Three states have acted this year, and three others have abolished civil forfeiture entirely, says the libertarian Institute for Justice.
In the last three years, 24 states and the District of Columbia have reformed their civil forfeiture laws, and North Carolina, New Mexico and Nebraska have abolished civil forfeiture entirely, says the Institute for Justice, which calls itself the nation’s only libertarian, civil liberties, public interest law firm.
Minnesota, Michigan and Utah have enacted reform this year of civil forfeiture statutes, which allow law enforcement officers to seize property of crime suspects and convicted people. Yesterday, The Crime Report erroneously labeled a report on asset forfeiture by the institute as new. The study was issued in late 2015. The institute’s website provides updated reports on asset forfeiture policy changes by states and the federal government.
County supervisors will take a close look at the impact of three statewide justice reform measures passed since 2011. Some advocates cited the fatal shooting of a police officer, allegedly by a man who had violated his probation several times.
Michael Mejia violated his probation several times in the 10 months after he was released from California’s Pelican Bay State Prison in last year. Then, on Feb. 20, authorities say, Mejia gunned down his cousin, followed by the fatal shooting of Whittier police officer Keith Boyer hours later. He has been charged with two counts of murder, the Los Angeles Times reports. The officer’s slaying prompted an investigation into Mejia’s release and his supervision by the Los Angeles County Probation Department. Yesterday, it was cited repeatedly as a reason to create a blue-ribbon commission to study the impact of state criminal justice reforms in L.A. County.
Creation of the 27-member panel was approved by the county Board of Supervisors in a 3-0 vote. It will examine the “challenges and opportunities” related to recent state criminal justice reforms. Three measures passed starting in 2011 shifted public safety responsibilities from the state to counties, downgraded some property and drug felonies to misdemeanors, and allowed for the early release of some inmates. “This is not a referendum on criminal justice reform efforts,” said Supervisor Janice Hahn. “Instead, this should be a conversation on how we make the reforms that we do have work.” Discussion at yesterday’s board meeting often centered on the merits of the reform measures and their effects on crime rates. “While developed with good intentions, the legislation may have created unintended consequences, placing our public and our first responders at risk,” said L.A. County Sheriff Jim McDonnell, who favored the creation of the commission.
Survey by Alliance for Safety and Justice finds victims blames crime on drug and alcohol addiction, mental health issues, lack of jobs, not undocumented immigrants.
More than 800 crime victims surveyed by the Alliance for Safety and Justice, which favors criminal justice reform, supported priorities very different from President Trump’s, the New York Times reports. About three in four said they were happy with their local police and law enforcement in general. About one-third held positive views of Attorney General Jeff Sessions. Asked to name two things that contributed most to crime in their communities, just 12 percent of victims blamed undocumented immigrants. Almost nobody thought there were too few people in prison. More than half named drug and alcohol addiction, and nearly a third pointed to poor parenting. Mental health issues and a lack of job opportunities also ranked high on the list.
A vast majority of respondents supported more treatment for addiction and mental health, while they were less enthusiastic about Trump administration policies like seeking the maximum punishment for drug offenders and increasing deportations, which only 40 percent of respondents favored. Nearly two-thirds said they did not want federal drug laws to be enforced in states where marijuana use has been legalized. Sessions has sent strong signals that he will pull back from the Obama administration’s aggressive oversight of police departments, suggesting that it encourages disrespect for the police and hampers their ability to do their jobs. Fifty-four percent of crime victims opposed any retreat from federal oversight.
Backers of the measure say people shut out by landlords based on their criminal histories can end up homeless and are more likely to reoffend than people with housing. A landlord complains that the proposal’s advocates want to “put the safety and security of tenants at risk.”
Seattle landlords would be almost completely prohibited from screening prospective tenants based on their criminal histories, under a proposed ordinance approved by a City Council committee, the Seattle Times reports. The only people who could be denied housing based on their criminal histories would be those listed on sex-offender registries because of adult convictions. The proposed ordinance cleared the civil-rights committee by a 6-0 vote, which means the full nine-member council will almost certainly approve it.
Some landlords say they should be allowed to consider the criminal histories of prospective renters to protect their property and their tenants. Landlord Sara Weaver said the ordinance’s backers want to “put the safety and security of tenants at risk and set property owners up for potential damage.” Proponents of the legislation say people who already have served their time shouldn’t be again punished by landlords. They say people denied by landlords based on their criminal histories can end up homeless and are more likely to reoffend than people with housing. Backers point to studies of supportive-housing programs in which criminal records were not shown to be predictive of problem tenancies. “Please help the homeless people. They have rights, too. They’re human beings just like we all are,” said Mellie Kaufman of the Real Change Homeless Empowerment Project.
In a swipe at the agency she recently left, former Assistant Attorney General Karol Mason, the new president of John Jay College of Criminal Justice, says she plans to expand the school’s role so that it leads the national conversation on innovations in the courts, corrections and policing to fill the “void” created by the current Department of Justice leadership.
Karol Mason, the new president of John Jay College of Criminal Justice, envisions expanding the school’s role so that it leads the national conversation on innovations in the courts, corrections and policing now that, she says, the U.S. Department of Justice has essentially bowed out, reports The Chief Leader in New York City.
Charging that U.S. Attorney General Jeff Sessions is moving the clock back on justice issues by decades—“I’d say to the fifties”—John Jay is well-positioned to step up, said Karol Mason, who served as an Assistant Attorney General under President Obama.
“We no longer have the federal leadership we’ve had on these issues and I’d like for John Jay to fill that void,” she said. “We don’t need the federal government to lead us and guide us to do these reforms. We can do it ourselves.”
She cited the importance of research on criminal justice, which she oversaw at DOJ and for which John Jay is well-known, to determine what works, so that money and lives can be saved.
“You assess things to find out if they’re a good investment,” she said. As an example, she said Sessions’s order to seek maximum prison terms for drug violators flies in the face of studies that show it’s addiction treatment, not incarceration, that breaks the cycle of criminality.
She also mentioned Scared Straight, a program popular in the 1980s in which troubled young people were brought to prisons and chastised by drug offenders. “They finally assessed it and realized that at best it does no good but that it also does harm,” she said.
At DOJ, Mason oversaw six agencies supervising such areas as juvenile justice, state and local grants, sex-offender reporting, crime prevention, statistics, and assistance to crime victims.
The Free Minds Book Club, which offers book discussions and writing workshops to current and former jail and prison inmates, was one of four programs honored this year by the National Criminal Justice Association as innovative programs worth repeating elsewhere. Other awards went to programs in Minnesota, Georgia and Los Angeles. In DC, only five percent of ex-inmates in the book club program reoffended.
Criminal justice programs from Georgia, Minnesota, Los Angeles, and Washington, D.C., have won awards from the National Criminal Justice Association. The group, which announced the honors at its National Forum on Criminal Justice held this week in Long Beach, Ca., recognizes programs in each of four regions that have been proved successful and can be easily replicated elsewhere.
In the Midwest, the award was given to Minnesota’s High Risk Revocation Reduction Program, which offers services to men who have violated their release conditions but have not yet returned to prison. An evaluation showed that the effort has reduced new convictions by 43 percent.
The South Region award was won by Georgia’s juvenile justice incentive grants, which have allowed the state to reduce the number of juveniles in prison by providing them a variety of evidence-based rehabilitation programs. The grants have helped 4,511 youths, with a graduation rate of 62 percent.
In the West, the award went to the Los Angeles City Attorney’s Community Police Unification Program, which provides mediation to resolve complaints against police officers for discourtesy and bias. A vast majority of participants were satisfied with the outcomes.
The Northeast Region award went to the Free Minds Book Club in Washington, D.C., which offers book discussions and writing workshops to current and former jail and prison inmates. Last year, only five percent of those in the program’s Reentry Book Club re-offended.
A three-year study of participants in a Florida mental health court—the longest of its kind—found “significantly” lower re-arrest rates among individuals who completed the program of community-based treatment and counseling.
A three-year study of participants in one Florida mental health court program found that the rate of recidivism dropped “significantly” after they successfully completed the course of treatment mandated by the court as an alternative to jail time.
According to the authors of the Florida Institute of Technology (FIT) study, their findings, which represent the longest period of examination of mental health court outcomes of any previously published study, demonstrates that alternative courts can end the “revolving door” which cycles many mentally troubled individuals between jail and the streets.
“The ‘revolving door’ has been exhaustive of institutional resources, resulting in such a poor system of treatment that many argue that the system …treats offenders with mental health challenges to the extent that recidivism is inevitable,” wrote the study authors, Julie Costopoulos of FIT’s School of Psychology; and Bethany Wellman, a doctoral student at the school.
Their study of 118 participants in a Florida mental health court, which was not named, found that three months after release, 90% were not rearrested. After six months, 81% remained free of any charges; and three years after release, 54% had not recidivated.
Just as significantly, the authors found that those participants who were re-arrested were picked up usually for much lesser offenses than those which originally landed them in trouble with the law.
The authors claimed the study provided additional evidence that the targeted community-based treatment mandated by the mental health court helped participating individuals develop the skills and confidence to overcome their illness to the extent they could avoid repeated involvement with the justice system.
A Bureau of Justice Statistics study cited by the authors found that 55% percent of male inmates and 73 % of female inmates in the U.S. were mentally ill, with 23% of those mentally troubled individuals experiencing incarceration three or more times.
With the phase-out of many mandated mental health commitments to state hospitals and similar facilities for the justice-involved over the last decades, criminal justice experts say jails and prisons are now effectively the largest treatment facilities for mental health in the U.S.
Mental health courts are among several court-based innovations aimed at providing alternatives to imprisonment for first-time or nonviolent offenders. The first mental health court was established in Broward County,Florida in 1997. But their numbers still remain comparatively low; as of 2016, there were some 300 such courts around the country, many of them funded under the 2002 federal Law Enforcement and Mental Health Project.
The FIT authors say their study should add more weight to arguments that alternative treatment for mentally ill offenders is cost-effective, and benefits both individuals and public safety.
“Jail doesn’t stop crimes by the mentally ill,” Costopoulos said in an interview published soon after the study.
The complete study, “The Effectiveness of One Mental Health Court: Overcoming Criminal History,” was published June 21 online in the Psychological Injury and Law journal. It is available for purchase here, but journalists who would like a copy should contact TCR Deputy Editor Victoria Mckenzie at Victoria@thecrimereport.org
June Rodgers alleges that the state should be held responsible after her son was shot and killed in April by a convicted felon who had been released without bail a few days earlier following an arrest for illegally possessing a handgun.
The mother of a man allegedly killed this year by a repeat criminal offender filed suit Monday in federal court in New Jersey, seeking to end the state’s criminal justice reforms, reports New Jersey Spotlight. The suit by June Rodgers seeks damages for the death of her son, Christian, 26, who was shot on April 9 in Vineland. The suit names Gov. Chris Christie and state Attorney General Christopher Porrino, among others. Authorities have charged Jules Black, 30, in the slaying. He had been arrested by state police just four days earlier and charged with illegally possessing a handgun. The lawsuit states that Black had multiple felony convictions, including resisting arrest, burglary and drug offenses.
The Rodgers suit is the latest legal effort to upend the state’s reforms, which began Jan. 1 and have pitted civil liberties advocates against the bail bonds industry and some in law enforcement. Bankrolling the suit is Nexus Services, a company involved in federal immigrant bail securitization and ankle monitoring. Under the old New Jersey arrest protocols, those accused of a serious crime were held in jail unless they paid bail. The reforms call for accused criminals to be released without bail, with varying degrees of monitoring. The prosecutor did not seek detention of Black following a risk assessment on his gun arrest, and he was released.
The state prison population has declined under the six-year-old plan to keep many convicts in local jails, the National Forum on Criminal Justice was told today . But violent crime has also gone up recently.
A panel of California officials from across the criminal justice system agreed that the state’s nearly six-year-old “realignment” of inmates has led to a long list of improvements for crime victims and lawbreakers alike.
The officials spoke yesterday at the opening session of the National Forum on Criminal Justice, which is being held this week in Long Beach, Ca. The event is attended mostly by state criminal justice leaders from around the U.S. and is sponsored by the National Criminal Justice Association, the Justice Research and Statistics Association and the IJIS Institute.
It was less clear that the changes, which were led by Gov. Jerry Brown in response to a Supreme Court ruling to cut the state’s prison population, have led to a reduction in crime.
Last summer, the state said that after two years of decline, the number of violent crimes increased by 10 percent the previous year. The FBI’s preliminary crime data for the first half of last year said that reported violent crime increased in two-thirds of California’s largest cities.
Under “realignment,” many prisoners formerly in state custody were shifted to the state’s 58 counties, along with funds to aid in ex-inmate rehabilitation. Also, what are known as the “three nons”–non-violent, non-serious, and non-sexual offenders–are kept in local jails or on probation or in treatment programs instead of going to state prison in the first place.
The state’s prison population totaled about 160,000 when realignment began. It was down to 131,000 last week, but that was up slightly from a year earlier.
Scott Kernan, director of the state’s Corrections and Rehabilitation Department, declared that “we are on the right track,” based both on the record of realignment and of Proposition 57, which was approved by voters last November by a 64 percent to 35 percent margin.
The measure gives prisoners the opportunity to earn credits that can speed their release. That provides “a motivation to do something” useful while they are incarcerated, Kernan aid.
Proposition 57 also allows for earlier release of prisoners serving life terms who have good records behind bars. Kernan said that more than 3,000 lifers have been released in recent years, and their recidivism rate is only one percent.
The significance of California’s realignment was that it has begun to turn around a trend in which “we were spending a great deal of money on incarceration and we weren’t getting good outcomes,” said Linda Penner, chair of the California Board of Community Corrections.
The shifting of funds formerly being spent to keep criminals locked up to an expansion of local services across the justice system is part of several “dramatic changes” in the justice system instituted by Gov. Brown, Penner said.
The improvements have been seen in most corners of the criminal justice system, other panelists reported.
Robin Lipetzky has been chief public defender of Contra Costa County since 2009. When she began in the criminal defense field in the 1990s, she and fellow lawyers believed their jobs consisted only of fighting for their clients and not “fixing their lives.”
In what she calls a “huge change,” the availability of more funds for local inmate rehabilitation has defenders looking for ways to keep their clients from committing more crimes, she said.
Prosecutors have joined in the process, too, said Nancy O’Malley, district attorney in the relatively high-crime area of Alameda County near San Francisco.
Many prosecutors once focused only on sending offenders to prison. Now, it is common to seek ways of “catching people early before they can get too far into the justice system,: she said. This goal is explained more clearly to crime victims, who generally support it, O’Malley said.
One important goal of modern-day prosecutors should be to “explain to people what we’re doing,” O’Malley said.
A somewhat less enthusiastic view of realignment was offered by the law enforcement spokesman on the panel, Sheriff John McMahon of San Bernardino County, a large area that stretches from east of Los Angeles to the Nevada border.
Realignment’s prisoner shift meant that his county’s 5,000-prisoner total rose to 6,000, McMahon said. It became harder to manage the inmate population, which he said had more options for activities while they were in state prisons.
At the same time, the change has made sheriff’s deputies more conscious of their role in rehabilitation, compared with their attitude years past in sending criminals to state prisons and forgetting about them.
Now, his department takes a bigger role in expanded programs for prisoner reentry into society, and the recidivism rate of local ex-inmates is 40 percent and dropping, he said. (Typically, recidivism rates in many areas nationally have been 67 percent or higher.)
All of the speakers agreed that a positive change under realignment was having representatives of all justice system components — law enforcement, prosecutors, public defenders and corrections programs — meet periodically to discuss criminal justice improvements. Other agencies need to be involved, too, especially schools, said prosecutor O’Malley.
The California approach to justice got an endorsement from a non-panel member who spoke, Dionne Wilson of the California-based Alliance for Safety and Justice. Her husband, a police officer in San Leandro, Ca., was shot and killed in 2005 while responding to a disturbance call.
The assailant, who had been on probation for another offense, was convicted. Still, Wilson came to believe that the murderer was “on death row, but I had nothing to show for it.” She has since joined the forces for criminal justice reform, praising the approach of the state’s realignment of “putting the services [for ex-inmates] where they need to be.” She added that, “We aren’t going to incarcerate our way out” of the crime problem.
Ted Gest is president of Criminal Justice Journalists and Washington bureau chief The Crime Report.
Many wrongful convictions are based on forensic testimony based on science later exposed as flawed. A California statute this year laid out the terms for granting relief to defendants challenging ‘expert’ evidence—but striking the right balance between evolving scientific research and trial pressures remains a challenge, says a UC law professor.
The advent of nuclear DNA typing was a watershed in criminal justice. It has helped to convict the guilty, while also permitting the exoneration of wrongfully convicted individuals—more than 300, according to a 2014 study[i].
In its 2009 report, the National Research Council declared that nuclear DNA typing is the only “forensic method [that] has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”
But the exonerations have raised questions about why those wrongful convictions occurred in the first place. In many of them, the conviction rested in part on expert testimony that later scientific research exposed as flawed. In one study of 156 DNA exonerations, overstated expert testimony was presented at 60% of the trials.
These developments have prompted state legislatures to amend their post-conviction statutes to grant relief to defendants convicted on the basis of subsequently invalidated expert testimony.
While there is a growing consensus that there should be relief in some circumstances, articulating the circumstances in statutory language is challenging.
A California statute which came into effect this year appears to grant relief whenever the expert later “repudiate[s]” her opinion” without an express requirement that the expert specify a basis for the repudiation.
A 2015 Texas statute seems to grant relief only when new research flatly “contradicts” prior expert testimony. In the final analysis, these statutes must balance two fundamental interests: our abhorrence of wrongful convictions, and the finality of convictions that represent a substantial investment of time and resources.
How should that balance be struck? Consider three examples:
In some cases, later analysis almost completely discredits prior testimony. The FBI once employed Comparative Bullet Lead Analysis (CBLA). When the police recover an intact crime scene bullet, an expert can compare its striations to those on bullets fired from the defendant’s weapon.
However, when the crime scene bullet was too deformed, the FBI previously resorted to CBLA, analyzing seven elements in the crime scene bullet and bullets recovered from the defendant’s possession.
An expert often relied on CBLA as a basis for opining that the bullets came from the same batch (a single day’s manufacturing production) or the same box from the defendant’s possession.
But CBLA critics pointed out that even the limited testimony about a batch is valid only if each batch is unique and uniform. Later analyses of bullet-manufacturer data indicated that neither assumption was true. A 2004 National Research Council report endorsed that criticism, and the FBI discontinued the use of CBLA.
Situations involving the use of CBLA are rare.
It is unrealistic to demand conclusive proof of the invalidity of a scientific technique or theory.
The most important aspect of the Daubert decision is its frank acknowledgment of the limits of the scientific enterprise. A requirement that the prior expert testimony be utterly discredited will deny relief to most defendants convicted on the basis of flawed expert testimony.
Shaken Baby Syndrome
However, it is not enough for the defense to show that post trial, a competing school of thought emerged. Shaken baby syndrome (SBS) is a case in point.
There was formerly a consensus, especially among pediatricians and pathologists, that violently shaking an infant can cause fatal brain injury. In many cases, the autopsy revealed such injuries, a caregiver acknowledged shaking the child, but there was no evidence that the child’s head had struck a surface or object.
Later, biomechanical experts conducted experiments with primates and anthropomorphic models of infant necks. The experiments suggested that shaking alone cannot generate enough force to cause fatal brain injury.
Nevertheless, in 2016 the Ninth Circuit Court of Appeals ruled that the biomechanical research had not invalidated the SBS theory to the extent that a defendant convicted on the basis of SBS was entitled to relief. In the court’s words, although the new research had prompted “a vigorous debate” over SBS, the research did not discredit SBS to the same extent that CBLA has been exposed.
There are doubts about whether the biomechanical findings can be extrapolated to human infants. And further research is complicated by the fact that medical ethics precludes subjecting infants to violent shaking to test the premise.
In the official Note accompanying the 2000 amendment to Federal Evidence Rule 702, the Advisory Committee stated that if proponents of two “competing scientific theories” can each satisfy 702’s reliability threshold, the judge should allow both to testify. In other words, the advent of a competing theory does not automatically invalidate a prior theory or mandate a new trial.
In the previous example, the emergence of a new theory merely raises doubts about the prior theory. But in some cases, new scientific research seriously undermines the theory.
An example is microscopic analysis of hair. Although trace evidence experts have recently given more circumscribed testimony, in the past they frequently went to the brink of opining that two hairs came from the same person because the hairs were “microscopically indistinguishable.”
In an FBI study of 268 microscopic hair analysis cases, reviewers found that prosecution experts had overstated at 96% of the trials. Another FBI study compared microscopic hair analysis opinions with mtDNA test results. In 11% of the cases in which the analysts opined that the defendant was a possible source of the two “microscopically indistinguishable” hair samples, the DNA established that the defendant was not the source.
One jury decided to convict after an expert testified that “it’s my experience in 10 years [that] it’s extremely rare I will have known hair samples from two different people I can’t tell apart.” In 2016, a Massachusetts Superior Court granted a new trial because the mtDNA research had gravely undermined confidence in microscopic hair analysis.
To gain post-conviction relief, a defendant ought to be required to demonstrate more than the emergence of a new school of thought. Moreover, even when the new scientific research is at odds with prior testimony, the defendant must show that the expert testimony played a major role in securing the conviction.
We must balance the competing interests.
A defendant should not receive a new trial simply because a new school of thought has emerged. Yet we cannot be illiberal and revise post-conviction relief statutes to grant new trials only when later research “certainly” debunks the prior testimony.
The standard ought to be whether new scientific insights seriously undermine our confidence in testimony that prompted an earlier conviction.
That standard is the best test for identifying and correcting convictions that are miscarriages of justice.
Edward Imwinkelried is the Edward L. Barrett, Jr. Professor of Law Emeritus at the University of California, Davis. He is a co-author of Giannelli, Imwinkelried, Roth & Campbell Moriarty, “Scientific Evidence” (5th ed. 2012) and author of the “Methods of Attacking Scientific Evidence” (5th ed. 2014). He welcomes readers’ comments.
[i] Beldock, Feldman & Steel, The Death of the “Hurricane” and the Criminal Justice System’s Failures, NAT’L L.J., Apr. 28, 2014, at 47.