Sheriff Lee Baca has reportedly chosen Terri McDonald, up until recently the Undersecretary of the California Department of Corrections (CDCR) to be his new Assistant Sheriff in charge of custody. The creation of this post to be filled by a custody expert from outside the department was among the main recommendations made by the Citizens Commission on Jail Violence.
(UPDATE: The selection of McDonald has not yet been officially announced. But LASD spokesman Steve Whitmore has confirmed that McDonald is indeed the sheriff’s choice, that the deal has been made. “She’s excited,” he said. “The board has until February 15 to object, and then it’s a done deal. She has a great resume. And, in addition to her decades of custody experience, she’s a subject matter expert on AB109 since she worked with the governor when it was being written.”
Baca launched the search for a custody head very shortly after the commission delivered its findings at it is to his credit that he has followed through so quickly.
A look at McDonald’s background shows she has had a 24-year career in state government that started as a correctional officer, so she is familiar with the workings of a paramilitary organization and comfortable with the chain of command.
I’ve only done preliminary checking around, but her reputation with CDCR-watchers I spoke with is, thus far, good. “She’s smart, moral, and works very, very hard,” said one. “Incredibly hard working,” agreed another, “and very effective at implementing programs.”
More on McDonald as we learn it.
SHERIFF’S DEPARTMENT SENDS OUT “MANUAL REVISION” NOTICE REGARDING WEB COMMUNICATIONS THAT IS MAKING DEPARTMENT MEMBERS UNEASY
WitnessLA has obtained a revision to the Los Angeles Sheriff’s Department manual (see below) that sets down policies regarding conduct on the internet. The memo announcing the changes has reportedly causing many LASD personnel worry that they will be sanctioned for anonymous postings in the comments sections of news sites like WitnessLA, LA Weekly or the Los Angeles Times, if those comments are critical of the sheriff’s department or members of its command staff.
Here are the new sections in question:
3-01/000.10 PROFESSIONAL CONDUCT
All Department members shall be held accountable for their utterances, writings, conduct,
and visual representations,including electronic and web-based communications, when
they conflict with Our Core Values, Our Mission, or Our Creed and personnel can
reasonably be identified as Department members. Personnel who cause undue
embarrassment or damage the reputation of and/or erode the public’s confidence in the
Department shall be deemed to have violated this policy.
Unit commanders shall ensure copies of Our Mission, Our Core Values, and Our Creed
are clearly and prominently displayed and maintained in the public lobbies of all Sheriff’s
Unit Commanders shall ensure copies of Our Mission, Our Core Values, and Our Creed
are clearly and prominently displayed and maintained within a high-traffic work area in all
Sheriff’s Department’s facilities (e.g., briefing room) for viewing by assigned personnel.
3-01/000.15 ELECTRONIC AND WEB-BASED COMMUNICATIONS
Electronic and web-based communications include any medium used to deliver
information electronically or digitally. Examples of electronic and web-based
communications include, but are not limited to, websites, “smart” phone technologies, text
messaging, Nixle, electronic mail (email) and “social media” sites such Facebook,
Myspace, Pinterest, and Twitter; photo sharing websites such as Flickr; video sharing
websites such as YouTube; and/or any other similar electronic or digital delivery system.
“Social media” includes any electronic medium where users may create, share, and view
user-generated content, including uploading or downloading videos or still photographs,
blogs, video blogs, podcasts, or instant messages, or online social networking content.
We talked to LASD spokesman Steve Whitmore about the new rules and he said there was nothing to worry about. “This is by no stretch an attempt to abridge anybody’s First Amendment rights,” Whitmore said. “It’s just to say, ‘Be careful. It’s the wild, wild west out there.’ I mean most people are anonymous anyway when they post comments—and there’s nothing wrong with that,” he said. “At least people believe they’re anonymous.”
Mostly, said Whitmore, “it’s just a reminder that you represent the entire agency, so behave accordingly.”
LA OFFICIALS TEAM UP TO REFORM SCHOOL DISCIPLINE POLICY
LAPD, LAUSD, LA County Probation, and city officials are finally coming together to change the LA school system’s broken discipline practices. It is heartening to see concrete changes to the student ticketing policy, but correcting and transforming the larger and longstanding zero tolerance policies for school discipline will be something that takes time and is a process we will continue to closely monitor.
A new approach is also in the works at the Los Angeles County Probation Department. Officials there are launching alternative programs to keep students out of the court system and provide them instead with counseling, tutoring and other community services.
The move away from punitive law enforcement actions and toward support services reflects a growing awareness, grounded in research, that treating minor offenses with police actions did not necessarily make campuses safer or students more accountable. Instead, officials and activists say, it often alienated struggling students from school, pushing some to drop out and get in more serious trouble with the law.
The shift is being directed by new city and county leaders who community groups say are far more responsive to the groups’ long-running complaints. L.A. Unified Schools Supt. John Deasy, school Police Chief Steven Zipperman and L.A. County Chief Probation Officer Jerry E. Powers — who all took office last year — have embraced the changes for low-level student offenses.
“There’s a very big pendulum shift,” said Robert Sainz, assistant general manager of L.A.’s Community Development Department, which is working with L.A. Unified. “This is the first time the city and school district are working together specifically to bring students back to school.”
WHILE WE’RE ON THE SUBJECT, a hearing exploring alternative school discipline policies will be held on Sept. 10th in the LA Central Library’s Mark Taper Auditorium at 3:00p.m. Speakers and presenters that will highlight school discipline data and explore alternatives to the current California policies that aren’t working include: Russlynn H. Ali, Assistant Secretary for Civil Rights, U.S. Department of Education, and delegates from the Youth Justice Coalition, Gay-Straight Alliance Network, Public Counsel, and lots more. The event is sponsored by CA Superintendent of Public Instruction Tom Torlakson, CA Attorney General Kamala Harris, and The California Endowment. (It looks like it’s going to be really dynamic. For more information, contact Melanie Keh at firstname.lastname@example.org.)
EARL OFARI HUTCHINSON SAYS LAPD DIDN’T GIVE THE WHOLE ALESIA THOMAS STORY
Earl Ofari Hutchinson, LA African American activist and author, says there is more to the Alesia Thomas story than what the LAPD has presented. (For those who are unaware, Alesia Thomas died in custody after a female officer allegedly stomped on her genital area. Thomas had previously attempted to surrender her children at a police station, and was arrested on suspicion of child endangerment.)
After meeting with Thomas’ mother and grandmother yesterday he said the cops’ version wasn’t the whole story.
His organization, Los Angeles Urban Policy Roundtable, states:
… Family members vehemently dispute the depiction of Alesia as a drug addicted, unfit mother. They revealed many new facts about Alesia’s background, education, work experience, and her relations with her children.
To be fair, we don’t ever recall the police calling Thomas a drug addict. And her own mother did tell CBS Los Angeles / KCAL that she was prone to depression.
However, Hutchinson is one of L.A.’s more credible leaders, and his alliance with the family can’t be good for the LAPD.
ANTI-MEXICAN MESSAGES LEFT ON CARS IN LONG BEACH
Anti-Mexican notes were placed on Long Beach cars on Labor Day saying things like, “Go back to Baja, Wetbacks,” and, “The Mexicans invaded this beach.” The Long Beach police have shrugged off the notes as a free speech issue. We’re not in favor of the cops going around arresting anyone, as it gets into slippery 1st Amendment territory, but it might be prudent to investigate as a potential precursor to escalation.
Long Beach is a great town, a town that likes to pride itself on its diversity, unlike us Neanderthals over in Orange County. Nevertheless, it’s a place that boils with racial tension from time to time, as the city has turned from Iowa-on-the-Beach to one of the most diverse towns in the country.
But such incidents usually happen in the working-class areas, definitely not in tony Belmont Shore, where Labor Day found some anonymous pendejo leaving nasty anti-Mexican notes on cars asking “wet backs” to “go back to Baja.”
(Definitely click over to the OC Weekly story, as they have photos of the notes left on cars of beach-goers.)
STEINBECK FAMILY INCENSED BY JUDGE’S REFERENCE TO OF MICE AND MEN DURING EXECUTION RULING
Marvin Wilson, a Texas man with an I.Q. of 61 was executed Tuesday after SCOTUS denied him a stay of execution. A TX judge referenced Of Mice and Men to illustrate the difficulty of knowing the level of mental disability one must have to be exempt from the death penalty under the 8th Amendment. Upon reading an account of the death penalty ruling, John Steinbeck’s son, Thomas, joined the fight to stop Wilson’s execution.
As the legal analyst Andrew Cohen explains on The Atlantic’s Web site, the execution of a 54-year-old man “who could not handle money or navigate a phone book, a man who sucked his thumb and could not always tell the difference between left and right, a man who, as a child, could not match his socks, tie his shoes or button his clothes,” seemed to “directly contradict the spirit, if not the letter,” of a Supreme Court ruling in 2002 that appeared to bar the execution of mentally retarded inmates.
Mr. Wilson’s lawyers argued that the court should intervene because Texas uses criteria to determine whether someone can be fairly classified as mentally retarded that “lack any scientific foundation,” The Texas Tribune reported. As The Atlantic Wire notes, in a 2004 ruling that paved the way for Mr. Wilson’s execution, a state court judge turned instead to literature, invoking John Steinbeck’s “Of Mice and Men” to describe the difficulties of defining “that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.”
After Thomas Steinbeck, the writer’s son, read a Guardian article on how his father’s novel had been used in a Texas court to argue for the execution of the mentally retarded, he joined the effort to halt the killing of Mr. Wilson, The Beaumont Enterprise reported. In a statement released on Tuesday, just before Mr. Wilson was put to death for a fatal shooting in 1992, Mr. Steinbeck wrote:
On behalf of the family of John Steinbeck, I am deeply troubled by today’s scheduled execution of Marvin Wilson, a Texas man with an I.Q. of 61. Prior to reading about Mr. Wilson’s case, I had no idea that the great state of Texas would use a fictional character that my father created to make a point about human loyalty and dedication, i.e., Lennie Small from “Of Mice and Men,” as a benchmark to identify whether defendants with intellectual disability should live or die.
My father was a highly gifted writer who won the Nobel Prize for his ability to create art about the depth of the human experience and condition. His work was certainly not meant to be scientific, and the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability. I find the whole premise to be insulting, outrageous, ridiculous and profoundly tragic. I am certain that if my father, John Steinbeck, were here, he would be deeply angry and ashamed to see his work used in this way. And the last thing you ever wanted to do, was to make John Steinbeck angry.
(Be sure to also check out Andrew Cohen’s article for The Atlantic on the subject, as it is well worth reading.)
REPORT RELEASED ON JUVENILE JUSTICE TRENDS BETWEEN 2001-2011
A report released Tuesday by the National Conference of State Legislatures examines juvenile justice trends between the states over the past decade. The report reviews state policies distinguishing juvies from adults, the disproportionate representation of minorities in the juvenile justice system, and advances in mental health and rehabilitation policies.
Between 65 and 70 percent of the two million youth arrested each year in the United States have some type of mental health disorder. With this in mind, states have focused on providing proper screening, assessment, and treatment services for young offenders with mental health needs. As just one example, a Colorado law now allows a 90-day suspended sentence, during which treatment is provided to juveniles with behavior disorders or mental health issues.
Minority youth come into contact with the juvenile justice system at every stage at a higher rate than their white peers. Between 2005 and 2007, Colorado, Indiana, Kansas and Tennessee established committees or commissions to address the overrepresentation of minorities in their juvenile justice systems. And in 2008, Iowa became the first state to require a “minority impact statement,” which is required for proposed legislation related to crimes, sentencing, parole and probation.
RULING SAYS BURBANK PD WHISTLEBLOWER NOT PROTECTED BY FIRST AMENDMENT
The Ninth Circuit ruled Tuesday that a Burbank detective, who blew the whistle on fellow detectives whom he reportedly saw abusing suspects, was not shielded against departmental sanctions as his did not constitute protected speech. (Not sure what kind of precedent this sets—we’ll let you know more as we find out more.)
Courthouse News Service’s Annie Youderian has the story. Here are some clips:
Angelo Dahlia claimed he saw a fellow detective in the Burbank Police Department squeeze a suspect’s throat and stick a gun in his face, saying, “How does it feel to have a gun in your face motherfucker?” Dahlia said he heard yelling and the sound of people being hit as the detective continued to interview suspects. He said he told Burbank Police Lt. John Murphy that “things were getting out of hand, the interviews were getting too physical, and too many people were doing their own thing and were out of control.” Murphy allegedly told Dahlia to “stop his sniveling.”
Dahlia was interviewed by investigators at least three times. After each interview, Dahlia said he was harassed and threatened.
In May 2009, the Los Angeles Sheriff’s Department interviewed Dahlia, who said he disclosed his colleagues’ abusive interrogation tactics. Four days later, Burbank Police Chief Tim Stehr placed Dahlia on administrative leave.
Dahlia sued the city of Burbank and several officers, claiming the disciplinary action constituted retaliation for his protected speech.
A federal judge dismissed the lawsuit, concluding that Dahlia’s speech was not protected because the “disclosure of incriminating facts” fell within his official duties as a police officer. The federal appeals panel in Pasadena agreed.
The U.S. Supreme Court scaled back Arizona’s first-of-its-kind crackdown on illegal immigrants, striking down three provisions in a decision that asserts the federal government’s exclusive role to set immigration policy.
The ruling leaves intact, for now, the law’s centerpiece requirement that Arizona police check the immigration status of people they suspect are in the country illegally. Even so, the 5-3 decision took some of the force from that provision by invalidating parts of the law that would have given the state’s police more power to arrest people for immigration violations.
The ruling gives President Barack Obama’s administration most of what it sought when it sued to block the Arizona law. Supporters of the law said the federal government isn’t doing enough to crack down on an estimated 11.5 million people in the country illegally.
“Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the state may not pursue policies that undermine federal law,” Justice Anthony Kennedy wrote for the majority.
It should be noted, however, that the reason that the “show me your papers” part of the bill was left alone was because it has not yet been implemented.
You can, if you like, interpret that as a defeat for President Obama and for liberal immigration activists. Certainly that’s what Fox News did, and it’s what Arizona Governor Jan Brewer did, when she called the decision “a victory for the rule of law” and “a victory for the 10th Amendment and all Americans who believe in the inherent right and responsibility of states to defend their citizens.” Or you can read the parts of the opinion in which Justice Anthony Kennedy, who wrote it, makes clear that the part of the law he let stand remains because the state hasn’t yet implemented it, or shown how it will implement it, and that it could very well fall later. (And you could take a look around Arizona and see that people like Sheriff Joe Arpaio may very well, in the way they enforce the bit that remains, make it easy for the Court to strike the whole thing down at some point soon.)
SUPREME COURT UPHOLDS 2010 CITIZENS UNITED DECISION
Another important SCOTUS decision made Monday upheld the previous Citizen’s United ruling that allows corporate entities to donate unlimited funds to campaigns.
The Supreme Court’s rejection of a long-shot legal challenge to let states bar corporate and union political contributions in their own elections underscores the legal quandary in which many left-of-center campaign finance reformers find themselves.
The court, in a 5-to-4 vote split along ideological lines, refused on Monday to strike down a Montana ban on corporate political spending. The decision effectively upholds its landmark 2010 decision Citizens United v. Federal Election Commission, which held that corporations and unions were entitled to the same free speech protections as citizens, or at least allow state law to supersede it.
Because the Supreme Court decided Citizens United only two years ago and its conservative majority remains intact, few legal experts expected it to rule in favor of the challenge.
The current case, American Tradition Partnership v. Bullock, stemmed from a century-old Montana law that prohibits corporations from spending money on political campaigns. The effort, joined by more than 20 states, stipulated states should be allowed to carve out their own rules to regulate political fundraising and spending, an argument backed by the Montana Supreme Court when it ruled in favor of the state law last year.
DOJ TO FUND NEW COP JOBS FOR VETS
The Department of Justice announced the awarding of grants to fund approximately 800 law enforcement positions to be filled by military veterans.
The U.S. Department of Justice Office of Community Oriented Policing Services (COPS) today announced funding awards to over 220 cities and counties, aimed at creating or saving approximately 800 law enforcement positions. The grants will fund over 600 new law enforcement positions and save an additional 200 positions recently lost or in jeopardy of being cut due to local budget cuts. All new law enforcement positions funded in the COPS 2012 Hiring Program must be filled by recent military veterans who have served at least 180 days since Sept. 11, 2001.
“Today, we step up our support for recent veterans by offering them the chance to pursue meaningful careers in law enforcement,” said Attorney General Eric Holder. “At a time of budget shortfalls, these grants will provide opportunities for much-needed, highly-trained professionals – with a proven commitment to service – to continue their careers in communities all across the country.”
By the way, Our Weekly reports that LA received the largest amount of grant money from the DOJ program.
Photo courtesy RI4A via Flickr under Creative Commons license.
He wasn’t a very strong person, and maybe not even a particularly good person. Certainly he was a man who battled with wounds of the psyche. Nevertheless Rodney King has a place of significance in Los Angeles history that makes his death oddly startling and saddening. King understood his importance, and seemed to be in genuine pain about his inability to fully rise to its occasion—to be the hero some people wanted him to be. Instead he seemed, on his best days, be a mostly ordinary, somewhat demon-haunted guy who—despite what a Simi Valley jury said—changed the city simply by the fact of having unwillingly endured the vicious beat down he received at the hands of four Los Angeles police officers on March 3, 1991, a beating that fractured his bones in 59 places, and nearly killed him. Still, although he may not have had most of the hero’s virtues he believed his moment in LA history demanded, what King did possess was a deep vein of decency, dignity, and real compassion, all of which was particularly visible in his “Can’t we just get along” speech in the midst of the ’92 riots.
Because of this, and because of his crucial role in our collective LA history, we cannot help but mourn Rodney King’s passing. He was a member of the family.
“Rodney King has a unique spot in both the history of Los Angeles and the LAPD,” Police Chief Charlie Beck said in a statement. “What happened on that cool March night over two decades ago forever changed me and the organization I love. His legacy should not be the struggles and troubles of his personal life but the immensely positive change his existence wrought on this city and its Police Department.”
G-DOG: HOMEBOY MOVIE DRAWS MAXIMUM CROWD AT LA FILM FEST
It was a very full house at the American premiere of G-Dog, the documentary film by Oscar winning director Frieda Mock, about Father Greg Boyle and Homeboy Industries, the gang intervention program that Father Greg founded more than two decades ago. Evidently, a great many LA people decided that watching a movie about the guy who urges us to claim kinship with the men and women whom others often tell us that we should despise—namely former gang members and felons—was an excellent way to spend Father’s Day.
As UCLA’s Dr. Jorja Leap said on screen when she was interviewed in the course of the film, the approach that Boyle and Homeboy practicies produces remarkable results, which was much of what the movie portrayed. Leap (who is a nationally recognized expert in trauma response, gang violence, and at-risk youth) is in the midst of a 5-year longitudinal study of Homeboy, and has noted that, for those who come into its programs, Homeboy has a highly unusual 70 percent retention rate, with only 30 percent reoffending. (The statewide prison recidivism rate is the mirror opposite, with 65 to 70 percent reoffending.)
Thus the film was a portrait, not just of Father Greg, but of the healing and transformative therapeutic community that Homeboy Industries’ programs and its businesses have become, and also of some of the daunting challenges the organization still faces, with its ongoing struggles to balance its fiscal realities with the wrenching needs of the people who daily walk through its doors.
In any case, when I know of another showing of the film, I’ll let you know.
….. writer/director/producer Freida Mock — an Oscar winner for her film on the designer of the Vietnam Veterans Memorial in the nation’s capital — wisely focused on the year 2010, when financial problems almost put Homeboy out of business. While trying to save the lives of young men and women, Boyle finds himself trying to save even his own job, and at one point jokes about having to tell his mother he could be collecting unemployment.
Boyle had critics early on who scornfully called his work “hug-a-thug,” but as the program evolved and drew the support of law enforcement officials like LAPD Chief Charlie Beck — who thinks of Homeboy as an important ally — the correspondence went from hate mail to fan mail. Boyle’s gospel was that for people with dysfunctional families, substandard schools and no job prospects, gang life is a natural allegiance, but the cycle can be broken with tough love, accountability, community and a show of respect….
HUNDREDS ESCAPE OR WALK AWAY FROM THE NEW JERSEY HALFWAY HOUSES THAT NJ GOVERNOR CHRISTIE FAVORS
The NY Times has a very, very long article about New Jersey’s use of privately run halfway houses favored by NJ Governor Chris Christie as a way of keeping the state’s incaceration costs down and then providing better services to certain inmates in their last few months of incarceration. However, it seems that more than 450 of the half-way house residents escaped last year, some committing very serious crimes, including murder, after vanishing
However, upon reading further, it seems that “escape” isn’t quite the right term, as the facilities aren’t lock-downs, thus anybody can pretty much walk away. By the end it is unclear if the places are a terrible idea from which Christie’s pals are gaining monetarily bigtime, or a good idea that needs better triage, so as to keep the more dangerous people in a locked facility to the end of their term.
On the other hand, since the people in the halfway houses are going to be released in a few months anyway, if they are kept in a locked facility for those last three months, where they will get little or no treatment, can we really say it will lessen the chances they would act out violently? Or what is it that the Times reporters are actually implying or suggesting?
(They feature a tragic story of a young woman who became infatuated with a halfway house inmate who had a past of poor impulse control, had committed armed robbery, and had made at least one violent threat against a woman friend in the past. Anyway, the sweet young woman, who we are told was good with animals, tried to break up withe inmate. His response was to escape the halfway house and kill her. A terrible, terrible story, to be sure. However, it is not at all clear what we are to take from this, or even what would have helped avert this tragedy. Perhaps the state of New Jersey should have locked the guy up indefinitely. However, that’s a sentencing issue, not a programmatical one.)
Take a look for yourself. I found it initially heartening that the NY Times had taken on such topics as private prisons, post-incarceration half-way houses, and corrections as big business. However, whatever conclusions the Times reporters intended us to draw, I’m afraid got lost in the welter of ominous and yet contradictory information they kept piling on us as readers.
Here’s a clip:
After serving more than a year behind bars in New Jersey for assaulting a former girlfriend, David Goodell was transferred in 2010 to a sprawling halfway house in Newark. One night, Mr. Goodell escaped, but no one in authority paid much notice. He headed straight for the suburbs, for another young woman who had spurned him, and he killed her, the police said.
The state sent Rafael Miranda, incarcerated on drug and weapons charges, to a similar halfway house, and he also escaped. He was finally arrested in 2010 after four months at large, when, prosecutors said, he shot a man dead on a Newark sidewalk — just three miles from his halfway house.
Valeria Parziale had 15 aliases and a history of drugs and burglary. Nine days after she slipped out of a halfway house in Trenton in 2009, Ms. Parziale, using a folding knife, nearly severed a man’s ear in a liquor store. She was arrested and charged with assault but not escape. Prosecutors say they had no idea she was a fugitive.
After decades of tough criminal justice policies, states have been grappling with crowded prisons that are straining budgets. In response to those pressures, New Jersey has become a leader in a national movement to save money by diverting inmates to a new kind of privately run halfway house.
At the heart of the system is a company with deep connections to politicians of both parties, most notably Gov. Chris Christie.
ETHIOPIAN GOV’T MAKES USE OF SKYPE AND ALL INTERNET PHONE SERVICES PUNISHABLE BY UP TO 15 YEARS IN PRISON
We don’t usually do international stories, but this one is alarming and needs to be widely talked about.
The Ethiopian government, Al Jazeera reports, has criminalized the use of Skype and other VoIP services like Google Talk. Using VoIP services is now punishable by up to 15 years in prison. This law actually passed last month, but mostly went unnoticed outside of the country. Ethiopian authorities argue that they imposed these bans because of “national security concerns” and to protect the state’s telecommunications monopoly. The country only has one ISP, the state-owned Ethio Telecom, and has been filtering its citizen’s Internet access for quite some time now to suppress opposition blogs and other news outlets.
As for Skype and other VoIP services, the new law doesn’t just criminalize their usage, but the Ministry of Communication and Information Technology now has “the power to supervise and issue licenses to all privately owned companies that import equipment used for the communication of information.” It’s worth noting that, as TechCentral points out, the new law also prohibits “audio and video data traffic via social media.” It’s not clear how exactly the government plans to enforce this restriction, but a potential 15-year prison term will likely keep most people from using Skype in Ethiopia anytime soon.
G-Dog Photo by Christine Duong Mason for WitnessLA
Naturally, the sheriff’s lawyers tried to find legal ways to make the lawsuit vanish.
(FYI A class action suit of this nature doesn’t look for any kind of financial payout, but for “injunctive relief.” In other words, the suit is designed to investigate wrongdoing through the discovery process, and then to force reform.)
In any case, when the LASD’s attorneys’ first stab at getting the suit dismissed was a nonstarter, they next tried to get the ACLU removed as counsel from the suit, saying that the fact that the ACLU folks had discovered all this alleged abuse when they were jails monitors, meant that the incidents of abuse they discovered were privileged, and thus couldn’t be used in a lawsuit—or legal jargon to that effect.
(In other words, the wrongdoing you discovered while you were legally monitoring the jails for another kind of wrongdoing, cannot be used to bring a class action suit alleging massive wrongdoing in the jails now. Sure, that works.)
Judge Dean Pragerson has been the most recent jurist overseeing the long standing Rutherford agreement, the result of a 1978 decision on a 1975 class action suit, that resulted in the ACLU being assigned to send monitors into the jails in the first place. This means that Pragerson is not unfamiliar with the reports of abuse that have been bleeding out of the jails in the last few years.
Perhaps for this reason, the judge flicked away the notion of the ACLU being prohibited from bringing suit as counsel.
“And so now the case goes forward,” said a very pleased Peter Eliasberg, the So Cal ACLU’s legal director. “The decision means that we can seek relief systemwide.”
Yep. And that’s a good thing.
APPEALS COURTS AGRESS SOUTH PARK’S WHAT, WHAT (IN THE BUTT) PARODY IS FAIR USE
In an important victory for free speech, on Thursday, the 7th Circuit Court of Appeals agreed that South Park’s parody of the raunchy-ish and very viral internet hit song by Samwell was permissible under the Fair Use. (Warning on that link: NSFW.)
South Park aired the “What What” parody in a 2008 episode critiquing the popularity of absurd online videos. Two years later, copyright owner Brownmark Films sued Viacom and Comedy Central, alleging copyright infringement. Recognizing the episode was an obvious fair use, a federal judge promptly dismissed the case. Brownmark appealed, claiming that fair use cannot be decided on a motion to dismiss, no matter how obvious. Viacom fought back, and EFF filed an amicus brief in support, explaining that being able to dismiss a case early in litigation—before legal costs can really add up—is crucial to protect free speech and discourage frivolous litigation.
The appeals court agreed, calling the district court’s decision “well-reasoned and delightful”
These rulings are important not only to protect speech, but also in fighting back against copyright trolls. Trolls depend on the threat of legal costs to encourage people to settle cases even though they might have legitimate defenses. Citing EFF’s brief, Seventh Circuit acknowledged the problem:
[I]nfringement suits are often baseless shakedowns. Ruinous discovery heightens the incentive to settle rather than defend these frivolous suits.
Thank you to the 7th Circuit and to the EFF. (And down with copyright trolls.)
IS PEPPER SPRAY A GOOD IDEA IN YOUTH FACILITIES? NEW YORK SAYS NO, LOS ANGELES AND SAN DIEGO SAY, OH, HECK YEAH!
San Diego City Beat’s Dave Maas explores the use of OC Spray or Pepper spray, as a control technique in juvenile detention facilities, after finding through a public records act request that, last year, SD’s youth facilities used OC spray 491 times.
Here’s a clip:
According to the Council of Juvenile Correctional Administrators (CJCA), only 14 states allow the use of pepper spray in juvenile facilities, but in most cases, it’s a last-resort measure, limited to riot-level emergencies. Only five of those states, including California, allow staff to carry it on their person, as is the case in San Diego. CJCA notes in its 2011 report on the issue that no studies have been conducted on the safety of using pepper spray on juveniles and that most juvenile correctional agencies shun its use “because of the harm it causes to youths and the negative impact on staff-youth relationships.”
Gladys Carrión, commissioner of the New York State Office of Children and Family Services, which oversees 49 youth-detention programs, says that’s why New York has never used it.
“It’s dangerous,” Carrión says. “I think it doesn’t teach the young person a thing about how to manage their behavior. It really doesn’t teach staff any skills to be able to engage with young people. I don’t see it as an effective tool.”It recent years, many states have voluntarily traded OC spray for new interpersonal techniques designed to de-escalate conflicts. For other jurisdictions, it’s taken lawsuits, federal investigations and court orders. In 2006, San Diego County Probation told The San Diego Union-Tribune that it was weighing sweeping revisions to its pepper-spray policies after a prisoner-rights group threatened legal action.
LA County probation camps used to use OC spray at a rapid clip, but there has been some slowing of the use due to demands made by federal monitors.
GARDENING INMATES LESS LIKELY TO COME BACK TO LOCK UP
A growing number of corrections facilities across the US are surprised to find that inmates who participate in gardening programs are significantly less likely to return to prison than the national average predicts.
The most recent study by the Pew Center for the States and the Association of State Correctional Administrators found the [national] rate of recidivism (percentage of people released from prisons who are rearrested, convicted, or returned to custody within three years) to be 43.3 percent. What may be surprising, however, is that correctional facilities with a few years under their belt with a garden are finding not just reduced recidivism rates, but significantly reduced rates. According to the WorldWatch Institute, Sandusky County Jail in Ohio finds a recidivism rate of only 18 percent from those inmates who participate in its garden program, as opposed to 40 percent for those who don’t. Graduates of the Greenhouse Program at Rikers Island in New York City experience a 5-10 percent recidivism rate, as opposed to 65 percent in the general inmate population. Participants in The Garden Project at the San Francisco County Jail have a 24 percent recidivism rate, rather than 55 percent otherwise.
Jail gardening programs that involve people at even younger ages show promising positive effects in not only reducing recidivism but also helping youth avoid first-time offenses. Sidney Morgan, the Community Works Leader for the Department of Community Justice in Multnomah County, Ore., sees big changes in youth when they work in a garden. Morgan runs Project Sega (which means “to grow”) which provides youth on probation the opportunity to work on a quarter-acre garden to pay restitution for their offenses. Produce from this garden is sold at New Seasons supermarkets in the metro-Portland area, and the participating youth get the opportunity to plant, maintain, harvest from the garden, prep the food, and bring it to market. Morgan says New Seasons will even offer jobs to youth in Project Sega after they are done with probation. Through Project Sega, Morgan claims they learn that they can be successful, and that crime is not their only option.
“I’ve been doing probation work for seven years, and I’ve never seen anything like the reaction and results we get from kids who participate in gardening,” Morgan exclaimed.
STATE SUES OC TO PROTECT SCHOOL MONEY
The State of California filed a lawsuit against Orange County on Thursday to prevent the budget-strapped OC from using education funds ($73.5M worth) to pay other bills, leaving the state to foot the bill for schools. While California would be held to a constitutional requirement for funding K-12, if the court ruled in favor of the OC, community colleges could take a big hit with the loss of county funding.
Ted Guest at The Crime Report writes about a new DOJ and MacArthur Foundation-funded study, “Causes and Consequences of High Rates of Incarceration,” headed by eighteen corrections experts, will study the the nation’s 2.3M prison population (roughly six times that of most other countries). Research will explore possible low-cost, high-social benefit alternatives to current prison policies.
The panel of scholars, chaired by Jeremy Travis, president of John Jay College of Criminal Justice in New York, will examine the reasons for the dramatic increases in U.S. incarceration rates since the 1970s, which have produced one of the world’s highest incarceration levels—with more than 2.3 million people behind bars in U.S. prisons and jails at any time
The topic has been widely discussed and analyzed for years by advocacy groups on the left and right, as well as by individual scholars. But the two-year, $1.5 million project, convened by the National Research Council (part of the National Academy of Sciences) represents the first time in recent memory that these issues have been subject to wide-ranging, cross-disciplinary research.
“It now is time to review the state of knowledge—to look at the causes of the high rate of incarceration and the consequences for society,” said Travis, author of But They All Came Back: Facing the Challenges of Prisoner Reentry (2005).
So, let’s say you’ve been arrested, and you’ve been told by the cops (or the assistant district attorney, or whomever) that you have to decrypt the hard drive of your laptop, which law enforcement has been unable to hack. Let’s also say that you know that the material on said hard drive will not be….um…helpful to your legal situation (not that any of you would ever find yourself in such a nasty dilemma; we’re speaking hypothetically here). Anyway, would you have to do it—legally speaking?
Or does that fall in the category of self incrimination, thus you cannot be made to do the decrypting?
On Thursday, the 11th Circuit Court of Appeals, located in Atlanta, GA, said nope. You cannot be forced into digitally confessing your sins.
In a ruling that could have broad ramifications for law enforcement, a federal appeals court has ruled that a man under investigation for child pornography isn’t required to unlock his computer hard drives for the federal government, because that act would amount to the man offering testimony against himself.
The ruling Thursday appears to be the first by a federal appeals court to find that a person can’t be forced to turn over encyption codes or passwords in a criminal investigation, in light of the Fifth Amendment, which holds that no one “shall be compelled in any criminal case to be a witness against himself.”
The Atlanta-based U.S. Court of Appeals of the 11th Circuit ruled that “the Fifth Amendment protects [the man’s] refusal to decrypt and produce the contents of the media devices,” which the government believes contain child pornography.
The ruling could handcuff federal investigators, as more data are secured behind sophisticated encryption software. A Justice Department spokeswoman did not immediately respond to a request for comment.
SHERIFF BACA JOINS CHIEF BECK IN SAYING YES TO LICENSES FOR ILLEGAL IMMIGRANTS
Los Angeles County Sheriff Lee Baca said he supports the idea of allowing illegal immigrants to have driver’s licenses as long as they have been in the United States for a number of years without committing other crimes.
Baca’s comments Thursday come as Los Angeles Police Chief Charlie Beck has also expressed support for driver’s license for illegal immigrants.
Baca said such licenses should only be issued after illegal immigrants fill out comprehensive applications, similar to those for citizenship. The sheriff also said the licenses should be up for renewal annually, and be noticeably different than those issued to citizens.
“There’s enough potential for Chief Beck’s idea for it to be explored,” Baca said Thursday.
The sheriff has expressed openness to illegal immigrants being issued driver’s licenses before. In 2002, he supported a proposal to allow the licenses, but to imprint them with a special marker such as the letter “I” for immigrant so police could determine immediately if they were dealing with someone in the country illegally.
At the time, the sheriff was the head of a task force helping then-Gov. Gray Davis craft a plan to allow certain unlawful immigrants to get licenses, a proposal that eventually was scuttled.
Baca emphasized then that many illegal immigrants were already driving without having passed a driver’s test or buying auto insurance.
“At some point in time, we will allow illegal immigrants to have a driver’s license as long as they are trustworthy and non-criminal people,” Baca said at the time.
Good for the Sheriff. Now if the state legislature would just show some common sense and understand that this is less about immigration policy, than it is about public safety.
….critics will argue that granting driver’s licenses to undocumented immigrants condones their presence in this country and makes it easier for them to stay. That makes sense in theory but not in practice. The reality is that undocumented immigrants are already here, and they are already driving to jobs taking care of children, mowing lawns and working in factories, among other things. Doesn’t it make sense to ensure that every driver, regardless of immigration status, is trained, capable and insured?
As Beck wisely points out, California’s push to keep undocumented immigrants from obtaining driver’s licenses hasn’t reduced the problems on the road
SCOTUS APPEARS TO BE HEADED TOWARD AFFIRMING THE STOLEN VALOR LAW
The New York Times’ Adam Liptak has a good summary of what went on in the court when the Supremes heard the Stolen Valor case. Here’s a clip (that includes in back story, in case you’re not up to speed:
Over the course of an hourlong argument on Wednesday, the Supreme Court seemed gradually to accept that it might be able to uphold a federal law that makes it a crime to lie about military honors, notwithstanding the First Amendment’s free speech guarantees. The justices were aided by suggestions from the government about how to limit the scope of a possible ruling in its favor and by significant concessions from a lawyer for the defendant.
The case arose from a lie told in 2007 at a public meeting by Xavier Alvarez, an elected member of the board of directors of a water district in Southern California.
“I’m a retired Marine of 25 years,” he said. “I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.”
That was all false, and Mr. Alvarez was prosecuted under a 2005 law, the Stolen Valor Act, which makes it a crime to say falsely that one has “been awarded any decoration or medal authorized by Congress for the armed forces of the United States.” Mr. Alvarez argued that his remarks were protected by the First Amendment.
But for the personality of the SCOTUS discussion go to the report from Slate’s Dalia Lithwick, in which she details the kinds of lies that worry each of the justices.
Here’s a clip:
Most interesting to me is what judges think people lie about. So, for instance, amid the flurry of opinions written as the 9th Circuit tried to decide whether to review the Stolen Valor decision as a full court came this gem from Judge Alex Kozinski:
So what, exactly, does the dissenters’ ever-truthful utopia look like? In a word: terrifying. If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the Congressional Medal of Honor, but also the JDater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit. Phrases such as “I’m working late tonight, hunny [sic],” “I got stuck in traffic” and “I didn’t inhale” could all be made into crimes.
In so doing, Judge Kozinski launched a weird little judicial Rorschach test one might call Lies Federal Judges Worry About. Entries fly fast and furious this morning.
Here’s a clip from the report, written by Susan Greene:
Among the misperceptions about solitary confinement is that it’s used only on the most violent inmates, and only for a few weeks or months. In fact, an estimated 80,000 Americans — many with no record of violence either inside or outside prison — are living in seclusion. They stay there for years, even decades. What this means, generally, is 23 hours a day in a cell the size of two queen-sized mattresses, with a single hour in an exercise cage, also alone. Some prisoners aren’t allowed visits or phone calls. Some have no TV or radio. Some never lay eyes on each other. And some go years without fresh air or sunlight.
Solitary is a place where the slightest details can mean the world. Things like whether you can see a patch of grass or only sky outside your window – if you’re lucky enough to have a window. Or whether the guy who occupies cells before you in rotation has a habit of smearing feces on the wall. Are the lights on 24/7? Is there a clock or calendar to mark time? If you scream, could anyone hear you?
In the warp of time and space where [Osiel] Rodriguez lives, the system not only has stripped him of any real human contact, but also made it unbearable to be reminded of a reality that has become all too unreal. It’s ripping him apart. [Rodriguez robbed a bank and a pawn shop when he was 22 years old.]
“Looking at photos of the free world caused me so much pain that I just couldn’t do it any more,” writes Rodriguez, 36. “Time and these conditions are breaking me down.”
This is what our prisons are doing to people in the name of safety. This is how deeply we’re burying them.
SHOULD FREE SPEECH PROTECT THE RIGHT TO LIE?
William Bennett Turner writes for the NY Times about the alarmingly slippery slope presented by the Stolen Valor Act.
Here’s a clip:
XAVIER ALVAREZ is a liar. Even the brief filed on his behalf in the United States Supreme Court says as much: “Xavier Alvarez lied.” It informs us that he has told tall tales about playing hockey for the Detroit Red Wings, being married to a Mexican starlet and rescuing the American ambassador during the Iranian hostage crisis. But as the brief reminds us, “none of those lies were crimes.”
Another of his falsehoods, however, did violate the law. In 2007, while introducing himself at a meeting of a California water board, he said that he was a retired Marine who had been awarded the Medal of Honor (both lies). He was quickly exposed as a phony and pilloried in the community and press as an “idiot” and the “ultimate slime.”
But his censure did not end there. The federal government prosecuted him under the Stolen Valor Act, which prohibits falsely claiming to have been awarded a military medal, with an enhanced penalty (up to a year in prison) for claiming to have received the Medal of Honor. Mr. Alvarez was convicted but appealed to the United States Court of Appeals for the Ninth Circuit, which held that the act violated the First Amendment.
The government has taken the case to the Supreme Court, which is scheduled to hear arguments this week. The question before the court is not whether there is a constitutional “right” to lie. Rather, it’s a question about the scope of the government’s power over individuals — whether the government can criminalize saying untrue things about oneself even if there is no harm to any identifiable person, no intent to cheat anyone or gain unfair advantage, no receipt of anything of value and no interference with the administration of justice or any other compelling government interest.
Read the rest. It’s extremely interesting—especially when you start to consider the implications. (Hint: One of them involves Steven Colbert.)
THE SUPREMES, CITIZENS’ UNITED, THOSE CRANKY MONTANANS CHALLENGING THE LAW—AND THE MEANING OF RUTH GINSBURG’S REMARKS
On Friday of last week, the Supreme Court agreed to a stay on the Montana Supreme Court’s ruling of last fall,—one that upheld its own state law and thus basically made the US Supreme Court’s extremely controversial (and truly hideous) Citizens United decision inoperative in the Big Sky state.
Tom Goldstein over at SCOTUSBlog explains the significance of the message conveyed in the statement made by Justice Ruth Ginsburg (joined by Justice Breyer) at the hearing’s conclusion.
Or, if SCOTUSBlog is too wonky for your taste, the story at the Washington Post, addressing the same issue, lays things out more directly. Here’s how it opens:
Two Supreme Court justices suggested Friday that the court reconsider its controversial 2010 decision that allowed unlimited corporate and union spending in elections.
The suggestion came as the court blocked a Montana Supreme Court decision upholding a century-old ban on corporate campaign spending in the state.
The Montana ruling seems squarely at odds with the court’s 5 to 4 decision in Citizens United v. Federal Election Commission, which allowed unlimited corporate spending. The U.S. Supreme Court majority had said such independent spending did not give rise to corruption or the appearance of corruption.
In Friday’s order, Justices Ruth Bader Ginsburg and Stephen G. Breyer said the upheaval in the world of campaign finance since the Citizens United decision does not bear out the majority opinion.
“Montana’s experience, and experience elsewhere since this court’s decision in Citizens United v. Federal Election Commission, make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption,’ ” Ginsburg wrote.
“A petition for certiorari [from those challenging the Montana court’s decision] will give the court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”
Most experts think that the chances of Citizens United being modified or undone by the Supremes are worse than slim, as that would require Justice Kennedy (or someone more conservative than he) switching sides, which is unlikely. But the fact that the discussion will likely be raised may lay down tracks for a future court’s consideration.