Christopher Zoukis's Blog, page 9
March 1, 2017
Ex-convict Uses IDs of 700 Inmates to Gain $600K in Bogus Tax Refunds
Two California men are awaiting sentencing for claiming fraudulent tax refunds made with the names and identification information of more than 700 jail and prison inmates.
On Jan. 24, a jury in a federal case in California convicted Howard Webber, a 52-year-old ex-convict who has served time in Milwaukee, Santa Clara and San Quentin, of wire fraud, mail fraud and conspiring to commit mail fraud, for his part in the scam.
Webber and accomplice Clifford Bercovich, a 69-year-old disbarred lawyer, set up a bogus firm, Inmate Assets Recovery and Liquidation Services, and Webber signed up inmates incarcerated with him for a service that supposedly could help them obtain government benefits. At least some of the inmates reportedly received $75 from the schemers to provide their identifying information. Using the information, the defendants then filed for bogus tax refunds in the inmates’ names.
Over 700 tax refunds wrongly issued in the names of the inmates went not to the inmates in whose names the refunds were claimed, but instead to mail boxes and bank accounts Webber and Bercovich had set up. Federal prosecutors claimed the pair split more than $600,000 in the approximately two years (2010 to 2012) their scam was running.
The bogus tax returns claimed income from self-employment and took advantage of refundable tax programs like the Earned Income Tax Credit (EITC), the Making Work Pay Credit, or both. Those programs provide for cash refunds to low-to-moderate income taxpayers, even those not earning enough to owe taxes.
The programs have often been criticized as fraud-prone. The inspector general for the Internal Revenue Service has estimated over one-fifth of EITC payments are improperly issued, though defenders of the credit argue that payments can be deemed improper without being fraudulent. They also point out government officials estimate at least 3.5 million, and perhaps as many as 7 million, taxpayers who meet the standards for EITC payments do not file for them.
From a modest start in 1975, the EITC program has been repeatedly extended and expanded, and now is one of the federal government’s largest anti-poverty programs. Many states have also added similar programs to their tax laws. The program paid out more than $7 billion to about 29 million families in 2014. Even so, the EITC program is the only one at IRS which White House budget officials have designated as “high-risk.”
As a result, Congress has ordered a slowdown of refund payments to EITC claimants, to allow more time for checking for fraud or identity theft. The IRS says in 2014 it paid out $3.1 billion to identity thieves who filed fraudulent returns, down from $5.8 billion in 2013. During those two years, the agency says it detected and blocked payments on almost $47 billion in fraudulent claims for refunds.
Webber’s accomplice, Bercovich, pleaded guilty in December to conspiracy, mail fraud and aggravated identity theft charges. He initially persuaded the trial court he could not be charged with aggravated identity theft, since the identity information had been voluntarily provided. But a three-judge panel of the federal appeals court in San Francisco disagreed and reinstated that charge.
On Jan. 24, a jury in a federal case in California convicted Howard Webber, a 52-year-old ex-convict who has served time in Milwaukee, Santa Clara and San Quentin, of wire fraud, mail fraud and conspiring to commit mail fraud, for his part in the scam.
Webber and accomplice Clifford Bercovich, a 69-year-old disbarred lawyer, set up a bogus firm, Inmate Assets Recovery and Liquidation Services, and Webber signed up inmates incarcerated with him for a service that supposedly could help them obtain government benefits. At least some of the inmates reportedly received $75 from the schemers to provide their identifying information. Using the information, the defendants then filed for bogus tax refunds in the inmates’ names.
Over 700 tax refunds wrongly issued in the names of the inmates went not to the inmates in whose names the refunds were claimed, but instead to mail boxes and bank accounts Webber and Bercovich had set up. Federal prosecutors claimed the pair split more than $600,000 in the approximately two years (2010 to 2012) their scam was running.
The bogus tax returns claimed income from self-employment and took advantage of refundable tax programs like the Earned Income Tax Credit (EITC), the Making Work Pay Credit, or both. Those programs provide for cash refunds to low-to-moderate income taxpayers, even those not earning enough to owe taxes.
The programs have often been criticized as fraud-prone. The inspector general for the Internal Revenue Service has estimated over one-fifth of EITC payments are improperly issued, though defenders of the credit argue that payments can be deemed improper without being fraudulent. They also point out government officials estimate at least 3.5 million, and perhaps as many as 7 million, taxpayers who meet the standards for EITC payments do not file for them.
From a modest start in 1975, the EITC program has been repeatedly extended and expanded, and now is one of the federal government’s largest anti-poverty programs. Many states have also added similar programs to their tax laws. The program paid out more than $7 billion to about 29 million families in 2014. Even so, the EITC program is the only one at IRS which White House budget officials have designated as “high-risk.”
As a result, Congress has ordered a slowdown of refund payments to EITC claimants, to allow more time for checking for fraud or identity theft. The IRS says in 2014 it paid out $3.1 billion to identity thieves who filed fraudulent returns, down from $5.8 billion in 2013. During those two years, the agency says it detected and blocked payments on almost $47 billion in fraudulent claims for refunds.
Webber’s accomplice, Bercovich, pleaded guilty in December to conspiracy, mail fraud and aggravated identity theft charges. He initially persuaded the trial court he could not be charged with aggravated identity theft, since the identity information had been voluntarily provided. But a three-judge panel of the federal appeals court in San Francisco disagreed and reinstated that charge.
Appeals Court: Detainees Can Sue Over Jail’s Laundry Policy
A federal appeals court has overruled a lower court decision that rejected a lawsuit filed by detainees in a Missouri county jail attacking a policy as unconstitutional. The policy forced them to remain naked for about seven hours at least one or two times a week while their only clothing was being laundered.
In July 2015, groups of current and former prisoners held at the Cole County jail in Jefferson City sued the county and the jail warden and deputy, claiming the jail’s laundry and related policies combined to deprive them of constitutional rights.
The trial record established jail rules required male prisoners’ clothing to be laundered every two or three days, and female prisoners’ clothing after four days’ use. Jail residents were given only a single set of clothes and not permitted to clean their own clothing or to wear other clothes of their own while their jail-issued clothing was being washed overnight.
As a result, while deprived of their clothing, they could cover themselves with bedsheets or blankets, but might otherwise be visible to other prisoners or guards who delivered washed clothing to cells. The record also noted opposite-sex guards sometimes deliver the clothing, and another prison rule forbade covering or blocking cell windows allowing occupants to be viewed.
Two months after the lawsuit was filed, the trial court dismissed the case, accepting the county’s arguments the prisoners had not made out a constitutional claim. In throwing out the case, the trial court noted that for most of the time the prisoners would be naked, they would be in bed in their cells.
Echoing county arguments that the laundry rules served hygienic and cleanliness purposes, the trial court found the jail rules being attacked amounted to no more than “minimal deprivations,” well short of violating constitutional rights. It further held, since no constitutional rights had been denied, jail officials had limited immunity to being sued.
But on Jan. 17, a three-judge panel of the St. Louis-based 8th Circuit unanimously decided, in Ingram et al v. Cole County et al, that the trial court had erred. Because the prisoners bringing suit were pretrial detainees rather than convicted inmates, both courts analyzed the constitutionality of jail practices under the 14th Amendment’s requirement of due process, rather than under the 8th Amendment’s prohibition against cruel and unusual punishment.
For the appeals court, this distinction was significant, because the 14th Amendment forbids punishment of pretrial detainees, since they have not yet been convicted. So the key test, the appeals court said, was whether policies attacked in the lawsuit were so arbitrary or purposeless as to constitute punishment without a valid correction purpose.
The appeals court stopped short of deciding that question, but did rule there was enough evidence in the record to form the basis of a claim on which the detainees should be heard. One appellate judge, for example, noted the absence of any official explanation of why the jail couldn’t stock or wash enough clothes to prevent frequent, recurring periods that detainees would be left without clothing. The case is now scheduled to return to the lower court to examine the purposes and justification for the jail’s practices.
In July 2015, groups of current and former prisoners held at the Cole County jail in Jefferson City sued the county and the jail warden and deputy, claiming the jail’s laundry and related policies combined to deprive them of constitutional rights.
The trial record established jail rules required male prisoners’ clothing to be laundered every two or three days, and female prisoners’ clothing after four days’ use. Jail residents were given only a single set of clothes and not permitted to clean their own clothing or to wear other clothes of their own while their jail-issued clothing was being washed overnight.
As a result, while deprived of their clothing, they could cover themselves with bedsheets or blankets, but might otherwise be visible to other prisoners or guards who delivered washed clothing to cells. The record also noted opposite-sex guards sometimes deliver the clothing, and another prison rule forbade covering or blocking cell windows allowing occupants to be viewed.
Two months after the lawsuit was filed, the trial court dismissed the case, accepting the county’s arguments the prisoners had not made out a constitutional claim. In throwing out the case, the trial court noted that for most of the time the prisoners would be naked, they would be in bed in their cells.
Echoing county arguments that the laundry rules served hygienic and cleanliness purposes, the trial court found the jail rules being attacked amounted to no more than “minimal deprivations,” well short of violating constitutional rights. It further held, since no constitutional rights had been denied, jail officials had limited immunity to being sued.
But on Jan. 17, a three-judge panel of the St. Louis-based 8th Circuit unanimously decided, in Ingram et al v. Cole County et al, that the trial court had erred. Because the prisoners bringing suit were pretrial detainees rather than convicted inmates, both courts analyzed the constitutionality of jail practices under the 14th Amendment’s requirement of due process, rather than under the 8th Amendment’s prohibition against cruel and unusual punishment.
For the appeals court, this distinction was significant, because the 14th Amendment forbids punishment of pretrial detainees, since they have not yet been convicted. So the key test, the appeals court said, was whether policies attacked in the lawsuit were so arbitrary or purposeless as to constitute punishment without a valid correction purpose.
The appeals court stopped short of deciding that question, but did rule there was enough evidence in the record to form the basis of a claim on which the detainees should be heard. One appellate judge, for example, noted the absence of any official explanation of why the jail couldn’t stock or wash enough clothes to prevent frequent, recurring periods that detainees would be left without clothing. The case is now scheduled to return to the lower court to examine the purposes and justification for the jail’s practices.
Answering the Real Questions About Federal Prison
What happens on the first day of prison? Are showers really that scary?
Thousands of people are sent to federal prison each year in the United States. Add to that the many family and loved ones effected when someone they know is going to prison, and you have a larger percentage of the population who have burning questions about life in prison.
Finally, there is a comprehensive, realistic guide to surviving in a federal prison - the Federal Prison Handbook.
“I wanted to provide a definitive guide for individuals facing incarceration, prisoners who are already inside and their friends and family,” says author Christopher Zoukis, a college-educated inmate and prison advocate.
The newly-released Federal Prison Handbook compiles information to not only help prisoners and their loved ones protect themselves and their rights, but to help keep prisoners safe by explaining how to avoid the near-constant conflicts found inside prisons.
Some of the topics inside include:
What to expect on the day you’re admitted to prison, and how to greet cellmates for the first time
What to do about sexual harassment or assault
The best ways to avoid fights, and the options that provide the greatest protection if a fight cannot be avoided
Medical, psychological and religious services
How to communicate with the outside world through telephones, computers and mail.
What you can buy in the official commissary and the underground economy
How to avoid scams, schemes, theft and other problems
Comprehensive analysis of Federal Bureau of Prisons policy and regulatory guidelines
And much more!
Thousands of people are sent to federal prison each year in the United States. Add to that the many family and loved ones effected when someone they know is going to prison, and you have a larger percentage of the population who have burning questions about life in prison.
Finally, there is a comprehensive, realistic guide to surviving in a federal prison - the Federal Prison Handbook.
“I wanted to provide a definitive guide for individuals facing incarceration, prisoners who are already inside and their friends and family,” says author Christopher Zoukis, a college-educated inmate and prison advocate.
The newly-released Federal Prison Handbook compiles information to not only help prisoners and their loved ones protect themselves and their rights, but to help keep prisoners safe by explaining how to avoid the near-constant conflicts found inside prisons.
Some of the topics inside include:
What to expect on the day you’re admitted to prison, and how to greet cellmates for the first time
What to do about sexual harassment or assault
The best ways to avoid fights, and the options that provide the greatest protection if a fight cannot be avoided
Medical, psychological and religious services
How to communicate with the outside world through telephones, computers and mail.
What you can buy in the official commissary and the underground economy
How to avoid scams, schemes, theft and other problems
Comprehensive analysis of Federal Bureau of Prisons policy and regulatory guidelines
And much more!
January 26, 2017
Obama’s Clemency Totals: 1,715 Commutations, Including Secrets-Leaker Manning
With less than four days left in office, On Jan. 17 president Obama commuted nearly all of the 28 years remaining in the 35-year court-martial sentence of Chelsea Manning, the former army intelligence analyst who copied over 700,000 archived military and diplomatic files — some classified — and sent them to WikiLeaks. The reduction in Manning’s sentence was part of 273 commutations issued that day.
Also receiving a commutation of a lengthy sentence was Puerto Rican independence activist Oscar López Rivera, who was sentenced in the 1980s to 55 years for conspiracy, firearms and explosives offenses, and other violations connected to Fuerzas Armadas de Liberación Nacional (FALN) bombings in the ’70s and ’80s, plus another 15 years for a failed escape attempt.
Two days later, the White House announced the departing president’s final batch of 330 clemency actions, including 64 pardons, an area in which Obama lagged many of his predecessors. Receiving a pardon was former Joint Chiefs of Staff vice-chair Marine General James Cartwright, who was due to be sentenced soon on a guilty plea of lying to FBI investigators investigating leaks on covert U.S. efforts to impede Iran’s development of nuclear weapons.
The final batch of pardons did not include relief for some prominent inmates who had requested clemency, such as Illinois ex-governor Rod Blagojevich, now in his fourth year of a 14-year sentence on corruption charges, or Army deserter Bowe Bergdahl, facing trial this spring after being exchanged for five Taliban members, much less for other prominent figures who did not seek pardons for possible future charges, such as secrets-leaker Edward Snowden.
By the end of his two terms, Obama had commuted the sentences of 1,715 federal inmates, including 568 who were serving or facing life sentences. He also issued a total of 212 pardons. The total 1,927 clemency actions by Obama topped all presidents since Harry Truman, and his commutations exceeded the combined total for his 12 most recent predecessors.
The majority of clemency recipients were serving time for nonviolent drug offenses, on which Obama has focused his attention, especially over the past two years. But the greatest attention —and most controversy — centered on Obama’s order to cut short the record-length sentence that a military court handed down to former Army Pfc. Bradley Manning, setting Manning free May 17, rather than in 2045.
Shortly after enlisting in the army, Manning was assigned to Iraq to monitor movements of insurgent forces. Given access to intelligence archives, the 22-year-old private downloaded combat reports from Afghanistan and Iraq, including sensitive reports on abuses of detainees, then sent them to WikiLeaks. Convicted in 2013 in a military court of six counts of Espionage Act violations, though not on charges of aiding the enemy, Manning is currently confined in the military prison at Fort Leavenworth, Kansas.
In pleading guilty to some charges, the ex-soldier – who enlisted as Bradley Edward Manning – spoke about the great psychological pressure of disguising her identity as a transgendered woman. The commutation was issued to Chelsea Elizabeth Manning, the name she legally adopted in 2014.
In his final news conference, Obama defended his order, saying Manning had “served a tough prison sentence… disproportionate” to those previously handed down for similar offenses.
Also receiving a commutation of a lengthy sentence was Puerto Rican independence activist Oscar López Rivera, who was sentenced in the 1980s to 55 years for conspiracy, firearms and explosives offenses, and other violations connected to Fuerzas Armadas de Liberación Nacional (FALN) bombings in the ’70s and ’80s, plus another 15 years for a failed escape attempt.
Two days later, the White House announced the departing president’s final batch of 330 clemency actions, including 64 pardons, an area in which Obama lagged many of his predecessors. Receiving a pardon was former Joint Chiefs of Staff vice-chair Marine General James Cartwright, who was due to be sentenced soon on a guilty plea of lying to FBI investigators investigating leaks on covert U.S. efforts to impede Iran’s development of nuclear weapons.
The final batch of pardons did not include relief for some prominent inmates who had requested clemency, such as Illinois ex-governor Rod Blagojevich, now in his fourth year of a 14-year sentence on corruption charges, or Army deserter Bowe Bergdahl, facing trial this spring after being exchanged for five Taliban members, much less for other prominent figures who did not seek pardons for possible future charges, such as secrets-leaker Edward Snowden.
By the end of his two terms, Obama had commuted the sentences of 1,715 federal inmates, including 568 who were serving or facing life sentences. He also issued a total of 212 pardons. The total 1,927 clemency actions by Obama topped all presidents since Harry Truman, and his commutations exceeded the combined total for his 12 most recent predecessors.
The majority of clemency recipients were serving time for nonviolent drug offenses, on which Obama has focused his attention, especially over the past two years. But the greatest attention —and most controversy — centered on Obama’s order to cut short the record-length sentence that a military court handed down to former Army Pfc. Bradley Manning, setting Manning free May 17, rather than in 2045.
Shortly after enlisting in the army, Manning was assigned to Iraq to monitor movements of insurgent forces. Given access to intelligence archives, the 22-year-old private downloaded combat reports from Afghanistan and Iraq, including sensitive reports on abuses of detainees, then sent them to WikiLeaks. Convicted in 2013 in a military court of six counts of Espionage Act violations, though not on charges of aiding the enemy, Manning is currently confined in the military prison at Fort Leavenworth, Kansas.
In pleading guilty to some charges, the ex-soldier – who enlisted as Bradley Edward Manning – spoke about the great psychological pressure of disguising her identity as a transgendered woman. The commutation was issued to Chelsea Elizabeth Manning, the name she legally adopted in 2014.
In his final news conference, Obama defended his order, saying Manning had “served a tough prison sentence… disproportionate” to those previously handed down for similar offenses.
Florida Legislator: Private Prison’s Charges Inflated by $16 Million
A Florida state representative claims the operator of a private prison has overcharged the state Department of Corrections by at least $16 million over the past seven years.
Rep. David Richardson, who holds an MBA degree and was an auditor for the Defense Department, an accountant with Ernst & Young, and ran his own practice before Miami Beach residents elected him to the state Legislature in 2012, says Tennessee-based CoreCivic, formerly known as the Corrections Corporations of America, benefited from state officials’ errors or worse in the contract it received to run the state’s Lake City Correctional Facility, which houses almost 900 male offenders between the ages of 19 and 24.
The legislator says he has not uncovered any wrongdoing by the private firm, since they are billing the state corrections department in line with data submitted by that agency and according to contract terms negotiated by the state’s Department of Management Services. But poor negotiating and supervision have given the private firm a contract that has resulted in the state making substantial overpayments in a number of areas.
For example, according to Richardson’s analysis of the contract and related bills and payments, the Lake City facility, constructed by the state in 1997 but leased to the private firm for the past seven years, includes air conditioning, unlike many older prisons. Yet the contract with CoreCivic makes the state, rather than the company, responsible for covering the costs of running that system, and has meant millions in charges to taxpayers.
At the state-run Brevard Correctional, another, slightly larger facility for youthful offenders, Richardson notes, the state’s daily outlays per inmate for certain activities amounted to $3.62; atLake City, however, the contract had the state paying nearly three times that amount -- $9.85 – daily for each inmate. Inconsistencies in the contract favoring the private firm brought it allowances for educational programs about four times larger than state-operated ones received.
Ironically, the state Legislature authorized state corrections officials to contract with private prison firms as a way to save money; the authority to privatize some state correctional facilities was conditioned on the state saving 7 percent or more by contracting out. But Richardson claims his review shows that errors and poor negotiations by state officials have produced added state payments that have far outstripped any savings from privatization.
Since joining the legislature, Richardson has made the state’s criminal justice system a major focus, and has made scores of visits to facilities around the state. A state law allows legislators to visit and inspect state prisons at any time.
After compiling what he says was an independent audit of the Lake City contract and cost outlays last spring, Richardson presented a summary of his findings to budget committees of the state Legislature and asked the state’s chief inspector general to look into the issues he had raised. Nevertheless, the state renewed its Lake City prison contract with CoreCivic last summer, making it the company’s third contract extension.
Besides CoreCivic’s contract to run Lake City, other private prison firms currently have contracts to run six other state correctional facilities.
Rep. David Richardson, who holds an MBA degree and was an auditor for the Defense Department, an accountant with Ernst & Young, and ran his own practice before Miami Beach residents elected him to the state Legislature in 2012, says Tennessee-based CoreCivic, formerly known as the Corrections Corporations of America, benefited from state officials’ errors or worse in the contract it received to run the state’s Lake City Correctional Facility, which houses almost 900 male offenders between the ages of 19 and 24.
The legislator says he has not uncovered any wrongdoing by the private firm, since they are billing the state corrections department in line with data submitted by that agency and according to contract terms negotiated by the state’s Department of Management Services. But poor negotiating and supervision have given the private firm a contract that has resulted in the state making substantial overpayments in a number of areas.
For example, according to Richardson’s analysis of the contract and related bills and payments, the Lake City facility, constructed by the state in 1997 but leased to the private firm for the past seven years, includes air conditioning, unlike many older prisons. Yet the contract with CoreCivic makes the state, rather than the company, responsible for covering the costs of running that system, and has meant millions in charges to taxpayers.
At the state-run Brevard Correctional, another, slightly larger facility for youthful offenders, Richardson notes, the state’s daily outlays per inmate for certain activities amounted to $3.62; atLake City, however, the contract had the state paying nearly three times that amount -- $9.85 – daily for each inmate. Inconsistencies in the contract favoring the private firm brought it allowances for educational programs about four times larger than state-operated ones received.
Ironically, the state Legislature authorized state corrections officials to contract with private prison firms as a way to save money; the authority to privatize some state correctional facilities was conditioned on the state saving 7 percent or more by contracting out. But Richardson claims his review shows that errors and poor negotiations by state officials have produced added state payments that have far outstripped any savings from privatization.
Since joining the legislature, Richardson has made the state’s criminal justice system a major focus, and has made scores of visits to facilities around the state. A state law allows legislators to visit and inspect state prisons at any time.
After compiling what he says was an independent audit of the Lake City contract and cost outlays last spring, Richardson presented a summary of his findings to budget committees of the state Legislature and asked the state’s chief inspector general to look into the issues he had raised. Nevertheless, the state renewed its Lake City prison contract with CoreCivic last summer, making it the company’s third contract extension.
Besides CoreCivic’s contract to run Lake City, other private prison firms currently have contracts to run six other state correctional facilities.
Obama Takes Criminal Justice Victory Lap in Harvard Law Review
Founded in 1887, the Harvard Law Review is probably the nation’s best-known journal published by law students. The author of the lead article in this January’s issue, who first made history by being the first African-American student elected president of the publication in 1990-91, did so again by becoming the first U.S. president to publish an article in a scholarly legal journal. Barack Obama’s contribution is an extensively footnoted 56-page commentary entitled “The President’s Role in Advancing Criminal Justice Reform.”
Appearing weeks before Obama vacates the White House, the article appears partly to be a legacy-burnishing project, setting out steps the president says he took to make the nation’s criminal justice system “smarter, fairer and more effective” in protecting public safety, adding criminal justice reform has been a focus throughout his career.
His greatest-hits list includes: curbing solitary confinement, passing legislation to reduce the sentencing disparity between crack and powder cocaine, “ban the box” orders preventing federal agencies and contractors from quizzing job applicants on their criminal records at early stages of their hiring process, expanding hate-crime laws to include sexual orientation, and helping create mentoring and other initiatives to keep young people away from crime.
While the article’s subject is familiar, the style is somewhat unusual for a scholarly journal. Wherever possible, the president’s first-person account notes milestone achievements and personal reflections. So the reader learns the president discovered early, while a community organizer, that the criminal justice system “exacerbates inequality” as early mistakes can trap youths in an “endless cycle of marginalization and punishment.”
The president notes he was the first president to visit a federal prison, the first since Jimmy Carter to see the number of federal inmates decline during his term, and has commuted sentences for more federal inmates than the combined total for the 11 presidents before him. In recalling his experiences consoling families of officers killed on duty and parents of children slain by guns, and meeting with prisoners being released into re-entry programs, the article employs the words “my” or “myself” about 70 times, “I” turns about almost as frequently, and the more collegial “we” and “our” together put in about 150 appearances. Besides liberally citing campaign documents, White House factsheets, and agency press releases and white papers, the article is not too modest to draw on the president’s memoir and speeches.
Obama’s article is divided into four main parts. The first makes a case for urgently needed criminal justice reforms, arguing the nation and the states cannot afford to expend $80 billion a year to incarcerate 2.2 million individuals, disregard the 70 million Americans with some form of criminal record, or “deny the legacy of racism” still affecting the criminal justice system. The second part recounts changes made during his term in the federal prison system, and the third focuses on ways a president can promote changes in criminal law at the state and local levels.
The final part of article leaves behind a to-do list of further changes the president would like to see, including bipartisan sentencing reform legislation which stalled during his term, additional gun control measures, countermeasures to epidemic-level opioid abuse, restoring voting rights for ex-prisoners, improvements to forensic science, and better criminal justice data.
Appearing weeks before Obama vacates the White House, the article appears partly to be a legacy-burnishing project, setting out steps the president says he took to make the nation’s criminal justice system “smarter, fairer and more effective” in protecting public safety, adding criminal justice reform has been a focus throughout his career.
His greatest-hits list includes: curbing solitary confinement, passing legislation to reduce the sentencing disparity between crack and powder cocaine, “ban the box” orders preventing federal agencies and contractors from quizzing job applicants on their criminal records at early stages of their hiring process, expanding hate-crime laws to include sexual orientation, and helping create mentoring and other initiatives to keep young people away from crime.
While the article’s subject is familiar, the style is somewhat unusual for a scholarly journal. Wherever possible, the president’s first-person account notes milestone achievements and personal reflections. So the reader learns the president discovered early, while a community organizer, that the criminal justice system “exacerbates inequality” as early mistakes can trap youths in an “endless cycle of marginalization and punishment.”
The president notes he was the first president to visit a federal prison, the first since Jimmy Carter to see the number of federal inmates decline during his term, and has commuted sentences for more federal inmates than the combined total for the 11 presidents before him. In recalling his experiences consoling families of officers killed on duty and parents of children slain by guns, and meeting with prisoners being released into re-entry programs, the article employs the words “my” or “myself” about 70 times, “I” turns about almost as frequently, and the more collegial “we” and “our” together put in about 150 appearances. Besides liberally citing campaign documents, White House factsheets, and agency press releases and white papers, the article is not too modest to draw on the president’s memoir and speeches.
Obama’s article is divided into four main parts. The first makes a case for urgently needed criminal justice reforms, arguing the nation and the states cannot afford to expend $80 billion a year to incarcerate 2.2 million individuals, disregard the 70 million Americans with some form of criminal record, or “deny the legacy of racism” still affecting the criminal justice system. The second part recounts changes made during his term in the federal prison system, and the third focuses on ways a president can promote changes in criminal law at the state and local levels.
The final part of article leaves behind a to-do list of further changes the president would like to see, including bipartisan sentencing reform legislation which stalled during his term, additional gun control measures, countermeasures to epidemic-level opioid abuse, restoring voting rights for ex-prisoners, improvements to forensic science, and better criminal justice data.
January 5, 2017
Despite ADA, Inmates With Disabilities Face Neglect
In a 1998 decision, Pennsylvania Department of Corrections v. Yeskey, the Supreme Court made clear Title II of the Americans With Disabilities Act (ADA) prohibits not just federal, but also state and local corrections from discriminating against otherwise qualified individuals due to their disabilities.
First-time offender Roland Yeskey was sentenced to a state prison for 18 to 36 months, but the sentencing court recommended he be admitted to a state-run boot camp for first offenders. If he successfully completed the program, he would be eligible for parole in six months. But due to a history of high blood pressure, Yeskey’s application was rejected. When Yeskey sued, the federal district court agreed with the state official defendants the law did not cover them. An appeals court disagreed and, without a dissent, the Supreme Court ruled ADA Title II clearly applies not just to federal prisons and inmates, but to state and local ones as well.
Despite that unambiguous statement and the ADA’s long history — it was enacted in 1990 — reports and court decisions continue to find violations of ADA’s Title II, which not only forbids discrimination but also mandates services, benefits and programs be offered in settings accessible to participants with disabilities. Title III sets standards for removing or reducing architectural, transportation and communications barriers in places of public accommodation, as does section 504 of the Rehabilitation Act for government facilities.
Although often not given proper recognition, disability issues deserve a prominent place in the minds of corrections policymakers. Department of Justice statistics show approaching one-third of inmates in federal or state prisons claim at least one disability, about three times the rate for the non-incarcerated population; for local jails, nearly two-fifths of inmates report having a disability, about four times the rate for the non-incarcerated.
When these are physical disabilities, advocacy groups have publicized failings and brought litigation, and in many cases won improvements in the way correctional facilities handle particular disabilities. For example the National Association of the Deaf has been active in areas such as getting interpreters for sign language users and addressing telecommunications needs of hearing-impaired inmates and their families. Mental and cognitive disorders are at least as wide spread as physical disabilities: the most recent National Inmate Survey, done by the Bureau of Justice Statistics for the years 2011-12, revealed that about 15 percent of state and federal prison inmates, and 26 percent of local jail inmates, suffer from serious psychological distress, compared with about three percent of the overall national population.
A frequent complaint, and occasional subject of enforcement action, comes in housing disabled inmates in solitary confinement. The Supreme Court in its 1999 Olmstead v. L.C. decision held unjustified institutional segregation of people with disabilities violates the ADA, and other courts have had ample occasion to reiterate that principle. For example, a federal judge in Oakland, California in 2015 ordered the state to stop keeping disabled inmates in solitary confinement units separated from general prison populations, since it violated both Title II of the ADA andseveral earlier court orders.
Headway has recently been made in this area for federal prisoners, but – as the Department of Justice recently noted – there needs to be greater attention to diverting those with serious mental disabilities into appropriate settings where treatment is available.
First-time offender Roland Yeskey was sentenced to a state prison for 18 to 36 months, but the sentencing court recommended he be admitted to a state-run boot camp for first offenders. If he successfully completed the program, he would be eligible for parole in six months. But due to a history of high blood pressure, Yeskey’s application was rejected. When Yeskey sued, the federal district court agreed with the state official defendants the law did not cover them. An appeals court disagreed and, without a dissent, the Supreme Court ruled ADA Title II clearly applies not just to federal prisons and inmates, but to state and local ones as well.
Despite that unambiguous statement and the ADA’s long history — it was enacted in 1990 — reports and court decisions continue to find violations of ADA’s Title II, which not only forbids discrimination but also mandates services, benefits and programs be offered in settings accessible to participants with disabilities. Title III sets standards for removing or reducing architectural, transportation and communications barriers in places of public accommodation, as does section 504 of the Rehabilitation Act for government facilities.
Although often not given proper recognition, disability issues deserve a prominent place in the minds of corrections policymakers. Department of Justice statistics show approaching one-third of inmates in federal or state prisons claim at least one disability, about three times the rate for the non-incarcerated population; for local jails, nearly two-fifths of inmates report having a disability, about four times the rate for the non-incarcerated.
When these are physical disabilities, advocacy groups have publicized failings and brought litigation, and in many cases won improvements in the way correctional facilities handle particular disabilities. For example the National Association of the Deaf has been active in areas such as getting interpreters for sign language users and addressing telecommunications needs of hearing-impaired inmates and their families. Mental and cognitive disorders are at least as wide spread as physical disabilities: the most recent National Inmate Survey, done by the Bureau of Justice Statistics for the years 2011-12, revealed that about 15 percent of state and federal prison inmates, and 26 percent of local jail inmates, suffer from serious psychological distress, compared with about three percent of the overall national population.
A frequent complaint, and occasional subject of enforcement action, comes in housing disabled inmates in solitary confinement. The Supreme Court in its 1999 Olmstead v. L.C. decision held unjustified institutional segregation of people with disabilities violates the ADA, and other courts have had ample occasion to reiterate that principle. For example, a federal judge in Oakland, California in 2015 ordered the state to stop keeping disabled inmates in solitary confinement units separated from general prison populations, since it violated both Title II of the ADA andseveral earlier court orders.
Headway has recently been made in this area for federal prisoners, but – as the Department of Justice recently noted – there needs to be greater attention to diverting those with serious mental disabilities into appropriate settings where treatment is available.
December 29, 2016
Sedative’s Humaneness and Availability Raise Issues for Executions
Lawyers for a convict scheduled for execution in Virginia Jan. 18 are challenging a newly sourced sedative that the state plans to use in its three-drug protocol for lethal injections. Doubts about the drug’s effectiveness, and the difficulties obtaining it have already caused other states to discontinue its use or postpone executions.
Ricky Javon Gray is scheduled to be executed for the murders of two young girls during a Richmond home invasion in which he also killed their parents. He has also been implicated in three other killings. Gray’s lawyers argue that the state’s method of lethal execution – which uses the sedative midazolam to render the condemned inmate unconscious, followed by the administration of two other drugs — first to effect paralysis and then stop the heart – is so cruel and unusual that it violates the U.S. Constitution’s Eighth Amendment.
They also claim Virginia’s planned first-in-the-nation use of compounding pharmacies to make two of the drugs that it needs for its execution method, purchased at a reported cost of $66,000 for two scheduled executions, calls for review by state appeals courts, and if necessary, by the highest court in the land. Virginia has passed a law allowing the state-regulated compounding pharmacy in question be allowed to keep its identity confidential.
A state appeals court judge will hold a Jan. 3 hearing on the matter. Whatever the ruling, it’s likely to prompt a request to the U.S. Supreme Court for a stay of sentence and a review of the constitutional issue. If the case reaches the high court, it will likely find sharp divisions there. The Court’s 5-4 Glossip v. Gross decision in 2015 rejected a challenge by three Oklahoma death row-inmates to the three-drug protocol.
In several recent executions, inmates given midazolam had protracted and apparently at least semi-conscious deaths, but the high court majority held that the inmates had neither proved the method caused severe pain nor identified a more humane practicable method. Of the four dissenting justices in Glossip, two (Stephen Breyer and Ruth Bader Ginsburg) signaled they’d welcome a case squarely challenging the death penalty as so cruel, arbitrary, error-prone or time-consuming as to be unconstitutional.
Even if use of midazolam survives legal challenges, obtaining it is becoming more difficult. European pharmaceutical firms now routinely refuse to sell products for use in executions, due to a European Union ban on exports for that purpose. And U.S. producers are also reluctant to supply lethal drugs, fearing adverse publicity. Pharmacy groups in this country have also discouraged their members from supplying drugs for lethal injections.
Short supplies and litigation recently led Arizona to drop the use of midazolam, and Ohio has postponed indefinitely its next three executions until a legal challenge to a lethal drug source confidentiality law similar to Virginia’s can be decided. Executions carried out in 2016 have fallen to the lowest level since 1991, with only 20 carried out, and all but four of those took place in just two states, Georgia and Texas, of the 31 states allowing the death penalty.
For some states, like Florida and Oklahoma, 2016 was the first year since the mid-1990s that they have not put any inmates to death. In addition, death sentences were handed down nationwide in only 30 cases, the fewest since 1972. Even so, in this year’s elections residents in three states (California, Nebraska and Oklahoma) voted to reject curbs on capital punishment.
Ricky Javon Gray is scheduled to be executed for the murders of two young girls during a Richmond home invasion in which he also killed their parents. He has also been implicated in three other killings. Gray’s lawyers argue that the state’s method of lethal execution – which uses the sedative midazolam to render the condemned inmate unconscious, followed by the administration of two other drugs — first to effect paralysis and then stop the heart – is so cruel and unusual that it violates the U.S. Constitution’s Eighth Amendment.
They also claim Virginia’s planned first-in-the-nation use of compounding pharmacies to make two of the drugs that it needs for its execution method, purchased at a reported cost of $66,000 for two scheduled executions, calls for review by state appeals courts, and if necessary, by the highest court in the land. Virginia has passed a law allowing the state-regulated compounding pharmacy in question be allowed to keep its identity confidential.
A state appeals court judge will hold a Jan. 3 hearing on the matter. Whatever the ruling, it’s likely to prompt a request to the U.S. Supreme Court for a stay of sentence and a review of the constitutional issue. If the case reaches the high court, it will likely find sharp divisions there. The Court’s 5-4 Glossip v. Gross decision in 2015 rejected a challenge by three Oklahoma death row-inmates to the three-drug protocol.
In several recent executions, inmates given midazolam had protracted and apparently at least semi-conscious deaths, but the high court majority held that the inmates had neither proved the method caused severe pain nor identified a more humane practicable method. Of the four dissenting justices in Glossip, two (Stephen Breyer and Ruth Bader Ginsburg) signaled they’d welcome a case squarely challenging the death penalty as so cruel, arbitrary, error-prone or time-consuming as to be unconstitutional.
Even if use of midazolam survives legal challenges, obtaining it is becoming more difficult. European pharmaceutical firms now routinely refuse to sell products for use in executions, due to a European Union ban on exports for that purpose. And U.S. producers are also reluctant to supply lethal drugs, fearing adverse publicity. Pharmacy groups in this country have also discouraged their members from supplying drugs for lethal injections.
Short supplies and litigation recently led Arizona to drop the use of midazolam, and Ohio has postponed indefinitely its next three executions until a legal challenge to a lethal drug source confidentiality law similar to Virginia’s can be decided. Executions carried out in 2016 have fallen to the lowest level since 1991, with only 20 carried out, and all but four of those took place in just two states, Georgia and Texas, of the 31 states allowing the death penalty.
For some states, like Florida and Oklahoma, 2016 was the first year since the mid-1990s that they have not put any inmates to death. In addition, death sentences were handed down nationwide in only 30 cases, the fewest since 1972. Even so, in this year’s elections residents in three states (California, Nebraska and Oklahoma) voted to reject curbs on capital punishment.
December 23, 2016
Justice Department Probing Orange County’s Use of Jailhouse Informants
On Dec. 15, the Department of Justice (DOJ) announced its Office of Civil Rights has launched an investigation of the sheriff’s office and the district attorney’s office in Orange County, California, over repeated claims law enforcers there have systematically used jailhouse informants in ways that violate defendants’ rights.
Authorized by a 1994 crime law, the civil “pattern or practice” probe will look into two claims: first, that the agencies violated inmates’ right to counsel under the Sixth Amendment by using informants to get incriminating statements from inmates who have retained legal counsel, contrary to the Supreme Court’s ruling in Massiah v. United States, and second, that prosecutors didn’t disclose leniency promises made to the jailhouse informants, contrary to their constitutional duty to share with defense counsel any potentially exculpatory information, as spelled out in the Supreme Court’s landmark Brady v. Maryland decision.
The probe stems from a long-simmering political and legal controversy around the sheriff’s and prosecutor’s office practices on use of jailhouse informants, which critics have called unconstitutional or even fraudulent. For three years, an assistant public defender in the county has argued the agencies ran a secret informant system involving perjured testimony by both jailhouse informants and police officers who, he charged, lie “with shocking frequency” in presenting false testimony by informants and covering up their wrongdoing.
One judge, reviewing charges made about official handling of the county’s largest multiple murder case in 2014, found “significant” errors in the prosecutor’s handling of the case —calling it a “comedy of errors” — and ordered the entire county district attorney’s office removed from the case. The prosecutor’s office then responded by challenging the judge’s suitability to preside over scores of subsequent murder cases, and a state appeals court later upheld the prosecutor’s right under state law to do so.
In at least five cases, possible constitutional rights violations have led to reduced sentences — or in one case release on parole — for inmates convicted on murder charges. A year ago, numerous civil rights, civil liberties and church groups, backed by prominent law practitioners and academics, had petitioned Attorney General Loretta Lynch for a DOJ probe of the Orange County law enforcement agencies. The county bar association has also strenuously criticized the agencies.
In announcing the DOJ probe, the head of the department’s Civil Rights Division observed any systematic failure to safeguard an accused person’s right to counsel and a fair trial harms public faith “in the integrity of the justice system.” DOJ acknowledged the Orange County district attorney has agreed to cooperate with the investigation and provide full access to office records.
The Orange County situation also gave impetus to a new state law (AB 1909), passed by the legislature and signed into law by Governor Jerry Brown on Sept. 30, making it a felony for a prosecutor in California to knowingly falsify or withhold material evidence. California laws already made that a misdemeanor for the general public, and a felony for state law enforcement officers. Prosecutors can already face judge-imposed sanctions and be reported to the state bar, which can lead to disbarment. The new law, however, is the first in the nation specifically targeting prosecutors, who can now be sentenced to up to three years for the new offense in California.
Authorized by a 1994 crime law, the civil “pattern or practice” probe will look into two claims: first, that the agencies violated inmates’ right to counsel under the Sixth Amendment by using informants to get incriminating statements from inmates who have retained legal counsel, contrary to the Supreme Court’s ruling in Massiah v. United States, and second, that prosecutors didn’t disclose leniency promises made to the jailhouse informants, contrary to their constitutional duty to share with defense counsel any potentially exculpatory information, as spelled out in the Supreme Court’s landmark Brady v. Maryland decision.
The probe stems from a long-simmering political and legal controversy around the sheriff’s and prosecutor’s office practices on use of jailhouse informants, which critics have called unconstitutional or even fraudulent. For three years, an assistant public defender in the county has argued the agencies ran a secret informant system involving perjured testimony by both jailhouse informants and police officers who, he charged, lie “with shocking frequency” in presenting false testimony by informants and covering up their wrongdoing.
One judge, reviewing charges made about official handling of the county’s largest multiple murder case in 2014, found “significant” errors in the prosecutor’s handling of the case —calling it a “comedy of errors” — and ordered the entire county district attorney’s office removed from the case. The prosecutor’s office then responded by challenging the judge’s suitability to preside over scores of subsequent murder cases, and a state appeals court later upheld the prosecutor’s right under state law to do so.
In at least five cases, possible constitutional rights violations have led to reduced sentences — or in one case release on parole — for inmates convicted on murder charges. A year ago, numerous civil rights, civil liberties and church groups, backed by prominent law practitioners and academics, had petitioned Attorney General Loretta Lynch for a DOJ probe of the Orange County law enforcement agencies. The county bar association has also strenuously criticized the agencies.
In announcing the DOJ probe, the head of the department’s Civil Rights Division observed any systematic failure to safeguard an accused person’s right to counsel and a fair trial harms public faith “in the integrity of the justice system.” DOJ acknowledged the Orange County district attorney has agreed to cooperate with the investigation and provide full access to office records.
The Orange County situation also gave impetus to a new state law (AB 1909), passed by the legislature and signed into law by Governor Jerry Brown on Sept. 30, making it a felony for a prosecutor in California to knowingly falsify or withhold material evidence. California laws already made that a misdemeanor for the general public, and a felony for state law enforcement officers. Prosecutors can already face judge-imposed sanctions and be reported to the state bar, which can lead to disbarment. The new law, however, is the first in the nation specifically targeting prosecutors, who can now be sentenced to up to three years for the new offense in California.
Study Shows 39 Percent Reduction In Prison Population Would Not Affect Public Safety
A new study from the Brennan Center for Justice at the New York University School of Law claims imprisoning 576,000 state and federal inmates – 39 percent of the nation’s 1.46 million total – serves no compelling purpose, and alternative sentencing could save almost $20 billion annually without compromising public safety.
The study entitled “How Many Americans Are Unnecessarily Incarcerated?” claims to be the first-ever analysis of the best ways to reduce the social, economic and racial costs of overpopulated prisons. Released Dec. 9 and drawing on three years of research by lead author and veteran criminologist Dr. James Austin, along with Brennan Center researchers and a statistical analysis team, the study first analyzed criminal codes and data on convictions and sentences.
Based on its findings on the relative ineffectiveness of incarceration, the report team recommends a fundamental shift in sentencing to enable state and federal governments to reduce total prison populations down to 887,000.
The study maintains that 212,000 current inmates – or 14 percent of total prisoners – have already served long enough for major offenses that they could be safely released within the next year, and that alternatives to prison – such as community service, electronic monitoring, probation, restitution, or mental health or drug addiction treatments — would be more effective for about 364,000 more, or about 25 percent of total prison populations.
One place to start, the report suggests, are the nearly 66,000 prisoners whose most serious offense is drug possession. On average, they now draw one-year prison sentences which, the report argues, could be better replaced with addiction treatment and possible other alternatives.
If the nation’s prison population were downsized as the report suggests, 59 percent of the remaining inmates would be serving time for violent offenses, compared with the 46 percent at present convicted of such offenses.
The Brennan Center report also recommends a new framework for criminal sentencing, drawing on what it sees as science-based studies on public safety and rehabilitation issues. It rejects the calls for scrapping all or most mandatory and minimum sentences in favor of giving judges virtual free rein in setting sentences, viewing that approach as more likely to bring uneven and unfair results, and to worsen racial disparities in sentencing.
Instead the report proposes that state legislatures and Congress adopt a new solution: diverting less-serious offenses to alternatives to incarceration, absent unusual circumstances, and for more serious offenses setting default sentences proportional to four key factors: seriousness, impact on victims, evidence of intent and likelihood of recidivism.
Even for the more serious offenses, the report calls for shorter mandatory sentences, and for allowing judicial consideration of individual factors such as the defendant’s criminal record, addiction or mental health issues, and the specifics of the offense. In that way, the report claims, sentences will be shorter and more uniform, but still leave room for judicial discretion where individual circumstances warrant.
The report also suggests cutting terms by 25 percent for six serious crimes — murder, robbery, burglary, aggravated assault, weapons offenses and major drug trafficking cases — and allowing current inmates to petition for retroactive reductions of their sentences if lower default sentences are adopted.
The study entitled “How Many Americans Are Unnecessarily Incarcerated?” claims to be the first-ever analysis of the best ways to reduce the social, economic and racial costs of overpopulated prisons. Released Dec. 9 and drawing on three years of research by lead author and veteran criminologist Dr. James Austin, along with Brennan Center researchers and a statistical analysis team, the study first analyzed criminal codes and data on convictions and sentences.
Based on its findings on the relative ineffectiveness of incarceration, the report team recommends a fundamental shift in sentencing to enable state and federal governments to reduce total prison populations down to 887,000.
The study maintains that 212,000 current inmates – or 14 percent of total prisoners – have already served long enough for major offenses that they could be safely released within the next year, and that alternatives to prison – such as community service, electronic monitoring, probation, restitution, or mental health or drug addiction treatments — would be more effective for about 364,000 more, or about 25 percent of total prison populations.
One place to start, the report suggests, are the nearly 66,000 prisoners whose most serious offense is drug possession. On average, they now draw one-year prison sentences which, the report argues, could be better replaced with addiction treatment and possible other alternatives.
If the nation’s prison population were downsized as the report suggests, 59 percent of the remaining inmates would be serving time for violent offenses, compared with the 46 percent at present convicted of such offenses.
The Brennan Center report also recommends a new framework for criminal sentencing, drawing on what it sees as science-based studies on public safety and rehabilitation issues. It rejects the calls for scrapping all or most mandatory and minimum sentences in favor of giving judges virtual free rein in setting sentences, viewing that approach as more likely to bring uneven and unfair results, and to worsen racial disparities in sentencing.
Instead the report proposes that state legislatures and Congress adopt a new solution: diverting less-serious offenses to alternatives to incarceration, absent unusual circumstances, and for more serious offenses setting default sentences proportional to four key factors: seriousness, impact on victims, evidence of intent and likelihood of recidivism.
Even for the more serious offenses, the report calls for shorter mandatory sentences, and for allowing judicial consideration of individual factors such as the defendant’s criminal record, addiction or mental health issues, and the specifics of the offense. In that way, the report claims, sentences will be shorter and more uniform, but still leave room for judicial discretion where individual circumstances warrant.
The report also suggests cutting terms by 25 percent for six serious crimes — murder, robbery, burglary, aggravated assault, weapons offenses and major drug trafficking cases — and allowing current inmates to petition for retroactive reductions of their sentences if lower default sentences are adopted.
