California Lawsuits Allege That Suspension of Drivers' Licenses Violates Due Process

The Los Angeles Times reports:

Civil rights lawyers filed suit Tuesday accusing the Los Angeles Superior Court of improperly suspending driving privileges for tens of thousands of poor people because they can’t afford to pay their traffic fines. 

The suit said the court triggers license suspensions by the Department of Motor Vehicles without determining whether the motorists “willfully” ignored fines or were too broke to pay the often exorbitant penalties. The suspensions disproportionately hurt black and Latino people, the suit alleged. 

“If they are poor and don’t have the money to pay, by definition, they cannot be found to have willfully failed to pay,” said Antionette Dozier of the Western Center on Law and Poverty, one of the lawyers on the case. “They are just poor.”

The ACLU reports that they recently filed a similar lawsuit in Solano County:

A lawsuit was filed today against Solano County Superior Court, challenging the court’s practice of suspending the driver’s licenses of people who are too poor to pay exorbitant traffic fines. In 2015, over 11,000 driver’s licenses were suspended in Solano County for failure to pay alone. In California, millions of people do not have valid driver’s licenses because they cannot afford to pay traffic fines and fees. This is the first lawsuit in California to challenge the suspension of driver’s licenses as a means of collecting unpaid traffic fines. 

Lead plaintiff in the suit is Rubicon, a nonprofit that provides employment, career, financial, legal and health & wellness services thousands of low-income people across the Bay Area. “Many of Rubicon’s program participants rely upon having a driver’s license to find or keep employment,” said Jane Fischberg, CEO, Rubicon Programs. “When their license is suspended due to traffic fines and fees they cannot afford to pay, our participants’ lives are put on hold, and their families suffer.”:

Here is the complaint for the ACLU lawsuit. I have not yet been able to find a copy of the Los Angeles County lawsuit. The ACLU complaint and this press release on the Los Angeles complaint indicate that both lawsuits allege violations of due process rights when drivers' licenses are suspended due to failure to pay traffic fines.

Vehicle Code section 14601.1 criminalizes driving on a suspended license. There is a mandatory minimum fine of $300 for first time offenses, and a mandatory minimum $500 fine for offenses that occur within five years of an initial violation. With court fees and penalties factored in, these fines can total to thousands of dollars. These can be a substantial -- if not impossible -- burden on people whose licenses were suspended due to failure to pay fines on other traffic offenses. And, as this report suggests, the burden of suspended licenses tends to fall disproportionately on racial minorities and the poor.

Unfortunately, I do not have the time to investigate the legal questions these lawsuits raise to give an evaluation of the complaints' merits. But I do think that these lawsuits highlight an important, if under-emphasized aspect of California criminal law. The mandatory fines accompanying suspended license violations may render it impossible for those convicted to pay off their fines and obtain the ability to drive.

In areas of California where driving is a virtual necessity, these laws and their associated penalties may present an insurmountable obstacle on those who are convicted. While these violations are misdemeanors or infractions, the impact they have on people's lives can be profound. These lawsuits will hopefully draw attention to this unfortunate reality, and perhaps will prompt changes that lead to a more practical set of suspended license laws.

DISCLOSURES

One of the organizations representing the Plaintiff in the Los Angeles lawsuit is A New Way of Life, which runs a reentry clinic in conjunction with UCLA School of Law's El Centro legal clinics program. I volunteered for the reentry clinic from 2011 to 2014. On the other hand, I filed and prosecuted dozens of driving on suspended license cases between 2014 and 2015 while I worked for the Orange County District Attorney's Office.  So it is up to you, dear reader, to determine the direction of my potential biases.

Following "Alarming" Report, New York Bans Pokemon Go for Sex Offenders on Parole

So reports Governor Andrew Cuomo's office in this press release:

Governor Andrew M. Cuomo today directed the New York State Department of Corrections and Community Supervision to restrict sex offenders under community supervision from using Pokémon GO and similar games. In an effort to safeguard New York’s children, the Governor also sent a letter to software developer Niantic, Inc. requesting their assistance in prohibiting dangerous sexual predators from playing Pokémon GO.

“Protecting New York’s children is priority number one and, as technology evolves, we must ensure these advances don't become new avenues for dangerous predators to prey on new victims," Governor Cuomo said. "These actions will provide safeguards for the players of these augmented reality games and help take one more tool away from those seeking to do harm to our children." 

At the Governor’s direction, DOCCS has imposed a new condition of parole for sex offenders under community supervision that will prohibit them from downloading, accessing, or otherwise engaging in any Internet enabled gaming activities, including Pokémon GO. The directive will apply to nearly 3,000 Level 1, 2 and 3 sex offenders currently on parole. The Department of Criminal Justice Services will additionally be providing guidance to county probation offices recommending the adoption of this policy. ​

This ban was announced almost immediately after the "Alarming Report by State Senators Jeffrey Klein and Diane Savino Detailing Dangers of Pokémon GO in Exposing New York’s Children to Sex Offenders."  As I noted in a post last Saturday, Senators Klein and Savino's report was indeed alarming -- not because it revealed that the game had actually been subjected to malicious use by sex offenders, but because it revealed the Senators' inability to keep their staff from playing a game in which they capture and battle imaginary creatures.

News outlets report on this ban here, here, and here. Douglas Berman also posts about the ban here and highlights Senator Savino's admission that "there's no evidence to any kids were sexually abused after being lured by the Pokémon app."

It's excellent to see a state government spend so much time and effort combating a problem that has not yet manifested. Additionally, it is fantastic that parole condition prohibits sex offenders on parole from downloading, accessing, or otherwise engaging in "any Internet enabled gaming activities," which would presumably include any game that requires the Internet to play, no matter whether there is any contact or potential contact with other players, both in the real world or cyberspace.

Texas Judge: No Plea Bargains "Involving" Probation for More Crimes than You May Realize

The title of this post admittedly involves a bit of a paraphrasing, but not much. The Wall Street Journal Law Blog has this post on a Texas judge who has banned plea bargains for probation or deferred adjudication for defendants charged with assault on a peace officer, resisting arrest, evading arrest, and other crimes in which members of law enforcement are "threatened."  Here is Judge Kerry Neves's Facebook post announcing the order.  In full, it reads:

I have just signed an Order which goes into effect immediately in this Court. No plea bargain agreements for deferred adjudication or probation involving Assault on a Public Servant, Evading Arrest, Resisting Arrest or any other offense in which a member of Law Enforcement is threatened or placed in danger will be approved. In the event the State and the defense attorney believe there is compelling evidence to support such an agreement, the Court may consider it if presented with such evidence. Approval will require a sincere written statement of apology to the officer or officers involved, and agreement from the officer or officers involved to the plea bargain agreement. Prior criminal history will paly a big role in whether any such agreement is approved. 

If approved, the defendant will be required to read the statement in open Court. 

I may only be one person, one Judge, but I will do what I can to stop the disrespect and aggressive behavior against our police officers. If you are an officer, spouse of an officer or know an officer, make sure they know of this change in my Court.

The Wall Street Journal Law Blog notes that while the policy has drawn criticism from the criminal defense bar, the practice of plea bargaining takes place in a generally unregulated area of constitutional law and criminal procedure:

Plea bargaining is a ubiquitous feature of the American criminal justice system, but there’s no constitutional right to a plea offer. 

The right to a fair trial and effective counsel provide protections for defendants to ensure they have the capacity to engage in informed negotiations. And federal criminal procedure standards and local statutes set basic ground rules, but plea bargaining in the United States “is in critical respects unregulated,” according to University of Virginia criminal law professor Darryl K. Brown.

Through the ABA Journal, I was able to track down a copy of the order. As it turns out, the prohibition on plea bargaining is far broader than Judge Neves's Facebook post suggests. The order prohibits plea agreements "involving probation or deferred adjudication" for the following crimes:

1. Assault of a Public Servant
2. Evading Arrest or Detention
3. Failure to Identify
4. Resisting Arrest, Search or Transportation
5. Hindering Apprehension or Prosecution
6. Escape
7. Permitting or Facilitating Escape
8. Prohibited Substances and Items in Correctional Facility
9. Contraband in Correctional Facility
10. Taking or Attempting to Take Weapon from Peace Officer, Federal Special Investigator, Employee or Official of Correctional Facility, Parole Officer, Community Supervision and Corrections Department Officer, or Commissioned Security Officer
11. Interference with Public Duties
12. Interference with Police Service Animals
13. Any other offense in which a member of law enforcement is threatened, harmed, placed in danger or otherwise verbally or physically abused because of his or her status as a member of law enforcement.

I think that this order is misguided.

Off the bat, this strikes me as an overly partisan and political move. Texas has partisan elections for judges and, as it turns out, Judge Neves is up for reelection this November. Here is a link to his campaign website if you would like to know more about him or perhaps donate.

By announcing the order on Facebook in the run up to the election, this order appears to be less focused on good law and more focused on the politics of capitalizing on recent shootings of police officers in Texas.

Normally, I avoid the political criticism on this blog, but just reread the last paragraph of his Facebook post:

I may only be one person, one Judge, but I will do what I can to stop the disrespect and aggressive behavior against our police officers. If you are an officer, spouse of an officer or know an officer, make sure they know of this change in my Court.

Okay, okay. I'll get off my political soapbox.

And onto my legal one...

Good Luck on the Bar Exam! (2016 Edition)

During the past week, I noticed that this 2014 post I wrote on bar exam dress codes was getting suspiciously high traffic. I then realized that this is the eve of the Summer 2016 bar exam, and decided to reprise my good luck post from last year. Additionally, those taking the bar exam this week should take comfort in the fact that while there are many, often obscure, rules governing the test, strict dress codes often are not one of them.

Unless, of course, you are taking the bar exam in Virginia. Good luck with that.

And good luck to everybody taking the bar exam this summer! Exams begins tomorrow, and recent law school graduates across the country are likely having trouble sleeping right now. To those graduates, this advice: make sure to eat, watch at least one episode of some show during the evening, keep writing, and DON'T TALK ABOUT THE EXAM with anybody else during the days of the test. Californians, this will be your second-to-last chance to take the three-day bar exam, so take extra pride in knowing that you are some of the last to endure that needless hardship.

Finally, for those who need the extra motivation: know that if you pass the bar exam, one day this could be you.

Court Convicts Dead Man of Stealing Electricity

Kevin Underhill at Lowering the Bar comments on an unusual case where a Greek court convicted a defendant in absentia for stealing electricity. Despite the defense attorney's request that the trial be continued pending the provision of a death certificate, the court refused.

The court imposed a suspended sentence of six months in jail. As Underhill notes, that jail term wouldn't be imposed unless the defendant violated the law in some other way, so the defendant is "effectively off the hook."

The case raises several interesting questions. For instance, what if the charge were more severe, and this case took place in China? Would a Chinese court impose a suspended death sentence on a deceased defendant? And if a defendant were to fail to report to prison (due to his or her being dead) would the court then impose the suspended death sentence? If so, how?

Moreover, this case touches on a particular interest of mine regarding the law governing the dead and undead. As I have argued in both prior posts and published scholarship, criminal law (unlike tax law) is a particularly effective means of combating the undead in the eventual zombie apocalypse. 

Even if defendants are dead, courts in Greece and Russia will still move forward with prosecution. If When the zombie apocalypse occurs, one can only hope that more courts will follow this trend so that the undead may be effectively tried and prosecuted for the numerous crimes they will inevitably commit.

Hill on Inmates' Need for Federally Funded Lawyers

Over the weekend, I noticed that the first issue of Volume 62 of the UCLA Law Review is now available online. While there are several articles that I am planning to read in the near future, I want to highlight a comment by a former classmate of mine.

Tasha Hill's comment, Inmates’ Need for Federally Funded Lawyers: How the Prison Litigation Reform Act, Casey, and Iqbal Combine With Implicit Bias to Eviscerate Inmate Civil Rights, appears in this issue of the UCLA Law Review and can be read and downloaded in full here. You can find Hill's previous work on sexual abuse in California prisons here. In this most recent paper, Hill delves into a sorely underdiscussed aspect of indigent representation. Hill's writing is approachable and illuminating, and should be of interest to readers in all fields -- and particularly those working in the fields of criminal law and prison law. Here is the abstract:

The United States incarcerates a larger percentage of our population than any other country. Minority populations make up a substantially disproportionate percentage of those incarcerated. For a variety of reasons, violence perpetrated against incarcerated persons, including sexual assault, is endemic and inmates have very limited opportunities to protect themselves. The state has an obligation to protect these people whom it has chosen to strip of the ability to protect themselves and to provide for inmates’ other “basic human needs” such as adequate nutrition and housing.  

The only legal avenue of redress available for inmates to enforce their constitutional rights lies with the courts. But in recent decades, inmates’ access to the courts has been undermined by Congressional acts (principally the Prison Litigation Reform Act) and Supreme Court decisions (such as Casey and Iqbal), leading to a sharp reduction in the success rate of meritorious inmate Constitutional claims. Additionally, pro se inmates, who file the vast majority of claims, have substantially lower success rates in civil rights cases than do represented inmates. 

I therefore propose that a new program called Prison Lawyers be designed and implemented. Prison Lawyers would work for the state, much like public defenders do, and would guide inmates through increasingly complicated administrative grievance processes to achieve exhaustion. Should grievances not be successfully settled, Prison Lawyers would then help inmates file civil rights claims in federal courts. This system would potentially save the state money by reducing the courts’ burden in processing pro se inmate civil rights claims, and would ensure the enforcement of constitutional carceral conditions.

Hill suggests that the the Ninth Circuit could fund a "circuit-wide" Prison Lawyers program that could take up the task of representing inmates who file lawsuits over poor conditions and mistreatment. Noting that most inmate constitutional claims are filed in federal courts, Hill argues that as few as 68 lawyers could take on this role based on the current number of federal cases inmates file. While this program would need to be funded, Hill argues that the program could save money in the long term by creating stronger incentives for prisons to comply with constitutional requirements.

There are indeed some unanswered questions, and Hill recognizes this. It is unclear what the Prison Lawyers program would do to the number of lawsuits filed. Prisoners who may have formerly refrained from filing lawsuits may think that their prospects of success are improved if they are represented by an attorney. This may lead to a heavier caseload for prison lawyers than current numbers suggest.

At the same time, the costs such a program could save shouldn't be dismissed. Beyond long-term savings that may result from changing prison conditions, the Prison Lawyers program could be a filtering device that could weed out frivolous and malicious claims before they reach the courts. Attorneys could inform their clients why a claim lacks merit or redirect their clients' efforts toward proper administrative channels. This could lead to a twofold reduction in workloads: it would lessen the burden on the courts that would have handled and rejected these claims, and of government attorneys who would have responded to these claims.

Hill sheds light on an under-scholared area of law and makes concrete proposals. People working in the field of prison law should take note of this comment.

Robinson on the Rise and Degradation of Criminal Codes

From the CrimProf Blog, I learned about Paul Robinson's essay, The Rise and Fall and Resurrection of American Criminal Codes. Here is the abstract:

This brief essay summarizes the virtues of the modern American codification movement of the 1960s and 70s, putting it in a larger global context, then describes how these once-enviable codes have been systematically degraded with thoughtless amendments, a process of degradation that is accelerating each year. After exploring the political dynamics that promote such degradation, the essay suggests the principles and procedures for fixing the current codes and, more importantly, structural changes to the process that could avoid the restart of degradation in the future.

The essay is a transcript of Robinson's keynote address at the Third Annual Forum on Criminal Law Reform that was held in Louisville, Kentucky. Because of the location of the address, many of the examples discussed in the essay are specific to Kentucky, but the essay itself applies to many jurisdictions, including California.

Take, for example, this portion of Robinson's essay:

Another problem comes from the conflicts between statutes, and the ambiguities that can result. What is a court to do when statutory terms are defined differently in different places? Or if the same conduct is graded differently in different statutes? And one may wonder why should we be empowering courts to get back into the criminalization business to make such legislative decisions forced upon them by such statutory conflicts and ambiguities? How can a code be principled if different provisions provide different definitions of the same criminal harm, or provide different offense grades to the same conduct? In other words, the proliferation problem undermines not only the criminal law’s orderliness, but also its principled nature and its reservation of the criminalization power to the legislature.

These problems often result because new legislation is not written to integrate into the code but rather to layer on top of it, without regard to what went before. And of course layering produces a vicious cycle. The messier the code gets, the less able or inclined legislators are, to integrate new legislation into the existing code. The more new legislation that is layered on rather than integrated in, the more future legislation will layer rather than integrate, until dozens if not hundreds of overlapping layers have been created. If you imagine the original criminal code of 1974 as being the trim hull of a fast boat, the addition of hundreds of independent and overlapping patches can, over forty years, completely obscure the original design, turning it into an irregular blob.

. . .

What drives this degradation of existing criminal law? The underlying causes of degradation are found primarily in the inherent nature of the legislative process. Many amendments and new offenses are enacted for purely political purposes: politicians propose a bill to show concern regarding an issue that their constituents are concerned about. We cannot be too critical here. They are simply trying to be responsive to their community - normally something we see as a good thing, a basic feature of democracy in action. They may be responding to an especially grim case in the headlines, or a case where an offender seemed to have received too little punishment.

But in many of these cases, “the problem” has little to do with a flaw in an existing criminal law rule. Not every problem can be fixed with a criminal code amendment. People will continue to commit outrageous crimes; judges will continue to make what are seen as sentencing errors, and so on. Yet, legislators often feel a need to do something to show that they are sensitive to their constituents’ concerns. And there a few “somethings” that they can do. Changing or adding to the criminal law is one of those few things. But when crime legislation is simply a vehicle for expressing concern, drafters have little reason to take account of existing law. They aren’t really fixing a code problem but rather using their bill as a vehicle to send an empathetic message of concern to their constituents. We should not be surprised by overlaps and inconsistencies because there is little motivation to integrate; overlayering is always easier and faster and often sends a clearer and more dramatic message.

Robinson effectively points out how and why criminal statutes tend to become overly complicated as time goes on. California is one state where this happens quite a bit -- most recently with the passage of Proposition 47. The primary, stated goal of Prop 47 was to reduce sentences for misdemeanors.

Prop 47's changes to the criminal code may indeed achieve this goal. But when it comes to the law of theft, Prop 47 achieves its goal of reducing sentences by adding new laws rather than altering existing provisions. Rather than altering the crime of commercial burglary so that it is a misdemeanor unless the crime is committed outside of regular business hours, Prop 47 went ahead and created the perplexing new crime of shoplifting. Rather than eliminating or simplifying the myriad of statutes defining grand theft, Prop 47 simply added Penal Code section 492 which effectively reduces the punishment of all grand theft offenses to the level of petty theft when the amount of property stolen is less than $950.

California's Penal Code is a cautionary tale of just how complicated a state's criminal code can become as layer after layer of laws are added. Robinson notes that legislators tend to be reluctant to integrate laws into existing criminal code frameworks. I suspect that the direct-vote proposition process is even more likely to result in new layers of complexity.

Some Harsh Words on Dueling

While researching and writing a paper on arbitration by combat and Game of Thrones, I came across the case of Smith v. State, 9 Tenn. 228 (1829). There, Tennessee's Supreme Court of Errors and Appeals evaluated the case of an attorney, Calvin M. Smith (no relation) (hopefully), who had been charged with murder after killing another man in a duel. Smith also faced disbarment for his actions.

The court was not persuaded by Smith's claim that killing another person in a duel was less-deplorable than killing a person in different circumstances:

Taking the petition for true, and how does the case of the defendant stand? By the laws of God, the laws of England from the days of the Edwards; by the laws of Kentucky and Tennessee, and every civilized land, he is declared to have been guilty of wicked and malicious murder, and a felon fled from justice. Is it possible that any well balanced mind can, for a moment, believe that a man whom the law thus condemns, is a fit person to be an aider and adviser in the sanctuaries of justice! 

We are told this is only a kind of honorable homicide! The law knows it as a wicked and wilful murder, and it is our duty to treat it as such. We are placed here firmly and fearlessly to execute the laws of the land, not visionary codes of honor, framed to subserve the purposes of destruction. (237).

The court did not have kind words when describing the various types of people who participate in duels:

It is true, as a part of the history of our species, that many men of strong minds have equally strong passions, which are ill controlled, and subject such men to grosser errors than others with fewer mental advantages; these are the men of worth that fight duels, having no guide but blind and reckless passion when aroused, regardless of their own lives or those of others; hence their conduct furnishes the worst possible evidence upon which to ground a rule for the government of society. This class of duellists are not less wicked than others we will name, but their standing renders it more difficult to punish them. 

Another set of men fight duels (or more generally make a show towards it) to gratify their vanity, by drawing upon themselves a little temporary notice, which their personal worth or good conduct cannot procure. These are always worthless coxcombs, equally destitute of bravery, virtue, or sense, whose feeble nerves would be shattered and prostrated at the sight of an enemy in the field of battle, who are ridiculous in every situation where courage or conduct is required. This class of duellists do little harm other than to disturb the community; they quarrel to make peace; or if officious intermeddlers force them into a fight, are too much alarmed to hit, or perhaps see, their antagonist. The affair is laughed at as a farce, and the parties turned over to the constable. (233).

And recently-admitted attorneys in Tennessee should take note that dueling will most likely have a negative effect on one's ability to practice law:

Let it be once understood that the bar of Tennessee dare not fight, and it will be deemed cowardly to challenge a member of it; and this court solemnly warns every lawyer, that if he violates the laws made to suppress duelling, we will strike him from the rolls of the court, upon the fact being made known to us. The truth is, such men are too often insolent and impudent bullies, who tyrannise over, and impose upon, all orderly men about them; who literally dragoon society, by fear of personal violence, into silence and seeming acquiescence, with respect to their conduct. That such a counsellor is a disgrace, and serious encumbrance to any court where he is permitted to practice, all will admit; those who engage in duels, the statutes deem, and we will treat, as of this description. (234).

Dueling is generally frowned upon in most jurisdictions. Other commentators have noted that dueling convictions have historically led to serious collateral consequences beyond criminal punishment or the ability to practice law. But of the various cases I have read on the subject of dueling, the language in Smith v. State is the most colorful and dramatic that I have been able to find so far.

Proposition 47 Passes in California

So reports the LA Times:

Penalties for common drug and theft crimes in California will be reduced from potential felonies to misdemeanors, shortening the time some offenders spend behind bars. 

Crimes covered by the measure include drug possession and the following offenses when less than $950 is involved: shoplifting, check and credit fraud, forgery, theft and possession of stolen goods. 

As with other misdemeanors, the new maximum sentence will be one year in jail, down from a maximum of three years. Those with histories of violence or sex offenses will be ineligible for the lighter sentences.

You can find the full text of Proposition 47 (Prop 47) here, on pages 7-11.

Regarding theft crimes, Prop 47 adds several new Penal Code sections relating to theft, one of which states:

490.2. (a) Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290. 

(b) This section shall not be applicable to any theft that may be charged as an infraction pursuant to any other provision of law.

This is bad news for those prosecutors who have made their names prosecuting felonies involving stolen avocados and fruits (PC 487(b)(1)(A)), fish and mollusks (PC 487(b)(1)(B)(2)), horses and pigs (PC 487a(a)), dead horses (PC487a(b)), and gold dust and quicksilver (PC 487d). Before Prop 47, theft of those items valued at an amount less than $950 could have been grand theft, and therefore could have been charged as a felony. But now, the value of those stolen items will need to exceed $950 for a felony to be charged. The same is true of situations where a defendant defrauds public housing services -- while a loss of $400 was previously sufficient to prove a potentially felonious grand theft, that amount has now been increased to $950.

It is important to note that contrary to the broad language used by the LA Times, the reduced sentencing provisions will apply to numerous people who have a history of violent convictions. Under Prop 47, the only people exempt from the reduced sentencing provisions will be sex offenders and those with a prior conviction listed under Penal Code 667(e)(2)(C)(iv). Here is that list of qualifying offenses:

(I) A "sexually violent offense" as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code. 

(II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289. 

(III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288. 

(IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive. 

(V) Solicitation to commit murder as defined in Section 653f. 

(VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245. 

(VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418. 

(VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.

It is also worth noting that Prop 47 adds section 1170.18 to the Penal Code, which makes the reduced sentencing provisions retroactive. Section 1170.18 lays out the procedure for those serving sentences or those who have already served their sentences to petition to have felony convictions reduced to misdemeanors.

For those who are serving sentences for felony convictions that Prop 47 reduces to a misdemeanor, section 1170.18 requires that a court reviewing a petition for a sentencing reduction grant the petition unless the defendant poses "an unreasonable risk of danger to public safety." Section 1170.18(c) provides a very narrow definition of this phrase:

As used throughout this Code, “unreasonable risk of danger to public safety” means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.

This means that a defendant poses an unreasonable risk of danger to public safety only if there is an unreasonable risk that the defendant will commit one of the specific crimes in the list provided above. While there may be evidence that a defendant is indeed a dangerous person, it would likely be much more difficult to show that a defendant is likely to commit one of those particular, heinous crimes.

I noticed that section 1170.18(c) applies to the use of "unreasonable risk of danger to public safety" "throughout this Code," which presumably means that if this phrase appears elsewhere in the penal code, it is now defined by section 1170.18(c)'s very narrow definition.

I looked into whether this broad phrasing would have any impact on other laws. I found that while Prop 47 seemed to affect another statute, the deadlines included in that other statute effectively cancel out any impact that Prop 47's broad language would have. I go into the technical details of this investigation after the break, but in summary: Prop 47's broadly phrased section 1170.18(c) does not appear to have a significant effect on other sections of the Penal Code.

It's Illegal for Minors to Purchase Spray Paint in California

So states section 594.1(b) of the California Penal Code, which also criminalizes the sale of spray paint to minors. California is apparently one of five jurisdictions with such a law. The code states, in relevant part:

594.1. (a) (1) It shall be unlawful for any person, firm, or corporation, except a parent or legal guardian, to sell or give or in any way furnish to another person, who is in fact under the age of 18 years, any etching cream or aerosol container of paint that is capable of defacing property without first obtaining bona fide evidence of majority and identity.

. . .

(b) It shall be unlawful for any person under the age of 18 years to purchase etching cream or an aerosol container of paint that is capable of defacing property.

(c) Every retailer selling or offering for sale in this state etching cream or aerosol containers of paint capable of defacing property shall post in a conspicuous place a sign in letters at least three-eighths of an inch high stating: "Any person who maliciously defaces real or personal property with etching cream or paint is guilty of vandalism which is punishable by a fine, imprisonment, or both."

. . .

(f) Violation of any provision of this section is a misdemeanor. Upon conviction of any person under this section, the court may, in addition to any other punishment imposed, if the jurisdiction has adopted a graffiti abatement program as defined in subdivision (f) of Section 594, order the defendant, and his or her parents or guardians if the defendant is a minor, to keep the damaged property or another specified property in the community free of graffiti, as follows: 

(1) For a first conviction under this section, for 90 days. 

(2) If the defendant has a prior conviction under this section, for 180 days. 

(3) If the defendant has two or more prior convictions under this section, for 240 days. 

This law is part of California's broader statutory scheme restricting spray paint and other tools that can be used for graffiti and other vandalism activities.

This may not be news to my readers who live in California. But because only several days of my life as a minor were spent in California (and because I did not need spray paint to compete in the high school debate tournament that brought me to the state), I confess that I was not aware of this law until quite recently.

The law's broad mandates and punishments for sellers of spray paint strike me as noteworthy. Businesses that sell spray paint are required to post an admonishment to buyers that using spray paint to commit vandalism is a violation of the law. And under subsection (f), sellers of spray paint may be required to clean up graffiti as part of their punishment just as a juvenile caught purchasing spray paint may be required to do so.

I have been spending a lot of time looking at the California Penal Code over the past couple of months, and Penal Code section 594.1 is only one of the laws that has caught my attention. I will likely have additional future posts on interesting California criminal laws as I come across them.

Federal Court Rules California's Death Penalty is Unconstitutional

The case is Jones v. Chappell. From the LA Times:

A federal judge in Orange County ruled Wednesday that California’s death penalty violates the U.S. Constitution’s ban on cruel and unusual punishment. 

U.S. District Judge Cormac J. Carney, ruled on a petition by death row inmate Ernest Dewayne Jones, who was sentenced to die nearly two decades ago.

. . . 

Carney, an appointee of former President George W. Bush, said the delays have created a “system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed,” Carney said.

. . .

The “random few” who will be executed “will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary,” Carney said.

The full opinion is available here.

Judge Carney notes that delays at various steps of the appeal process contribute to the lengthy nature of death penalty reviews. Defendants who are sentenced to death typically need to wait about three years for appellate counsel to be appointed, and the briefing process tends to take an additional four years due to the complexity of death penalty case files. Contributing to the delay is a lack of attorneys to represent defendants in state habeas proceedings.

Judge Carney notes that the purposes of California's punishment system are to deter offenders and to obtain retribution for wrongdoing. But Judge Carney argues that offenders who commit a capital crime are so likely to die while waiting on death row, that California's death penalty "is about as effective a deterrent to capital crime as the possibility of a lightning strike is to going out in the rain." And any retributive purposes that the death penalty is supposed to fulfill are defeated if only an arbitrary few defendants are executed.

The Times notes that this case can be appealed, and I suspect that it will be. The Times also notes that this is the first time a federal court had held a death penalty scheme unconstitutional because of the procedural delays inherent to the system. Because of this novel basis for finding California's system unconstitutional, I am not sure how this case will turn out on appeal.

Whatever the outcome of this case will be in the courts, I suspect that it will get the attention of California's government. Essentially all of Judge Carney's reasons for finding California's death penalty unconstitutional stem from an underfunded and under-resourced system of appellate representation. By devoting more resources to death penalty appeals, many of the delays that Judge Carney discusses could be ameliorated -- at least for future cases.

But the government would probably also face some additional legal obstacles, most notably, making the chemicals for lethal injection available. My understanding is that the chemicals needed for lethal injection are not available for executions in California, since the legality of these chemicals has been tied up in litigation since 2006. To make the death penalty a feasible prospect for those convicted of capital crimes, this litigation will need to either be wrapped up or sidestepped through the use of alternate execution methods or chemicals.

Even if California's government manages to address some of the delays that Judge Carney discusses in his opinion, the state may need to do quite a bit more to make this new constitutional argument go away, especially if the Ninth Circuit is receptive to the logic of Judge Carney's opinion.

Virginia Man Agrees to Get Vasectomy as Part of Plea Deal

A while ago I blogged about a case where an Ohio court upheld a court order that a man was prohibited from fathering any children while he was on probation for five years (unless he paid off about $100,000 in overdue child support). Virginia just took this practice to the next level. From the North Virginia Daily:

An Edinburg man will undergo a vasectomy as part of an agreement in which he pleaded guilty to child endangerment, hit and run driving and driving on a suspended license.
. . . 

The agreement calls for Herald to undergo the vasectomy within a year of his release from prison. The agreement also requires that Herald not reverse the vasectomy while he is on probation. 

. . .

[Assistant Commonwealth's Attorney, Ilona ] White said her motivation in offering the vasectomy option to Herald stemmed from concerns raised at sentencing hearings in earlier cases about how many children have been traced to him from different women. 

"It was primarily due to the fact he had seven or eight children, all by different women, and we felt it might be in the commonwealth's interest for that to be part of the plea agreement," White said of the vasectomy provision.

This is hardly the first Virginia case concerning sterilization. Virginia is the origin of the infamous Buck v. Bell case -- where the Supreme Court affirmed a judgment compelling the sterilization of a woman who had been deemed "feebleminded." From Justice Holmes' opinion:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U.S. 11. Three generations of imbeciles are enough.

While the Virginia law permitting compulsory sterilization was later overturned, Buck has never been formally overruled. But if I were an attorney trying to convince an appellate court (or anybody) to agree with my legal argument, I would hesitate to cite Buck v. Bell. And if Buck v. Bell were the best support for my case, I would certainly have some second thoughts regarding the merits and desirability of my position.

An Article on Bee Stings That I Did Not Write

In case you didn't notice, I have a pretty generic name, so whenever I submit a paper for publication, I sign my paper as "Michael L. Smith," so that I don't get completely lost among the crowd of similarly-named authors. But there are still other Michael L. Smiths out there, and sometimes they write papers.

Here, for instance, is a paper entitled Honey bee sting pain index by body location, written by a Michael L. Smith who is most certainly not me. Perhaps the abstract of the paper will clarify why I want to expressly disclaim authorship:

The Schmidt Sting Pain Index rates the painfulness of 78 Hymenoptera species, using the honey bee as a reference point. However, the question of how sting painfulness varies depending on body location remains unanswered. This study rated the painfulness of honey bee stings over 25 body locations in one subject (the author). Pain was rated on a 1–10 scale, relative to an internal standard, the forearm. In the single subject, pain ratings were consistent over three repetitions. Sting location was a significant predictor of the pain rating in a linear model (p < 0.0001, DF = 25, 94, F = 27.4). The three least painful locations were the skull, middle toe tip, and upper arm (all scoring a 2.3). The three most painful locations were the nostril, upper lip, and penis shaft (9.0, 8.7, and 7.3, respectively). This study provides an index of how the painfulness of a honey bee sting varies depending on body location.

Thank goodness there are people out there willing to do the research to answer these questions so we don't have to find out for ourselves. And Smith was diligent in his methodology. From the text of the article:

In total, three full stinging rounds were conducted at the Liddell Field Station of Cornell University in Ithaca, New York (42°27.6′N, 76°26.7′W). The author was stung over a total of 38 days, between 20 August 2012 and 26 September 2012. To keep the author as blind to the ratings as possible, notes were kept hidden from previous days. After two stinging rounds had been conducted (each stinging round covered all anatomical sting locations), the scores were reviewed, to see if there was a large discrepancy between scorings per sting location. Only one location differed by 3 units (foot arch), and two locations by 2 units (upper thigh and behind the ear). Even though the consistency between the first two rounds was high, a third round of stinging was performed.

Smith's article is...innovative, and it will be interesting to see if he survives whatever future research he has planned.

A Probation Condition Prohibiting the Defendant From Fathering Children

From the Christian Science Monitor:

An Ohio appeals court has upheld a judge's order that a father can't have more kids until he pays his back child support.

The decision this week by the appeals court didn't provide an opinion about whether the judge's order was appropriate. Instead the appeals court said it didn't have enough information to decide the merits of the case without a copy of the pre-sentence report detailing Asim Taylor's background. 

In January 2013, Judge James Walther said Taylor couldn't have more children while he is on probation for five years. The judge said the order would be lifted if Taylor pays nearly $100,000 in overdue support for his four children.

Reason.com covers the case here. Daniel Taylor at the Findlaw Blog notes that while this sentence is peculiar, it is not a surprise to see a sentence like this in Ohio:

Northeast Ohio is also developing a reputation for doling out "weird" punishments. A judge in nearby Cleveland once ordered a woman to wear an "idiot" sign in public after she was filmed driving on the sidewalk. South of Cleveland in Brimfield, Ohio, Police Chief David Oliver has used Facebook to publicly shame criminal suspects.

The opinion is available here. While the majority of judges reach the decision that there is not enough information to decide the merits of the case, there is an opinion by Judge Donna Carr, who concurs in the judgment and holds that the probation condition is appropriate:

Given the number of children by multiple mothers, the high amount of the arrearages, Taylor’s ability to work, the fact that he was actually earning enough money to retain counsel below, his continued refusal to make any payments toward the support of his children notwithstanding his notice of the charges against him, and his complete lack of remorse or justification for his actions, I would conclude that an antiprocreation condition of community control was not unwarranted under these facts. Moreover, I would conclude that the condition was narrowly tailored to serve the purposes of community control.

Judge Carr's conclusion has some support. Carr cites State v. Oakland, a 2001 Wisconsin state Supreme Court decision that upheld a probation condition prohibiting the defendant from having children.

While the probation condition may be legal, I certainly have some reservations over whether probation conditions that extend this far are desirable.

Orin Kerr Isn't a Katz Person

At The Volokh Conspiracy, Orin Kerr criticizes commentators who write on Fourth Amendment issues for using puns in the titles of their notes and articles. Specifically, Kerr calls out writers who make puns based on Katz v. United States, which is the foundation of most modern Fourth Amendment doctrine. My favorite title Kerr mentioned was the student note, Herding Katz: GPS Tracking And Society’s Expectations Of Privacy In The 21st Century. The most strained use of the pun, in my opinion, was in the article, It’s Raining Katz and Jones: The Implications of United States v. Jones–A Case of Sound and Fury, which (to my surprise) was written by a professor rather than a student.

Kerr's selection comes from the last few years, but Katz puns are not a new phenomenon. Some quick research on the issue led me to The Uninvited Canine Nose and the Right to Privacy: Some Thoughts on Katz and Dogs, (11 Ga.L.Rev. 75, 89 (1976)). This phenomenon is not limited tot the titles of law reviews -- the California Court of Appeal in People v. Salih, 219 Cal. Rptr. 603 (Cal. App. 1985) pointed out in a footnote that: "Succinctly stated, sniffing dogs are not controlled by Katz."

Kerr's criticism brings to mind a more general way of making legal research more amusing: when you are confronted with a list of titles of law review articles, try guessing by the title alone whether the entry is an article written by a professor, or a comment or note written by a student. After two years of reading many law review articles and comments, I have developed a good eye for this, but the Raining Katz and Jones article proved to me that my professor/student distinguishing ability is still not 100 percent accurate.

Mass Death Sentence (And Mass Death Sentence Reversal) in Egypt

The BBC reports:

A judge in Egypt has sentenced 683 people - including Muslim Brotherhood leader Mohammed Badie - to death in a mass trial, lawyers say.

. . .

The same court also reversed 492 death sentences out of 529 it passed in March, commuting most of the death sentences to life in prison.

In light of the mass reversal of sentences that accompanied the new death sentences, it's anyone's guess as to how many of these new death sentences will go unreversed.

A Five-Thousand to One Punitive to Compensatory Damages Ratio

From Fox News' late-night show, Red Eye, I learned about the unpleasant story of James Caroll Butler, who attempted to spike his coworker's coffee with urine. The coworker, Michael Utz, fortunately did not drink the tainted coffee, and sued Butler for the emotional distress that Utz suffered as a result of Butler's actions.

In his lawsuit, Utz asked for quite a bit of money:

Utz, a plant mechanic for the town’s environmental services department since 2002, claimed that the urine-laced coffee pot caused him severe emotional distress, asking the court to award him $728,000 ($378,000 in compensatory damages and $350,000 punitive damages).

In the end, Utz did not get the hundreds of thousands of dollars he sought in his complaint. But the jury did end up awarding him $5,001. Why the extra dollar?

According to court records, the jury awarded Utz $1 in compensatory damages and $5,000 toward punitive damages.

As a bit of background for those unfamiliar with these remedies, compensatory damages are meant to make the plaintiff whole and repair harm done by the defendant. Punitive damages, on the other hand, are meant to deter the defendant from carrying out similar conduct in the future, and by awarding punitive damages, the jury expresses that the defendant's conduct was particularly reprehensible.

As loathsome as Butler's conduct was, if he were to appeal, I think that he would have a good chance at having those damages reduced. In State Farm Mut. Automobile Ins. Co. v. Campbell, the Supreme Court struck down an award of $25 million in punitive damages accompanying a reward of $1 million in compensatory damages. The Court stated:

[W]e have been reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award. . . . We decline again to impose a bright-line ratio which a punitive damages award cannot exceed. Our jurisprudence and the principles it has now established demonstrate, however, that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process. (citations omitted)

While the Court refused to state a solid rule, it heavily insinuated that a punitive damages award more than nine times the amount of  the compensatory damages would be struck down as a violation of due process.

Here, the jury awarded only one dollar in compensatory damages, meaning that the punitive damage award was five thousand times the compensatory award. While the jury may have wanted Butler to be punished (and while Butler was also convicted of misdemeanor criminal assault for his actions), the composition of the award clearly indicates that the jury thought that Utz suffered very little, but Butler's action was very bad.

I think that the jury could have awarded Utz substantial damages for emotional distress. But they didn't, and with a ratio like this, I could see this award being overturned if Butler is inclined to appeal -- though keeping this incident in the news may not be Butler's favorite outcome.

The Heritage Foundation Supports Scaling Back Mandatory Minimum Sentences

Douglas Berman of Sentencing Law and Policy posts that the Heritage Foundation is endorsing the Smarter Sentencing Act -- citing this recent blog post on the Foundation's website.

Berman notes that the Heritage Foundation is a notably conservative organization, and hopes that this organization's stance here, combined with some recent statements by notably conservative lawmakers, signals that sentencing reform may be possible.

Here is some of the relevant discussion from the Heritage Foundation's post:

Mandatory minimums were intended to address widely acknowledged problems with the criminal justice system. But good intentions don’t necessarily give rise to good results. In particular, some drug offenses, which make up a significant proportion of mandatory minimums, can give rise to unduly severe punishments. The difference between a drug quantity that triggers a mandatory minimum and one that does not will often produce a “cliff effect.” For example, someone with 0.9 grams of LSD might not spend much time incarcerated, but another fraction of a gram will result in a five years behind bars. It is difficult to conclude that the additional one-tenth of a gram demands a minimum sentence of five years’ imprisonment in every case, regardless of its facts. 

The Smarter Sentencing Act would allow judges to sentence nonviolent drug offenders below a mandatory minimum if the court finds that the defendant is not a serious offender (that is, the defendant has a limited or no criminal history, as defined by the U.S. Sentencing Guidelines, and no prior firearm, racketeering, terrorism, or sex offense convictions). The act would also make retroactive the Fairness in Sentencing Act of 2010, which prospectively reduced the disparity between the amount of crack cocaine and powder cocaine needed to trigger mandatory minimum sentences.

Berman remarks that this is a blog post and that he is not sure this represents the official view of the Foundation. Some more searching on my part led me to conclude that while the Foundation has not taken as explicit a stance on the issue of minimum sentencing, the blog post is certainly consistent with a lot of what they have written on criminal law.

For example, the most relevant report I was able to track down discussed the arguments for and against mandatory minimum sentences. While much of the report is presented in a balancing-of-arguments manner, the recommendations listed at the end make the Foundation's recent blog post less-surprising. Most relevantly is this recommendation:

Congress and the U.S. Sentencing Commission need to place a special emphasis on just deserts and proportionality when considering the use of mandatory minimum statutes. Perhaps a few lessons can be learned from the American Founding. The view of punishment during the Founding era, according to Professor Ronald J. Pestritto of Hillsdale College, “was a complex synthesis of the various approaches, where concerns for public safety and the reform of offenders proceeded from an understanding that punishment—appropriately applied—is inherently just and deserved.” While some criticize this approach as playing into public outrage expressed for certain crimes, “public anger represents a moral judgment and condemnation that is most accurately characterized as moral indignation.” Moral indignation is an appropriate response to inherently wrongful conduct carried out intentionally with knowledge that the act is unlawful or otherwise wrongful. While the utilitarian goal of lower crime through deterrence and incapacitation is worthwhile, lawmakers need to place special emphasis on the moral gravity of offenses in determining the proportionality of punishment. [Internal References Omitted]

The recommendation -- while not specific to drug offenses -- reflects the goals of the Smarter Sentencing Act. For example, this recommendation follows the report's remark that the 100-1 powder-to-crack cocaine sentencing ratio seems unfair -- with the report implying that the sentencing scheme would likely punish many users as though they were traffickers. Presumably, this would be a disproportionate condemnation.

The Heritage Foundation also calls for a reduction in scope of the federal criminal code -- highlighting testimony by their Senior Fellow, Edwin Meese, here.

I am not the biggest fan of politics, but when considering reforms or proposals, the political landscape is a reality that often cannot be ignored. With sentencing reform, liberals who seek major reforms would do well to research and adopt similar reforms that conservatives advocate. While different political parties may have different reasons for the policies they advocate, if those policies are substantially similar, politics should not get in the way.

UPDATE

I have revised the title of this post.

Criminal Records and Reentry, and the Importance of Civil Reform

Via the CrimProf Blog, I learned about a recent article by Michael Pinard entitled, Criminal Records, Race and Redemption. The citation is 16 N.Y.U. J. L. & Pub. Pol. 963 (2013).  Here is the abstract:

Poor individuals of color disproportionately carry the weight of a criminal record. They confront an array of legal and non-legal barriers, the most prominent of which are housing and employment. Federal, State and local governments are implementing measures aimed at easing the everlasting impact of a criminal record. However, these measures, while laudable, fail to address the disconnection between individuals who believe they have moved past their interactions with the criminal justice system and the ways in which decision makers continue to judge them in the years and decades following those interactions. These issues are particularly pronounced for poor individuals of color, who are uniquely stigmatized by their criminal records. To address these issues, this article proposes a redemption-focused approach to criminal records. This approach recognizes that individuals ultimately move past their interactions with the criminal justice system and, therefore, they should no longer be saddled by their criminal records. Thus, the article calls for greatly expanding laws that allow individuals to remove their criminal records from public access and, in the end, allow them to reach redemption.

I have not had very much time to read through the paper in depth, but from what I have read, Pinard seems to be presenting and addressing an extremely important issue facing the criminal justice system. Speaking from my own experience volunteering at a reentry clinic for a few years, I can say that (1) Pinard's arguments that criminal records make finding jobs and housing difficult are spot on, and (2) that I am relieved to be working at a clinic in California rather than Maryland, where expungement rules seem to be far more restricted.

Pinard also seems to offer some strong suggestions for reform. I would add to his conclusions by re-emphasizing the importance of civil remedies against employers who discriminate based on criminal background. I am aware that California has enacted legislation that provides for statutory damages in the event an individual can prove that they were not hired specifically because of their criminal background. And while Pinard correctly points out that this may be difficult to prove, I have nevertheless met numerous people who have heard either explicitly from employers that they were not hired because of their record -- or who had significant circumstantial evidence that this was the case. Legislation providing for substantial statutory damages would provide employees with record with a significant source for redress in the event they are not hired because of their criminal record.

Greenpeace Activists Will Likely Receive Amnesty From Russia

The New York Times reports:

A sweeping amnesty that is underway in Russia was extended on Tuesday to a member of the crew of the Arctic Sunrise, the Greenpeace International ship seized on the open seas three months ago.

If the amnesty covers the rest, as expected, it will draw to a close one of the more contentious chapters in Greenpeace’s history, in which Russian commandos boarded a ship, imprisoned the crew members and charged them, for a time, with piracy.

I discussed the original charges against the Greenpeace activists here and here.  The piracy charges were downgraded to "hooliganism," which qualifies for amnesty.   Several other prisoners who have already been released, including members of the band, Pussy Riot, have condemned Russia's amnesty approach.  The Times continues:

One member of Pussy Riot, Maria Alyokhina, stepped out of the penitentiary to say she would have preferred to stay than to accept an amnesty from President Vladimir V. Putin. The amnesty, she said, had been intended only to bolster the image of Mr. Putin and Russia before the Winter Olympics in Sochi, which start in February.

While all of the Greenpeace activists have not yet been guaranteed amnesty, it is likely that they soon will be, and will probably be able to leave the country soon.