Christopher Zoukis's Blog, page 7
June 28, 2017
Federal Court Again Slaps Arizona Jailers for Reading Inmate Mail
A federal three-judge appeals panel unanimously ruled on May 18 that Arizona corrections officials were illegally monitoring mail state prisoners send to—or receive from—their lawyers. It was the third time in three years judges from the 9th Circuit had rebuked Arizona law enforcers on the issue.
In a 2014 case (Nordstrom v. Ryan), the appeals court held that state corrections officials exceeded their proper authority in checking mail sent by inmates to counsel to ensure it is free of contraband—either forbidden items or information that could undermine prison security. Instead, the court found, prison staff were improperly reading incoming and outgoing correspondence with inmates’ lawyers in detail.
The case was brought by Scott Nordstrom, a death row prisoner convicted of killing six people during two robberies in Tucson in 1996. Nordstrom claimed a prison duty officer insisted on reading—not merely doing a quick check for contraband — a letter he wanted to send to his counsel.
After the initial federal appeals court ruling, his case was sent back to a state trial judge, who nonetheless declared the state’s actions didn’t violate Nordstrom’s constitutional right to counsel under the Sixth Amendment.
An appeal of that ruling argued Arizona prison officials may lawfully only briefly peruse inmates’ correspondence to counsel to check for contraband, and may not insist on in-depth reading of such letters.
Nordstrom’s appeal of the state judge’s ruling brought his case back to the 9th Circuit, which made short work of quashing the state judge’s position. In the most recent ruling, a three-judge panel emphasized prison staff can only inspect inmates’ correspondence to or from lawyers briefly, to detect whether any contraband is present, but may not undertake a more thorough examination.
The panel hearing Nordstrom’s second appeal struck down the state’s current “inspection” policy, which called for detailed page-by-page review, as out of step with the ruling from his first appeal. In addition, the panel found the state judge had not found evidence of a serious enough threat to prison security, or the infeasibility of less drastic measures, to justify its policy, as a 1987 Supreme Court decision required.
A few months before the latest Nordstrom decision, another 9th Circuit three-judge panel in Mangiaracina v. Penzone reached a similar conclusion, finding another Arizona judge had wrongly dismissed a section 1983 civil-rights lawsuit brought by a pre-trial detainee being held in a county jail in Phoenix. The inmate’s lawsuit attacked prison staff’s practice, contrary to the jail’s stated procedures, of opening and reading mail from the inmate’s lawyers outside his presence. The panel held the inmate had the right to be present when a properly designated letter to or from counsel was inspected.
That panel cited both the holding in Nordstrom’s first appellate court decision and earlier decisions in the 9th Circuit and other federal appeals courts as making it a violation of the inmate’s right to counsel under the Sixth Amendment to open mail to or from counsel outside the inmate’s presence. The court also allowed the civil-rights case by the inmate to go forward, though one panel member separately stressed that merely negligent actions by prison staff would not be enough to support an inmate lawsuit.
In a 2014 case (Nordstrom v. Ryan), the appeals court held that state corrections officials exceeded their proper authority in checking mail sent by inmates to counsel to ensure it is free of contraband—either forbidden items or information that could undermine prison security. Instead, the court found, prison staff were improperly reading incoming and outgoing correspondence with inmates’ lawyers in detail.
The case was brought by Scott Nordstrom, a death row prisoner convicted of killing six people during two robberies in Tucson in 1996. Nordstrom claimed a prison duty officer insisted on reading—not merely doing a quick check for contraband — a letter he wanted to send to his counsel.
After the initial federal appeals court ruling, his case was sent back to a state trial judge, who nonetheless declared the state’s actions didn’t violate Nordstrom’s constitutional right to counsel under the Sixth Amendment.
An appeal of that ruling argued Arizona prison officials may lawfully only briefly peruse inmates’ correspondence to counsel to check for contraband, and may not insist on in-depth reading of such letters.
Nordstrom’s appeal of the state judge’s ruling brought his case back to the 9th Circuit, which made short work of quashing the state judge’s position. In the most recent ruling, a three-judge panel emphasized prison staff can only inspect inmates’ correspondence to or from lawyers briefly, to detect whether any contraband is present, but may not undertake a more thorough examination.
The panel hearing Nordstrom’s second appeal struck down the state’s current “inspection” policy, which called for detailed page-by-page review, as out of step with the ruling from his first appeal. In addition, the panel found the state judge had not found evidence of a serious enough threat to prison security, or the infeasibility of less drastic measures, to justify its policy, as a 1987 Supreme Court decision required.
A few months before the latest Nordstrom decision, another 9th Circuit three-judge panel in Mangiaracina v. Penzone reached a similar conclusion, finding another Arizona judge had wrongly dismissed a section 1983 civil-rights lawsuit brought by a pre-trial detainee being held in a county jail in Phoenix. The inmate’s lawsuit attacked prison staff’s practice, contrary to the jail’s stated procedures, of opening and reading mail from the inmate’s lawyers outside his presence. The panel held the inmate had the right to be present when a properly designated letter to or from counsel was inspected.
That panel cited both the holding in Nordstrom’s first appellate court decision and earlier decisions in the 9th Circuit and other federal appeals courts as making it a violation of the inmate’s right to counsel under the Sixth Amendment to open mail to or from counsel outside the inmate’s presence. The court also allowed the civil-rights case by the inmate to go forward, though one panel member separately stressed that merely negligent actions by prison staff would not be enough to support an inmate lawsuit.
Appeals Court: Prison Litigation Reform Act Doesn’t Apply to Suits Filed by Ex-Prisoners
A three-judge panel of a federal appeals court has ruled that the Prison Litigation Reform Act (PLRA) applies only to lawsuits filed by people who are incarcerated at the time they file the lawsuit, not to those formerly incarcerated.
On May 19, in Olivas v. Nevada, the 9th Circuit panel reinstated a lawsuit brought by Dario Olivas, a former inmate in Nevada’s High Desert State Prison, that he filed against the prison, one corrections officer that was named, and 10 more unnamed ones.
In July 2012, Olivas was eating in the prison dining hall when a fight broke out nearby. Nevada equips its corrections officers with shotguns loaded with birdshot — one of the only states that does so. One officer quickly fired at the fighting inmates. Olivas, who wasn’t involved in the fight, was hit by pellets in his upper body, face and eye. As a result of that, and the allegedly inadequate medical treatment of the injury, he lost sight in one eye and was permanently disfigured.
After being released almost two years later, acting as his own lawyer, Olivas filed a state court lawsuit, alleging his injuries were due to unconstitutional actions of prison officers and violations of various state laws. After the case was moved to the federal district court, the presiding judge reviewed the case using procedures set in the PLRA.
Adopted by Congress in 1995, the PLRA was designed to crack down on frivolous lawsuits by creating new requirements for prisoner lawsuits, in order to ease the caseload burdens of courts. One section of the new law disallows filing of claims that are malicious, frivolous, don’t state a claim on which relief can be granted, or which seek monetary damages from an immune defendant.
PLRA also prohibits prisoner-filed lawsuits over prison conditions unless the inmate has first exhausted available administrative remedies. The PLRA doesn’t specify what administrative remedies a state must provide, but the Supreme Court has clearly held they must be completed before a prisoner’s lawsuit may be heard.
Finding the case failed to meet PLRA standards, the judge then dismissed the federal and constitutional claims, and sent the state law claims to a state court, which soon dismissed them as well. He did allow Olivas a chance to amend his lawsuit, however. Now aided by counsel, Olivas renewed his case, claiming the officers intended to harm him.
The revised complaint then came back to the judge for another PLRA review, and was again found deficient. The case could not go forward, the judge ruled, because Olivas had not offered any basis for showing intent to harm him. Instead, the court viewed the shotgun injury as an unintentional consequence of a good-faith effort to restore order.
But when the dismissal went to the federal appeals court, the three-judge panel focused on a new question: whether PLRA screening was appropriate for a lawsuit filed by a former inmate, not a current prisoner. Based on the statute’s definition of “prisoner,” they decided it was not, overriding the lower court’s dismissal and reviving Olivas’ case. Because Olivas was not in custody at the time he filed the lawsuit, it was wrong for the lower court to screen it for compliance with PLRA requirements.
On May 19, in Olivas v. Nevada, the 9th Circuit panel reinstated a lawsuit brought by Dario Olivas, a former inmate in Nevada’s High Desert State Prison, that he filed against the prison, one corrections officer that was named, and 10 more unnamed ones.
In July 2012, Olivas was eating in the prison dining hall when a fight broke out nearby. Nevada equips its corrections officers with shotguns loaded with birdshot — one of the only states that does so. One officer quickly fired at the fighting inmates. Olivas, who wasn’t involved in the fight, was hit by pellets in his upper body, face and eye. As a result of that, and the allegedly inadequate medical treatment of the injury, he lost sight in one eye and was permanently disfigured.
After being released almost two years later, acting as his own lawyer, Olivas filed a state court lawsuit, alleging his injuries were due to unconstitutional actions of prison officers and violations of various state laws. After the case was moved to the federal district court, the presiding judge reviewed the case using procedures set in the PLRA.
Adopted by Congress in 1995, the PLRA was designed to crack down on frivolous lawsuits by creating new requirements for prisoner lawsuits, in order to ease the caseload burdens of courts. One section of the new law disallows filing of claims that are malicious, frivolous, don’t state a claim on which relief can be granted, or which seek monetary damages from an immune defendant.
PLRA also prohibits prisoner-filed lawsuits over prison conditions unless the inmate has first exhausted available administrative remedies. The PLRA doesn’t specify what administrative remedies a state must provide, but the Supreme Court has clearly held they must be completed before a prisoner’s lawsuit may be heard.
Finding the case failed to meet PLRA standards, the judge then dismissed the federal and constitutional claims, and sent the state law claims to a state court, which soon dismissed them as well. He did allow Olivas a chance to amend his lawsuit, however. Now aided by counsel, Olivas renewed his case, claiming the officers intended to harm him.
The revised complaint then came back to the judge for another PLRA review, and was again found deficient. The case could not go forward, the judge ruled, because Olivas had not offered any basis for showing intent to harm him. Instead, the court viewed the shotgun injury as an unintentional consequence of a good-faith effort to restore order.
But when the dismissal went to the federal appeals court, the three-judge panel focused on a new question: whether PLRA screening was appropriate for a lawsuit filed by a former inmate, not a current prisoner. Based on the statute’s definition of “prisoner,” they decided it was not, overriding the lower court’s dismissal and reviving Olivas’ case. Because Olivas was not in custody at the time he filed the lawsuit, it was wrong for the lower court to screen it for compliance with PLRA requirements.
June 5, 2017
Jails Scandal Brings Ex-L.A. County Sheriff Three Years in Prison
A federal judge has handed a three-year prison sentence to Leroy “Lee” Baca, who was sheriff of Los Angeles County for 15 years, for his role in covering up abuses in the county’s jail system that was being investgated by the FBI. The L.A. Sheriff’s Department has more than 18,000 employees and is responsible for policing over 4,000 square miles and the nation’s largest jail system.
Judge Percy Anderson, who last year rejected as too lenient a proposed plea bargain that would have brought Baca no more than six months in prison, said at the May 12 sentencing that the former sheriff was guilty of a “gross abuse”of the public trust placed in him. The judge said his stringent sentence was designed in part to act as a deterrent to misconduct by other officials.
In 2010, the FBI began to investigate reports of brutality by jail personnel and official cover-ups of inmate mistreatment. About 20 members of the county sheriff’s office were charged with conspiring in various ways to block the probe, lying to federal investigators, witness intimidation, and conspiring to cover up their actions. Baca stepped down in 2014, when the scandal gained high visibility. He and his right-hand man, undersheriff Paul Tanaka, were indicted in 2015.
In April 2016, a jury convicted Tanaka of obstructing the FBI’s probe, and sentenced him to a five-year term. According to complaints, after the FBI bribed a jail employee to smuggle a cellphone into an inmate cooperating with the probe, Tanaka and others conspired to keep the informant from communicating with the investigators, at one point shuttling him to various locations inside the Men’s Central Jail and outside it, under false names, for more than a month to keep the informant’s FBI handlers from communicating with him.
At one point, in an attempt to learn what the FBI had discovered, deputies reporting to Tanaka and Baca even threatened the lead FBI investigating agent with arrest. Eight other sheriff’s office personnel have been convicted in the long-running scandal, on charges ranging from inmate abuse to obstructing or lying to a federal investigator.
Baca’s first trial ended in a mistrial in December, when the jury deadlocked, with all but one member favoring acquittal. His defense argued any actions aimed at blocking the FBI probe were carried out without Baca’s knowledge, but some underlings testified that the chief had directed some parts of the plot and had been kept informed of others.
It has not yet been determined to which federal prison Baca—who is 74 and has been diagnosed as being in the early stages of Alzheimer’s—will have to report by July 25. Baca’s condition was doubtless a factor in his prison term being set lower than the sentencing guidelines recommendation of between 41 and 51 months. But Judge Jackson’s sentence was a year more than what had been recommended by federal prosecutors.
The ex-lawman has asked to be allowed to remain out on bail while his sentence is appealed, but it is not clear whether that request will be granted. He’ll also face a year’supervision after his release and have to pay a $7,500 fine.
Judge Percy Anderson, who last year rejected as too lenient a proposed plea bargain that would have brought Baca no more than six months in prison, said at the May 12 sentencing that the former sheriff was guilty of a “gross abuse”of the public trust placed in him. The judge said his stringent sentence was designed in part to act as a deterrent to misconduct by other officials.
In 2010, the FBI began to investigate reports of brutality by jail personnel and official cover-ups of inmate mistreatment. About 20 members of the county sheriff’s office were charged with conspiring in various ways to block the probe, lying to federal investigators, witness intimidation, and conspiring to cover up their actions. Baca stepped down in 2014, when the scandal gained high visibility. He and his right-hand man, undersheriff Paul Tanaka, were indicted in 2015.
In April 2016, a jury convicted Tanaka of obstructing the FBI’s probe, and sentenced him to a five-year term. According to complaints, after the FBI bribed a jail employee to smuggle a cellphone into an inmate cooperating with the probe, Tanaka and others conspired to keep the informant from communicating with the investigators, at one point shuttling him to various locations inside the Men’s Central Jail and outside it, under false names, for more than a month to keep the informant’s FBI handlers from communicating with him.
At one point, in an attempt to learn what the FBI had discovered, deputies reporting to Tanaka and Baca even threatened the lead FBI investigating agent with arrest. Eight other sheriff’s office personnel have been convicted in the long-running scandal, on charges ranging from inmate abuse to obstructing or lying to a federal investigator.
Baca’s first trial ended in a mistrial in December, when the jury deadlocked, with all but one member favoring acquittal. His defense argued any actions aimed at blocking the FBI probe were carried out without Baca’s knowledge, but some underlings testified that the chief had directed some parts of the plot and had been kept informed of others.
It has not yet been determined to which federal prison Baca—who is 74 and has been diagnosed as being in the early stages of Alzheimer’s—will have to report by July 25. Baca’s condition was doubtless a factor in his prison term being set lower than the sentencing guidelines recommendation of between 41 and 51 months. But Judge Jackson’s sentence was a year more than what had been recommended by federal prosecutors.
The ex-lawman has asked to be allowed to remain out on bail while his sentence is appealed, but it is not clear whether that request will be granted. He’ll also face a year’supervision after his release and have to pay a $7,500 fine.
May 19, 2017
States Must Refund Payments to Those Later Exonerated
State legislatures cannot create obstacles that make it tough for people whose criminal convictions have been overturned to recover fines or restitution damages they have already paid, according to an April 19 U.S. Supreme Court decision.
In its 7-1 decision in Nelson v. Colorado, the high court overturned a state law that forced exonerated defendants to file civil lawsuits, and then prove their innocence by clear and convincing evidence in order to get back already paid-out fines, fees or restitution damages.
The majority opinion, written by Justice Ruth Bader Ginsburg and joined by five other justices, said Colorado’s Compensation for Certain Exonerated Persons, or Exoneration Act for short, violated the due process requirements of the 14th Amendment by ignoring the presumption of innocence to which the accused are entitled.
The state’s law, she wrote, “retains conviction-related assessments” until defendants who win on appeal or otherwise have the charges against them dismissed file separate civil lawsuits, and also demonstrate their innocence by clear and convincing evidence. The state process thus wrongly presumes a person Colorad found not guilty of a crime is nevertheless “guilty enough for monetary exactions.”
The challenge to the law was brought by two defendants who had been convicted on sex offense charges and ordered to pay thousands in fines and restitution awards. After their convictions were later overturned, they returned to criminal court to file motions asking to have their payments refunded.
But the state’s Supreme Court ruled Colorado criminal courts lack the power to make such refunds, and held state law required the now-exonerated defendants to file new civil lawsuits and meet an elevated standard of proof in order to recoup their court-ordered payments from their now-overturned convictions.
In fact, Colorado argued the exonerated defendants lacked any property interest in the fines, fees and restitution awards they had paid before their convictions were overturned, and even went so far as to say the state could enact a law denying them any refund at all.
The state also argued that, although it recently passed a law providing reimbursement for wrongly imprisoned people, it was under no obligation to do that, so it should similarly have no obligation to refund payments to people whose convictions were later overturned. Justice Ginsburg pointedly rejected that argument, saying the state has “zero claim of right” to the payments.
Some commentators viewed the case as an example of a frequently-heard criticism that some states view hefty new fees and fines on criminal defendants as new sources of public-sector revenues.
The state’s brief to the Supreme Court further argued once the state had transferred defendants’ payments to a victims’ restitution fund and other public funds, not only had the defendants lost any enforceable interest in the payments, but the state also lacked the authority to refund them.
One member of the court, Justice Clarence Thomas, agreed with the state and dissented from the high court’s opinion; Justice Samuel Alito sided with the court majority, but for reasons other than those in the majority opinion. The court’s newest member, Justice Neil Gorsuch, came on the court after the case was argued and so did not take part in the decision.
In its 7-1 decision in Nelson v. Colorado, the high court overturned a state law that forced exonerated defendants to file civil lawsuits, and then prove their innocence by clear and convincing evidence in order to get back already paid-out fines, fees or restitution damages.
The majority opinion, written by Justice Ruth Bader Ginsburg and joined by five other justices, said Colorado’s Compensation for Certain Exonerated Persons, or Exoneration Act for short, violated the due process requirements of the 14th Amendment by ignoring the presumption of innocence to which the accused are entitled.
The state’s law, she wrote, “retains conviction-related assessments” until defendants who win on appeal or otherwise have the charges against them dismissed file separate civil lawsuits, and also demonstrate their innocence by clear and convincing evidence. The state process thus wrongly presumes a person Colorad found not guilty of a crime is nevertheless “guilty enough for monetary exactions.”
The challenge to the law was brought by two defendants who had been convicted on sex offense charges and ordered to pay thousands in fines and restitution awards. After their convictions were later overturned, they returned to criminal court to file motions asking to have their payments refunded.
But the state’s Supreme Court ruled Colorado criminal courts lack the power to make such refunds, and held state law required the now-exonerated defendants to file new civil lawsuits and meet an elevated standard of proof in order to recoup their court-ordered payments from their now-overturned convictions.
In fact, Colorado argued the exonerated defendants lacked any property interest in the fines, fees and restitution awards they had paid before their convictions were overturned, and even went so far as to say the state could enact a law denying them any refund at all.
The state also argued that, although it recently passed a law providing reimbursement for wrongly imprisoned people, it was under no obligation to do that, so it should similarly have no obligation to refund payments to people whose convictions were later overturned. Justice Ginsburg pointedly rejected that argument, saying the state has “zero claim of right” to the payments.
Some commentators viewed the case as an example of a frequently-heard criticism that some states view hefty new fees and fines on criminal defendants as new sources of public-sector revenues.
The state’s brief to the Supreme Court further argued once the state had transferred defendants’ payments to a victims’ restitution fund and other public funds, not only had the defendants lost any enforceable interest in the payments, but the state also lacked the authority to refund them.
One member of the court, Justice Clarence Thomas, agreed with the state and dissented from the high court’s opinion; Justice Samuel Alito sided with the court majority, but for reasons other than those in the majority opinion. The court’s newest member, Justice Neil Gorsuch, came on the court after the case was argued and so did not take part in the decision.
Is a Defendant Claiming Mental Illness Entitled to an Expert Witness?
The U.S. Supreme Court recently heard a case (McWilliams v. Dunn) raising the issue of whether an indigent criminal defendant claiming mental illness is entitled to get an independent expert witness to assist the defense.
Over three decades ago, in December 1984, Patricia Reynolds, a convenience store clerk in Tuscaloosa, Alabama, was robbed, raped and murdered. Brought to trial for the crimes, James McWilliams, at his lawyer’s request, received a court-ordered psychiatric assessment, to examine his sanity, competency and any mitigating factors.
The testing was overseen by the state Department of Corrections, and a panel of three state-employed doctors reported McWilliams was competent to face trial, was not mentally ill at the time of the crimes, and was faking psychotic symptoms.
After McWilliams was found guilty, at the trial’s penalty phase prosecutors offered as expert witnesses two of the state doctors who had examined McWilliams and found him to be sane but feigning psychosis. The only witnesses for the defense were McWilliams and his mother, who spoke about childhood head injuries that they thought were linked to his various disorders, including chronic headaches, black-outs, hallucinations and memory problems.
The court also admitted a clinical psychologist’s report into evidence, which was done a few months before the crime spree, detailing psychiatric test results and concluding McWilliams probably had serious pathology. That psychologist did not appear when subpoenaed, however, and defense witnesses were unable to explain or discuss the report’s technical features. The jury called for the death penalty.
Before the sentencing hearing, McWilliams’ lawyer asked for more neurological and psychiatric testing; the court again ordered the state corrections department to oversee that. The psychologist in charge said organic impairment was possible, and suggested the court order further testing by a clinical neuropsychological specialist not employed by the state.
The court then named a specialist, who submitted a five-page report just two days before the sentencing hearing. McWilliams’ defense counsel didn’t receive all his client’s medical and psychiatric records from the state corrections system until the morning of that hearing.
Rejecting counsel’s request for more time to review the material, the court determined McWilliams was not psychotic, and any brain dysfunction he might have did not reach the level of a mitigating factor. In view of aggravating factors— a previous rape-robbery conviction, the brutal attack and execution-style shooting of Reynolds, and evidence McWilliams was malingering — the judge sentenced him to death by electrocution.
McWilliams’ lawyer next went to federal court, attacking the state's not providing an independent expert witness to review and explain the technical issues in a mental illness defense; he lost in federal district court and a split appellate panel.
To win, McWilliams must show not only that he needed an independent expert advisor-witness, but also that the state’s failure to provide one violated a clearly established constitutional requirement. The closest Supreme Court decision, a 1986 case finding Oklahoma wrongly withheld all psychiatric review from an indigent defendant whose mental health was a central issue, didn’t decide whether an independent expert was required, or it might be sufficient if the defendant were reviewed by state mental health experts, as McWilliams was.
At the April 24 hearing, however, some observers thought that swing vote Justice Anthony Kennedy may side with the court’s four liberal justices, and hand McWilliams a new review of his sentence.
Over three decades ago, in December 1984, Patricia Reynolds, a convenience store clerk in Tuscaloosa, Alabama, was robbed, raped and murdered. Brought to trial for the crimes, James McWilliams, at his lawyer’s request, received a court-ordered psychiatric assessment, to examine his sanity, competency and any mitigating factors.
The testing was overseen by the state Department of Corrections, and a panel of three state-employed doctors reported McWilliams was competent to face trial, was not mentally ill at the time of the crimes, and was faking psychotic symptoms.
After McWilliams was found guilty, at the trial’s penalty phase prosecutors offered as expert witnesses two of the state doctors who had examined McWilliams and found him to be sane but feigning psychosis. The only witnesses for the defense were McWilliams and his mother, who spoke about childhood head injuries that they thought were linked to his various disorders, including chronic headaches, black-outs, hallucinations and memory problems.
The court also admitted a clinical psychologist’s report into evidence, which was done a few months before the crime spree, detailing psychiatric test results and concluding McWilliams probably had serious pathology. That psychologist did not appear when subpoenaed, however, and defense witnesses were unable to explain or discuss the report’s technical features. The jury called for the death penalty.
Before the sentencing hearing, McWilliams’ lawyer asked for more neurological and psychiatric testing; the court again ordered the state corrections department to oversee that. The psychologist in charge said organic impairment was possible, and suggested the court order further testing by a clinical neuropsychological specialist not employed by the state.
The court then named a specialist, who submitted a five-page report just two days before the sentencing hearing. McWilliams’ defense counsel didn’t receive all his client’s medical and psychiatric records from the state corrections system until the morning of that hearing.
Rejecting counsel’s request for more time to review the material, the court determined McWilliams was not psychotic, and any brain dysfunction he might have did not reach the level of a mitigating factor. In view of aggravating factors— a previous rape-robbery conviction, the brutal attack and execution-style shooting of Reynolds, and evidence McWilliams was malingering — the judge sentenced him to death by electrocution.
McWilliams’ lawyer next went to federal court, attacking the state's not providing an independent expert witness to review and explain the technical issues in a mental illness defense; he lost in federal district court and a split appellate panel.
To win, McWilliams must show not only that he needed an independent expert advisor-witness, but also that the state’s failure to provide one violated a clearly established constitutional requirement. The closest Supreme Court decision, a 1986 case finding Oklahoma wrongly withheld all psychiatric review from an indigent defendant whose mental health was a central issue, didn’t decide whether an independent expert was required, or it might be sufficient if the defendant were reviewed by state mental health experts, as McWilliams was.
At the April 24 hearing, however, some observers thought that swing vote Justice Anthony Kennedy may side with the court’s four liberal justices, and hand McWilliams a new review of his sentence.
Inmates at Ohio Prison Secretly Built Computers, Used Them for Crimes
For over three months, five inmates in Ohio’s medium-security Marion Correctional Institution tapped into the prison’s network to run two computers they had built piecemeal from parts scavenged from a nonprofit group’s job training program. The program teaches inmates how to disassemble and recycle outdated computer equipment as part of Marion’s “Green Initiative” program.
The inmates installed ethernet cable and tapped into a hub on the prison’s network. They also loaded more than two dozen hacking programs to sidestep network safeguards and access prison records, and went online to search inmate disciplinary and sentencing records, find inmate locations, and create passes needed to gain entrance to restricted areas within the prison.
Using imaging software, they secretly copied the hard drive from a training computer for inmates to power their homemade machines and sign on to the prison’s computer system, using login information belonging to a retired corrections official, who had gone part-time on the Ohio Department of Rehabilitation and Correction (ORCD) payroll.
According to a 50-page report released by the Ohio Inspector General’s Office April 12, the inmates, most of whom were serving life sentences, used the home-brew computers to conduct a variety of criminal activities. These included identity theft (stealing personal identification of an inmate in another prison), and credit card fraud (they applied for five new credit cards in the name of the prisoner whose name, date of birth and Social Security number they had stolen).
They also accessed the internet to access pornography, recipes for making drugs and information useful for other crimes. For instance, they used a Bloomberg article on tax fraud they found online as a guide for attempts to file false refund claims in the names of others and get the refunds sent electronically to debit cards.
While the state Inspector General’s report appeared just recently, the events it described actually occurred several years earlier. The report faults prison officials for failing to make required notifications to the governor, the state highway patrol, and the inspector general’s office, after a computing security software program alerted ORCD officials it had detected unusually heavy use of its system by one user —the ex-Marion training officer who formerly supervised the prison’s Green Initiative program and was now working part-time for the ORCD.
When the prison noted the days of his heaviest use did not match up with his actual work schedule, the warden and an investigator there suspected that meant prisoners were making unauthorized use of prison computers, but failed to report that. The Inspector General’s report also identified numerous other lapses in the prison’s security practices.
After about a month of searching, the prison’s investigation traced the computers’ port number to a network switch near the room where inmates received computer training from a local nonprofit group. They eventually found the jerry-rigged computers hidden on pieces of plywood stashed above the ceiling tiles of a conveniently located storage closet.
The inmates involved in the caper were dispersed to other prisons. The Ohio Inspected General told a computer publication the inmates’ scheme reminded him of “an episode of Hogan's Heroes,” but added it also seemed unlike anything “you’d think would happen in today’s correctional facilities.”
The inmates installed ethernet cable and tapped into a hub on the prison’s network. They also loaded more than two dozen hacking programs to sidestep network safeguards and access prison records, and went online to search inmate disciplinary and sentencing records, find inmate locations, and create passes needed to gain entrance to restricted areas within the prison.
Using imaging software, they secretly copied the hard drive from a training computer for inmates to power their homemade machines and sign on to the prison’s computer system, using login information belonging to a retired corrections official, who had gone part-time on the Ohio Department of Rehabilitation and Correction (ORCD) payroll.
According to a 50-page report released by the Ohio Inspector General’s Office April 12, the inmates, most of whom were serving life sentences, used the home-brew computers to conduct a variety of criminal activities. These included identity theft (stealing personal identification of an inmate in another prison), and credit card fraud (they applied for five new credit cards in the name of the prisoner whose name, date of birth and Social Security number they had stolen).
They also accessed the internet to access pornography, recipes for making drugs and information useful for other crimes. For instance, they used a Bloomberg article on tax fraud they found online as a guide for attempts to file false refund claims in the names of others and get the refunds sent electronically to debit cards.
While the state Inspector General’s report appeared just recently, the events it described actually occurred several years earlier. The report faults prison officials for failing to make required notifications to the governor, the state highway patrol, and the inspector general’s office, after a computing security software program alerted ORCD officials it had detected unusually heavy use of its system by one user —the ex-Marion training officer who formerly supervised the prison’s Green Initiative program and was now working part-time for the ORCD.
When the prison noted the days of his heaviest use did not match up with his actual work schedule, the warden and an investigator there suspected that meant prisoners were making unauthorized use of prison computers, but failed to report that. The Inspector General’s report also identified numerous other lapses in the prison’s security practices.
After about a month of searching, the prison’s investigation traced the computers’ port number to a network switch near the room where inmates received computer training from a local nonprofit group. They eventually found the jerry-rigged computers hidden on pieces of plywood stashed above the ceiling tiles of a conveniently located storage closet.
The inmates involved in the caper were dispersed to other prisons. The Ohio Inspected General told a computer publication the inmates’ scheme reminded him of “an episode of Hogan's Heroes,” but added it also seemed unlike anything “you’d think would happen in today’s correctional facilities.”
April 28, 2017
Intellectual Disability Test Methods in Texas Death Penalty Cases
In a 5-3 decision March 28, the U.S. Supreme Court struck down the methods that Texas has been using to gauge whether a defendant’s intellectual ability should spare them the death penalty.
The appeal was for Bobby James Moore, convicted of capital murder and sentenced to death in 1980 for fatally shooting an elderly Houston supermarket clerk during a botched robbery. Twenty years old at the time, Moore spent 19 years on Death Row before winning a new trial, due to ineffective assistance of counsel. But on retrial in 2001, he was again convicted and given a death sentence.
In 2014, Moore’s lawyers sought to persuade a state court he was intellectually disabled to a degree that made sentencing him to death unconstitutional. That court agreed, but the Texas Court of Criminal Appeals rejected its recommendation, finding Moore was not severely impaired enough to be exempt from the death penalty.
On appeal, Moore’s lawyers challenged the state appeals court’s reading of constitution law. The leading federal case, Atkins v. Virginia, set down a basic rule in 2002: executing mentally disabled convicts violates the Eighth Amendment’s prohibition of cruel and unusual punishment. Atkins didn’t set standards on how states should determine mental disability in capital cases, however.
In 2014, in Hall v. Florida, the Supreme Court rejected that state’s use of an IQ score of 70 as precluding mental disability, saying state determinations must be “informed by the medical community’s diagnostic framework.” So the central issue the Supreme Court faced in Moore v. Texas was whether the way Texas made that determination in Moore’s case squared with the high court’s earlier cases.
The majority opinion, from Justice Ruth Bader Ginsburg, joined by Justices Kennedy, Breyer, Sotomayor and Kagan, found it did not. The court which had recommended exempting Moore from the death penalty, it noted, used a generally accepted test, consistent with modern diagnostic standards, with three core parts – mental functioning defects, evidenced by such things as an IQ of roughly 70; adaptive deficits, such as inability to learn basic skills or change behavior to fit changed circumstances; and the onset of such deficits before the age of majority.
Ginsburg cited evidence the first court had found about Moore, a ninth-grade dropout who by age 13 could barely read, write or even tell time or understand common measurement units. In contrast, the Texas Court of Criminal Appeals relied on state case law, which imposed added requirements, based on a 1992 psychology manual no longer accepted by most experts, and added seven “evidence factors” of its own devising, such as whether those who knew the individual treated him or her as mentally disabled. It also faulted the Texas criminal appeals court for relying on IQ scores Moore had received without considering those tests’ margins of error.
While the Court’s earlier decisions allow states leeway in making mental disability determinations, the majority vacated Moore’s death sentence, based on the state's use of outdated medical standards and other factors lacking scientific basis. A dissent by Chief Justice John Roberts, with Justices Alito and Thomas, would have accepted the state’s reliance on an IQ score of 74 for Moore, and complained the majority opinion gave states insufficient guidance on how to determine mental disability.
The appeal was for Bobby James Moore, convicted of capital murder and sentenced to death in 1980 for fatally shooting an elderly Houston supermarket clerk during a botched robbery. Twenty years old at the time, Moore spent 19 years on Death Row before winning a new trial, due to ineffective assistance of counsel. But on retrial in 2001, he was again convicted and given a death sentence.
In 2014, Moore’s lawyers sought to persuade a state court he was intellectually disabled to a degree that made sentencing him to death unconstitutional. That court agreed, but the Texas Court of Criminal Appeals rejected its recommendation, finding Moore was not severely impaired enough to be exempt from the death penalty.
On appeal, Moore’s lawyers challenged the state appeals court’s reading of constitution law. The leading federal case, Atkins v. Virginia, set down a basic rule in 2002: executing mentally disabled convicts violates the Eighth Amendment’s prohibition of cruel and unusual punishment. Atkins didn’t set standards on how states should determine mental disability in capital cases, however.
In 2014, in Hall v. Florida, the Supreme Court rejected that state’s use of an IQ score of 70 as precluding mental disability, saying state determinations must be “informed by the medical community’s diagnostic framework.” So the central issue the Supreme Court faced in Moore v. Texas was whether the way Texas made that determination in Moore’s case squared with the high court’s earlier cases.
The majority opinion, from Justice Ruth Bader Ginsburg, joined by Justices Kennedy, Breyer, Sotomayor and Kagan, found it did not. The court which had recommended exempting Moore from the death penalty, it noted, used a generally accepted test, consistent with modern diagnostic standards, with three core parts – mental functioning defects, evidenced by such things as an IQ of roughly 70; adaptive deficits, such as inability to learn basic skills or change behavior to fit changed circumstances; and the onset of such deficits before the age of majority.
Ginsburg cited evidence the first court had found about Moore, a ninth-grade dropout who by age 13 could barely read, write or even tell time or understand common measurement units. In contrast, the Texas Court of Criminal Appeals relied on state case law, which imposed added requirements, based on a 1992 psychology manual no longer accepted by most experts, and added seven “evidence factors” of its own devising, such as whether those who knew the individual treated him or her as mentally disabled. It also faulted the Texas criminal appeals court for relying on IQ scores Moore had received without considering those tests’ margins of error.
While the Court’s earlier decisions allow states leeway in making mental disability determinations, the majority vacated Moore’s death sentence, based on the state's use of outdated medical standards and other factors lacking scientific basis. A dissent by Chief Justice John Roberts, with Justices Alito and Thomas, would have accepted the state’s reliance on an IQ score of 74 for Moore, and complained the majority opinion gave states insufficient guidance on how to determine mental disability.
Fewer States Automatically Suspend Driver’s Licenses for Drug Convictions
Since 2009, seven state legislatures have acted to remove themselves from a 1991 federal law that since 1994 has threatened to reduce federal highway funds to states which did not provide at least a six-month driver’s license suspension for people convicted of drug crimes.
Known at the time of enactment as a “use and lose” measure, the federal law (23 U.S. Code 159) is these days increasingly seen as an outdated “war on drugs” holdover which does little, if anything, to achieve its stated aims, and may actually impede them, while creating serious barriers to re-entry into society for people with histories of drug convictions. Opponents of the federal law claim it burdens courts and detracts motor vehicle agencies from more important work directly related to highway safety.
Despite the clear trend in recent years for states to end or modify their driver’s license suspension laws, or to take advantage of a provision in the federal law allowing states to opt out of suspending licenses of people convicted of crimes unrelated to driving and still keep highway funds, 12 states and the District of Columbia still require license suspension for drug convictions unrelated to driving.
Since some major population centers are among the dozen states with such laws still on the books – including New York, Texas, Florida, Michigan, New Jersey and Virginia – an estimated 122 million people live under such laws, and almost 200,000 lose their driver’s licenses each year for non-driving violations.
But it’s growing increasingly likely even more states will decouple drug convictions from driver’s license suspensions – and some in Congress are even backing federal bills to that end.
As recently as 2004, 27 states automatically suspended or revoked driver’s licenses for at least some drug convictions. Last year alone, legislators in Ohio and Massachusetts gave judges the power to decide whether or not to suspend driver’s licenses after drug convictions, following similar actions in earlier years by Georgia, Delaware, Indiana, Oklahoma, and Wisconsin. Virginia, one of the 12 states still restricting driver’s licenses after drug convictions, is set to opt out starting this July, and others are considering similar actions. Some states have also eliminated or reduced the fees previously required to reinstate suspended licenses.
And a bill — House of Representatives 1952, with the short title of the “Better Drive Act” — was introduced in the House of Representatives April 5 by Rep. Beto O’Rourke (D-TX). Its six backers are equally divided between Republicans and Democrats. The main sponsor argues his bill, by making it possible for people with drug convictions unrelated to driving to maintain the driver’s licenses they will likely need to find employment and get to their jobs, would ease social re-entry and fight recidivism.
The 10-line bill would remove the federal law withholding some federal highway funds from states which do not automatically suspend driver’s licenses after a drug conviction. The repeal bill, if adopted, would not prevent states from suspending licenses for drug-impaired driving, but would only stop automatic license suspension for offenses not related to driving. The bill to repeal the federal mandate would not restrict states’ ability to suspend or revoke licenses for drug-impaired driving offenses.
Known at the time of enactment as a “use and lose” measure, the federal law (23 U.S. Code 159) is these days increasingly seen as an outdated “war on drugs” holdover which does little, if anything, to achieve its stated aims, and may actually impede them, while creating serious barriers to re-entry into society for people with histories of drug convictions. Opponents of the federal law claim it burdens courts and detracts motor vehicle agencies from more important work directly related to highway safety.
Despite the clear trend in recent years for states to end or modify their driver’s license suspension laws, or to take advantage of a provision in the federal law allowing states to opt out of suspending licenses of people convicted of crimes unrelated to driving and still keep highway funds, 12 states and the District of Columbia still require license suspension for drug convictions unrelated to driving.
Since some major population centers are among the dozen states with such laws still on the books – including New York, Texas, Florida, Michigan, New Jersey and Virginia – an estimated 122 million people live under such laws, and almost 200,000 lose their driver’s licenses each year for non-driving violations.
But it’s growing increasingly likely even more states will decouple drug convictions from driver’s license suspensions – and some in Congress are even backing federal bills to that end.
As recently as 2004, 27 states automatically suspended or revoked driver’s licenses for at least some drug convictions. Last year alone, legislators in Ohio and Massachusetts gave judges the power to decide whether or not to suspend driver’s licenses after drug convictions, following similar actions in earlier years by Georgia, Delaware, Indiana, Oklahoma, and Wisconsin. Virginia, one of the 12 states still restricting driver’s licenses after drug convictions, is set to opt out starting this July, and others are considering similar actions. Some states have also eliminated or reduced the fees previously required to reinstate suspended licenses.
And a bill — House of Representatives 1952, with the short title of the “Better Drive Act” — was introduced in the House of Representatives April 5 by Rep. Beto O’Rourke (D-TX). Its six backers are equally divided between Republicans and Democrats. The main sponsor argues his bill, by making it possible for people with drug convictions unrelated to driving to maintain the driver’s licenses they will likely need to find employment and get to their jobs, would ease social re-entry and fight recidivism.
The 10-line bill would remove the federal law withholding some federal highway funds from states which do not automatically suspend driver’s licenses after a drug conviction. The repeal bill, if adopted, would not prevent states from suspending licenses for drug-impaired driving, but would only stop automatic license suspension for offenses not related to driving. The bill to repeal the federal mandate would not restrict states’ ability to suspend or revoke licenses for drug-impaired driving offenses.
Massachusetts May Toss Thousands of Convictions for Drug Test Fraud
Annie Dookhan, a chemist working for a Massachusetts state drug-testing laboratory, was paroled last year after serving nearly three years in a state prison for her admitted perjury and evidence tampering in state-prosecuted cases.
Now state prosecutors, responding to an order from the state’s highest court, the Supreme Judicial Court, have dismissed 21,587 of the more than 24,000 criminal convictions linked to Dookhan’s unreliable court testimony and drug-testing reports.
In the largest-ever case of its type, Dookhan pleaded guilty to more than two dozen counts of tampering with drug samples, falsifying lab reports, and misleading investigators during the nine years she worked at a drug-testing lab run by the state’s Department of Public Health.
In some cases, Dookhan apparently did no actual testing, but still issued reports that samples submitted by police or prosecutors in fact contained controlled substances. In some cases, Dookhan signed reports not only for herself, but for other staffers who were supposed to supervise or confirm her work. Contrary to lab rules, she also took calls from police, who told her what drug they expected would be found in the samples they had sent her.
When Dookhan’s mishandling of samples, faked reports and other misconduct came to light in August 2012, the large number of cases potentially involving false evidence raised serious problems not just for defendants who may have been wrongfully convicted, but also for courts, prosecutors and public defenders.
Advocates, including the national American Civil Liberties Union and its state chapter, sought for several years across-the-board overturning of convictions in cases tied to evidence processed, or testimony given, by Dookhan.
Last year, the state’s high court declined, but ordered state district attorneys to winnow down the list of nearly 24,000 convicted in such cases to show which the prosecutors thought strong enough to be retried, without Dookhan-provided evidence. About 60% of those convicted with Dookhan’s assistance faced only minor charges for drug possession, and many have already completed their sentences. Prosecutors had earlier tried, but failed, to persuade the court to leave persons convicted in any of the cases to pursue individual legal remedies, at their own expense, with separate consideration of each case.
In January, the court ordered seven district attorneys to finalize their lists of cases from their districts they view as worth prosecuting again, and submit by April 18.
The approximately 2,500 cases the prosecutors opted to keep exceeds earlier estimates, which suggested fewer than 1,000 of the cases would survive. But the state court has the last word, since it reserved the right to dismiss additional cases if it thought prosecutors plan to re-file an unreasonably large number of cases.
The Dookhan scandal illustrates the dangers of relying on drug-testing labs, liked the one where Dookhan worked, which have few or no certification requirements, minimal training and lax supervision. One misdemeanor charge against Dookhan was that she had misstated her professional credentials, claiming a nonexistent master’s degree — a falsehood which went undetected by her employer.
In another drug-testing lab in the state, at about the same time as Dookhan’s misconduct, supervisors similarly failed to detect serious, long-running violations by another chemist – including stealing drug samples, smoking drugs in the workplace, and using the lab to manufacture crack cocaine.
Now state prosecutors, responding to an order from the state’s highest court, the Supreme Judicial Court, have dismissed 21,587 of the more than 24,000 criminal convictions linked to Dookhan’s unreliable court testimony and drug-testing reports.
In the largest-ever case of its type, Dookhan pleaded guilty to more than two dozen counts of tampering with drug samples, falsifying lab reports, and misleading investigators during the nine years she worked at a drug-testing lab run by the state’s Department of Public Health.
In some cases, Dookhan apparently did no actual testing, but still issued reports that samples submitted by police or prosecutors in fact contained controlled substances. In some cases, Dookhan signed reports not only for herself, but for other staffers who were supposed to supervise or confirm her work. Contrary to lab rules, she also took calls from police, who told her what drug they expected would be found in the samples they had sent her.
When Dookhan’s mishandling of samples, faked reports and other misconduct came to light in August 2012, the large number of cases potentially involving false evidence raised serious problems not just for defendants who may have been wrongfully convicted, but also for courts, prosecutors and public defenders.
Advocates, including the national American Civil Liberties Union and its state chapter, sought for several years across-the-board overturning of convictions in cases tied to evidence processed, or testimony given, by Dookhan.
Last year, the state’s high court declined, but ordered state district attorneys to winnow down the list of nearly 24,000 convicted in such cases to show which the prosecutors thought strong enough to be retried, without Dookhan-provided evidence. About 60% of those convicted with Dookhan’s assistance faced only minor charges for drug possession, and many have already completed their sentences. Prosecutors had earlier tried, but failed, to persuade the court to leave persons convicted in any of the cases to pursue individual legal remedies, at their own expense, with separate consideration of each case.
In January, the court ordered seven district attorneys to finalize their lists of cases from their districts they view as worth prosecuting again, and submit by April 18.
The approximately 2,500 cases the prosecutors opted to keep exceeds earlier estimates, which suggested fewer than 1,000 of the cases would survive. But the state court has the last word, since it reserved the right to dismiss additional cases if it thought prosecutors plan to re-file an unreasonably large number of cases.
The Dookhan scandal illustrates the dangers of relying on drug-testing labs, liked the one where Dookhan worked, which have few or no certification requirements, minimal training and lax supervision. One misdemeanor charge against Dookhan was that she had misstated her professional credentials, claiming a nonexistent master’s degree — a falsehood which went undetected by her employer.
In another drug-testing lab in the state, at about the same time as Dookhan’s misconduct, supervisors similarly failed to detect serious, long-running violations by another chemist – including stealing drug samples, smoking drugs in the workplace, and using the lab to manufacture crack cocaine.
Florida Weighs Restoring Voting Rights for Released Felons
For 150 years, Florida has had one of the nation’s harshest policies toward restoring the voting rights of released inmates – lifetime disenfranchisement for former felons – but the state’s voters may soon get a chance to reverse that ban, which is also under legal challenge.
A long-standing provision in Florida’s constitution permanently prevents voting by an estimated 1.6 million Floridians, a figure roughly equal to the adult population of Miami-Dade County. Along with Kentucky and Iowa, Florida is the only state currently providing for lifetime disenfranchisement for felons who have completed all parts of their sentences. In the years since 2000, four other states (Delaware, New Mexico, Nebraska, and Maryland) have dropped laws similar to Florida’s.
Activists are working to undo the ban through a ballot initiative, the Voting Restoration Amendment, which would become law if approved by 60% of voters going to the polls in November 2018. The proposal would automatically restore voting rights to ex-felons who have completed all terms of their sentences, including probation or parole. The measure would not apply to persons convicted of murder or sexual felonies. Those individuals would remain permanently disenfranchised unless both the governor and the state cabinet vote to restore their voting rights.
As state law requires, the Florida Supreme Court held a March 6 hearing to examine whether the wording of the Voting Restoration Amendment complies with the standards ballot initiatives must meet in order to go before the voters. The initiative must be clearly worded and address only a single issue. A decision on whether the initiative is properly drawn is expected soon. Supporters were encouraged that Pam Bondi, the state’s Attorney-General, seen as a potential opponent, took no position on the measure during the court hearing.
In 2011, Bondi and Gov. Rick Scott, shortly after taking office, reversed major parts of a broader clemency process adopted by ex-governor Charlie Crist. As amended by Scott and his cabinet, ex-felons have to wait at least five years after finishing their sentences before they can apply to the governor and his cabinet for restoration of their voting rights. Fewer than 2,500 of those requests have been approved during Scott’s time in office, and a backlog of about 10,500 applications awaits action.
If the state Supreme Court clears the new initiative to win a spot on the 2018 ballot, supporters will also have to muster almost 700,000 more signatures from registered state voters – which could be a lengthy and expensive undertaking. A similar effort in 2016 fell far short.
In other action aimed at overturning the Florida lifetime disenfranchisement of felons, on March 13 seven former felons and the nonpartisan Fair Elections Legal Network filed a class-action lawsuit against Gov. Scott and other state officials, attacking the state’s disenfranchisement law as unconstitutional.
The lawsuit argues the state’s mandate on felon disenfranchisement has a disparate impact on racial minorities. It also alleges that the governor, who has the deciding vote in some voting rights restoration cases, has in some cases rejected requests because the applicants have gotten traffic tickets after completing all terms of their sentences. In other instances, applicants complained of being quizzed about whether they were using alcohol or controlled substances.
A long-standing provision in Florida’s constitution permanently prevents voting by an estimated 1.6 million Floridians, a figure roughly equal to the adult population of Miami-Dade County. Along with Kentucky and Iowa, Florida is the only state currently providing for lifetime disenfranchisement for felons who have completed all parts of their sentences. In the years since 2000, four other states (Delaware, New Mexico, Nebraska, and Maryland) have dropped laws similar to Florida’s.
Activists are working to undo the ban through a ballot initiative, the Voting Restoration Amendment, which would become law if approved by 60% of voters going to the polls in November 2018. The proposal would automatically restore voting rights to ex-felons who have completed all terms of their sentences, including probation or parole. The measure would not apply to persons convicted of murder or sexual felonies. Those individuals would remain permanently disenfranchised unless both the governor and the state cabinet vote to restore their voting rights.
As state law requires, the Florida Supreme Court held a March 6 hearing to examine whether the wording of the Voting Restoration Amendment complies with the standards ballot initiatives must meet in order to go before the voters. The initiative must be clearly worded and address only a single issue. A decision on whether the initiative is properly drawn is expected soon. Supporters were encouraged that Pam Bondi, the state’s Attorney-General, seen as a potential opponent, took no position on the measure during the court hearing.
In 2011, Bondi and Gov. Rick Scott, shortly after taking office, reversed major parts of a broader clemency process adopted by ex-governor Charlie Crist. As amended by Scott and his cabinet, ex-felons have to wait at least five years after finishing their sentences before they can apply to the governor and his cabinet for restoration of their voting rights. Fewer than 2,500 of those requests have been approved during Scott’s time in office, and a backlog of about 10,500 applications awaits action.
If the state Supreme Court clears the new initiative to win a spot on the 2018 ballot, supporters will also have to muster almost 700,000 more signatures from registered state voters – which could be a lengthy and expensive undertaking. A similar effort in 2016 fell far short.
In other action aimed at overturning the Florida lifetime disenfranchisement of felons, on March 13 seven former felons and the nonpartisan Fair Elections Legal Network filed a class-action lawsuit against Gov. Scott and other state officials, attacking the state’s disenfranchisement law as unconstitutional.
The lawsuit argues the state’s mandate on felon disenfranchisement has a disparate impact on racial minorities. It also alleges that the governor, who has the deciding vote in some voting rights restoration cases, has in some cases rejected requests because the applicants have gotten traffic tickets after completing all terms of their sentences. In other instances, applicants complained of being quizzed about whether they were using alcohol or controlled substances.
