The ACLU of Northern California and the law firm Covington & Burling filed a lawsuit Tuesday that aims to block the state from resuming executions. The complaint argues the constitutionality of CA Penal Code §3604, which gives full discretion to bureaucrats at the CA Department of Corrections and Rehabilitation rather than elected officials to “decide and resolve the key, fundamental policy questions implicated by the death penalty.”
“This law gives unelected bureaucrats too much power and it shields legislators from accountability on the death penalty process,” said Linda Lye, Senior Staff Attorney at the ACLU-NC Foundation. “This case is about one fundamental issue: accountability.”
There are 728 men and 21 women currently on death row in the state.
On November 8, voters narrowly passed Proposition 66, which will speed up the death penalty appeals process. Voters rejected a competing bill to abolish the death penalty. Former CA Attorney General John Van de Kamp and former El Dorado County supervisor Ron Briggs (whose father sponsored the current death penalty law back in 1978) filed a lawsuit last Wednesday, seeking a stay on Prop.66 from the state Supreme Court.
The ACLU suit calls into question the CDCR’s “unbridled discretion to develop protocols” regarding the use of lethal injection drugs or lethal gas, and the “pain, speed, reliability, and secrecy” of the process.
“The people of California, through their elected leaders, must have a say in and take responsibility for how this irreversible punishment is carried out,” said Mitch Kamin, a partner with Covington & Burling. “Whether or not you agree with the death penalty, there is no doubt that it is irreversible. It cannot be exempt from careful scrutiny in an open forum — the Legislature.”
For more than 12 years, California death row inmate Caryl Chessman fought desperately to save himself from the gas chamber. Chessman’s case was extremely controversial because he had not been convicted of murder. Instead, at 27-years-old, Chessman, also called the “Red Light Bandit” was convicted of a a number of robberies and rapes in Los Angeles. Many important voices, including Eleanor Roosevelt and the Vatican newspaper, called for Chessman to be spared.
On Feb 18, 1960, 21-year-old UC Berkeley student Edmund G. “Jerry” Brown, Jr. dialed his father, then-Governor Pat Brown, and asked for a 60-day stay of execution for Chessman, the night before the man’s scheduled execution. The younger Brown also urged his father to propose a bill to end the death penalty in California. Even though both men knew the measure had an extremely low chance of success, Pat Brown introduced a bill to abolish capital punishment.
The elder Brown’s bill was rejected by state legislators, and Chessman was put to death two-and-a-half months later.
Although playwright says the timing of the play was not purposeful, it is serendipitous, in that next month, California voters will choose between two competing death penalty-related ballot initiatives. The first, Proposition 62, would abolish capital punishment in the state. The second, Prop. 66, would speed up the death penalty appeals process executions.
The Sacramento Bee’s Alexei Koseff has more on the play, which tells the Chessman story from the perspectives of the condemned man, and four members of the Brown family—Pat, his wife Bernice, Jerry, and Pat’s daughter, Kathleen. Here’s a clip:
The controversy also came at a relative highwater mark for opposition to the death penalty, when Americans were about evenly split on the issue. This allowed Pat Brown to openly grapple over Chessman’s fate without committing “automatic political suicide,” the biographer Rarick noted at a recent panel on the case.
“He always looked for the best with everybody. He was inclined toward mercy, but inclined toward upholding the law,” Rarick said.
Because Chessman had prior felonies, Pat Brown could not commute his sentence without the approval of the California Supreme Court, which voted 4-3 to uphold the conviction. Chessman was going to die.
But the night before the execution was scheduled to proceed, Jerry Brown called his father urging him to grant a 60-day reprieve and pursue a moratorium on the death penalty in the Legislature. As Pat recounted in “Public Justice, Private Mercy,” he believed there was not “one chance in a thousand” that lawmakers would act.
“Then Jerry said, “But Dad, if you were a doctor and there was one chance in a thousand of saving a patient’s life, wouldn’t you take it?’
“I thought about that for a moment. You’re right, I finally said. I’ll do it.”
For his decision, Pat Brown received a slew of negative responses – and a 16-page letter from a “surprised and grateful” Chessman.
In an interview with the LA Times’ Patt Morrison, “Chessman” playwright Joseph Rodota discusses the case’s backstory and context, as well as his inspiration for the play, and the impact of the case on the Browns “and how it shapes the relationship of family members to each other.” Here are some clips:
The play looks at the death penalty controversy through the eyes of each member of the family. I think that’s what I found very fascinating as I was reading through Bernice Brown’s recollections at the time. Jerry in 1960, at this moment where it looks like all options for Chessman have been closed off, and Pat Brown has finally decided that he’d done all that he can do, and he was going to let the execution take place. Pat Brown was alone in the house and he writes later that he took a phone call from Jerry. Jerry was a student at that point, he’s out of the seminary and he’s now at Berkeley. He calls him and they discuss the case, and nobody knows of course what they said to each other.
But that evening, after that call concluded, Brown reversed course and decided he would go to the Legislature and seek a change in California’s death penalty law, and he gave Chessman a reprieve so that he could pursue that option.
[Morrison:] Ultimately of course that reprieve couldn’t last, and the commutation wasn’t possible.
Right. It was a temporary reprieve, and Gov. Brown was unsuccessful in persuading the Legislature to change the law, and he lost in committee. It’s important in the context — this might have been one of the first defeats Brown had suffered in the Legislature. He was riding high, he’d been elected in 1958, and he had had a breathtaking year in 1959, one success in the Legislature after another. And this was the first roadblock.
He made it very clear what his personal views were on the death penalty, and he also made very clear the matter of his Catholic faith. But he had also expressed a deep love for the law. Pat Brown had grown up as a prosecutor, a D.A., attorney general and now the governor. And he really felt that the legal system was the glue that held California together, and he was very conscious of his legal limitations and his duty to the people to follow the law. If he couldn’t change it, he had to follow it.
The play actually attempts to answer the question, how does the experience of the Chessman case change the relationship between Gov. Brown and his son? Of course, I did a large amount of research. For example, back in the ’70s, Jerry talked a bit about his early life, and I have a lot of early Jerry Brown interviews. I also found a letter Jerry Brown wrote to one of his uncles while he was in the seminary. It was handwritten, beautiful letter that you can just feel; here’s a 19-year-old talking to somebody in the family, just pouring his heart out. I felt I could really hear the voice of these family members.
KALIEF BROWDER’S MOTHER, VENIDA, DIES OF A “BROKEN HEART”
On Friday night, at 63 years old, Venida Browder, the mother of Kalief Browder, died of complications from a heart attack. The Browders’ attorney, Paul Prestia, says he believes Venida “died of a broken heart.”
In 2010, Kalief was arrested after being accused of stealing a backpack. The Browders’ inability to post $3,000 bail led to a harrowing three-year stint at Rikers Island for Kalief.
Kalief was never tried during those three years—two of which he spent in solitary confinement.
Prosecutors ultimately dropped the charges against Browder in 2013. For the next two years following his release, Kalief struggled with mental illness stemming from the adverse effects of prolonged isolation and other trauma he experienced behind bars. For periods, it appeared that Browder was restarting his life, but on several occasions he tried to kill himself. Last June, at 22 years old, Browder finally succeeded.
The New Yorker’s Jennifer Gonnerman, who has been following and reporting on Browder’s devastating story since October 2014, also wrote about Venida and the work she did to honor Kalief’s life and legacy through activism, before her own untimely death. Here’s a small clip:
In the following months, Venida, who was fairly shy, became much more outspoken. Although she had serious health problems, she travelled to Washington, D.C., in July of 2015 to attend a press conference for “Kalief’s Law,” a bill intended to improve the treatment of young people in prison. She joined the advisory board of an organization called Stop Solitary for Kids. She spoke to reporters. In January of 2016, she participated in the American Justice Summit at John Jay College. Paul Prestia, who represented her in a wrongful-death claim against New York City, remembers going with her to a speaking event at the New School last April. Before she stepped onstage, he said that she seemed very nervous. But then she spoke for forty-five minutes about what she and Kalief had endured. “She got up there, and I was like, Wow!” he said. “She blew me away.”
“She could have stayed back, but the fact she was so involved helped that movement,” Prestia said. Kalief’s story—and his mother’s voice—became an important part of the public debates over solitary confinement, youth incarceration, court delays, speedy-trial laws, and conditions on Rikers.
As part of an upcoming video series for The Marshall Project, Venida tells her son’s story—from his arrest to his release and, later, his death. Venida found Kalief after he had hanged himself from a second floor window of their family home. “I miss my son,” Venida said. “I miss him so much.”
Kalief’s story has garnered a ton of media attention and set in motion efforts to reform the notorious NY jail. Earlier this month, Rapper Jay-Z announced that he is producing a six-part docu-series called, “Time: The Kalief Browder Story,” scheduled for release this upcoming January on Spike TV.
SCOTUS RULES AGAINST RACIAL BIAS IN DEATH PENALTY JURY SELECTION
On Monday, in a 7-1 decision (with Justice Clarence Thomas dissenting), the US Supreme Court moved to limit prosecutors’ exclusion of potential jurors based on race.
The Supremes ruled that Georgia prosecutors improperly struck black jurors from the jury pool in the death penalty case of Timothy Tyrone Foster.
The justices’ decision clears a path for a new trial for Foster, an intellectually disabled black man, who, at the age of 18, was charged with the murder of a 79-year-old retired elementary schoolteacher named Queen Madge White, a white woman. Foster was tried by an all-white jury, who sentenced Foster to death. Prosecutors highlighted the names of each potential black juror, and wrote the letter B next to their names.
In his majority opinion, Chief Justice John Roberts said the prosecutors acted in violation of a 1986 SCOTUS ruling that found racial discrimination during jury selection to be unconstitutional. The ruling required lawyers to give race-neutral reasons for striking jury members when accused of such discrimination.
But because the opinion is such a narrow one, it’s not going to stop prosecutors from misusing peremptory challenges, which allow attorneys to get rid of jurors they believe are harboring prejudice. Peremptory challenges can, and sometimes are, abused by attorneys who dismiss jurors because of race, gender, or sexual orientation without explanation. (Here’s a interesting history lesson and some more information on the issue of peremptory challenges from the Public Law Research Institute at UC Hastings.)
Georgia attorneys are allowed 20 peremptory challenges—more than in most states. (California lawyers also get 20 peremptory strikes in life imprisonment and death penalty cases.)
[Stephen] Bright says that “every prosecutor has a handy-dandy list of race-neutral reasons that they give” when it comes to exercising peremptory challenges. “They even distribute reasons in advance. Some state training programs even distribute a list called ‘Articulating Juror Negatives.’”
That is the real problem: that across the country, prosecutors are given enormous discretion—in Georgia, they have 20 peremptory challenges—and know how to weasel around the rules.
That certainly happened in Foster’s case. As the Court’s opinion relates, the prosecutor objected to one juror “because she: (1) worked with disadvantaged youth in her job as a teacher’s aide; (2) kept looking at the ground during voir dire; (3) gave short and curt answers during voir dire; (4) appeared nervous; (5) was too young; (6) misrepresented her familiarity with the location of the crime; (7) failed to disclose that her cousin had been arrested on a drug charge; (8) was divorced; (9) had two children and two jobs; (10) was asked few questions by the defense; and (11) did not ask to be excused from jury service.”
That’s typical of the “laundry list” approach that prosecutors use in order to avoid being accused of discrimination: just throw everything at the wall and see what sticks. It doesn’t matter if it’s incorrect—for example, this “too young” juror was actually 13 years older than a white juror who had been admitted. Just say everything and sort it out later if you have to.
For further Foster v. Chatman-related reading, Atlanta Magazine’s Max Blau has an excellent profile on Stephen Bright, the head of Atlanta’s Southern Center for Human Rights, who found the prosecutor’s racially biased juror notes and successfully argued Foster’s case before the High Court. Bright and his SCHR team have won four of the last five SCOTUS capital punishment cases they’ve argued. Here’s a small clip:
“It’s a brutal, enormously difficult, emotionally draining practice,” Bright told the New York Times in 1993. “There are no resources to do the job well, there’s a tremendous amount of public hostility, and it’s financially devastating to most lawyers. You have to be out of your head to take one of these cases.”
Now boasting a staff of 26, the 40-year-old SCHR has won four of its last five U.S. Supreme Court death penalty cases, exonerated an Alabama man convicted of murder by showing he had an alibi, and helped overturn dozens of death sentences. It was a series of SCHR lawsuits that spurred lawmakers in the early 2000s to create the Georgia Public Defender Council, a statewide system considered to be a major upgrade over the existing patchwork of local public defender offices.
Two MacArthur Foundation “genius” grant winners have been Bright protégés. After graduating from Harvard Law School in 1985, Bryan Stevenson joined the SCHR, sleeping on Bright’s lumpy couch for a year. In 1989 Stevenson started the Equal Justice Initiative in Montgomery, Alabama, which has since saved more than 100 men from execution. And when Rapping founded Gideon’s Promise in 2007 to train public defenders across the country, Bright gave the fledging program space in the SCHR’s offices.
“We wouldn’t have existed without Steve,” Rapping says. “We’re carrying out Steve’s vision.”
CA LEGISLATORS SHOOT DOWN A SNEAKY BILL TO LIMIT THE RELEASE OF INFORMATION ON CHILD WELFARE SYSTEM FATALITIES
State lawmakers have rejected a “trailer bill” attached to the California’s May budget revision, which would have closed off public access to records regarding the deaths of children involved in the child welfare system.
The bill, introduced by the California Department of Social Services Director Will Lightbourne, would ease deadlines for releasing the child death records and keep social workers’ identities secret in such cases. Information on the family’s history within the child welfare system would be limited, and info provided by witnesses would be removed from the record. The legislation would have replaced those pieces of information with a short summary of the government’s attempt to protect the kids.
Lawmakers rejected the bill following a recommendation from the staff of Senate Subcommittee 3 on Budget and Fiscal Review to toss the bill
Since the state implemented the original law, reporters have had access to social worker case notes and other files. These sometimes revealed glaring inadequacies in the state’s child welfare system, including instances of social workers disregarding policies and allowing children to remain in conditions that proved fatal.
One provision of the proposed revision of the law would have denied the public access to original case notes with social workers’ names, instead providing abbreviated summaries of how the government attempted to protect vulnerable children. Critics also criticized what would have been relaxed deadlines for the release of certain records.
The Senate lawmakers recommended that the department return to the drawing board and vet the measure through the usual committee process “to ensure that lengthier time of discussion is provided and that the proposed language does not represent a retreat from, or complicates, existing practice.”
Pete Cervinka, the social services deputy director who led efforts to craft the bill, said much of the criticism was overblown and that he had hoped the bill, in practice, would increase the amount of information released in child fatalities.
Cervinka noted that the bill would have for the first time provided information about cases in which someone injures or neglects a child to the point that they are “near death.” The federal government has been prodding the state to do this—and holding back some federal money until it happens.
He said the starting point for future attempts to address that issue would be the existing law, not the recent drafts of the new bill, adding that the department would work harder to build consensus among various groups, including nonprofit child welfare groups, lawyers for parents of children in foster care and unions representing social workers.
Trailer bills that are tacked onto the budget, like the one mentioned above, are able to skip review in committees and take a short cut to voting. These bills are meant to implement the budget, but often carry major non-budgetary policy changes.
Another way lawmakers circumvent the usual legislative procedure is by placing bills—ones that would cost the state money if passed—into “suspense files.” This technically happens so that the measure’s potential fiscal impact can be assessed. But there are quite a few bills that would place very little fiscal burden on the state that have been placed on suspense.
In an op-ed, the Sacramento Bee’s Dan Walters explains that using the suspense file has become a way for lawmakers to meet and decide behind closed doors which bills will move forward, and which will be dumped.
Interestingly, a bill to shine light on police personnel files in misconduct cases has been placed in a suspense file.
Walters says that, like police records, there should be more transparency within the legislative process. Here’s a clip:
The suspense file process has morphed into a way for the Legislature’s leaders to decide in secret which bills will be allowed to proceed and which will not, for reasons known only to themselves.
At some point later in the session, the committees will meet and in mere minutes declare which bills will be allowed to reach the floors of both houses. Pro forma votes will be entered into the official record, but that’s just window dressing.
The arbitrary nature of the process is aimed not only at winnowing the volume of measures reaching the floors, and their costs, but at protecting legislators from having to cast votes that could be politically difficult.
One could say, in fact, that legislators are protecting themselves in the same way that police secrecy laws protect cops and their departments from having to answer to the public for their actions.
Nor is it the only way that the Legislature makes it more difficult for its activities to receive public scrutiny.
When they take up the budget in June – a budget whose important details will be drafted in secret by the governor and legislative leaders – lawmakers will also vote on a couple of dozen “trailer bills” that supposedly implement the budget but always contain major policy changes that are never aired publicly in advance.
Not only should the secrecy surrounding internal police investigations be breached, but also the secrecy that envelops the budget.
LA COUNTY DISTRICT ATTORNEY JACKIE LACEY TALKS WITH KCRW’S WARREN OLNEY
In 2012, Jackie Lacey made history in Los Angeles, becoming the county’s first female and black district attorney.
Warren Olney: You have often said that your office is supposed to be race neutral, but history shows that our society and the rest of the criminal justice system is not race neutral. It’s a lot harder on blacks and other minorities than it is on white people. What are you doing about that?
Jackie Lacey: Our office does its very best to make sure that the policy makers reflect the diversity of the community. So if you look, our office is probably the most diverse population of prosecutors if not in California and maybe throughout the United States. I think that helps because you want the perspective of a lot of different people at the table. I think in diversity there’s strength and people take their jobs seriously, there’s the least likelihood of bias. I also think that it helps the community’s confidence to see that our office is as diverse as it is, in terms of making decisions about everything from what’s filed to what’s not filed, and certainly to what type of sentences are incurred. I, as an African American woman of course, grew up in Los Angeles, in South LA and am very much aware of biases and while we don’t have a perfect office, or a perfect system we’re doing everything we can to make sure that it is as bias free as it can humanely, possibly be.
Proposition 47 reduced some non-violent felonies to misdemeanors in order to help ease prison overcrowding, lead to alternative kinds of treatment and also to save money. Other district attorneys and some of your own prosecutors claim that it has led to an increase in crime. Do you agree with that?
I haven’t seen the data supporting that. There is an increase in crime, particularly property crime. I think the Public Policy Institute has noted that. I’m not sure if they attribute it to Prop 47 or AB-109 which is prison realignment. But we’re definitely seeing an increase in crime and we ought to pay attention to it. But I think we also owe it to the public to examine each case and look to see where the person was and what they were doing in terms of the criminal justice system before they committed the crime in order to draw that conclusion, that Prop 47 is responsible. It may be responsible and it may not. But I would love to see the data but I think more importantly, I think it’s my job to continue to look for ways to discourage people from committing crimes. Obviously there’s a deterrent effect asking for custody time, but also addressing any issues such as addiction that may be causing someone to get out there and commit property crimes.
THE IMPORTANCE OF INCLUDING TEEN PREGNANCY PREVENTION STRATEGIES IN THE TOOLBOX FOR PREVENTING ABUSE AND NEGLECT
Teen pregnancy prevention services are missing from a recently released draft list of recommendations from a national commission created to develop strategies for reducing abuse and neglect-related deaths of children, according to Marie Cohen, a former social worker and policy researcher.
Cohen says the Commission for the Elimination of Child Abuse and Neglect Fatalities should recommend Congress gather data on how many of these fatalities involve kids born to teen parents, or born to parents who started having children when they were teenagers. Cohen also calls on the commission to recommend all teens—especially kids involved in the child welfare and juvenile justice system and at high risk for pregnancy—have full access to all contraception options, as well as counseling and education.
And in LA County, kids with teen mothers involved with the child welfare system experienced a rate of abuse and neglect, themselves, two to three times higher than kids born to teen moms with no DCFS-involvement, according to a 2013 report funded by the Hilton Foundation.
Second or subsequent infants born to mothers younger than 17 years old, were 11 times more likely to be murdered than firstborns from mothers who were over the age of 25, according to a national study on infant deaths between 1983-1991.
As National Campaign to Prevent Teen Pregnancy co-founder Sarah Brown recently pointed out, groups that focus on child and family well-being rarely propose interventions that begin before conception of a child. CECANF could begin to rectify this omission by including teen pregnancy prevention in its recommendations for reducing child abuse and neglect fatalities.
In her testimony before CECANF, Angela Diaz, director of New York’s Mount Sinai Adolescent Health Center, discussed the connection between teenage parenthood and child maltreatment fatalities. In serving for many years on a child fatality review panel, she noticed that in many of these cases, the mother began childbearing in adolescence, and had more closely spaced children thereafter.
Dr. Diaz cited a national study of deaths of infants born between 1983 and 1991, which showed that “childbearing at an early age was strongly associated with infant homicide, particularly if the mother had given birth previously.”
A second or subsequent infant born to a mother younger than 17 years old was 11 times more likely to be a homicide victim than the first child of a mother 25 or older. A second or subsequent infant born to a mother age 17 to 19 was over nine times more likely to be a homicide victim.
Even without knowing the proportion of child maltreatment deaths occurring to children of teen mothers, we already know that teen motherhood is a risk factor for child abuse and neglect. CECANF should recommend increased emphasis on teen pregnancy prevention, especially for young women in high poverty areas and those in foster care.
The Commission should recommend that all teens, especially those at higher risk of pregnancy, have access to contraceptive methods and education. Clinics in low income areas and those serving youth in foster care and juvenile justice should provide the full array of contraceptive options including the long-lasting methods that are most effective, along with education and counseling.
Special attention should be devoted to preventing a second birth to a teenage mother by ensuring that she is provided with a contraceptive method at the time of the first birth. The federal Teen Pregnancy Prevention Program, which has been under attack in Congress, should be fully funded or expanded.
A UNIQUE VOTER-APPROVED TAX TO BOOST PUBLIC SAFETY IN OAKLAND MEANS MILLIONS IN FUNDING FOR INNOVATIVE RESTORATIVE JUSTICE AND VIOLENCE PREVENTION EFFORTS
Two dozen Oakland non-profits and public organizations will split $6.37 million in funding to reduce violence at the community level, thanks to Oakland’s Measure Z, a parcel tax and parking surcharge meant to boost public safety efforts.
Among the non-profits and organizations the city’s Human Services Department chose to fund were Youth Alive!, which connects with hospitalized kids and teens who have been shot or stabbed, or who have just been released from lock-up, to prevent retaliation and reoffending.
Youth Alive! was awarded $1 million, which was the largest grant, for a collaborative effort with Oakland California Youth Outreach to provide conflict mediation in neighborhoods prone to violence.
The San Francisco Chronicle’s Rachel Swan has the story. Here’s a clip:
Staff from the city’s Human Services Department — which has an arm called Oakland Unite that manages public safety funds — recommended awarding 30 grants in all, allocating the money to 24 nonprofit and public agencies, out of 44 that applied. The City Council approved those awards Tuesday.
Clients from several of the organizations that received funding gave emotional speeches at the council meeting, highlighting the urgency of Measure Z.
“I just got out of prison two weeks ago,” said Tommy Robinson, who had come to advocate for Oakland California Youth Outreach.
Robinson said he’d spent more than a decade behind bars, and the last six years in solitary confinement.
“It was tough going from being isolated to being around people again,” Robinson said, adding that the group had helped him put together a resume and readjust to the outside world.
“Welcome home,” said council President Lynette McElhaney, her voice quavering.
THE CRIME REPORT SURVEY: READERS’ TOP TEN STORIES OF 2015
According to a survey conducted by the Crime Report, the “Black Lives Matter” movement was the most significant criminal justice-related news story of 2015. Among the other topics and developments that made the top 10 list were viral cell phone and body cam videos of police confrontations, sentencing reform, and a focus on jails.
Judging by news reports, Americans were experiencing more fear and insecurity in the closing months of 2015 than at any time since the 9/11 attacks. Last week’s massacre in San Bernardino and the earlier shooting at a Planned Parenthood clinic in Colorado Springs reignited long-festering debates on gun control and domestic terrorism.
Nevertheless, in our fifth annual survey of the most significant criminal justice news stories and developments, TCR readers looked beyond those tragedies to focus on the injustices experienced daily by our most marginalized citizens at the hands of the U.S. justice system—and the network of civic activist groups that has emerged in response.
In choosing the growing political profile of Black Lives Matter and related organizations as the major development of 2015, readers also appeared to signal their faith and optimism in the ability of American civil society to drive change.
“(Black Lives Matter) brought national attention to issues of police brutality in the U.S.,” said one TCR reader who requested anonymity. “And they have continued to fight to keep this subject in the spotlight.”
Although the San Bernardino event occurred after we posted our nominations last week, that didn’t mean the incidents of mass killings which have plagued America during a violent year—such as the June 17 massacre of nine people in an African-American church in Charleston, SC and the shooting spree in Colorado Springs that left four dead (including the shooter) and nine injured on November 27—were ignored.
The troubling phenomenon of domestic terrorism—targeted attacks that have been tied at least in part to ideological hatreds or racial bias—came in at fifth place on TCR’s “Top Ten” List.
Nevertheless, by an overwhelming consensus, the most important developments were those that represented seedbeds for change.
And we think that’s significant. TCR readers, of course, are among the country’s most informed audience when it comes to criminal justice. Many of you are deeply involved in the nuts and bolts of the system, as academics, practitioners, advocates and journalists (just to name a few categories).
JUDGE OVERTURNS DEATH SENTENCE, SAYS PROSECUTOR CAN’T TELL DELIBERATING JURY THAT THE BIBLE SAYS MURDERERS MUST BE PUT TO DEATH
A US District Judge has overturned the death sentence of Rudolph Roybal, finding “egregious misconduct” from the prosecutor, who told the jury during the penalty phase of Roybal’s trial that the Bible calls for murderers to be put to death.
While there is little doubt that Roybal did murder a 65-year-old Oceanside woman after she and her husband fired him for doing yard work too slowly, Judge Jeffrey Miller said the prosecutor’s invalid argument encouraged a conflicted jury to choose a death sentence “because it was God’s will, and not that the imposition of the death penalty complied with California and federal law.”
The San Diego Union Tribune’s Kristina Davis has the story. Here are some clips:
“The prosecutor’s improper argument presented an intolerable danger that the jury minimized its role as fact finder and encouraged jurors to vote for death because it was God’s will, and not that the imposition of the death penalty complied with California and federal law,” Miller wrote in a 226-page opinion granting Roybal’s appeal. The opinion was filed last week.
The judge also chastised Roybal’s defense attorneys, ruling they provided ineffective counsel by not objecting to the prosecutor’s inappropriate closing remarks.
“The failure of defense counsel to object to such egregious misconduct and secure an admonition deprived defendant of the fundamental fairness of a death penalty proceeding free from foul prosecutorial blows,” Miller said.
Alex Simpson, a professor at California Western School of Law, said the issue is less about the Bible than the prosecutor asking the jury to make a decision based on something other than the evidence presented in the case.
“It’s an appeal to an authority or other evidence that shouldn’t be considered by the jury,” Simpson said in an interview. “In reality, the only thing a jury should do is consider what are the facts and how do the facts inform my decision to vote one way or the other.”
Joseph Tapley didn’t want his name in the press. He had worked too hard, since leaving prison in 2002, to get his life on track. Today he owns a business and has a wife and kids. The last thing he wanted when he sat down to watch TV on the evening of September 15 was to get dragged into anything that might bring him or his family any harm.
But then he saw the report on the 6 o’clock news: the state of Oklahoma was ready to kill Richard Glossip. Governor Mary Fallin had rejected his plea for a 60-day stay. His execution was scheduled for 3 p.m. the next day.
Tapley knew the name. More than that, he knew the man responsible for sending Glossip to his death: Tapley’s onetime cellmate, Justin Sneed. The two had met at the Oklahoma County Jail in 1997. At the time, neither had reached his 20th birthday. Sneed had been arrested after using a baseball bat to kill a man named Barry Van Treese, the owner of the Best Budget Inn, a seedy motel in Oklahoma City, where he worked as a maintenance man. Sneed would later escape the death penalty after implicating Glossip, his supervisor, testifying that he offered him several thousand dollars to kill on his behalf. Glossip says this was a lie. While he admitted that Sneed had told him he killed Van Treese on the morning of January 7, 1997 — and that he initially withheld what he knew from police — Glossip insisted that he had nothing to do with the murder.
As he watched the news segment, Tapley felt certain that Sneed had framed Glossip. His story did not match what he remembered Sneed saying about the crime in 1997. Tapley wasn’t alone. In August, after Glossip’s case was featured on Dr. Phil, a man named Michael Scott came forward to say that he had spent time in prison with Sneed, who talked openly about his crime. “Among all the inmates, it was common knowledge that Justin Sneed lied and sold Richard Glossip up the river,” Scott said. Yet the execution was to proceed as scheduled, on September 16.
That night, Tapley Googled “attorney for Richard Glossip” and found a number for Don Knight, a Colorado-based lawyer and part of the legal team fighting to save Gossip’s life. Tapley dialed and left a message for Knight:
“This is Joe. I was in a cell with Justin Sneed in 1997 in Oklahoma County Jail for 5 or 6 months. He told me all about his case. I think I might be able to help you…..”
In response, the ACLU of SoCal and others have filed a lawsuit against the school district, alleging misuse of $126 million earmarked for foster students, English-learners, kids with disabilities, and kids from low-income households in the 2014-2015 school year, and if left unchecked, will deprive those kids of $2 billion in funding over the next decade.
According to the lawsuit, between the 2014-2015 and 2015-2016 school years, the school district is counting close to $450 million in separate special education funding (required by law) as funds that “increase or improve” services for those targeted high-needs students. That number will hit $2 billion by 2021, and add an additional $450 million every year thereafter.
Despite the school board planning out how best to spend a total of $145 million most of the money did not make it to those students. Instead, the LAUSD spent money re-hiring nurses, librarians, and other staff members at elementary and middle schools, according to the UC Berkeley and United Way report.
The suit was filed by the ACLU of Southern California, Public Advocates, and Covington & Burling LLP on behalf of Community Coalition of South Los Angeles and an LAUSD parent, Reyna Frias.
“LAUSD is breaking its promise to provide my children and millions of other students in the future, with the services they need and the law says they should receive,” said Ms. Frias, whose children qualify for the funds targeted by LCFF.
The plaintiffs are represented by Public Advocates Inc., the ACLU of California and Covington & Burling LLP.
“Community Coalition has spent decades working to transform the social and economic conditions in South Los Angeles,” said Alberto Retana, president and CEO of the Community Coalition of South Los Angeles, a plaintiff in the lawsuit. “We want to ensure that our students aren’t short-changed by LAUSD’s budget process. We see too many students in our public schools struggling because they don’t receive the services they need to thrive academically.”
The law directs school districts to use state funds under LCFF to “increase or improve” services for the targeted students. Each district calculates what it will spend partly on what it has spent in the past on such services. The lawsuit alleges that by counting prior spending for “special education” — which the district is already required to provide — as spending on services for low-income students, English language learners and foster youth, LAUSD has in effect reduced its specific legal obligation to those very students by over $400 million in 2014-15 and 2015-16 combined. Over time, if allowed to continue the practice, LAUSD will short-change these students by over $2 billion by 2021, and $450 million additionally every year after that.
“If every district uses its new LCFF funds to pay for things it’s already legally required to do like LAUSD, the promise of California’s new funding law will evaporate overnight,” said John Affeldt, managing attorney with Public Advocates. “LCFF requires that LAUSD use these hundreds of millions of dollars to deliver new and better services to targeted students.”
SCOTUS JUSTICE BREYER AND HIS 40-PAGE DEATH PENALTY DISSENT
On Monday, in a 5-4 ruling, the US Supreme Court upheld Oklahoma’s three-drug cocktail execution method challenged by three OK death row inmates after three lethal injections were botched last year.
Justice Stephen Breyer didn’t just disagree with the ruling. He wrote a colossal 40-page dissent focused on the constitutionality of the death penalty, even though the issue was not directly before the court.
Justice Breyer raised a still more profound question: Is the death penalty unconstitutional, as a form of “cruel and unusual punishment” prohibited by the Eighth Amendment? Capital punishment is expressly mentioned in the Fifth Amendment, which requires a grand-jury indictment for a capital crime, so the Court has never held the death penalty unconstitutional under all circumstances. But, in 1972, the Court did declare the death penalty—as it was then administered—unconstitutional, reasoning that the imposition of death, at the time left to the unfettered discretion of prosecutors and juries, rendered the sanction so arbitrary as to be cruel and unusual. As Justice Potter Stewart famously put it, “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” (Four years later, the Court restored the death penalty, concluding that new procedures and requirements were, in theory, sufficient to limit arbitrary decisions.)
There are about fifteen thousand murders a year in the United States. Last year, we executed thirty-five people. Studies, Breyer notes, have consistently found that what determines who lives or dies is more likely to be race, geography, or the quality of one’s lawyer than the defendant’s culpability. In addition, DNA evidence has demonstrated that, no matter how many procedural safeguards we put in place, human error is inevitable. A hundred and fifteen people convicted and sentenced to die have subsequently been found innocent of the crime, and that number certainly will continue to rise. Last year alone, six death-row inmates were exonerated, but not before spending more than thirty years each on death row. Capital cases are notoriously beset by errors; from 1973 to 1995, state and federal courts found constitutional errors in nearly seventy per cent of all capital cases before them.
What’s more, Breyer noted, defendants today routinely spend decades on death row while their cases are reviewed. That lengthy period of intense uncertainty, nearly always spent in solitary confinement, adds to the cruel and unusual character of capital punishment. The thirty-five individuals executed in 2014 spent, on average, nearly eighteen years on death row. In 1960, the average delay between sentence and execution was two years. As Justice John Paul Stevens argued in 2009, such delays expose inmates to “decades of especially severe, dehumanizing conditions of confinement”—in particular, the solitary confinement that Kennedy finds so problematic. And the delays undermine whatever deterrent or retributive value death sentences are supposed to provide, as a penalty carried out several decades after the crime is unlikely to serve as a warning to others or to offer much solace to the victim’s family. “The upshot,” Breyer writes, “is that lengthy delays both aggravate the cruelty of the death penalty and undermine its jurisprudential rationale.”
The problem, Breyer suggests, may be irresolvable. We can have executions without long delays, or we can have the procedural review necessary to avoid unfair executions, but we can’t have both. If the Constitution requires both, the death penalty may well be unconstitutional.
EXPANDING AGE ELIGIBILITY FOR LAW THAT GIVES LIFER INMATES WHO COMMITTED CRIMES AS KIDS A SECOND CHANCE AT PAROLE
In 2013, Gov. Jerry Brown signed a law that gave a second chance at parole to kids who committed murder before the age of 18 and sentenced to life-without-parole. Now, a bill that is making its way through legislature, SB 261, would expand the age of eligibility for early parole hearings to include lifers whose crimes were committed before the age of 23.
The bill passed through the Senate in early June, and through the Assembly Committee on Public Safety on Tuesday. Now, it heads to the Assembly Committee on Appropriations.
The California legislature passed SB 260, a youth offender bill that set up a new parole process for those who were minors at the time of their crimes. These youth offenders could now visit the board of parole hearings ahead of schedule—after 15, 20 or 25 years, depending on their original sentence—and have their age at the time of the crime considered “with great weight.”
“I didn’t know there were people out there fighting for individuals like me,” Mendoza says. “As a young inmate, you spend so many years believing that you’re being thrown away, and now they’re picking you up, saying, ‘We see the potential that you have.’ After so many years, it started to make me realize that I should prove people right for a change.”
Mendoza went before the parole board, eager to show that he was “no longer that 15-year-old boy.” After 17 years—more than half of his life—Mendoza got his release.
Today, the 34-year-old lives in Oakland, works full-time for a marketing firm and is studying to get his bachelor’s degree in business marketing at San Francisco State. Mendoza’s story isn’t unusual—so far, there hasn’t been a single incident of recidivism among several hundred SB 260 parolees. With the success found in changing the law, California’s legislature is now deliberating SB 261, which would expand the young offender parole hearings by upping the age of eligibility to 23.
“SB 260 and 261 give young people hope, give them an incentive to change,” says state Sen. Loni Hancock (D-Oakland), who authored both bills. “And really, it’s only an opportunity. The board of parole hearings is very tough, and they only grant parole in less than 15 percent of cases—but it’s an opportunity that means a lot to the individual human beings.”
FORMER CA SENATOR LELAND YEE PLEADS GUILTY
On Wednesday, Former CA Sen. Leland Yee pled guilty to one felony count of racketeering and faces up to a 20-year maximum sentence.
Leland Yee was arrested last March in an FBI corruption sting for alleged gun trafficking in exchange for donations to his campaign for California Secretary of State. A long-time associate of Yee’s and head of an international crime ring, Raymond “Shrimp Boy” Chow, and 24 others were also picked up in the sting.
Before his indictment, Yee authored a number of important juvenile justice and foster care bills as senator (some of which we have pointed to here and here).
“Guilty,” Yee said, when asked by Judge Charles Breyer how he was pleading.
“Are you pleading guilty of your own free will, because you are guilty?” Breyer asked.
“I am,” Yee said.
As part of the agreement, Yee admitted to exchanging political favors for campaign contributions, including:
▪ $10,000 to help a business secure a contract with the California Department of Public Health. According to the revised indictment, Yee met with undercover agents representing a software consulting company client, Well Tech. One of the agents said he wanted to position Well Tech to compete for state grants and contracts.
▪ $6,800 to issue a proclamation honoring a community organization in Chinatown that prosecutors allege is connected to criminal activities. According to the indictment, Yee gave the proclamation to Chee Kung Tong at a celebration of the group’s anniversary.
▪ $11,000 to introduce an undercover FBI agent to another state senator with influence over medical marijuana legislation. Senate Minority Leader Bob Huff has said he thinks he was “State Senator 2” in the affidavit. He said he met with Yee and “some long-haired guy in plain clothes” to discuss Republicans’ views on the legislation.
Yee also admitted to conspiring to extort several individuals who, at the time, had an interest in pending legislation extending the state athletic commission and changing the workers’ compensation program for professional athletes.
And he acknowledged offering to facilitate a multimillion-dollar arms deal for shoulder-fired missiles and automatic weapons with a source tied to Muslim rebel groups in the Philippines – a particularly bizarre and damaging allegation for the staunch gun-control advocate.
Donald Heller, a Sacramento defense attorney, estimated that Yee ultimately would be sentenced to 30 to 37 months in prison, much less than if he went to trial.
He said Yee could work with the prosecution to corroborate evidence against other defendants or target new ones, but there was no confirmation in the plea agreement either way.
“If he’s agreed to cooperate, I would expect there’s going to be a lot of soiled underwear at the Capitol,” said Heller, who represented lobbyist Clayton Jackson during a massive corruption scandal in the early 1990s that ensnared several members of the Legislature. “Political corruption cases are not usually isolated to one member.”
On Monday, LA County District Attorney Jackie Lacey announced a new Conviction Review Unit to investigate innocence claims, following a wave of recent exonerations in Los Angeles and across the nation.
The LA County Board of Supervisors approved $1 million to fund the unit, which will consist of three deputy district attorneys, a senior investigator, and a paralegal.
When the DA’s office is presented with potentially exculpatory information, Lacey says, “The responsibility is on us, as prosecutors, to re-examine the facts and…to seek to vacate a wrongful conviction.”
The DA’s office prosecuted a whopping 71,000 felony cases last year. This unit is meant to cover prosecutors’ “margin of error” according to DA Lacey, who told Warren Olney, on his KCRW show Which Way, LA?, that she expects the unit to review around a dozen cases per year.
In 2012, California led the nation in innocence cases, with 119 exonerations since 1989. LA County will join other CA counties with similar units including San Diego, Contra Costa, and Santa Clara.
The unit will review claims of actual innocence based on newly discovered evidence. These claims may originate from inmates, attorneys or innocence projects. The requests will be made in writing to the District Attorney’s Office. This process will not require the filing of any formal court documents.
If an initial review determines that the claim appears to have merit, a formal investigation will be opened. A prosecutor and investigator will be assigned to review trial transcripts and interview witnesses. If warranted, the case will be presented to the Conviction Review Committee composed of managers similar to the group that reviews death penalty cases.
If the committee decides the office has lost faith in the conviction, prosecutors will seek to have the conviction vacated.
STUN-CUFFS: 80,000 VOLTS OF INSTANTANEOUS DISCIPLINARY CONTROL OVER INMATES
A pair of “stun-cuffs” wrapped around wrists or legs allow officers to send 80,000 volts of electricity through an inmate’s body, remotely. In the video above, an officer at a National Sheriff’s Association meeting eagerly straps his ankles into the cuffs for a demonstration. When the button is pushed, the officer immediately drops to the ground screaming and writhing while his friends laugh and joke about his reaction.
The Atlantic’s Conor Friedersdorf has more on the painful cuffs, and why the officers’ reaction to the demonstration is troubling. Here’s a clip:
The way that the man taking the video laughs as the other man writhes on the ground in uncontrollable spasms and painful screams adeptly captures the part of human nature that leads me to believe that these devices will spread with terrible results.
They’re already used on prisoners in some jurisdictions. The company itself lists some testimonials on its web site. A detention center in San Juan County, New Mexico, demonstrated the device on a prison guard back in 2012. A Missouri sheriff’s department tested a similar device from a different manufacturer in 2013. They too found it extremely amusing to debilitate colleagues with painful shocks. Lots of young men would react similarly, hence my reluctance to let them put devices they approach with jocularity rather than seriousness on people that they disdain.
I am hardly alone in finding stun-cuffs creepy and suggestive of evil––for goodness sakes, Darth Vader seems to have pioneered their use on the Death Star.
Back in the real world, there are a depressing number of news articles about parents arrested for putting shock collars intended for dogs on their children. Of course, no one would equate kids with prisoners acting up in custody. But the stories are narrowly relevant for two reasons: they’re written as though the shocks are self-evidently cruel, though they’re far weaker and less painful than what stun-cuffs deliver; and in at least one instance, a man was arrested for putting a shock collar on his kid that he never used, suggesting that on some level, even law enforcement understands that it isn’t just being shocked that matters in these situations––the burden of knowing that someone has a finger on a button that could deliver a shock at any moment matters too. When these stun-cuffs are preemptively placed on prisoners, those who don’t misbehave will still suffer that psychological trauma; and recall that many prisoners have not yet been convicted of any crime.
Those problems would give pause even if America’s police officers and prison guards were not prone to excessive force and prisoner abuse.
WILL SCOTUS RULING IN FAVOR OF OKLAHOMA’S LETHAL INJECTIONS TRIGGER LONG-DORMANT CALIFORNIA EXECUTIONS?
On Monday, in a 5-4 ruling, the US Supreme Court upheld Oklahoma’s three-drug execution method challenged by three OK death row inmates after three lethal injections were botched last year.
This ruling has particular significance in California, where executions on hold for almost ten years may soon resume. California recently agreed to develop a single drug execution method to replace the three-drug cocktail, pending the SCOTUS ruling.
Under a recent settlement with families of murder victims, California prison officials agreed to propose a new single-drug execution method within 120 days of the Supreme Court’s ruling in the Oklahoma legal challenge. It would mark the first progress in years toward devising a new execution procedure at San Quentin, where California has not executed a condemned killer in nearly a decade.
By upholding Oklahoma’s controversial three-drug lethal injection method in a 5-4 ruling, the Supreme Court appears to have removed a key legal hurdle for California to rely on some form of lethal drug.
“(It is) a pretty strong green light for California to go forward with whatever lethal injection protocol fits their own regulations and interests,” said Douglas Berman, an Ohio State University law professor and author of the Sentencing Law and Policy blog.
Death penalty opponents expressed alarm that California might resume executions, with one leading group, Death Penalty Focus, sending out an email seeking donations to back efforts to continue legal challenges to lethal injection.
“Today’s decision … starts off a very long, costly and wasteful process in California,” said Ana Zamora, criminal justice policy director for the Northern California ACLU.
The Supreme Court, in a decision written by Justice Samuel Alito, rejected the arguments of death penalty foes that drugs such as those used in Oklahoma risk violating an inmate’s right to a humane execution. “Holding that the 8th Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether,” the court’s conservative majority wrote.
NPR SERIES FACILITATES MEANINGFUL CONVERSATION AMONG LA COPS, COMMUNITY, AND CREATIVES
NPR’s Michel Martin hosted an event called “Street and Beats: Personal stories of cops and community from across L.A.” at the Los Angeles Theatre Center to open up communication between former gang members, local law enforcement, artists, and other community figures.
Panelists included actor Richard Cabral, LAPD Captain Ruby Flores Malachi, Yasmeen Muqtasid, the resident of Black Women Matter Inc., LASD senior deputy, Rafer Owens, Grammy-winning East LA rock group, Quetzal, author and journalist, Sam Quinones, and LA Poet Laureate, Luis J. Rodriguez.
L.A. Police Captain Ruby Malachi said she wanted to join the force after a bad personal experience with the police as a teenager. “I wanted to become an officer and make a difference, treat people right. Your first encounter with an officer is a lasting, lifelong impression,” she said.
“Many police officers come on for the right reasons,” Malachi continued. “As tough as it is to police in this day and age, we are extremely proud to wear the badge. And that’s one of the things we’re campaigning at LAPD: let’s show what’s behind the badge.”
“We’re real people,” she said. “We care about the job and came onto the job to serve and protect. That’s what we’re sworn to do.”
“[Serving on LASD] is coming out of yourself and serving the community, people who need you,” said Rafer Owens, Senior Deputy, Los Angeles County Sheriff’s Department. “We are obligated and obliged to serve our community.”
Malachi said that police and the community they serve have to work to solve problems together and that there need to be more positive contacts with police officers. “We should be teaching kids to run towards us for help, not from us.”
2. Communities often don’t see the concern
Yasmeen Muqtasid, President of Black Women Matter Inc., said the good intentions Malachi and Owens described oftentimes aren’t seen by the community.
“For myself as a black woman, for our organization Black Women Matter, and for black people, the ‘Officer Friendly’ doesn’t exist. It never has,” she said.
“When I think about my first interactions with police, it’s seeing family members being beaten to a pulp,” said Muqtasid. “There’s a huge disconnect between what officers say and what the community feels and experiences.”
5. Cops are human and they’re needed by the community
Growing up, Poet Laureate of Los Angeles Luis J. Rodriguez said he felt he and his San Gabriel community were at war with the police. Now, he wants police to be part of the community.
“When I was a crime reporter I learned that cops are under the gun of society that says crime is their problem, and I don’t think that’s true. I think crime is a social, political, and justice issue. I do think police are given the short end of the stick when it comes to that and that they should not be in charge of everything we can’t resolve,” he said.
The state agreed that the development of the single drug would move forward, with a four-month time clock,just as soon as the U.S. Supreme Court rules on a lawsuit brought by three Oklahoma death row inmates after three American executions last year were horribly botched.
THE SUPREMES & THE MIDAZOLAM PROBLEM
Lawyers for the three have argued that all three inmates experienced severe enough pain as they died that the states’ actions crossed into the arena of unconstitutionality.
The primary culprit in the execution botching was reportedly one of the drugs that officials used as part of each state’s approved three drug cocktail, namely midazolam, a drug that has been used by four states as part of their capital punishment regimin, and that four more states propose using.
It seems that states have switched to midazolam because the companies that make the more trustable types of barbiturates, now refuse to allow their drugs to be used as part of anybody’s state cocktail to kill humans.
But, although it has been approved for use by various lower courts, the case before SCOTUS contends that it is simply not safe unless we’re willing to risk torturing our death row inmates.
In particular, according to the three Oklahoma plaintiffs, it was the execution of another Oklahoma death row inmate, Clayton Lockett, in 2014, that was truly cruel and unusual punishment as defined by the Eighth Amendment, in that Lockett woke back up in the middle of everything, began trying to talk, and appeared to be suffering horribly.
As to how the outcome of the case could affect California, it is not the decision about the specific drug, midazolam, that matters, but rather the new standards a ruling could set by which courts should evaluate challenges to a particular method of execution. California officials are loath to set a new protocol only to have their chosen one-drug method tied up in years of court appeals.
The ruling is expected to come near the end of this month.
CRUEL AND UNUSUAL
So, okay, how bad was Lockett’s botched execution really?
Jeffrey E. Stern, writing for the June issue of the Atlantic, has a deeply researched longread that explains in elaborate detail what the state had to go through to get the drugs it intended to use to kill Lockett, the secrecy around the drugs the state was using, and the ghastly execution itself. It is a tale that is both fascinating and horrifying to read. And it is likely a necessary read for anyone who intends to engage knowledgeably on one side or the other of the capital punishment debate.
Here are a couple clips from Stern’s story:
First, this section below provides a look into the byzantine gyrations Oklahoma and other states had to go through simply to acquire the needed deadly potions.
….What many people don’t realize, however, is that choosing the specific drugs and doses involves as much guesswork as expertise. In many cases, the person responsible for selecting the drugs has no medical training. Sometimes that person is a lawyer—a state attorney general or an attorney for the prison. These officials base their confidence that a certain drug will work largely on the fact that it has seemed to work in the past. So naturally, they prefer not to experiment with new drugs. In recent years, however, they have been forced to do so.
The problems began at a pharmaceutical plant in Rocky Mount, North Carolina. The Food and Drug Administration discovered that some of the drugs made there were contaminated and in April 2010 sent the manufacturer, Hospira, a warning letter. Hospira stopped producing, among other drugs, a barbiturate called sodium thiopental. No other company was approved by the FDA to make sodium thiopental, which was the anesthetic of choice for almost all of the states that carried out executions. (The death penalty is legal in 32 states; 17 of them have performed an execution in the past five years.)
With sodium thiopental suddenly unavailable, states scrambled to find alternatives. In June of that year, officials in Georgia discovered a work-around: a small-time businessman in London named Mehdi Alavi, who sold wholesale drugs through a company called Dream Pharma, would ship sodium thiopental to them. Georgia bought some from him, and then Arkansas did too. With Hospira offline, Alavi had the U.S. execution market cornered. Arizona bought sodium thiopental from him in late September and used it the next month to execute a convicted murderer named Jeffrey Landrigan. California placed an order as well.
Maya Foa, an anti-death-penalty advocate based in London, saw Dream Pharma mentioned in court documents related to Landrigan’s execution and decided to pay a visit. At the company’s address, she found a small building with peeling white paint and a placard that read Elgone Driving Academy. Inside she found two desks and, in the back of the room, a single cabinet. That was it: Dream Pharma. Alavi imported execution drugs from elsewhere in Europe and shipped them to the United States, using that cupboard in a driving school as his base of operations.
Reprieve, the human-rights organization where Foa worked, wrote to the British government, arguing that supplying drugs for executions violated British law, since the death penalty is illegal in Europe. The government balked. Stopping the shipment of a drug would hamper free trade and could be harmful to patients. Foa responded that the “patient” argument was erroneous—there was no trade of sodium thiopental between the U.S. and the U.K. for medicinal purposes. It was all for executions. This time, the government agreed. England announced tighter export restrictions, which effectively banned the sale of the drug for executions. Foa then persuaded the European Commission to follow suit by amending its torture regulation. U.S. states trying to carry out the death penalty were now blocked from buying drugs not just from England, but from all of Europe.
So they looked even farther afield. In late 2010, a company in Mumbai, Kayem Pharmaceuticals, received an e-mail from the Nebraska Department of Correctional Services. Officials there wanted an anesthetic that Kayem made mostly for clients in Angola: sodium thiopental. Kayem sold Nebraska 500 vials, enough for more than 80 executions. Soon after, Foa’s boss wrote the company to explain how Nebraska planned to use its product. When South Dakota officials tried to place an order, Kayem jacked up the price 900 percent, to $20 a vial, hoping the cost would dissuade them. It didn’t. South Dakota bought 500 vials. Kayem stopped selling the drug to the U.S. immediately after that….
Then once Oklahoma officials had the required drugs and tried to go about executing their prisoner, things did not go well at all:
As Zellmer tried to get the needle into the jugular, the paramedic stuck Lockett three more times on his right arm, failing each time.
Zellmer got the needle into Lockett’s neck and saw flashback, but then saw blood spread under the skin—he thought the needle might have gone all the way through the vein. Zellmer decided to try a subclavian line, in a vein running beneath Lockett’s collarbone. The paramedic brought him a central-venous catheterization kit, and Zellmer numbed Lockett’s chest with lidocaine. The paramedic tried two different veins on Lockett’s right foot; both attempts failed.
Zellmer kept trying to get the needle into Lockett’s subclavian vein. He finally saw a little flashback, then lost the vein and couldn’t get the needle back in. After repeatedly sticking Lockett’s chest, he decided to try the femoral vein, in Lockett’s groin. The paramedic went to get a longer needle.
As the warden, Anita Trammell, watched the doctor and the paramedic work on Lockett, she felt a sliver of pride for the inmate. He’d now been stuck with needles more than a dozen times. She knew he was in pain, but she thought he was taking it like a man. Trammell tried to make conversation to help calm him. She knew he had been a drug user. “What was your drug of choice?” she asked him.
“I thought that was a white man’s drug,” she said, and he laughed.
The paramedic came back and said she had no needles longer than an inch and a quarter. That presented a problem. The femoral vein lies deeper in the body than other veins, so they would ideally use a needle at least twice that length. There were longer needles inside a second central-venous catheterization kit, like the one they’d just used on Lockett’s chest, but neither Zellmer nor the paramedic thought of it. Zellmer asked for an IO-infusion needle. IO stands for “intraosseous”—into the bone. It is, in effect, a power drill, used to bore a hole through bone and into the marrow, and therefore doesn’t require finding a vein.
The prison had no IO needle. Zellmer had only the absurdly short one-and-a-quarter-inch needle. “Well,” he told the paramedic, “we’ll just have to make it work…..”
AND BACK TO YOU, CALIFORNIA
So can California really do reliably better by using just one drug? What drug will officials propose using? Is that drug reliable? And will CA be able to get the drug that officials select, now that more and more manufacturers are declining to allow their medications to be use for state executions? All those questions have yet to be answered.
CALIFORNIA PRISONER REALIGNMENT AND ITS SUCCESSFUL IMPLEMENTATION, WILL BE PART OF GOV. BROWN’S LEGACY
California’s prisoner realignment, which went into effect in October of 2011, shifted the incarceration burden for certain low-level offenders away from the CDCR (California Department of Corrections and Rehabilitation) to the states’ 58 counties.
In 2013, the Public Policy Institute of California looked at what effect, if any, realignment had on crime in its first year of existence. It found a slight uptick in violent crime, but noted that it was comparable to similar increases in violent crime elsewhere in the country in states that had no new realignment strategy. (There was however, an anomalous uptick in auto theft, for which the researchers had no explanation.) At the same time, in that first year, the state’s prison population dropped by around 27,000 to 133,400 inmates.
On Tuesday, the Public Policy Institute of California released a second report, finding that in 2013, crime rates dropped several percentage points (or more) in all categories of violent crime and property crime calculated.
And, thanks to realignment, and more recently, Prop 47, the state’s prisons are now 2,200 inmates below the 137.5% capacity deadline set by a panel of federal judges. (Prop 47 reclassified certain non-violent drug and property-related felonies as misdemeanors.) County jail population growth has also slowed down.
A Sacramento Bee editorial lauds California Governor Jerry Brown’s criminal justice reform efforts, calling realignment an important accomplishment and a model for the nation.
UNDER-THE-RADAR CALIFORNIA “TRAILER BILL” WOULD CONCEAL RECORDS OF KIDS KILLED BY THEIR PARENTS’ SIGNIFICANT OTHERS…AND MORE – UPDATED
A “trailer bill” tucked away in the CA budget proposal would hide records of child deaths at the hands of a parent’s boyfriend or girlfriend. It would also limit access to other case notes, and keep social workers’ identities secret in such cases. Interestingly, the bill would also implement a federal order to release case files when kids are brought close to death.
Because the bill is attached to the budget, it will bypass the usual committee review process.
According to the Times, the bill could be voted on as early as today (Thursday).
…state and county officials implemented a battery of child protection reforms that child welfare advocates credit with reducing the number of children who die because of abuse and neglect.
But the bill currently under consideration would relax deadlines for the release of records, and keep the names of social workers secret. It would deny the public access to original case notes, instead providing abbreviated summaries of how the government attempted to protect vulnerable children.
It would also exclude the public from reviewing case files concerning children who were killed by their parents’ boyfriends or girlfriends.
[EDITOR'S UPDATE:We have just deleted a sentence in our clip from this LA Times story. It had to do with DCFS's purported sponsoring of this worrisome bill, which---according to information we have subsequently received---turns out to be incorrect. (A DCFS spokesman said that those at his office first learned of the bill's existence this morning from the LAT's and WLA's reporting. He assured me that DCFS is not at all in favor of the information-restricting proposed legislation.)
The Times too has removed the problematic sentence, although without notifying readers that they have done so. Instead the faulty information just unaccountably vanished. (Bad LAT, no cookie!)]
Pete Cervinka, the deputy director of the social services department who reportedly led efforts to draft the rollback, declined to answer questions about the proposal.
A spokesman noted that the department had not yet publicly introduced the language of the bill, which he said will implement a federal mandate to release records for the first time in cases where children are injured to the point that they are “near death.”
DZHOKHAR TSARNAEV AND THE DEATH PENALTY, AS SEEN THROUGH THE EYES OF SOMEONE PAID TO HUMANIZE DEFENDANTS IN CAPITAL PUNISHMENT CASES
In a story for the Nation, Debbie Nathan, a journalist and freelance “mitigation specialist” for death penalty cases, gives an interesting take on Dzhokhar Tsarnaev’s case from the eyes of someone whose job is to “de-monster the monsters.”
In death penalty cases, when guilt is already established, mitigation specialists dig through the defendant’s past to present a humanizing narrative that will sway jurors to spare the defendant’s life. Often, according to Nathan, the investigations turn up prior abuse, mental illness, and other traumas. But, Nathan says, the concepts and practices of mitigation investigations, vilification, and even innocence claims are indicative of a broken criminal justice system. Nathan argues that humans should be allowed to make bad decisions, even catastrophic ones, and remain among the living.
We search out hardship in early life. In death-penalty cases, this is usually like shooting into barrels of fish. Capital murder is an extreme behavioral outlier and almost always is associated with a gross inability to control one’s frustration, anger, and other antisocial impulses. The problem is most often associated with conditions like intellectual disability, mental illness, exposure to environmental and workplace toxins, and substance abuse. Learning this background can liberate a jury from simplistic and legalistic notions of “guilt,” toward the more complicated understanding that when terrible things happen to someone, even grotesquely violent responses are imbued with a quantum of moral innocence.
Exposition. Rising action. A plot gone awry and a horrible climax. The denouement remains to be written. We mitigation specialists hope the poetics of our client’s life will move the jury to consider their own poetics. To think, as they lie in bed at night after court: “There but for the grace of God go I. Or my child!” They might vote to kill a monster, but not a human. Mitigation narratives don’t work all the time—witness what’s just happened with Tsarnaev. But they work often enough, and they save lives.
As a result of this work, I see capital cases from the inside. I see privy things. Very occasionally, I see strong evidence that someone is actually innocent: they seem truly to have done no wrong. These cases underscore the State’s outsized and often corrupt power, exercised though egomaniacal and dishonest district attorneys, lying cops, inept “experts.” These cases have become a powerful argument against the death penalty.
But I’ve also seen cases in which the defendant and his lawyers have publicly claimed innocence—yet during my work I’ve found evidence suggesting my client is guilty. I’ve seen attorneys hide the “bad facts” of the case—facts, kept quiet by the defense, which suggest that my client did commit murder. These are the moments in which I question the corrosive role that “innocence” plays in criminal justice, and in our effort to reform that broken system.
Claims of innocence can be tremendously useful tools. In court they can rout a death sentence, particularly when raised on appeal to contest an execution that is imminent. Politically, innocence claims are a potent argument against capital punishment, because who, even among the most die-hard of capital punishment advocates, wants to mistakenly execute the blameless?
But innocence claims, even in far lesser crimes than murder, can be as corrosive to our struggling comprehension of humanity as is the prosecutor’s rant about “monsters.” Handed down in courtrooms and in the court of public opinion, a judgment of innocence gives indigent people, people of color, and immigrants the right in America to live. But the other side of the shiny coin of innocence is the crumpled currency of guilt. You’re not innocent? You fucked up? Then you deserve your exile—prison for an eternity, ejection from the United States, your life injected away on a gurney. After all, you’re not innocent.
CROWDFUNDING FOR PEOPLE ALLEGEDLY ABUSED BY LAW ENFORCEMENT, WHO CANNOT AFFORD LEGAL FEES
Anoush Hakimi turned to crowdfunding to “level the legal playing field” by helping indigent victims of alleged police abuse pay their attorney’s fees.
The effort is designed to address a perennial problem in police abuse litigation: most victims are poor and their attorneys only get paid when there’s a settlement or a jury finds in their favor.
In the meantime, attorneys spend their own money to hire expert witnesses, conduct discovery and prepare the case.
“So naturally, plaintiff attorneys are reluctant to take on cases unless they are a slam dunk,” said Hakimi, 37, a Century City finance lawyer. “This leaves a lot of people out in the cold.”
Too often, he argued, victims are forced to settle a case on the cheap because their lawyers can’t afford to fight. The Iranian immigrant, who graduated from UCLA Law School, said he co-founded TrialFunder.com to raise investor money to bolster good cases.
Hakimi said investor money will “level the legal playing field” against deep-pocketed cities, counties and corporations.
LA SUPES MOVE FORWARD ON CREATING SUPPORT SYSTEMS FOR YOUNG PARENTS WHO ARE AGING OUT OF THE FOSTER CARE SYSTEM
On Tuesday, the LA County Board of Supervisors formally approved a two-year pilot program to prevent intergenerational abuse among foster children who become parents. Now the Department of Children and Family Services can move forward on a contract with Imagine LA, the non-profit that will be providing the services to foster kids who have young children and are aging out of the foster care system.
Specifically, Imagine LA will pair the young parents with a group of volunteer mentors to help with every day parenting activities, creating a support system that new parents outside the child welfare system often receive from their own parents and extended families.
The program, which may be renewed for one additional year at the end of the first two years, will be evaluated by the USC School of Social Work.
In LA County where 38% of California’s foster kids reside, 50% of foster kids who age out of the system end up homeless or incarcerated, according to Alliance for Children’s Rights. And, girls in foster care in LA are 2.5 times more likely to be pregnant by age 19 than girls not involved in the child welfare system. Fifty percent of 21-year-old young men aging out say they have gotten someone pregnant, compared to 19% of 21-year-old males not in foster care.
According to Imagine LA, since launching it’s first family mentorship team in 2008, the non-profit has worked with 68 families with whom they have had positive outcomes:
* 100% of families maintained their housing
* 100% of children achieved ASQ (under 5 year developmental standards) or grade level school proficiency with the majority excelling
* 100% of high school-aged youth graduated and pursued higher education
* 100% of participants (adults and children) received annual medical and dental exams
* 75% of families increased their household earned income, on average an increase of 67%
According to Imagine LA’s CEO and President, Jill Bauman, a participating family gets paired with a custom mentor team and a Team Manager who work together to “make sure all the resources, skills and habits the family needs stick. They are in it for the long haul,” Bauman says. “The young people in this program will get help with everything from finding and keeping employment, to learning how to budget, cook, parent, and utilize healthcare, to getting a ‘mom’ break when they need it most. And the children will have other caring resourceful adults also nurturing their development.”
Note: the above video shares the stories of Imagine LA’s participating parents who have struggled with homelessness. The new program approved by the LA Supes will be specifically tailored to aging-out foster kids.
THE WASHINGTON STATE JUSTICE WHO LEFT THE BENCH BECAUSE HE COULD NO LONGER UPHOLD CAPITAL PUNISHMENT
the fact that the two things happened on the same day had a significance
Utter resigned from the state’s high court in 1995—after 23 years on the bench—in protest of the death penalty. In his resignation letter, Utter wrote, “We continue to demonstrate no human is wise enough to decide who should die.”
The Marshall Project’s Ken Armstrong has Robert Utter’s story, including what convinced him to leave the high court. Here are some clips:
Utter’s resignation was part of a string of judicial condemnations of the death penalty in the mid- and late 1990s. The most famous of these came from the U.S. Supreme Court, when Justice Harry Blackmun wrote in a 1994 dissent: “From this day forward, I no longer shall tinker with the machinery of death.” But justices on state courts also joined in, with Utter’s resignation followed by Illinois Supreme Court Justice Moses Harrison II warning of the inevitability of an innocent person being executed. “When that day comes, as it must, my colleagues will see what they have allowed to happen, and they will feel ashamed,” Harrison wrote in a 1998 dissent.
On the state Supreme Court, Utter dissented two dozen times in cases where his colleagues upheld a death sentence. (Often, those sentences were thereafter reversed in the federal courts.) His chief criticism was the unequal application of the law. He would write time and again of how one defendant had received a death sentence while others, whose crimes were worse and whose circumstances were less forgivable, had not. In the 1990s, two events helped convince him to walk away. One was the 1993 execution of Westley Allan Dodd, the state’s first execution since 1963 and the country’s first hanging since 1965. The second was reading “Hitler’s Justice,” a book by Ingo Müller, a German lawyer. In a law review article published in 1997, Utter wrote that Müller “chronicles how the entire legal system, including judges, lawyers, and lawmakers, were co-opted to serve a lawless regime with the corresponding death of the rule of law and its legal institutions. … In fact, he told of only two non-Jewish judges who actively protested the actions of the Nazi government by resigning.”
In a long interview conducted as part of the Washington Secretary of State’s Legacy Project, Utter explained how the book made his choice clear.
CALIFORNIA’S CHIEF JUSTICE SEZ ALL CA COUNTIES SHOULD HAVE MENTAL HEALTH COURTS
While sitting in on Sacramento Superior Court’s Mental Health Court, California Chief Justice Tani Cantil-Sakauye, a Republican, pointed out that only 27 of the state’s 58 counties have mental health diversion courts despite their proven ability to reduce recidivism.
Chief Justice Cantil-Sakauye said that although the state appropriated $15 million in one-time funds for diversion courts, many counties may not be able to afford them when the start-up money runs out.
Capital Public Radio’s Bob Moffitt has the story. Here’s how it opens:
In Sacramento Superior Court’s Mental Health Court, there are plenty of congratulations and plenty of cupcakes for people who used to be known as defendants but who are now known as participants. They stand before Judge Larry Brown. An attorney updates the judge on the status of a participant.
“I am happy to report his drug test was negative.” Brown responds, “Great! That’s terrific. Good job.”
Judge Larry Brown gently reminds one of the participants in the County’s mental health program that progress involves a little work, “None of this punishment. It’s all about having part of a structured program, right?”
On this day, Chief Justice Tani Cantil-Sakauye sits in the jury box as an observer. She says only 27 of the 58 counties have a mental health court.
“When you give people treatment and they get on some kind of service-provider program, they tend to re-offend less -hence the reduction in recidivism, hence less of a cost to the community -law enforcement, jails and institutions.”
For 18 months, the MacArthur researchers followed 447 participants from mental health courts in San Francisco County and Santa Clara County as well as Hennepin County, MN, and Marion County, IN, as well as 600 people receiving “treatment as usual.”
THE NOT-SO-FAR-FETCHED JUMP FROM DRUG DEALER TO ACCOUNTANT
RadioDiaries’ Joe Richmond talked with Kamari Ridgle, a young, former drug dealer from Richmond, CA who discovered his passion for accounting, after 22 bullets pierced his body, leaving him paralyzed from the waist-down at 15-years-old. According to Kamari, “Every drug dealer is a businessman.”
“Last fall, in my accounting class,” Kamari continues, “the teacher was like, ‘This is what you really need to know: you’ve got expenses, you’ve got revenues.’ That’s when I was just like, ‘Oh, I did this before. I get this…”