Wednesday December 4, 2019

Watch This The formerly incarcerated law student

Antonio Reza is a law student at Santa Clara Law School and a 2019 ChangeLawyers℠ Scholar. 
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More of This Abolish Immigration Prisons

César Cuauhtémoc García Hernández is an associate professor of law at the University of Denver and the author of “Migrating to Prison: America’s Obsession With Locking Up Immigrants.”

Near Denver, migrants are locked inside a prison tucked into an industrial quarter. To the southwest, in the vast space between Phoenix and Tucson, they are surrounded by barbed wire in facilities that seem to rise right out of the Sonoran Desert.

Imprisoning migrants this way is lucrative for prison corporations and politicians, and it’s common. But the United States hasn’t always embraced the idea. In 1954, President Dwight Eisenhower’s attorney general, Herbert Brownell Jr., announced a decision to shut down major immigration detention centers along both coasts, including Ellis Island. While the policy didn’t abolish immigration imprisonment, it came close. A few years later, the Supreme Court declared this a sign of “an enlightened civilization.”

The United States has veered far from the enlightenment that the Supreme Court imagined 65 years ago. Under President Barack Obama, the Department of Homeland Security locked up more migrants than ever (the average daily population of migrants in detention facilities in 2016 was 34,000); the Trump administration has locked up even more (the average population in 2018 was 42,000).

From asylum seekers to longtime legal residents who have committed crimes, immigration prisons spare no one. In them, people — including children, who the United Nations says should never be detained — often find trauma. Two doctors who regularly work with the Department of Homeland Security were so appalled by the agency’s confinement of children that they wrote to Senators Charles Grassley and Ron Wyden in 2018 describing an infant who lost one-third of his body weight over 10 days yet was never given IV fluids or sent to an emergency room. Other children, they added, had their fingers lacerated by heavy doors in a converted medium-security prison in which they were confined. Detention is so harmful to children, they concluded, that the “fundamental flaw of family detention is not just the risk posed by the conditions of confinement — it’s the incarceration of innocent children itself.”

Kamyar Samimi, a green-card holder with 40 years in the United States, died 13 days after ICE agents took him into custody. When he arrived at a private prison in suburban Denver, he told prison officials that his doctor had prescribed medicine to control an addiction. The prison’s doctor never bothered to see him. Soon his health tumbled; nurses gave him half the medicine that the prison doctor ordered. Nurses said he was faking, hoping to get drugs, an internal review released a year later revealed. Finally, after he had become too ill to be moved into a wheelchair, as he vomited and urinated on himself, prison guards called for an ambulance. Emergency responders arrived four minutes later, but Mr. Samimi stopped breathing before they could get him into the ambulance. His death was tragic, but not isolated. Since Oct. 1, two of ICE’s detainees have died.

The United States should shut down its immigration prison system. The federal government should redirect the billions of dollars it spends jailing migrants — $2.7 billion alone in 2017 for ICE’s detention system — to helping them navigate the labyrinthine legal process. To navigate high-stakes immigration court cases, migrants need lawyers, social workers and case managers. Right now, most get none of those. In immigration court, there is no government-paid lawyer, and most detained migrants can’t afford to hire one. But going back to the Reagan administration, pilot projects that offer support consistently display remarkable success getting migrants to show up for court dates and stay out of trouble.

In an immigration court system that handles 200,000 cases a year, there are bound to be some people who flout the rules. And there will be others who get their day in court only to lose. When that happens, two options are available. We could arrest and deport those people, or we could turn the other way.

For decades, the bipartisan consensus has been to rely on arrest and deportation. But what if we asked this instead: What good comes from locking up migrants? Republicans declare that we need to detain migrants to uphold the rule of law. Democrats add that detention helps keep our communities safe. Neither of these claims stands up to scrutiny.

The rule of law isn’t a blunt hammer. Prosecutors regularly choose whether to go after \citizens who have committed crimes. Even when evidence of guilt is strong, there might be other reasons to let illegal activity slide: Perhaps a first-time offender deserves a second chance or putting a parent in jail would do more harm than good. Whatever the reason, the Supreme Court declared in 1985, prosecutors have “broad discretion as to whom to prosecute”— or in not prosecuting. It’s up to prosecutors to weigh the harm that prosecution seeks to remedy. When it comes to immigration law violations, locking up migrants is applying brute force to a minor transgression.

Read the story on NY Times

More of This Too Meet the attorney generals resisting America’s freighting new abortion bans

A new wave of abortion bans has swept statehouses in Alabama, Arkansas, Georgia, Kentucky, Louisiana, Mississippi, Missouri, Ohio, and Utah. Many of these states have banned abortions at such an early stage of pregnancy—six to eight weeks—that many women won’t even know they’re pregnant yet. Because these laws are now being challenged in court, none of them have taken effect.
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Some of the nation’s prosecutors are considering deliberate inaction. In mid-April, Michigan Attorney General Dana Nessel made a public pledge: Should Roe v. Wade be overturned and her state’s pre-1973 ban on abortion come back into effect, she would not prosecute a woman for having one or her doctor for providing one. Soon after, Salt Lake County District Attorney Sim Gill said he would refuse to enforce Utah’s new 18-week ban. After Georgia passed a ban on terminating a pregnancy as early as six weeks, four Atlanta-area DAs told the media that they too would refrain from enforcing the law. And in June, Fair and Just Prosecution (FJP) released a joint statement from 42 prosecutors—including Gill, Nessel, and 12 attorneys general—asserting that the bans are unconstitutional.

“Not all of us agree on a personal or moral level on the issue of abortion,” the statement reads. “What brings us together is our view that as prosecutors we should not and will not criminalize healthcare decisions such as these—and we believe it is our obligation as elected prosecutors charged with protecting the health and safety of all members of our community to make our views clear.” Many of the attorneys who signed the letter make up a growing cadre of progressive prosecutors who have instructed their offices not to pursue certain actions, from seeking charges for marijuana possession (in Baltimore) to fighting death row appeals (in Philadelphia). Of those prosecutors who signed on, only six are from states with new abortion bans. The existence of the bans, however, makes the message crucially important to send. In Durham, North Carolina, District Attorney Satana Deberry said she was making a public commitment because she considered resisting these bans a matter of constitutionality and conscience. It was also personal for her. “I have three black teenager daughters,” she said, “and they are moving into the phase of their lives in which their ability to choose will impact everything that will happen to them.”

The prosecutors coming out against abortion bans nonetheless account for a minute proportion of the nation’s 2,300-odd prosecutor’s offices. But some attorneys and advocates say the value in their stand lies not just in the cases that don’t get to court but also in what the statements signal to constituents, legislators, and other attorneys. Many women in states with abortion bans are under the misperception that the bans are in effect.

“We hear from people in Kentucky, and I’ve talked to people from as far away as Alabama and Arkansas. They think abortion is banned and it is over,” said Meg Sasse Stern of the Kentucky Health Justice Network. That kind of misunderstanding has led Susan Frietsche, a senior staff attorney at the Women’s Law Project in Philadelphia, to argue that prosecutors’ avowals can be a public good. When challenging Pennsylvania’s abortion restrictions in the early 1990s, she fielded numerous calls asking if and how the abortion law changed. “Managing public perception about what the law was, I learned that it’s really hard to communicate the status of abortion laws. By prosecutors speaking out and saying that if the laws take effect, they won’t touch it, they may be doing a public health service.”

Women have long sought abortions when they were illegal. But throughout US history, the laws banning abortion tended not to be enforced against women who had them. Doctors also frequently went unpunished unless a person died from the procedure, notes historian Leslie Reagan in her book When Abortion Was a Crime, and when providers landed in court, community members often balked at prosecuting them.

Read the story on The Nation

Speaking Of… When prosecutors stand up to the death penalty 

Standing behind a podium outside the Orlando courthouse, Aramis Ayala, the elected state prosecuting attorney for Florida’s Orange and Osceola counties, announced that after extensive research, discussion, and reflection, she had decided that she could no longer seek the death penalty for defendants charged by her office. “My duty is to seek justice, which is fairness, objectivity, and decency,” she said. “I am prohibited from making the severity of sentences the index of my effectiveness.”

In many ways, Ayala’s announcement in the winter of 2017 should not have been a terribly newsworthy event. Death penalty prosecutions across the country have declined precipitously over the last decade, prompted by mounting evidence that capital punishment does not serve as a deterrent and is extremely expensive, exceedingly fallible, and racist in practice. As juries are increasingly disinclined to impose death sentences, only a dwindling number of prosecutors in isolated geographic pockets regularly continue to seek them. Recent research indicates that officials in just 2 percent of counties are responsible for the majority of the nation’s death sentences — meaning that, for all intents and purposes, Ayala’s decision to stand down was hardly unique.

What made it newsworthy, and touched off a political firestorm, was her decision to say it all out loud.

At the time, Ayala’s office was facing the prosecution of a man named Markeith Loyd, who had killed his pregnant ex-girlfriend and then an Orlando police officer — exactly the kind of case that supporters of capital punishment point to as necessitating the ultimate penalty. Ayala’s decision to seek life in prison for Loyd earned the ire of then-Gov. Rick Scott, who quickly declared that he “completely” disagreed with her decision and would use his executive power to remove the case from her office and give it to an elected prosecutor from another jurisdiction. Ayala, he said, “has made it clear that she will not fight for justice.”

The conflict speaks to just how much power prosecutors have within the criminal justice system, including when it comes to deciding who should die — and what can happen when a reform-minded prosecutor like Ayala counters an entrenched political narrative of what justice looks like.

Indeed, an extensive dataset compiled by The Intercept of individuals sent to death row in active death penalty jurisdictions since July 2, 1976, the start of the “modern” death penalty era, reveals capital punishment as a failed public policy, just as Ayala said. Our set includes 7,335 death sentences from 29 states and the federal system. A staggering 43 percent of this population is no longer on death row — but not because they were executed. Instead, thousands have had their sentences reduced, hundreds have died while awaiting execution, and still hundreds more have been exonerated or released from prison.

Florida’s experiment with capital punishment is a similar failure. Of the 992 people sentenced to death since 1976, 88 have been executed; just 9 percent of the total. Meanwhile, 528 of them — 53 percent — have been released from their death sentences. The vast majority of those individuals have been resentenced to life behind bars, either with or without the possibility of parole. Fifty-nine people once condemned have been released from prison, including 23 who were exonerated. Florida has the highest number of death-row exonerations in the country.

“I was focused on the facts,” Ayala said of her announcement during an interview with The Intercept. “I believed that my job as a leader in this community is to speak the truth, is to explain to people the direction that we are headed, why we’re headed that way, and how this is what is best for the community that I serve.”

“I never expected to be on a first-name basis with the governor of the state of Florida,” she added. “I absolutely had no intent nor did I foresee that happening. In retrospect, understanding the dynamics and the unspoken commitment to the death penalty by those in power, now I get it. It’s a tragedy, but I do get it.”

Read the story on The Intercept

Less of This The new debtors prisons 

Cecila Avila was finishing a work shift at a Walmart. David Gordon was at church. Darrell Reese was watching his granddaughter at home. Jessica Albritton had pulled into the parking lot at her job, where she packed and shipped bike parts.

All four were arrested by an armed constable, handcuffed and booked into jail. They spent anywhere from a few hours to a couple of days behind bars before being released after paying a few hundred dollars in bail or promising to appear in court.

None of the four, who live in northern Utah and were detained last year, had committed a crime. They had each borrowed money at high interest rates from a local lender called Loans for Less and were sued for owing sums that ranged from $800 to $3,600. When they missed a court date, the company obtained a warrant for their arrest.

Avila was handcuffed and marched down the main aisle in the Walmart in front of customers and co-workers. “It was the most embarrassing thing,” said Avila, 30, who has worked at the store for eight years. At the time of the arrest, Loans for Less had applied to garnish her wages. “It just didn’t make any sense to me,” she said. “Why am I being arrested for it?”

It’s against the law to jail someone because of an unpaid debt. Congress banned debtors prisons in 1833. Yet, across the country, debtors are routinely threatened with arrest and sometimes jailed, and the practices are particularly aggressive in Utah. (ProPublica recently chronicled how medical debt collectors are wielding similar powers in Kansas.)

Technically, debtors are arrested for not responding to a court summons requested by the creditor. But for many low-income people, who are not familiar with court proceedings, lack access to transportation, child care options or time off, or move frequently and thus may not receive notifications, it’s a distinction without a difference.

Reese, a 70-year-old Vietnam veteran, said he missed a hearing because he couldn’t afford to put gas in his car. Gordon, 46, said he was never personally notified of the court date. Avila and Albritton, 32, said they couldn’t take time off work.

Read the story on ProPublica

Less of This Too Black people are staring in prison longer

The racial disparity between black and white people sent to state prisons is declining, and it has been for some time.

But criminal justice researchers say people of all races still aren’t treated equally when it comes to one important measure: time served behind bars. While arrest and prison admission rates are dropping for black people—in 2016, black people went to state prison at five times the rate of white people, down from eight times in 2000—they are spending longer in prison than their white peers. This trend, noted in a report published by the nonpartisan think tank the Council on Criminal Justice today, potentially offsets broader efforts to make the system more equitable, the researchers say.

When it comes to drug and property crimes, black people are serving increasingly more time, growing at a rate of 1 percent or more on average every year, as the time served in prison by white offenders dropped. For violent crimes, although both groups served longer from 2000 to 2016, the prison time for black people grew at a rate almost twice as fast, according to the report.

The question is why.

Experts note that actors at several stages of the criminal justice system can influence how long someone ends up spending in prison. For example, prosecutors decide what charges to bring and what sentences to recommend. Judges have the discretion to hand down sentences. Correction officers can discipline people in prison, which then becomes an important factor when parole boards consider if they will release someone.

Criminal history also plays an important role, said William Sabol, a professor at Georgia State University who authored the report. During the decades of rising incarceration in the United States, a lot of people—especially black men—were arrested and pulled into the criminal justice system, leaving them with long criminal histories, Sabol said. Those records are often considered at sentencing and may contribute to today’s disparity in time spent in prison.

Read the story on New York Times

Decolonize Yourself and Your Workplace 

Featuring ChangeLawyers℠ ED, Chris Punongbayan, and ChangeLawyers℠ Chief Content Director, Carlos Aguilar.

Have you ever been a room full of people who don’t look like you? Do you code switch at work because you know you can’t be real in certain environments? You’re not alone. This is a two-part fireside chat that will dig into some hard truths about the challenges we face when we try to liberate philanthropy.

Co-hosted by ChangeLawyers & Northern California Grantmakers 

Liberate Yourself, January 14, 2020. Register here >
Liberate Foundation, February 4, 2020. Register here >

Law School Admissions Conference at Berkeley Law
This event will provide attendees with a comprehensive overview of the law school application process.  Current law students and administrators will provide advice on how best to navigate the law school application process.  Continental breakfast and lunch will be provided.

February 1, 2020. Register here >

Job Opportunity at Legal Services for Children

LSC seeks an bilingual attorney to represent children in immigration proceedings. Clients will be living in the community in the Bay Area.  Clients are primarily monolingual Spanish speakers.  We welcome applicants at all levels and provide opportunities for training and leadership.  

Apply here >

Job Opportunity at San Mateo County Bar Association

The San Mateo County Bar Association is seeking a new Chief Defender/Executive Director of its Private Defender Program. Since 1968, the San Mateo County Bar Association has operated the Private Defender Program (PDP) under the provisions of a contract with the County of San Mateo for the legal representation of all indigent persons eligible for the appointment of counsel at public expense.

Apply here >

Diversity Summit 2020

85% of lawyers are white. Why isn't the legal profession more diverse yet? Presented by ChangeLawyers, BASF, and Berkeley Law's California Constitution Center. Featuring ChangeLawyers℠ ED Chris Punongbayan. 4 Hours of MCLE credit.

January 21, 2020. Register here >