Marijuana: the gateway drug…to prosperity.
Marijuana: the gateway drug…to prosperity.
On Saturday, California Gov. Jerry Brown (D) vetoed a bill that would have led to reduced sentences in many cases involving possession of small amounts of illicit drugs and eased the state’s overcrowded prison crisis.
Far from enacting radical reform, the legislation would merely give judges and prosecutors more flexibility to treat simple possession of cocaine or heroine as a misdemeanor, which is punishable by up to a year in prison rather than the current three years for a felony.
At of the end of 2012, 4,144 people were locked up in state prisons for minor drug possession — costing taxpayers $207 million for just one year of incarceration. According to the Drug Policy Alliance, the vetoed sentencing reform would have resulted in shorter sentences for about 15 to 30 percent of cases, saving hundreds of millions of dollars and possibly helping to reduce the prison crowding deemed unconstitutional by the U.S. Supreme Court. State Sen. Mark Leno (D), who introduced the bill, said the savings would have been funneled to treatment and rehabilitation programs.
Meanwhile, Brown signed a second private prison contract to take on a portion of California’s massive prison population, as Corrections Corporation of America announced Tuesday. A federal court recently ruled that California cannot solve its overcrowded prison problem by trucking inmates off to private prisons in other states, putting a damper on Brown’s costly plan to use private prisons rather than release low-level offenders as ordered by the court. Under this new deal, CCA will take over a federal detention facility in California City and turn it into a state prison.
LTMC: The prison-industrial complex soldiers on.
Marijuana is bad for you.
Ken White, guest blogging at the Agitator, discusses a revelatory lawsuit brought by the ACLU and private California firm Bird Marella, which alleges that an internal document in the L.A. D.A.’s office instructs prosecutors to handle exculpatory evidence in a manner inconsistent with their duties under U.S. Supreme Court precedent, California Supreme Court precedent, and California law:
Last week the ACLU of Southern California and the firm Bird Marella filed suit seeking to prohibit the Los Angeles County District Attorney’s Office from enforcing its “Special Directive 10-06,” a policy memo dictating how the office’s hundreds of prosecutors are to treat exculpatory evidence in the tens of thousands of cases the prosecute. You can read it at the ACLU site or here.
If you click on the last link in the quoted paragraph above, you will be directed to a letter to counsel from Bird Marella detailing the grounds of the lawsuit. In sum, the L.A. D.A.’s Special Directive 10-06 contains a so-called “Brady Protocol,” which governs the D.A.’s standards for when exculpatory evidence will be placed into the “Brady Alert System,” and turned over to defendants. The name of the protocol is a reference to Brady v. Maryland, the landmark Supreme Court case requiring prosecutors to disclose exculpatory evidence to defendants and their lawyers “where the evidence is material to either guilt or punishment.”
The lawsuit alleges that the Brady Protocol embedded in Special Directive 10-06 is inconsistent with both the U.S. Constitution and California law. One example:
The Brady Protocol instructs reviewing deputies: “The decision to include information in the Brady Alert System will be made using the standard of clear and convincing evidence, a degree of proof which is higher than preponderance of the evidence but lower than beyond a reasonable doubt. In other words, without clear and convincing evidence that the potential Brady impeachment evidence is reliable and credible, it will not be included in the Brady Alert System.”
But the California Supreme Court says: “It is not the role of the prosecutor to decide that facially exculpatory evidence need not be turned over because the prosecutor thinks the information is false. It is ‘the criminal trial, as distinct from the prosecutor’s private deliberations’ that is the ‘chosen forum for ascertaining the truth about criminal accusations.’”
After personally reviewing the largest inconsistencies, this seems pretty open and shut. I think chances are quite good that the ACLU and Bird Marella will prevail in getting the protocol changed.
In some sense, the special directive reflects an honest effort by prosecutors in the L.A. D.A.’s office to come up with a policy for administering their responsibilities under Brady in a manner that splits the difference between their dual role as ministers of justice and zealous advocates for the people of California. On the other hand, internal documents like this are plagued by the inherent cultural conflicts which pervade prosecutors’ offices generally, as Ken ably points out:
[S]peaking as a former prosecutor, I submit that prosecutors hold a very cramped and narrow view of what is exculpatory and what might influence a jury, and are culturally incapable of making a reliable call about what is likely “material.” No doubt that’s exactly why that’s not the standard for what they are supposed to turn over.
Sorting out conflicts of interest are a huge part of the legal profession. Many large firms have entire practices devoted to dealing with and identifying professional and ethical conflicts that may arise during the course of a given transaction or litigation. And when it comes to potential conflicts of interest, prosecutors’ office are no different: many prosecutors honestly want to live up to their professional obligations to defendants, and try to play by the rules. But the cultural conflict of interest that Ken identifies makes it problematic to rely on prosecutors’ offices to decide for themselves how they’re going to interpret their legal obligation to turn over exculpatory evidence. They are institutionally incentivized to interpret their responsibilities in a way that’s favorable to making their job easier. To wit: as Bird Marella’s letter to counsel points out, the law is relatively clear about what is required. Yet the Special Directive seems to be in clear discord with the law in several respects.
The sad part is that a truly ethical prosecutor who zealously represents the interest of the people should have no problem disclosing evidence if there is even the slightest chance that it’s exculpatory. The dual role of the prosecutor is not tantamount to maximizing convictions; zealously representing the people in a wholistic sense is derivative of their duty to serve the interests of justice. Hiding evidence that may lead a jury to believe that a defendant is innocent cannot possibly serve the interests of justice. In our system, the guilt of a defendant is not for the prosecutor to determine. Justice is served in our system by allowing a jury of a defendant’s peers to have all the facts in front of them, and decide unanimously that the defendant is guilty beyond a reasonable doubt. If the prosecutor refuses to allow all the facts to be known to the jury, he or she is undermining the very mechanism by which justice is allegedly served in our system.
It shouldn’t be this hard for a prosecutor to cheerfully shoulder this burden. Unfortunately, prosecutors’ offices around the country regularly drift from this ideal, preferring instead to wrack up convictions, concerning themselves with “winning” rather than doing real justice. Criminal defendants become viewed as uniformly pathological rather than human beings with complex motivations and lives. This of course makes it easier to justify throwing the “worst of the worst” in prison for decades at a time, or threatening unsophisticated defendants with overloaded indictments to terrify them into taking a plea deal that’s not in their interests. When you are part of a culture that makes it easy to systematically dehumanize defendants, you tend to feel less sympathy for them as a class.
That, my friends, is a conflict of interest. And it has consequences for the administration of justice, as demonstrated by Special Directive 10-06. I have no doubt that the document was crafted in good faith. And that’s really the biggest problem with it.
The “government” in question is California. Strike one for competitive federalism.
— Peter Johnson, General Partner of the Johnson & Johnson law firm in Walnut Creek, California. Johnson’s firm has filed a lawsuit challenging California’s “Distracted Driving” law. 68,000 California drivers were issued citations for Distracted Driving last month alone.
An L.A. Teacher voices her frustration with the way she’s evaluated:
For the first time this year, LAUSD has prepared reports for teachers that rate their effectiveness. When I received an email saying I could now view my own personal “Average Growth over Time” report, I opened it with a combination of trepidation, resignation and indignation.
I teach 10th-grade English and journalism. My “10th grade” English classes are actually made up of ninth-, 10th-, 11th- and 12th-graders. The 11th- and 12th-graders are repeating the class because they failed it the first time. The ninth-graders are students who didn’t pass enough classes the first time they went through ninth grade to be promoted to 10th.
With my scores, the district also sent a notice that, for reasons not explained, the 10th-grade scores were not considered reliable at this time, and so my overall score had been derived solely from the ninth-graders who happen to be in my 10th-grade English class. Because these happen to be my least motivated students, I was therefore judged not on my best students but on my worst.
With that realization came trepidation because the scores may very well be used to determine my salary one day, and they may also be published for all the world to see in this newspaper, which is suing to have teachers’ scores made public.
She then explains why test scores cannot be the sole or primary method of evaluating teachers:
On a recent Wednesday, my second-period class was interrupted by a student who overdosed on alcohol and Ecstasy and nearly died. Earlier in the year, one of our students was shot in the face and hospitalized. Last year, a student was shot in the neck and paralyzed for life; one of my students was standing next to him when it happened. The year before that, one of my students was inside her house when her sister, sitting in a car outside, was shot and blinded in one eye in a gang drive-by. The baby she was holding was struck by a bullet and killed.
It’s not that test scores aren’t useful to me. I can look at my numbers dispassionately and say that I didn’t challenge my honors class enough last year, or that I could have spent more time teaching the concepts that are likely to be on the standardized test. But test scores alone tell so little of the story as to be practically useless in evaluating teacher performance. The best educators know that.
Stories like this remind me of just how vacuous the “existential” criticisms of public sector, unionized teachers are. This woman clearly cares about her work and is not “doing the minimum” to get by. Her union membership nor her public employment have disincentivized her from seeking solutions and trying to get her kids to succeed. And like virtually any employee in any profession whatsoever, she knows she’s not perfect, and is not suggesting she shouldn’t be evaluated or held accountable.
Quite the contrary. She simply wants her evaluation to reflect the full spectrum of work that she actually does, and for those evaluations to not arbitrarily determine her worth by methodologies that blur the lines for administrative convenience. And in a school district where violence is as widespread as it is in Los Angeles, keeping kids safe and motivated to keep coming back, much less excelling, strikes me as a demonstration of competency, and not the other way around.
I want to show you all something:
Do you see what that is? That is a data retrieval device which police use to extract all the data off your phone. Every e-mail. Every text message. Every app you’ve ever downloaded. Every preference checked. Every picture stored. Every video file, potentially extending back for years, depending on the user, the phone, and the nature of their cell phone service.
I just want you to appreciate what the California Appeals Court said in this decision: that picture above? The police can do that without securing a search warrant. And the Supreme Court’s 4th Amendment jurisprudence is so atrocious right now that even if the police admit they screwed up, the evidence can still be admitted.
I suspect that many people from older generations (i.e. those likely to be judges) don’t fully comprehend how much personal, private information can be accessed via your cellphone these days. It’s virtually the equivalent of having a living transcript of every personal letter you’ve ever written and every brief phone call you’ve ever made (often the form of a text message that might’ve taken place by voice 10-20 years ago). In other words, these are records of things that no sane individual would keep in their car. This is precisely the type of private information that the 4th Amendment is supposed to protect private citizens from being delivered to government without a warrant signed by a magistrate pursuant to a sworn affidavit from police which particularly describes the place to be searched, and the thing being searched for.
In some sense, the CA court of appeals’ hands may have been tied by the Supreme Court’s 4th Amendment jurisprudence; so I understand why they may have felt compelled to rule in this fashion. But I feel that the analogy to private papers here is an important one. Cell phones didn’t exist when the 4th Amendment was written. It is precisely the job of the Courts to interpret the Constitution in light of social, cultural, and technological changes that the Founding Fathers could not possibly have accounted for. Even with the Supreme Court’s awful 4th Amendment jurisprudence, I believe that there was room for the CA court of appeals to rule this search unconstitutional. The sort of information accessible on a cell phone is exactly the sort of intimate, private information that police should not be able to get without a warrant.
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