Tuesday, April 17, 2018

No Big Surprises: Deportation Law Triggered by Criminal Convictions Declared Vague

Today, the Supreme Court decided Sessions v. Dimaya, in which the respondent appealed his deportation. It is an interesting decision both legally and politically.

The Immigration and Nationality Act (INA) renders deportable any alien convicted of an “aggravated felony” after entering the United States. The definition of "aggravated felony" includes several enumerated crimes, and also a residual definition of a "crime of violence", which reads as follows:

“(a) an offense that has as an element the use, attempted use, or threatened use of physical force
against the person or property of another, or
“(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Dimaya, a documented immigrant from the Philippines, had two convictions for burglary, neither of which involved violence. Nonetheless, immigration authorities found that the convictions satisfied the "aggravated felony" residual clause, and therefore triggered automatic deportation.

Today, SCOTUS struck down the definition as unconstitutionally vague. Justice Kagan, reminding us that the court applies "the most exacting vagueness standard. . . in removal cases", relied on Johnson v. United States to argue that the law in its current form does not provide sufficient warning about deportation consequences of criminal convictions.

Also important is the fact that Justice Neil Gorsuch, Trump's appointee to the Supreme Court, voted with the four liberal Justices to vacate the law. While newsworthy, this is hardly a surprise for those familiar with Gorsuch's record on criminal justice. He has publicly and consistently spoken against the abundance of criminal laws on the books and his position on overcriminalization and vagueness was well known at the time of his appointment.

Moreover, today's decision relies on Johnson, a pro-defendant decision on a similar issue authored by Justice Scalia, also a conservative who would side with defendants in cases involving overcriminalization and vagueness.

While encouraging and fair, today's decision is hardly surprising... except, perhaps, at the White House, where consistency of opinion is valued less than dogged personal loyalty.

Sunday, April 8, 2018

ICE Agents Enter Santa Clara Jail

About a week ago, the Chronicle broke this story:

The Santa Clara County Sheriff’s Office allowed federal deportation officers to enter the jail it operates and interview four inmates this month in violation of the agency’s pro-immigrant sanctuary policies, officials said. 
The interviews occurred March 7 and 8, around the time that U.S. Immigration and Customs Enforcement officers visited San Francisco County Jail and interviewed an inmate there in a breach of the city’s sanctuary rules, which restrict local cooperation in deportation efforts. 
That incident prompted an apology from San Francisco Sheriff Vicki Hennessy. But while the recent ICE forays into the jails expose the growing tension between federal immigration authorities and many California leaders, the content of the interviews — and the potential consequences to the inmates — remains unknown. 
Santa Clara County Sheriff Laurie Smith, in a statement to The Chronicle, said members of her staff “mistakenly” let ICE officers into the jail. After learning of the incident, she said, the office “reevaluated and strengthened the clearance procedures in which all law enforcement agencies are permitted to enter our facilities.”

This incident raises some interesting Tenth Amendment issues, which are of course in the news almost daily. We all know that immigration is within the provenance of the feds and not a state matter. But what this actually means, in terms of the broad range between cooperation and obstruction, largely depends on who you ask. Just a few days ago, our fascist-in-chief recurred to his usual mode of spewing bile from his seeping id, Twitter, to complain that "something should be done" about Oakland Mayor, Libby Schaaf, who warned her constituents about an upcoming ICE raid (most of whom, by ICE spokesperson's own admission, were peaceful Oakland residents with no records--he was asked to lie about this and resigned his position as a consequence.) Whether what Ms. Schaaf did amounts to obstruction is debatable: our xenophobic administration would claim that it does, I would claim that it does not.

But what about the Santa Clara jail? On a subsequent ICE visit, the federal agents were denied entry into the jails, a corrective move corresponding to the Sheriff's statement that their entry was a "mistake." In times of darkness, uniformed goons depend on their uniforms and badges to scare people, and that can include local authorities, into submission. This should be an object lesson for every Sheriff in California.

Prosecutors in Orange County Sued for Obtaining Unlawful Confessions

More distressing news from the OC. The Guardian reports:
Prosecutors and sheriff’s deputies in California’s Orange County used jailhouse informants in an extraordinary and long-running scheme to illegally obtain confessions from criminal defendants, the American Civil Liberties Union (ACLU) is alleging in a new lawsuit. 
The suit, filed early Wednesday, alleges that the district attorney’s office and sheriff’s department in the suburban county south of Los Angeles routinely employed prisoners – including hardened gang members – as informants and used “threats of violence to coerce confessions” from defendants, violating their rights to an attorney. 
The ACLU cited a mountain of evidence, amassed in criminal cases over the past five years, that prosecutors obtained material illegally, suppressed parts favorable to the defence, and sought to cover up the existence of the scheme. 
“For 30 years, the Orange County sheriff’s department and district attorney’s office have been operating an illegal informant program out of the jails,” the ACLU lawyer Brendan Hamme told the Guardian. “They’ve used it to coerce information from defendants, including with threats of death, and at the same time they’ve been systematically hiding evidence of that program. These sorts of tactics are offensive to basic constitutional principles and ethical duties.”
The sensitivity of using jailhouse informants is well known and well documented. Whether the choice of this dubious, and often unreliable, method for obtaining information is malicious or attributable to tunnel vision, it raises very serious questions about dereliction of duty on the part of those who have the most power in the criminal justice system.

CA Bar Hangs Red Scarlet Letters on Its Members

I just saw this absolutely horrible story on the Mercury news. It's ridiculously headlined, "Is Your Lawyer a Crook?" And goes on to tell us:

What do you call up to 10 percent of lawyers in California? 
Convicted criminals. 
And that’s no rotten-lawyer joke. 
That’s the eye-popping new estimate by the agency that licenses them.
Of California’s 190,000 active attorneys, as many as 19,000 may have unreported criminal activity, from DUIs to more serious offenses, according to the State Bar of California. 
For the first time in California, all active lawyers will have to submit to having their fingerprints live-scanned or taken the old-fashioned way rby April 30 of next year under the plan the state Supreme Court is expected to approve in the coming weeks. The prints will be fed into the state Department of Justice’s database, and previous convictions will be reported to the Bar — as well as all future arrests. 
“If you have an attorney convicted, let’s say of fraud, you would want to know it,” said Leah T. Wilson, the Bar’s executive director, adding that the proposal evolved as Bar starts to “pay more attention to our public protection mission.”
Gosh, it's almost as if Leah T. Wilson doesn't really believe that the California criminal justice system is tasked with... what's the word? Rehabilitation.

I speak from experience. As a law professor in California I teach hundreds of people every year. Given the high percentage of Californians that we incarcerate, inevitably some of my students have criminal records and have spent some time behind bar. As a consequence, they face an uphill battle with their moral character application, a component of their application to the bar. The application requires complete honesty, about expunged records as well as live ones, and undergoes an extreme degree of scrutiny, which people sometimes have to explain in letters and in hearings at the bar court. I've now testified in two bar trials and written four letters of recommendations on behalf of people with criminal records who want to be admitted or readmitted to the bar.

The bias, stigma, and ignorance--not just of the public, but of the bar itself--is breathtaking. At the bar trials in which I testified, I experienced what could only be described as a mediocre community theatre production of a morality tale. Grown people, who have matured and learned from their mistakes, have to recite their contrition. Parole and gubernatorial decisions to release people after decades of introspection and remorse are doubted and ridiculed. Skeletons are dragged out of closets to haunt people for mistakes they did as juveniles.

Honestly, after undergoing the tribulations of punishment in California, sometimes the wringer of repeated parole hearings (and gubernatorial reversals,) and on top of that, the moral character ordeal at the bar, anyone left standing is bound to be so much more thoughtful, reflective, and humble, than various so-called "moral characters" without a criminal record. Anyone with a substance abuse problem would have had time to sort it out and would be so much more mature about it than some so-called "moral character" who is still drinking or snorting, but whose record is squeaky clean. I would so much prefer to have someone from the former category as my lawyer than someone from the latter. But the general public, who is woefully misinformed by articles such as this one about who is a "crook" and who isn't, would not necessarily make that choice, and that is a horrible injury to do to someone, not to mention a horrible privacy violation.

This also raises the issue of the elitism of the profession. We disproportionately incarcerate folks of fewer means and darker skins. As a consequence, our population of lawyers with criminal records is likely to include a disproportionate percentage of people who came to the profession from humble backgrounds. If we also put additional barriers on their gainful employment in the way of revealing their personal and private histories to potential clients, we are just deepening that elitism.

The problem, of course, is not only with this atrocious decision of the CA bar to injure its own members; it is with the kind of journalistic reporting that makes this into salacious gossip material. Who the hell uses the word "crook" as a euphemism for a criminal record, like something out of a Damon Runyon short story? And who the hell uses lawyer jokes to talk about people who have gone through so much to redeem themselves and find a professional future?

Does rehabilitation actually mean anything to the bar, when it decides to admit folks back to its ranks and then backstabs them by reducing their employment prospects? This is not a move that "protects the public." This is elitism, bigotry, and ignorance.



Wednesday, March 14, 2018

Parkland Shooting: A Month's Retrospective

It's been a month since the horrific shooting at Parkland, and today students nationwide are walking out in memory of the victims and in protest of state and federal inaction on gun control. In preparation for a special report on KTVU this afternoon, I'm reviewing what we know about the efficacy of various methods to prevent school shootings, followed by a critical assessment of the Florida, federal, and (for good measure) California gun legislation.

As of 2014, roughly 371 million firearms were owned by U.S. civilians and domestic law enforcement. Estimates on household guns are that 36%-49% of American households have guns, or 23%-36% of adults. Sixty percent of gun owners are motivated by the need to protect themselves and their households against crime.

Roughly 16,459 murders were committed in the United States during 2016. Of these, about 11,961 or 73% were committed with firearms. According to President Obama's commissioned report on research into gun violence causes:


“Defensive use of guns by crime victims is a common occurrence, although the exact number remains disputed….”
“Almost all national survey estimates indicate that defensive gun uses by victims are at least as common as offensive uses by criminals, with estimates of annual uses ranging from about 500,000 to more than 3 million….”
“[S]ome scholars point to a radically lower estimate of only 108,000 annual defensive uses based on the National Crime Victimization Survey,” but this “estimate of 108,000 is difficult to interpret because respondents were not asked specifically about defensive gun use.”

“Studies that directly assessed the effect of actual defensive uses of guns (i.e., incidents in which a gun was ‘used’ by the crime victim in the sense of attacking or threatening an offender) have found consistently lower injury rates among gun-using crime victims compared with victims who used other self-protective strategies….” (source)

There is a sort-of-controversy among gun scholars about the effectiveness of gun ownership on crime control. By sort-of, I mean that John Lott (author of the classic More Guns, Less Crime) claims that gun ownership has a deterrent effect. Pretty much everyone else disputes these claims and finds Lott's methodology problematic. Specifically, a recent study by Stanford's John Donohue III found the exact opposite. You'll find the full paper here, and here's the abstract:

The 2005 report of the National Research Council (NRC) on Firearms and Violence recognized that violent crime was higher in the post-passage period (relative to national crime patterns) for states adopting right-to-carry (RTC) concealed handgun laws, but because of model dependence the panel was unable to identify the true causal effect of these laws from the then-existing panel data evidence. This study uses 14 additional years of state panel data (through 2014) capturing an additional eleven RTC adoptions and new statistical techniques to see if more convincing and robust conclusions can emerge. 
Our preferred panel data regression specification (the “DAWmodel”) and the Brennan Center (BC) model, as well as other statistical models by Lott and Mustard (LM) and Moody and Marvell (MM) that had previously been offered as evidence of crime-reducing RTC laws, now only generate statistically significant estimates showing RTC laws increase overall violent crime and/or murder when run on the most complete data. A LASSO analysis finds that RTC laws are always associated with increased violent crime. To the extent the large increases in gun thefts induced by RTC laws generate crime increases in non-RTC states, the panel data estimates of the increase in violent crime will be understated. 
We then use the synthetic control approach of Alberto Abadie and Javier Gardeazabal (2003) to generate state-specific estimates of the impact of RTC laws on crime. Our major finding is that under all four specifications (DAW, BC, LM, and MM), RTC laws are associated with higher aggregate violent crime rates, and the size of the deleterious effects that are associated with the passage of RTC laws climbs over time. Ten years after the adoption of RTC laws, violent crime is estimated to be 13-15 percent higher than it would have been without the RTC law. Unlike the panel data setting, these results are not sensitive to the covariates included as predictors. The magnitude of the estimated increase in violent crime from RTC laws is substantial in that, using a consensus estimate for the elasticity of crime with respect to incarceration of .15, the average RTC state would have to double its prison population to counteract the RTC-induced increase in violent crime.
In other words: more right-to-carry is correlated with more violent crime. Now, keep in mind that correlation does not equal causation, and there are cultural differences between states that can't be captured even by the most careful model, but this team has also found longitudinal correlations, which bolsters the causal claim. This study is currently being presented as evidence in a lawsuit brought by the NRA against the state of California, which bans assault rifles. The lawsuit, which was filed at the Superior Court in Fresno, claims that the burdens on the path to purchasing an assault rifle infringe upon people's privacy and Second Amendment rights. California requires background checks for all firearms transactions, including those conducted between private individuals; these transactions do not require background checks according to federal legislation.

California is at the more controlling end of the gun legislation spectrum. In general, states fall into one of two categories: “shall-issue” states, where concealed carry permits are issued to all qualified applicants, and “may-issue” states, where applicants must often present a reason for carrying a firearm to an issuing authority, who then decides based on his or her discretion whether the applicant will receive a permit. The latter category is quite diverse, and includes states, such as Connecticut, which effectively act as shall-issue states, and states such as New Jersey, which effectively act as no-issue states.

As of July 2016, 42 states had "shall issue" laws, including Florida. Eight states had "may issue" regimes: California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, and New York.

Florida became a shall-issue state on October 1, 1987. To carry a gun in Florida, one needs to be 21 years of age or older, have clean criminal/mental health records, and complete a firearms safety/training course. As of June 30, 2016, Florida had issued 3,173,630 permits and had 1,598,213 active licensees, constituting roughly 11% of the state’s population 21 years of age or older. The revocation rate is minuscule: From the outset of the Florida right-to-carry law through June 30, 2016, Florida has revoked 10,909 or 0.3% of all issued permits. The vast majority of revocations were for crimes committed after licensure.

Following the Parkland massacre, the Florida legislature adopted a new gun statute, titled the Marjory Stoneman Douglas High School Public Safety Act. The new law authorizes the awarding of grants through the Crime Stoppers Trust Fund for student crime watch programs; establishes the Office of Safe Schools within the Department of Education; provides that each sheriff may establish a Coach Aaron Feis Guardian Program and appoint certain volunteer school employees as school guardians (who can carry firearms); prohibits people who have been adjudicated mentally defective or been committed to a mental institution from owning or possessing a firearm until certain relief is obtained (there is no correlation between mental illness and school shootings;) prohibits a person younger than a certain age from purchasing a firearm; prohibit specified acts relating to the sale and possession of bump-fire stocks; and creates the  Marjory Stoneman Douglas High School Public Safety Commission within the Department of Law Enforcement. These funds and grants are to be funded to the tune of $400 million in appropriations. 

Essentially, what this boils down to is some restrictions on gun licensure based on mental health and age, and permission for some school employees to carry guns in schools. The latter aspect of the law is the most controversial, as several recent anecdotes show considerable potential for accidents and problems. If anything, *less* guns in school, rather than *more*, would be a better idea. The genesis of this "school guardian" idea lies in the notion that guns in the hands of good guys can protect against bad guys. But this premise is rather questionable, and might apply differently to different victims and different situations. A meta-research conducted in 2004 shows that the availability of guns increases, rather than decreases, the risk of homicide, and this was confirmed in a RAND study from 2018.

On the federal level, no big surprises: after some talk about increasing background checks and raising the age for gun licensure, Trump seems to have caved to the NRA and abandoned gun control initiatives.

I would be remiss in ending this review without inviting you to watch KTVU today at 4pm for the conversation about this, and also expressing my admiration of the Parkland high school students who are actively pursuing change. My heart breaks at the fact that we are failing our children, and at the fact that they are battling a particularly obtuse federal and state governmental cadre with particularly obtuse and uninformed views about gun control.


Saturday, March 10, 2018

From "Nothing Works" to "Something Works"

This morning, the Guardian is covering a great vocational program in Southern California called Manifest Works, "an immersive workforce development and job placement organization; we turn real-world experience into learning opportunities for those impacted by foster care, homelessness, and incarceration." From the Guardian story:
One of the most common entry points into the entertainment industry is as a production assistant, or PA. The PA might get coffee, run electrical cords, or break down the set; the job’s chameleonic nature makes it a behind-the-scenes linchpin. Manifest Works, a not-for-profit based in Los Angeles, ties the hustle of a PA job to its training program for people affected by incarceration, homelessness and foster care. Some participants had been out of prison as little as three months. 
Williams spoke softly and deliberately, rocking back and forth in his crisp white sneakers. He applied to the program after an alum recommended him. He was doing security before that. “Not what I wanted to do with my life,” he said. “This is giving me an opportunity to pursue something closer to what I wanted for myself.” 
He still wasn’t sure what on-set role he’d like most. “Everybody wants to be the director,” he said, knowingly. 
California, as the country’s most populous state, has one of its highest prison populations, and the highest population of people on probation or parole. It is also home to the multibillion-dollar entertainment industry. 
A 2017 study in the Economic Journal evaluated the career trajectories of 1.7 million people released from California prisons between 1993 and 2008, and concluded that, while employment curbs recidivism among the released, the quality of opportunities may be more important than the quantity available. 
Sixty-three people have completed the Manifest Works program since it began in fall 2014. Many have established steady freelance careers doing production work. No alum has gone back to prison.
What do they mean by "quality of opportunities?" The study referred to in the Guardian story is by Kevin Schnepel, an economist from the University of Sydney and you can find it here. The abstract reads:
I estimate the impact of employment opportunities on recidivism among 1.7 million offenders released from a California prison between 1993 and 2008. The institutional structure of the California criminal justice system as well as location, skill, and industry-specific job accession data provide a unique framework for identifying a causal effect of job availability on criminal behaviour. I find that increases in construction and manufacturing opportunities at the time of release are associated with significant reductions in recidivism. Other types of opportunities, including those characterised by lower wages that are typically accessible to individuals with criminal records, do not influence recidivism.
This kind of careful study is exactly what we need to counter the despair of the "nothing works" legacy. Because of the dramatic cuts to rehabilitation and vocational programs, which I discuss in Cheap on Crime, opportunities in California prisons really vary. San Quentin benefits from its proximity to the Bay Area, which guarantees an influx of volunteers--but are they programs they offer really effective? More importantly, why are opportunities in construction and manufacturing more important in curbing recidivism than opportunities in other fields, such as service?

A few things come to mind: construction and manufacturing are opportunities that structure one's day in addition to providing an income. It's easier to stay the course when you have to be somewhere and perform a job that shows tangible improvement (i.e., putting together a kitchen or producing X gadgets.) They are also jobs that, in the right setting, can provide camaraderie, and have fairly strong unions. But who knows if this is true? To understand why some job opportunities are more effective, we'd need to interview formerly incarcerated folks who are employed in these jobs and ask them about their day and their thoughts about this.

In any case, it's important for prisons to follow up on studies such as Schnepel's and on the success of programs such as Manifest Works. Resources are limited, and they need to be invested where they'd yield real results.

Wednesday, March 7, 2018

Ending Lifetime Registration of Sex Offenders--A Courageous and Sensible Idea

Yesterday's L.A. Times reports:

“SB 384 proposes thoughtful and balanced reforms that allow prosecutors and law enforcement to focus their resources on tracking sex offenders who pose a real risk to public safety, rather than burying officers in paperwork that has little public benefit,” said Ali Bay, a spokeswoman for the governor. 
Los Angeles County Dist. Atty. Jackie Lacey sought the change because the current registry has grown to a difficult-to-manage 105,000 people, which reduces its value to law enforcement trying to solve sex crimes by checking those on the list. 
Because the registry is public, it also punishes people who have not committed new crimes for decades, including some who engaged in consensual sex, bill supporters argued.
This is an excellent idea. Before you get all riled up, read the actual text:
This bill would, commencing January 1, 2021, instead establish 3 tiers of registration based on specified criteria, for periods of at least 10 years, at least 20 years, and life, respectively, for a conviction of specified sex offenses, and 5 years and 10 years for tiers one and two, respectively, for an adjudication as a ward of the juvenile court for specified sex offenses, as specified. The bill would allow the Department of Justice to place a person in a tier-to-be-determined category for a maximum period of 24 months if his or her appropriate tier designation cannot be immediately ascertained. The bill would, commencing July 1, 2021, establish procedures for termination from the sex offender registry for a registered sex offender who is a tier one or tier two offender and who completes his or her mandated minimum registration period under specified conditions. The bill would require the offender to file a petition at the expiration of his or her minimum registration period and would authorize the district attorney to request a hearing on the petition if the petitioner has not fulfilled the requirement of successful tier completion, as specified. The bill would establish procedures for a person required to register as a tier three offender based solely on his or her risk level to petition the court for termination from the registry after 20 years from release of custody, if certain criteria are met. The bill would also, commencing January 1, 2022, revise the criteria for exclusion from the Internet Web site.
In her book Sex Fiends, Perverts, and Pedophiles, Chrysanthi Leon of the University of Delaware discusses the changes in our approach toward sex offenders. As she lucidly explains, we used to be able to differentiate between different types of sex offenders and find compassion and pragmatism in our approach toward their punishment and rehabilitation. But with the sex panics of the 1980s, we started blurring lines and seeing all sex offenders as just one category, identifying all of them with the perpetrators of the most heinous crimes. This was a big mistake. Sex offenders, as Tamara Lave reminds us, have a remarkably low rate of recidivism, and the effort to warn the public from them would be better spent on narrow categories of sex criminals that actually recidivate. This bill is a step forward toward more careful classification.

But there's something else here that is important. The impetus for the new bill is that the sex offender list has grown so long that it has become difficult to manage. Local authorities spend a lot of time processing paperwork, and time means money. Again, as I discuss in Cheap on Crime, the practicalities of punishment become so cumbersome that we're taking a step in the right direction. Indeed, any deterrent effect the list has becomes diluted once everyone is on the list for everything, as J.J. Prescott and Jonah Rockoff remind us here.

In sight of the federal disaster that is the Trump/Sessions gratuitous, senseless cruelty enforcement mechanism, it's nice to see California once again making a reasonable decision.