Trump Immigration Policy Floods Border Courts

Courtrooms near the border in southern and western Texas have been packed with immigrant detainees. In the southern district of Texas, the Operation Streamline caseload is double what it was two months ago. In Tucson, the court this year has handled 6,519 such cases, compared with 10,869 in all of 2017.

Federal courts near the heavily traveled border in southern Arizona have always trafficked in immigration, smuggling and narcotics cases. President Trump’s “zero-tolerance” policy calling for criminal prosecution of all those caught illegally crossing the border has swiftly flooded courthouses from Texas to California, the New York Times reports. Federal criminal prosecutions of migrants arrested along the southwest border jumped 30 percent in April over March, according to Syracuse University’s TRAC.  Nearly 60 percent of federal criminal prosecutions in April were for immigration violations. Multiple-defendant immigration hearings have been held for years in Arizona and Texas. Assembly-line justice known as Operation Streamline started under President George W. Bush and persisted under President Obama as immigration cases were on the rise. The Trump administration’s policy of prosecuting cases that previously were not a priority is pushing thousands of new defendants into the federal court system.

Courtrooms near the border in southern and western Texas have been packed with immigrant detainees. In the southern district of Texas, the Operation Streamline caseload is double what it was two months ago. In Tucson, the court this year has handled 6,519 such cases, compared with 10,869 in all of 2017. When Operation Streamline was launched by federal immigration authorities in 2008, it resulted in the criminal prosecution of all migrants, including those caught entering illegally for the first time. In recent years, most first-time offenders had been spared. The majority of those taken to federal court for criminal prosecution either had been apprehended at least twice before, or had committed a serious crime. Now, that’s all changed. “Many are showing up at the border for the first time ever and being prosecuted,” said Raul Miranda, the longest-serving private lawyer paid by the government to represent Operation Streamline defendants in Tucson.

from https://thecrimereport.org

High Court Rejects Drug Defendant’s Sentencing Plea

In a 5-3 ruling, the Supreme Court said that a federal drug defendant was not entitled to a detailed explanation from a judge of why a lower sentence wasn’t imposed in his case.

A federal drug defendant was not entitled to a detailed explanation from a judge of why a lower sentence wasn’t imposed in his case, the Supreme Court ruled today. The case involved Adaucto Chavez-Meza, who was sentenced to 135 months in prison, but after the U.S. Sentencing Commission lowered the guidelines range for his offenses, the trial judge reduced the term to 114 months.

Chavez-Meza thought he deserved an even-lower sentence, but Justice Stephen Breyer, speaking for a 5-3 majority, said that, “The judge’s awareness of the arguments, his consideration of the relevant sentencing factors, and the intuitive reason why he picked a sentence above the very bottom of the new range, the judge’s explanation (minimal as it was) fell within the scope of the lawful professional judgment that the law confers upon the sentencing judge.”

Dissenting, Justice Anthony Kennedy cited what he called a “serious problem—the difficulty for prisoners and appellate courts in ascertaining a district court’s reasons for imposing a sentence when the court fails to state those reasons on the record.”

Defendants and defense attorneys will be troubled that [Chief Justice John Roberts] along with Justices Breyer and Ruth Bader Ginsburg were all willing to embrace the “close enough for government work” approach in the case, says sentencing law expert Douglas Berman of Ohio State University in his Sentencing and Public Policy blog.

Ted Gest is president of Criminal Justice Journalists and Washington Bureau Chief of The Crime Report.

from https://thecrimereport.org

Judge Denies Officers Immunity in Apartment Break-In

Finding that the principle of qualified immunity has evolved to the point where it can protect police officers who intentionally flout constitutional rights, federal judge Jack Weinstein of Brooklyn declined to grant it to four police officers who broke into a man’s house without a warrant while responding to a child abuse report that turned out to be false.

Finding that the principle of qualified immunity has evolved to the point where it can protect police officers who intentionally flout constitutional rights, U.S. District Judge Jack Weinstein of Brooklyn declined to grant it to four police officers who broke into a man’s house without a warrant while responding to a child abuse report that turned out to be false, reports the New York Law Journal. Qualified immunity has recently come under attack as being too protective of police officers and standing at odds with the original intent of Section 1983 of the federal civil rights law, Jack Weinstein said. “The law, it is suggested, must return to a state where some effective remedy is available for serious infringement of constitutional rights,” he explained.

Weinstein said he finds the U.S. Supreme Court’s expansion of the doctrine in police brutality cases “particularly troubling” and that it protects “all but the plainly incompetent.” When weighing whether or not an officer is entitled to qualified immunity, the judge said, courts should apply the standard established in a 2001 Supreme Court ruling to analyze first if a constitutional violation occurred, rather than “skipping” to whether a right has been clearly established. Weinstein made the ruling in an excessive force case brought by Larry Thompson, whose sister-in-law called 911 in 2014 and said her two-week-old niece was being abused at Thompson’s apartment. Thompson’s sister-in law suffers from mental illness and lived at the apartment with Thompson and his family. Four police officers were sent to the scene, but Thompson refused to open the door unless the officers produced a warrant. He alleges that an officer threw him to the ground and entered.

from https://thecrimereport.org

NYPD Surveillance of Muslim Communities Decreased: Report

The first annual report of New York’s Handschu Committee, a court-appointed body to review police monitoring of Muslims shows the average length of investigations dropped from 427 days to 340 days. But critics say that’s still too long.

A federal court released Thursday the first annual report of former federal judge Stephen Robinson, the civilian representative appointed to oversee reforms in the wake of wrongful New York Police Department (NYPD) surveillance of Muslim communities.

Judge Robinson’s report affords the public a first opportunity to observe the workings of the “Handschu Committee,” the body charged with reviewing NYPD investigations of First Amendment-protected religious and political activity for compliance with a judicially-enforced agreement.

The report disclosed that since the civilian representative’s appointment, the NYPD has made fewer applications for such investigations, and the committee has denied significantly more applications. The average length of investigations approved by the committee has decreased as well, from 427 days to 340.

Judge Robinson expressed privacy and freedom-of-expression concerns over investigations and the NYPD’s use of unreliable information and sourcing. In his report, he verified that the NYPD continues to monitor New Yorker’s and others’ social media accounts.

The court created the position of a civilian representative as settlement to claims brought in two cases against the NYPD, Raza v City of New York and Handschu v Special Services.

Lawyers from the American Civil Liberties Union and the Creating Law Enforcement Accountability & Responsibility (CLEAR) project of Main Street Legal Services at CUNY School of Law, among others, brought Raza in 2013 on behalf of mosques, religious and community leaders, and a charitable organization. Plaintiffs claimed that the NYPD violated the U.S. and New York State Constitutions by singling out entire communities for investigations based on religion.

Handschu is a long-standing class action suit originating in 2013 alleging that the NYPD’s surveillance of Muslims violated protections of New Yorker’s lawful political and religious activities from unwarranted monitoring.

The civilian representative appointed in the 2017 settlement of the two cases is tasked with reporting to the court if the NYPD violates Handschu Guidelines, the rules governing NYPD surveillance of political and First Amendment-protected activity. The court originally ordered the guidelines in 1985, but weakened them in 2003 following NYPD requests for broader surveillance powers.

Although Judge Robinson’s report increases transparency of NYPD activities, CLEAR founding director Ramzi Kassem expressed dissatisfaction with the impact on NYPD surveillance practices thus far.

“While it is heartening that during the civilian representative’s tenure, the average length of all Handschu investigations has decreased, it remains shocking that, on average, covert police investigations of New Yorkers’ and others’ protected speech last over 340 days,” Kassem said in an  ACLU statement released Friday on the decision.

“That holds especially true when these investigations focus almost exclusively on American Muslims.”

“In August 2016,” he said, “the inspector general determined that Muslim-identified individuals or organizations featured in more than 95 percent of all NYPD intelligence files reviewed. Nothing in [Judge Robinson’s] report indicates this dramatic over-policing of a minority group has ceased or even changed.”

This report was prepared by Elena Schwartz, a TCR news intern. Readers’ comments welcome.

from https://thecrimereport.org

Will Persky Ouster Embolden Other Judicial Critics?

The successful recall of California judge Aaron Persky over a lenient sex assault sentence was unusual, but backers of judicial independence worry that it will provide other critics a blueprint for ousting jurists whose decisions they dislike.

The successful recall of Aaron Persky, the first such episode in California since 1932,  capped an emotional and intense two-year campaign led by opponents appalled at the  judge’s lenient sentencing of sexual assault convict Brock Turner. The recall campaign has been viewed by many in the legal establishment with trepidation about the signal it sends regarding judicial independence. Experts say the circumstances of the Persky case won’t be replicated easily. At the same time, some say the outcome gives judicial critics a new measure of confidence about the feasibility of ousting a judge through a recall or other election process and provides would-be recall campaign leaders a blueprint to follow, Law.com reports.

“It’s hard to meet all the requirements [of a recall]. It’s hard to get all the petitions signed, and then keep the anger level up,” said Indiana University law Prof. Charles Geyh, author of a forthcoming book on judicial elections. “This may embolden angry locals to get judges recalled in the near term.” Only nine states allow judicial recalls, and four of them require certain elements for the process to be triggered, said William Rafferty of the the National Center for State Courts. California is one of a handful of states, with Arizona, North Dakota, Oregon, and Wisconsin, that allow the recall of trial judges for any reason. Other states hold retention elections asking voters whether an appointed judge should be kept in office. In 2010, voters ousted three Iowa Supreme Court justices who were part of a unanimous ruling that legalized same-sex marriage. California Chief Justice Rose Bird was removed in 1986 in a retention election over her opposition to the death penalty. From the Persky campaign, future opponents of a judge can see that social media can play a huge role in sustaining the anger.

from https://thecrimereport.org

California Voters Oust Judge Aaron Persky

Persky, the judge whose lenient sentence for Brock Turner, a former Stanford University swimmer convicted of sexual assault provoked outrage, was recalled from office on Tuesday, becoming the first California jurist recalled from the bench in 86 years.

Aaron Persky, the judge whose lenient sentence for Brock Turner, a former Stanford University swimmer convicted of sexual assault provoked outrage, was recalled from office on Tuesday, becoming the first California jurist recalled from the bench in 86 years, USA Today reports. With 43 percent of precincts reporting, 59 percent of voters favored the recall. Persky, 56, a Santa Clara County Superior Court judge, became the target of a recall after sentencing Turner, who could have faced 14 years in prison, to six months behind bars. The 2016 sentencing took place before the #MeToo movement took hold, but the campaign has emboldened sexual assault survivors and forced criminal investigations and oustings of powerful men, most notably with Harvey Weinstein.

Persky’s supporters contend Turner’s sentence was a lawfully recommended penalty from probation officials. Persky cited Turner’s age, the fact that both he and the victim were drunk, and that prison time could have a “severe” impact on Turner’s life as the reasoning behind the sentence. Turner ended up serving only three months in jail. Those calling for the recall say this is just one of many sentences handed down from Persky that were far too light. Two women are running on the ballot to succeed Persky: civil attorney Angela Storey and prosecutor Cindy Hendrickson. Stanford law Prof. Michele Dauber led the charge against Persky. She said, “he has failed women in a very significant way …  many eyes are going to be on Santa Clara County as a model for how to respond to bias against women in the legal system.”

from https://thecrimereport.org

Offenders Have Multiple Convictions-Six for Federal Defendants

  Summation Almost three-quarters (72.8%) of federal offenders sentenced in fiscal year 2016 had been convicted of a prior offense. The average number of previous convictions was 6.1 among offenders with a criminal history. About 3 in 5 state defendants had at least one prior conviction. Author Leonard Adam Sipes, Jr. Retired federal senior spokesperson. […]

The post Offenders Have Multiple Convictions-Six for Federal Defendants appeared first on Crime in America.Net.

  Summation Almost three-quarters (72.8%) of federal offenders sentenced in fiscal year 2016 had been convicted of a prior offense. The average number of previous convictions was 6.1 among offenders with a criminal history. About 3 in 5 state defendants had at least one prior conviction. Author Leonard Adam Sipes, Jr. Retired federal senior spokesperson. […]

The post Offenders Have Multiple Convictions-Six for Federal Defendants appeared first on Crime in America.Net.

from https://www.crimeinamerica.net

Emotional Campaign to Recall California Judge

Differences of opinion are sharp over the recall vote Tuesday on Judge Aaron Persky, who two years ago sentenced Stanford University swimmer Brock Turner to six months in jail for assaulting a woman who lost consciousness after heavy drinking. Persky, 56, is the first California judge to face a recall vote in 80 years.

A campaign to recall a California judge for a lenient sentence in a high-profile sexual assault case has fractured long-term friendships, divided the liberal Democratic community of Santa Clara County and pitted feminists against feminists, the Los Angeles Times reports. Voters will decide Tuesday whether to recall Judge Aaron Persky, who two years ago sentenced Stanford University swimmer Brock Turner to six months in jail for assaulting a woman who lost consciousness after heavy drinking. Turner, 19 at the time, was convicted of three felonies: two for digitally penetrating an unconscious or intoxicated person and one for assault with intent to commit rape. He served three months and must register as a sex offender for life.

The sentence prompted a national uproar, coming at a time of heightened awareness of campus sex assaults and on the eve of the #MeToo movement. Persky, 56, is the first California judge to face a recall vote in 80 years. Emotions are so high that vandals have spray-painted over lawn signs opposed to the recall. The pro-recall signs display a photo of Persky next to Turner’s mug shot. The judge and the woman leading the campaign to oust him have received threats. Persky’s wife and Dr. Sophia Yen, one of the recall leaders, had been longtime friends, attended parties at each other’s homes and whose children played together. They no longer talk. Stanford law Prof. Michele Landis Dauber, a family friend of Turner’s victim, is the public face of the recall. She has long been an advocate for victims of sexual assault. Leaders on the other side include two female Santa Clara University law professors, the first black female judge in Northern California state courts and a former federal public defender. The legal community largely opposes the recall, calling it a threat to judicial independence.

from https://thecrimereport.org

In San Francisco, a Challenge to Incumbent Judges

Following on the campaigns to oust tough-on-crime prosecutors around the U.S., four public defenders are seeking to replace sitting judges on the ground that they are insufficiently progressive. The judges are defending themselves and have heavy-hitting supporters like Gov. Jerry Brown and House Minority Leader Nancy Pelosi.

Major U.S. cities are getting swept up in a movement to replace tough-on-crime prosecutors with reform-minded outsiders. On May 8, Durham County, N.C., District Attorney Roger Echols was defeated by Satana Deberry, who promised to bring “a culture change in the prosecution of crimes by addressing racial bias.” Like Philadelphia’s Larry Krasner, Deberry has no prosecutorial experience. In California, incumbent DAs are being challenged by public defenders and civil rights lawyers in Oakland, San Diego, and Stanislaus County. Other bids are in the works in Charlotte, Dallas, Baltimore and St. Louis, reports Slate.

Prosecutors are only part of the reform equation. State court trial judges preside over everything from murder trials to traffic ticket disputes. Until now, there hasn’t been a similar movement to replace them. In an unprecedented move in San Francisco, four public defenders (two black men and two Latinas) are running on a slate next Tuesday to unseat four incumbent judges—two white men and two Asian Americans. The incumbents are respected for their intelligence and legal acumen. None has been accused of misconduct or issued a recent high-profile controversial ruling. In the eyes of the challengers, the judges are proxies for an unacceptable status quo. They want to shake up a judiciary that they argue is unwilling to acknowledge its pervasive racial bias and is insufficiently progressive on issues like sentencing, bail, and police misconduct. The incumbents have responded with their own unified campaign, Retain Our Judges. Their endorsers include heavy hitters: Jerry Brown, Dianne Feinstein, Kamala Harris, and Nancy Pelosi. Under the headline “Reject This Assault on an Independent Judiciary,” the San Francisco Chronicle editorialized that the defenders’ decision to run as a foursome was an opportunistic gimmick, and opined that judges standing for re-election should not be opposed unless they’re demonstrably incompetent or corrupt.

from https://thecrimereport.org

Party Affiliation of Judges Can Determine Sentencing Length: Study

GOP-appointed judges hand down longer sentences to African Americans than whites for similar offenses, according to a study by two Harvard professors.  They argue the current polarized political climate in judicial politics is a “source of persistent racial and gender disparities.”

The political affiliations of judges contribute to racial and gender federal sentencing disparities, according to a forthcoming study in the American Economic Journal: Economic Policy.

The study found that Republican-appointed judges sentence black defendants three months longer than they do for non-blacks, and female defendants two months less than males, who committed similar offenses, compared to Democratic-appointed judges.

The researchers by two Harvard Professors of Law, Alma Cohen and Crystal Yang, used data from 1999-2015, analyzing over 500,000 federal defendants, and 1,400 judges. They found these disparities account for 65 percent of the baseline racial sentence gap, and 17 percent of the baseline gender sentence gap.

“Our findings suggest that judicial politics may be a source of the persistent racial and gender disparities in the federal criminal justice system, and that politics may play an even larger role today under the current state of increased sentencing discretion,” the authors said.

The authors went on to note that since the federal justice system is the “source of the largest and fastest growing prison population,” the appointment of federal judges is a critical contributing factor in racial disparities.

The study quotes other researchers as saying, “Seldom has (judicial selection) seemed more acrimonious and dysfunctional than in recent years.”

Earlier research indicates that black defendants receive harsher sentencing than similar white offenders, the authors say, and that male defendants are given substantially higher sentences than similar female offenders.

Research cited by the authors also indicates that Republican-appointed judges give longer sentences for the same crime than Democratic-appointed judges. This study builds off these studies and applies it to racial and gender sentencing gaps.

Lower federal judge appointments have gotten more attention in recent years as a result of the increasingly polarized political climate.

Judges are confirmed unanimously less often now, and appointments are more fervently debated among senators on different sides of the political spectrum.

An important factor the researchers analyzed was the effect of a Supreme Court decision in 2005, United States v. Booker, which gave judges more discretion in sentencing. Before Booker, judges were mandated by the United States Sentencing Commission to use the Federal Sentencing Guidelines.

This mandate applied to all federal offenses committed after November 1, 1987. After Booker, the guidelines were ruled as advisory, as opposed to mandatory.

“Republican-appointed judges sentence black defendants to 4.7 months longer in prison relative to non-blacks compared to their Democratic counterparts in the post-Booker period, a doubling of the gap prior to Booker,” the study said.

Additionally, the gap increased post-Booker because Democratic-appointed judges reduced their sentencing for Black offenders compared to non-black offenders.

The researchers also found that the sentencing disparities were substantially larger for more severe crimes, and that, “the magnitudes of the gaps are twice as large among the more serious offenses.”

The study also found a number of other disparities in sentencing. Defendants who are non-U.S. citizens receive longer sentences than U.S. citizens, and defendants with more dependents receive longer sentences that defendants with fewer dependents.

Additionally, “Defendants who plead guilty and defendants with higher education receive lower sentences than their respective counterparts.”

The researchers also detail how prosecutors factor into sentencing disparities when it comes to charging and plea bargaining. They found that prosecutors can adapt their initial charges or plea bargain offers, based on their prior knowledge of the judge and his affiliations or propensities. This is called bargaining “in the shadow of the judge.”

The study also stated, “Prosecutors are significantly less likely to offer substantial assistance motions to black defendants relative to non-black defendants, while they are more likely to offer substantial assistance motions to female defendants relative to male defendants.”

The researchers note that while prosecutors do have a substantial effect, their data still indicates that judges play an important role in sentencing disparities.

This summary was prepared by Dane Stallone, a TCR news intern. Readers’ comments are welcome.

from https://thecrimereport.org