years to life. The bill would require the board, in reviewing a prisoner’s suitability for parole, to give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law. The bill would require that, in assessing growth and maturity, psychological evaluations and risk assessment instruments, if used by the board, be administered by licensed psychologists employed by the board and take into consideration the diminished culpability of juveniles as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the individual. The bill would permit family members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge about the young person prior to the crime or his or her growth and maturity since the commission of the crime to submit statements for review by the board and would permit the individual to designate one person to attend the youth offender parole hearing and read a brief statement. 

This bill is, in a way, an extension of SB 9, which created a similar process for juveniles sentenced to life without parole. It would extend the courtesy of judicial review to juveniles serving long sentences. The release is not automatic or mandated, and as the text says, the offenders will have already served lengthy sentences – 20 or 25 years, depending on the original sentence. The bill will not apply to third strikers or to folks whose resentencing is covered by SB 9.

The bill hits the Assembly floor tomorrow.

Restorative Justice in Murder Cases

Conor McBride and Ann Grosmaire in 2010.
Courtesy the Grosmaire family and the New York Times.

In 2001, still in practice as a reservist for the Israeli Military Defense Counsel’s office, I represented an inmate who was serving a life sentence for murder. Four years earlier, he had shot another soldier to death over a dispute about using the public phone. My client wanted help with a petition to the President of Israel. Under Israeli law, all life sentences are not truly for life; it is the President’s prerogative (a relic from colonial days, when the British Governor held the equivalent position) to determine how many years “life” would be.

As we put together the documentation for the petition, we also discussed my client’s desire to meet the victim’s family and express his remorse for what he had done. He wanted to ask for their apology. I was doubtful that we would succeed, but made some phone calls to the Ministry of Justice. At the time, restorative justice was a nascent field in Israel, and the people I talked to were reluctant to take on this project. They had not tried restorative justice in serious offenses such as murder, and in light of the victim’s family’s position during the trial (they were, understandably, very upset and very hostile toward my client) did not believe that the family would want to hear from my client, let alone be in the same room with him.

I left the country shortly after handling the case, but often wondered over the years what happened to my client. We recently got in touch again and I was glad to hear that he was doing well in prison, working and studying, and making plans for his release.

This is why yesterday’s New York Times story about restorative justice moved me very deeply. It is a story from Florida about a restorative justice meeting between the family of Ann Grosmaire, who was murdered by her boyfriend, and Conor McBride, the man who took her life after a long argument. The article is worth reading in full, because it vividly tells the story from the perspectives of the different parties that took part in the process: Ann’s parents, Conor’s parents, Sujatha Baliga, the facilitator and a former public defender from Oakland, and the prosecutor, Jack Campbell. The pain of the victim’s family is indescribable; the depths of their forgiveness – granted for themselves as well as for him – incredible. I can’t recommend it enough.

One of the major challenges on the road to accepting restorative justice as a legitimate and important step in the criminal justice is the victim’s contribution to the outcome. After all, two murderers can end up receiving very different sentences, depending on their victim’s family’s feelings on the subject. Is that fair? Perhaps not from the traditional criminal justice stance. But it is easier to accept such an outcome if one thinks of a murder as something that happens in a certain context, a certain relationship between the murderer and the victim and the people in their lives. As such, the murder “belongs” not only to its perpetrator, but also to those who suffer the ramifications. Nils Christie’s classic article Conflicts as Property advocates returning the conflict to the victim and minimizing the role of “conflict thieves” – lawyers, judges, system actors – in its resolution.

This is why it was important, in the Prop 34 campaign, to remind all of us that not all victims are punitive and not all of them believe in the death penalty. This nuanced L.A. Times story shows that different victims responded differently to the prospect of applying the death penalty. Respect for victims means not treating all of them, cookie-cutter style, automatically as staunch supporters of the prosecution, but rather giving them the space to say what they want from the process and how they choose to engage with what happened to them.

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Props to Sal Giambona and David Takacs for alerting me to the article.