Wednesday September 12, 2018

#ReformProsecutors The next frontier in criminal justice reform 

In 2017, Santa Clara District Attorney Jeff Rosen decided that Arnulfo Garcia did not belong in prison. Sentenced under California’s three-strikes law, Garcia was serving a life sentence for a residential burglary he committed while suffering from a heroin use disorder. During more than 16 years in prison, Garcia, then 64, had turned his life around. He became a prolific writer and editor-in-chief of the award-winning San Quentin News, a newspaper produced by incarcerated people and distributed throughout the California prison system. He completed drug treatment and led support groups for fellow prisoners. He organized forums with prisoners and prosecutors, helping to show those responsible for sending people to prison that even people who commit serious offenses are capable of profound change.

Rosen wanted to reopen Garcia’s case to reduce his sentence. But under state law, Rosen could not simply ask a judge to resentence Garcia without a legal basis for doing so, like new evidence or a change in sentencing law that would entitle Garcia to relief. It wasn’t enough to say that Garcia, while guilty of his crime and legally sentenced, was rehabilitated and deserved to go home.

In many states, prosecutors lack the legal authority to revisit sentences simply because they believe them to be unjust.

Now California is poised to do exactly that, with legislation on Governor Jerry Brown’s desk that its supporters say would be the first “legal vehicle” in the country to give prosecutors the power to recommend reducing sentences “in the interest of justice.” Rosen sponsored the bill and other Bay Area prosecutors—Alameda County District Attorney Nancy O’Malley and San Francisco County District Attorney George Gascón--joined organizations that advocate criminal justice reform, including the ACLU of California and the Ella Baker Center for Human Rights, to endorse the measure.

Rosen said the new law would do more than create a mechanism to reduce sentences—it would codify sentence review as part of the prosecutor’s job, making clear that prosecutors have a responsibility to see that no one sits in prison unnecessarily. “People think we use discretion to pile onto people,” he said, but “we can also use discretion to mitigate, and to show leniency and mercy in appropriate situations.”

The legislation was the brainchild of Hillary Blout, a former prosecutor who has spent the last four years advocating criminal justice reform in California. Blout sees sentence review as the “next frontier” of reform: Securing justice for people still languishing in prison under long sentences imposed when the era of mass incarceration, defined by harsh sentencing laws and tough-on-crime prosecutors, was at its peak.

Advocates say that sentence review can be the impetus for more inclusive reform that reaches the prison population that has so far been left behind.

Raj Jayadev of Silicon Valley De-Bug, a hub of community organizing and criminal justice reform, said the new law “can be used as a tool to advance the work of prosecutorial accountability.” Jayadev plans to work directly with prisoners, their families, and their communities to make the case that people warehoused on long sentences deserve a chance at redemption. “These are elected DAs that are accountable to their communities,” he said, and “this project will give a tangible organizing anchor for communities to insist on the freedom of their loved ones.”

To Jayadev, sentence review is a logical extension of prosecutorial discretion. “Prosecutors have all the power to prosecute and punish people. If they have the power to get someone jailed for 50 years, they should have the power to say that doesn’t make sense and we should get this person home.”

Story by the Appeal >

Photo of the Week 

How can we fix the criminal justice system? By getting more Brown, Black, and Queer lawyers to become reform prosecutors! Thanks for a great discussion @GeorgeGascon @becton4da2018 @cpunongbayan and ADA Xochitl Carrion. And big thanks to @zynga for hosting #EquitySummit2018 pic.twitter.com/SUabyJWDoj

— California ChangeLawyers (@ChangeLawyers) September 12, 2018

#ChangeLawyers Meet the immigration judges who have become part of the resistance

As the Trump administration pursues a hard-line policy on immigration, it is facing resistance from an unexpected quarter — judges who rule on whether immigrants will be deported or be allowed to stay in the country.

Immigration judges are objecting to a series of policy and personnel changes that their bosses at the Justice Department say are aimed at speeding up the immigration courts, which as of the end of June had a backlog of 732,730 cases, 94,871 of them in New York, according to the department’s Executive Office for Immigration Review.

Some judges, including those in the New York courts, interpret the new policies, which include quotas on how many cases they must hear, as an attempt to control their decision-making.

Sitting judges are prohibited from speaking directly about issues that could be seen as political. But retired judges are not, and Margaret McManus, 67, who left the New York immigration court after 27 years at the end of 2017, said, “I must say, it was not a very nice year.”

Before the Trump administration, “there would be changes in policy but not so dramatic,” she said. “They never told us what to do with the case, they said, ‘Do the case.’ It wasn’t outcome-oriented.”

After a Philadelphia judge, Steven A. Morley, postponed a case because he thought the immigrant had not received proper notification, the Justice Department in July reassigned all of his 87 similar cases — saying it had reason to believe he had “committed potential violations” of law and policy. The union filed a grievance, arguing the government was trying to influence the outcome of the case.

Then, in August, Mr. Sessions declared that if judges saw it necessary to postpone a hearing — as they had in the past, for instance, to give a lawyer more time to prepare — they had to show “good cause.”

But what has upset judges the most is that beginning Oct. 1, they will have to meet a quota of 700 cases completed a year or they could be fired. To complete a case, they must let an immigrant stay in the country legally, issue a removal order or terminate the case because the immigrant’s status had changed. They could get negative performance reviews if 15 percent of their decisions get overturned on appeal.

Judges are being monitored on a performance dashboard on their court computers, which indicates if they are keeping up their pace. 

Judge Tabaddor called the new policies “huge psychological warfare,” and said judges were being pushed to move faster at the expense of denying immigrants their rights in court.

So far, it is hard to say whether the changes have affected immigrants in the New York courts. One Brooklyn nonprofit, Central American Legal Assistance, said that after Mr. Sessions’s asylum ruling in June, New York judges still granted asylum in 15 out of 20 cases. Lawyers reframed cases by arguing that their clients, for example, were witnesses to crimes or were persecuted because of family ties to either the police or organized crime.

“You can’t just end asylum,” said Heather Axford, a lawyer for the Brooklyn nonprofit. In fact, she said, in ruling to restrict asylum, Mr. Sessions had increased the backlog because lawyers are making more specific arguments that cause other cases to be postponed.

“Cases that would have taken two hours, now take five hours,” Ms. Axford said.

Across the country, there has been a rash of retirements of immigration judges. In New York alone, five retired in the last 15 months, including Judge McManus and George T. Chew, a 22-year veteran who warned younger judges to “dispense mercy with justice” at his going-away party.

Story by NY Times >

Watch This HBO’s John Oliver takes on felony disenfranchisement

More of This Man gets his first change at freedom in 48 years

Kenneth Agtuca had been a lifer for most of his life.

Imprisoned for all but six months since he was 17, Agtuca was sentenced to life for unlawful gun possession in 1993 under an unforgiving Reagan-era law, the Armed Career Criminal Act. About 5,500 federal prisoners are serving time on sentences enhanced by ACCA, which carries a mandatory 15-year term and opens the door to life without parole.

In August, Agtuca became one of a handful of prisoners whose sentences were ruled unconstitutional after a 2015 U.S. Supreme Court decision. Having served nearly twice the usual sentence for his crime, Agtuca at 65 is now on track to head home.

A run of Supreme Court decisions capped by the 2015 ruling brought relief to some prisoners who were sentenced under ACCA. The ruling found part of the act to be unconstitutionally vague--it wasn’t clear what qualified a defendant as a “career criminal.”  The decision made hundreds of prisoners serving ACCA-enhanced sentences eligible for resentencing.

It’s not clear how many other prisoners serving ACCA sentences will get the reconsideration Agtuca received. On Aug. 13, Pennsylvania resident Ronald Peppers’s 15-year sentence was revoked after the Third Circuit Court of Appeals found that, like Agtuca, his prior convictions should not have qualified him for an ACCA sentence. A Washington state man previously sentenced to the 15-year minimum under ACCA saw his sentence halved on Wednesday after a similar finding by the Ninth Circuit.

Black defendants are far more likely to receive ACCA-enhanced sentences. According to U.S. Sentencing Commission statistics, 70 percent of defendants sentenced under the act in 2016 were Black. Whites, who outnumbered Black defendants that year, accounted for 24 percent of ACCA-enhanced sentences.

Lengthy sentences for people with prior convictions drive incarceration in America. The average sentence for a federal prisoner doubled between 1988 and 2012, and tripled for prisoners serving time on weapons offenses, as prison admissions also increased.

Currently on his way out of state prison, Agtuca will have a gradual release. He will be moved to a halfway house and slowly returned to free society. He hopes to work as a paralegal and finally make a home with Susan, whom he married in prison.

“I cannot make up for the time I have lost and do not intend to try,” Agtuca told Judge Lasnik. “What I intend is to, for the rest of my days, commit myself to achieving balance.”

Story by the Appeal > 

Less of This Lawyers face persistence gender and race bias at work​

Women and people of color in the legal profession continue to face barriers in hiring, promotions, assignments and compensation, according to a study released Thursday by the American Bar Association.

The survey, which proposes strategies for employers to eliminate the barriers, was conducted by the Center for WorkLifeLaw at the University of California, Hastings College of the Law, for the bar association’s Commission on Women in the Profession and the Minority Corporate Counsel Association.

Michele Coleman Mayes, former chairwoman of the commission, said she oversaw the report, called “You Can’t Change What You Can’t See: Interrupting Bias in the Legal Profession,” because she was dismayed by statistics on men of color and women in top positions — and the way that law firms and organizations were talking about diversity.

They found that many women and people of color felt they were held to a higher standard than white men. That feeling was most prevalent among women of color, who reported the highest levels of bias in almost every category.

Women of all races said they had to walk a “tightrope” in their behavior. They reported pressure to behave “in feminine ways” and a backlash for exhibiting stereotypically male behaviors. They were more often saddled with “office housework,” like taking notes, ordering lunch or comforting a co-worker in distress.

Many women said they felt they were paid less than their colleagues with similar experience. (Almost 70 percent of women of color said so, compared with 60 percent of white women and 36 percent of white men.)

And a quarter of female lawyers reported that they had experienced sexual harassment at work, including unwanted sexual comments, physical contact and romantic advances. Those episodes sometimes had career costs. 

“You’ve got systemic barriers in place,” said Ms. Mayes, who is the chief legal counsel for the New York Public Library. “If you don’t think a woman with children should be promoted, if the woman has children of a certain age or expects to, that’s a huge impediment.”

Story by NY Times >

Less of This, Too More and more immigrants are being deported even though their cases are still open

Perin Tognia was used to getting up early at the Atlanta City Detention Center (ACDC).

Nothing, though, could have prepared him for what happened on April 24.

Around 2:30 a.m., Tognia said, two deportation officers shook him awake, led him out of his cell and asked him to fingerprint a document. “You have to leave,” Tognia recalled one of them saying.

But why? he thought.

Tognia, who came to the United States from his native Cameroon in 2009, said he had a stay on a 2015 deportation order because of a pending appeal in his case.  

Tognia’s surprise late-night visit from ICE agents is indicative of an issue that some immigration attorneys believe is getting worse as the Trump administration continues its aggressive approach to immigration enforcement: unannounced deportation attempts in the middle of ongoing cases.

Though an immigration judge had ordered Tognia deported in 2015 for missing his hearing, Tognia said he never received proper notice about when to appear and was challenging the issue at the Board of Immigration Appeals in Virginia. As long as that challenge was pending, Tognia had a “stay of proceedings” and couldn’t be deported, immigration attorneys and advocates say.

Tognia then filed a complaint with ICE’s Office of Professional Responsibility calling the deportation attempt “illegal.” Since April 24, Tognia said, deportation officers continued to approach him with paperwork and threatened to charge him with additional prison time for resisting deportation. Last month, he was transferred to Irwin County Detention Center, nearly three hours south and farther away from his Atlanta-based wife, before authorities then moved him to a processing center in Arizona.

His wife since 2017, Veronica Holmes, said Tognia called her from an airport at 2 a.m. last Tuesday. She confirmed he’s been deported to Cameroon and said she is now making travel arrangements to reunite with him.

It’s unclear how many detainees ICE has deported or tried to deport while they are challenging a removal order.

The Appeal spoke to eight immigration attorneys in Georgia, Louisiana, and Tennessee who all said driving immigrants to the airport or trying to get them to sign deportation documents isn’t unheard of. What’s different, some said, is ICE appears less interested in allowing a person to explore all of their legal options and increasingly deports people without advance notice to them, their families, or their attorneys.

“You used to know when your client was being deported,” said William Tiku, an immigration attorney in Marietta, Georgia. “They’ll give you an opportunity … [to] prepare the client. But now … they don’t let you know what’s going on. There’s children left behind, the wife, the family. You receive calls, ‘What happened? What happened?’ Most times you don’t know what happened.”

Story by The Appeal >

Podcast of the Week Immigration + criminal justice

Historically, immigration law and criminal law have functioned separately. But over the past few decades, we’ve seen them slowly merge, as the criminalization of immigrants increased. Now, under Trump, the result has been policies like family separation. On this episode, we talk to Alida Garcia, an attorney and Vice President of Advocacy at FWD.us, about America’s shameful trend of criminalizing immigrants.

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Free for Students Scholarships for Justice presented by California ChangeLawyers

Featuring former Attorney General Eric Holder and Time’s Up Legal Defense Fund founding member Nina Shaw.

October 4 at 5:00 PM. RSVP here >

Free Clinic hosted by Legal Aid of Sonoma County​

For insurance clinic and attorney consultation for wildfire survivors.

Saturday, September 29 at 144 South E Street in Santa Rosa

Email kjarvis@legalaidsc.com for more information.

Free Event Law School Admission Conference hosted by For People of Color

This free event will provide attendees with a comprehensive overview of the law school application process. Panels consisting of law students and lawyers will share their pathways to law school and the legal profession and answer questions.

Saturday, September 22. RSVP here >