Legally Speaking With Pamela Price

Pamela Y. Price, Attorney at Law

Month: April 2017

Justice-By-Geography

My mouth fell open when I read this! Shocking! In Alameda County? It surprised me and not much about our judicial system surprises me.

The Prosecutor’s Power to Charge Children

In 2016, California voters passed Proposition 57. It passed in Alameda County by an overwhelming 77% majority.  One of the main changes in the new law is to eliminate the prosecutor’s discretion to charge children between 14 and 18 as adults. It repealed California Proposition 21, which was passed in March 2000. Proposition 21 gave prosecutors the authority to decide whether to try a child as an adult.

In a “direct file” case, the prosecutor had the sole authority to decide whether to charge a child as an adult. Under the old law, the decision had to be made within the first 48 hours of an arrest. As a result, prosecutors often had minimal information about the circumstances of the crime or the child. In addition, there was almost no opportunity to interview key witnesses before making the decision.

At the same time, placing a child in the adult prosecution track has dire consequences for his or her “rehabilitation.” First of all, children are five times more likely to be sexually assaulted in adult prisons than in juvenile facilities. Furthermore, children are up to 36 times more likely to commit suicide after being housed in an adult jail or prison than those in juvenile facilities.

Disparity Gap in the Rates of Direct File

Fortunately, organizations like the W. Haywood Burns Institute, the Center on Juvenile and Criminal Justice and the National Center for Youth Law sounded the alarm on this practice.  Based on their research, they concluded that prosecutors were charging kids as adults at alarming rates. The prosecutor’s power to charge kids as young as 14 as adults was completely unregulated in California and most of the nation. Not surprisingly, the practice primarily impacts kids of color who were 90% of all “direct filed” cases.

These youth law advocates conducted a comprehensive survey and comparison of California counties. They found that the type of justice you receive in the juvenile system depends on where you live – hence, justice by geography! Furthermore, since 2003, there has been a growing disparity gap in the rates of direct file prosecutions of children by race in California.

Statewide numbers reveal that in 2014, for every White child charged as an adult, there were 3 Latino and 11 Black kids. What is shocking to me is that in Alameda County, prosecutors did not charge a single White kid as an adult in 2014.  Yet, in the same year, Alameda County prosecutors charged 14 Black or Latino kids as adults. Alameda is one of the nine counties in the State where only Black or Latino youths were subject to direct filing.

The Road to Recovery

Our road to recovery from juvenile injustice in California is likely to be long and difficult. With the passage of Prop. 57, the decision to prosecute a child as an adult is now decided by judges. Those of us who question the wisdom of this approach wonder whether we are going backward instead of forward. We know that in real world, judges have usually supported prosecutors.  Indeed in Alameda County, most of the sitting judges were prosecutors. So, some of us are concerned that “the fox is already in the henhouse.”

The response to our concerns was that the judge must make his decision in public and give a statement of reasons for the decision. Now, the prosecutor must make a motion to transfer a child to adult court. The judge must hold a hearing and evaluate whether the child should be tried as an adult. The hope is that increased transparency will lead to more accountability and better outcomes for kids.

In the meantime, it is unclear whether any of the kids charged, convicted or sentenced under the old law are entitled to relief.  In fact, once they were charged as adults, they were subject to the same pressures to plead guilty as adults. According to the AG’s records, 88% of the kids charged as adults are convicted and sentenced as adults.

Can We Save Children We Already Condemned?

Kurese Bell in San Diego County is a case in point. Kurese was only 17 when he and a friend, 18-year-old Marlon Thomas, robbed two marijuana dispensaries. At the second one, they unintentionally got into a shootout with a security guard inside the building. Eighteen year old Marlon was killed. Because Marlon’s death occurred during a robbery, 17-year old Kurese was charged with murder as an adult. Kurese was convicted in January 2017, after Prop. 57 became effective. If he is sentenced as an adult, he is not likely to have a parole date for 25 years.

Kurese’s case was a “direct file.” Ironically, the District Attorney of San Diego is the only DA in the State who supported Prop. 57. San Diego District Attorney Bonnie Dumanis is a former Juvenile Court Judge.  She says that she believes that a judge should hear both sides as to why a juvenile should be treated as an adult.

Earlier this year, Kurese’s lawyer, Patrick Dudley, took the courageous step of asking the Court to apply Prop. 57 retroactively to Kurese’s case.  The motion was granted!  The judge applied Prop. 57 and granted Kurese a transfer/fitness hearing in which the presumption is that Kurese is “fit” for a juvenile court disposition.  The prosecution must prove that he is not. A hearing is scheduled for May 12th.

Whether we will see similar steps to achieve justice in Alameda County by applying Prop. 57 retroactively remains to be seen.  Certainly, given our history of racial disparity in charging children, justice would appear to demand it.

Ending the Bail System

© 2013 Lucy Nicholson/Reuters

This week, California is taking a momentous step forward. The State Senate, supported by the Assembly, is moving to end bail as we know it. For as long as I have been a lawyer, “making bail” has been a requirement in our criminal justice system. The rule says you are “innocent until proven guilty.” Making bail is the first step that undermines the rule. In our system of justice, once you are arrested, you must prove your innocence. That requires money, starting with bail money.

Where Did It Come From?

The United States has 5 percent of the world’s population but 25% of the world’s prisoners. California led the way to mass incarceration when we approved the 3-strikes initiative in 1994. The right to bail comes from English law. It was incorporated into our Constitution in the Eighth Amendment. Today, a coalition of civil rights organizations supported by dozens of advocacy organizations has taken a huge step to repair the damage of racist failed policies. Thanks to Professor Michelle Alexander, we know that there were more African-American men in prison, jail, on probation or parole in 2013 than were enslaved in 1850.

Almost a dozen legislators, including Assembly District 18 representative Rob Bonta are pushing forward with bail reform. There are two measures being pushed through the State Assembly. Bail reform – SB 10 and AB42. Passage is not guaranteed. Bail reform failed in the legislature in 3 prior attempts. SB10 creates a pretrial services agency in each county and a hearing process for anyone who cannot immediately be released on their own recognizance.

For the first time, the judge deciding whether to release an individual must consider the presumption of innocence along with other factors.

We Have A Bail Problem

The current system allows a person’s wealth rather than their guilt or innocence to determine whether they will remain in jail until the case is over. Indeed, in California, the average bail amount is $50,000. This is five times higher than the rest of the United States. Thousands held in county jails across the state have not been convicted of a crime. They may in fact not have committed any crime. Many people arrested spend up to 5 days in jail even when there is not enough evidence to charge them.

Bail is historically and often used to coerce guilty pleas. Prosecutors often ask for a high bail and judges grant the request to coerce the person to plead guilty. A 2017 study by Human Rights Watch found that between 2011-2015, 1,451,441 people were arrested and jailed for felonies. Of that number, almost 500,000 were eventually found not guilty, their cases were dismissed, or the prosecutor never filed charges.

Alameda County Has A Bail Problem

In 2014-2015, Alameda County spent close to $15,000,000 to incarcerate people whose cases were either dismissed or never filed. Many innocent people had cases filed against them, but the case was dismissed or they were acquitted after spending weeks or months in jail. It is estimated that more than 85% of the people in jail in Alameda County are pretrial detainees – they have not been convicted or pled guilty. Ninety-one percent (91%) of those who pled guilty to a felony were released shortly after they took the plea deal. Most of the time, there is no legal right to sue for wrongful imprisonment, even if you were innocent.

When a person cannot make bail, it may cause loss of employment, income and/or housing. Our current system causes traumatic family disruption. On the one hand, when a person is held in jail, the whole family suffers shame and fear. To bail someone out may require multiple family members to take on crushing debt. The consequences of pretrial detention affect people of color, particularly Black people, and poor people far more often than white people. The stories of people losing their jobs or their homes because they went to jail and couldn’t make bail are far too common.

SB10 and AB42 are important steps in addressing the terrible consequences of mass incarceration. They both need our support to pass this time. The question is do we really believe that someone is innocent until proven guilty, and if so, does that matter? Please sign the Courage Campaign’s online petition!

Losing the Federal Government

I feel like we’re tettering on the edge of a cliff.  The next deep breath, we fall into the abyss.

What Just Happened?

Today, April 6, 2017, is truly one of the last days of American democracy.  Why? Because today, the Republican Senators voted to change the rules of the U.S. Senate. They made the change to ensure that Democratic Senators will no longer have a voice in voting on federal judges at any level. It also means that, tomorrow, the right wing of the American judiciary will take over the U.S. Supreme Court for possibly at least the next 50 years. So, the transformation of America is complete.  Elections do matter. The bloodless coup which became apparent in November 2016 is complete.

Who Is Neil Gorsuch?

This dramatic rule change was necessary to get Judge Neil Gorsuch of Colorado appointed to the U.S. Supreme Court. Judge Gorsuch is the son of Anne Gorsuch. Anne was a Ronald Reagan appointee who at one point was the head of the Environmental Protection Agency (EPA). She cut the EPA’s budget by 22% and reduced the number of cases filed against polluters. Ann also relaxed Clean Air Act regulations and facilitated the spraying of restricted-use pesticides. She hired EPA staff from the industries they were supposed to be regulating.  According to her Wikipedia page, Anne is the first agency director in U.S. history to be cited for contempt of Congress after she refused to comply with a subpoena.

Judge Gorsuch’s background as a litigator is one of privilege. He graduated from Harvard Law School in 1991.  He clerked in the D.C. Circuit federal court and the U.S. Supreme Court after law school. He then joined an elite D.C. law firm and stayed there for 10 years, representing corporate clients and billionaires.  In 2015, his former firm paid new associates “a starting bonus “of $175,000 or a $330,000 signing bonus to those who clerked for Supreme Court Justices. Gorsuch left the firm in 2006 when George Bush appointed him to the 10th Circuit Court of Appeals.

What is His Record?

Judge Gorsuch is the heir to Antonin Scalia. Like Scalia, Judge Gorsuch says he will “look backward.” He believes the Constitution should be interpreted the way it was interpreted when it was written. No matter that in the original Constitution, Black folks are only 3/5 of a person and women do not have the right to vote. In Gorsuch’s view, the infamous Dred Scott decision would be “good law” because it is based on what the judges then understood the law to be. He would also support the decision in Plessy v. Ferguson which ruled that Jim Crow laws were constitutional. The Court’s understanding of the law at that time legalized discrimination that endured for nearly sixty years.

His record on women’s rights and civil rights as a federal judge is troubling.  In February 2017, the Leadership Conference on Civil and Human Rights and 107 civil rights organizations signed a letter opposing his nomination. What is really scary, however, is that the National Rifle Association (the NRA) just dropped a million dollars to support his nomination. Gorsuch’s apparent views on guns led Americans for Responsible Solutions, the gun violence prevention organization founded by former Congresswoman Gabrielle Giffords and Navy combat veteran and NASA astronaut Captain Mark Kelly, and its sister organization, the Law Center to Prevent Gun Violence, to oppose his nomination. Under Gorsuch, America’s status as the most violent country in the world will be preserved.

“Defective from The Start”

Gorsuch says using the courtroom to “debate social policy is bad for the country and bad for the judiciary.”  If Gorsuch opposes using courts to debate social policy, he likely will oppose efforts to change any policies in the Courts.  His views are exactly opposite from the greatest lawyer and judge America has ever known, Justice Thurgood Marshall.  In 1987, Justice Marshall pointed out that “we the people no longer enslave, but the credit does not belong to the framers. It belongs to those who refuse to acquiesce to outdated notions of liberty, justice, and equality and who strived to better them.” He said “the government they devised was defective from the start, requiring several amendments, a civil war, and major social transformations to attain the system of constitutional government and its respect for the freedoms and individual rights, we hold as fundamental today.”

Donald Trump promised to appoint a “Scalia-like” justice to the Supreme Court. He is keeping his promise. Justice Scalia was a rabid opponent of affirmative action and voting rights. He wrote the Walnart v. Dukes decision that ended one of the largest class-action suits in history and set civil rights progress backward for years. Scalia opposed gay rights and a woman’s right to choose what to do with her own body. Scalia denied protection to victims of domestic violence and he wanted to abolish the Miranda rule protecting a defendant’s right to remain silent. The truth is, if Judge Gorsuch starts where Scalia left off, he too will be “defective from the start.”