California’s controversial parole overhaul advances

By Christopher Zoukis

California corrections officials are revamping the state’s parole system, aiming to make thousands more inmates eligible for early release.

Last November, by a nearly 2-1 margin, California voters approved Proposition 57, a ballot initiative seeking to trim the state prison system’s population by 11,500 over the next four years.

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Federal Gun Possession Prosecutions Up 23%

By Christopher Zoukis

Federal prosecutions on gun-related charges during the first half of this year were 23 percent higher than during the same period last year the Department of Justice (DOJ) announced July 28th.

A total of 2,637 defendants were charged this with unlawful possession of a firearm, compared to 2,149 last year, and there was a 10 percent rise in cases charging a defendant with possessing a gun while committing a violent crime or dealing drugs.

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South Carolina Prison Officials: Escapee May Have Used a Drone

By Christopher Zoukis

For a few days in early July, Jimmy Causey, a 46-year-old inmate at South Carolina’s Lieber Correctional Institute, was on the loose.

Causey was serving five life sentences for kidnapping, robbery and burglary after breaking into his defense lawyer’s home, holding the lawyer and his family at gunpoint, and ransacking the home before leaving with just $40 and a cellphone.

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Bawdy Rooftop Performances Entertain Inmates in Chicago Prison

By Christopher Zoukis

Chicago has earned its reputation as a city that knows how to show conventioners, tourists and other visitors a good time – but who knew some Chicagoans would go so far as to stage adult entertainment for the enjoyment of inmates in the Metropolitan Correctional Center, the 27-story prison operated by the Federal Bureau of Prisons?

But that’s apparently what’s been happening on the roof of a self-service parking garage across the street from the prison. Chicago papers printed accounts of the X-rated cavorting on the garage rooftop, which has included performances by topless or nude dancers, and other displays the family papers have had difficulty describing.

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Discovery of Look-Alike Frees Inmate after 17 Years in Prison

By Christopher Zoukis

On Memorial Day 1999, Tamara Scherer was in the parking lot of a Wal-Mart in the Kansas City, Kansas suburb of Roeland Park, when she was attacked by three young men. They tried unsuccessfully to snatch her purse, but managed to knock her down, causing some minor injuries, and then fled in a car after stealing her cell phone.

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Appeals Court Tosses FCC Rate Controls on Most Prison Calls

By Christopher Zoukis

Advocates of government action on lowering phone rates for calls to prison and jail inmates were handed a major setback June 13 when three-judge panel of a Washington, D.C. federal appeals court ruled the Federal Communications Commission (FCC) lacked legal authority to impose rate limits on intrastate calls to inmates.

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Alabama Executes Inmate First Sentenced to Death 34 Years Earlier

By Christopher Zoukis

On May 26, 75-year-old Tommy Arthur died by lethal injection in Alabama's Holman Correctional Facility, ending a decades-long legal drama begun 34 years earlier.

Sentenced to death for the 1982 murder-for-hire shooting of the sleeping husband of the woman with whom he was having an affair, Arthur was scheduled for execution seven times between 2001 and 2016, but each time the state was stymied by challenges brought by his volunteer legal team.

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Federal Court Again Slaps Arizona Jailers for Reading Inmate Mail

By Christopher Zoukis

A federal three-judge appeals panel unanimously ruled on May 18 that Arizona corrections officials were illegally monitoring mail state prisoners send to—or receive from—their lawyers. It was the third time in three years judges from the 9th Circuit had rebuked Arizona law enforcers on the issue.

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Appeals Court: Prison Litigation Reform Act Doesn’t Apply to Suits Filed by Ex-Prisoners

By Christopher Zoukis

A three-judge panel of a federal appeals court has ruled that the Prison Litigation Reform Act (PLRA) applies only to lawsuits filed by people who are incarcerated at the time they file the lawsuit, not to those formerly incarcerated.

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Jails Scandal Brings Ex-L.A. County Sheriff Three Years in Prison

By Christopher Zoukis

A federal judge has handed a three-year prison sentence to Leroy “Lee” Baca, who was sheriff of Los Angeles County for 15 years, for his role in covering up abuses in the county’s jail system that was being investgated by the FBI. The L.A. Sheriff’s Department has more than 18,000 employees and is responsible for policing over 4,000 square miles and the nation’s largest jail system.

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Inmates at Ohio Prison Secretly Built Computers, Used Them for Crimes

By Christopher Zoukis

For over three months, five inmates in Ohio’s medium-security Marion Correctional Institution tapped into the prison’s network to run two computers they had built piecemeal from parts scavenged from a nonprofit group’s job training program. The program teaches inmates how to disassemble and recycle outdated computer equipment as part of Marion’s “Green Initiative” program.

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Supreme Court Rejects Intellectual Disability Test Methods in Texas Death Penalty Cases

The Supreme Court exempted one man's death sentence citing outdated medical standards and other factors lacking scientific basis in determining his intellectual ability.

The Supreme Court exempted one man's death sentence citing outdated medical standards and other factors lacking scientific basis in determining his intellectual ability.

 

By Christopher Zoukis

In a 5-3 decision March 28, the U.S. Supreme Court struck down the methods that Texas has been using to gauge whether a defendant’s intellectual ability should spare them the death penalty.

The appeal was for Bobby James Moore, convicted of capital murder and sentenced to death in 1980 for fatally shooting an elderly Houston supermarket clerk during a botched robbery. Twenty years old at the time, Moore spent 19 years on Death Row before winning a new trial, due to ineffective assistance of counsel. But on retrial in 2001, he was again convicted and given a death sentence.

In 2014, Moore’s lawyers sought to persuade a state court he was intellectually disabled to a degree that made sentencing him to death unconstitutional. That court agreed, but the Texas Court of Criminal Appeals rejected its recommendation, finding Moore was not severely impaired enough to be exempt from the death penalty.

On appeal, Moore’s lawyers challenged the state appeals court’s reading of constitution law. The leading federal case, Atkins v. Virginia, set down a basic rule in 2002: executing mentally disabled convicts violates the Eighth Amendment’s prohibition of cruel and unusual punishment. Atkins didn’t set standards on how states should determine mental disability in capital cases, however.

In 2014, in Hall v. Florida, the Supreme Court rejected that state’s use of an IQ score of 70 as precluding mental disability, saying state determinations must be “informed by the medical community’s diagnostic framework.” So the central issue the Supreme Court faced in Moore v. Texas was whether the way Texas made that determination in Moore’s case squared with the high court’s earlier cases.

The majority opinion, from Justice Ruth Bader Ginsburg, joined by Justices Kennedy, Breyer, Sotomayor and Kagan, found it did not. The court which had recommended exempting Moore from the death penalty, it noted, used a generally accepted test, consistent with modern diagnostic standards, with three core parts – mental functioning defects, evidenced by such things as an IQ of roughly 70; adaptive deficits, such as inability to learn basic skills or change behavior to fit changed circumstances; and the onset of such deficits before the age of majority.

Ginsburg cited evidence the first court had found about Moore, a ninth-grade dropout who by age 13 could barely read, write or even tell time or understand common measurement units. In contrast, the Texas Court of Criminal Appeals relied on state case law, which imposed added requirements, based on a 1992 psychology manual no longer accepted by most experts, and added seven “evidence factors” of its own devising, such as whether those who knew the individual treated him or her as mentally disabled. It also faulted the Texas criminal appeals court for relying on IQ scores Moore had received without considering those tests’ margins of error.

While the Court’s earlier decisions allow states leeway in making mental disability determinations, the majority vacated Moore’s death sentence, based on the state's use of outdated medical standards and other factors lacking scientific basis. A dissent by Chief Justice John Roberts, with Justices Alito and Thomas, would have accepted the state’s reliance on an IQ score of 74 for Moore, and complained the majority opinion gave states insufficient guidance on how to determine mental disability.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonerResource.com.

Fewer States Automatically Suspend Driver’s Licenses for Drug Convictions

More states are opting out of suspending licenses of people convicted of drug crimes unrelated to driving.

More states are opting out of suspending licenses of people convicted of drug crimes unrelated to driving.

By Christopher Zoukis

Since 2009, seven state legislatures have acted to remove themselves from a 1991 federal law that since 1994 has threatened to reduce federal highway funds to states which did not provide at least a six-month driver’s license suspension for people convicted of drug crimes.

Known at the time of enactment as a “use and lose” measure, the federal law (23 U.S. Code 159) is these days increasingly seen as an outdated “war on drugs” holdover which does little, if anything, to achieve its stated aims, and may actually impede them, while creating serious barriers to re-entry into society for people with histories of drug convictions. Opponents of the federal law claim it burdens courts and detracts motor vehicle agencies from more important work directly related to highway safety.

Despite the clear trend in recent years for states to end or modify their driver’s license suspension laws, or to take advantage of a provision in the federal law allowing states to opt out of suspending licenses of people convicted of crimes unrelated to driving and still keep highway funds, 12 states and the District of Columbia still require license suspension for drug convictions unrelated to driving.

Since some major population centers are among the dozen states with such laws still on the books – including New York, Texas, Florida, Michigan, New Jersey and Virginia – an estimated 122 million people live under such laws, and almost 200,000 lose their driver’s licenses each year for non-driving violations.

But it’s growing increasingly likely even more states will decouple drug convictions from driver’s license suspensions – and some in Congress are even backing federal bills to that end.

As recently as 2004, 27 states automatically suspended or revoked driver’s licenses for at least some drug convictions. Last year alone, legislators in Ohio and Massachusetts gave judges the power to decide whether or not to suspend driver’s licenses after drug convictions, following similar actions in earlier years by Georgia, Delaware, Indiana, Oklahoma, and Wisconsin. Virginia, one of the 12 states still restricting driver’s licenses after drug convictions, is set to opt out starting this July, and others are considering similar actions. Some states have also eliminated or reduced the fees previously required to reinstate suspended licenses.

And a bill — House of Representatives 1952, with the short title of the “Better Drive Act” —  was introduced in the House of Representatives April 5 by Rep. Beto O’Rourke (D-TX). Its six backers are equally divided between Republicans and Democrats. The main sponsor argues his bill, by making it possible for people with drug convictions unrelated to driving to maintain the driver’s licenses they will likely need to find employment and get to their jobs, would ease social re-entry and fight recidivism.

The 10-line bill would remove the federal law withholding some federal highway funds from states which do not automatically suspend driver’s licenses after a drug conviction. The repeal bill, if adopted, would not prevent states from suspending licenses for drug-impaired driving, but would only stop automatic license suspension for offenses not related to driving. The bill to repeal the federal mandate would not restrict states’ ability to suspend or revoke licenses for drug-impaired driving offenses.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonerResource.com.

 

Massachusetts May Toss Thousands of Convictions for Drug Test Fraud

By Christopher Zoukis

Annie Dookhan, a chemist working for a Massachusetts state drug-testing laboratory, was paroled last year after serving nearly three years in a state prison for her admitted perjury and evidence tampering in state-prosecuted cases. 

Now state prosecutors, responding to an order from the state’s highest court, the Supreme Judicial Court, have dismissed 21,587 of the more than 24,000 criminal convictions linked to Dookhan’s unreliable court testimony and drug-testing reports.

In the largest-ever case of its type, Dookhan pleaded guilty to more than two dozen counts of tampering with drug samples, falsifying lab reports, and misleading investigators during the nine years she worked at a drug-testing lab run by the state’s Department of Public Health.

In some cases, Dookhan apparently did no actual testing, but still issued reports that samples submitted by police or prosecutors in fact contained controlled substances. In some cases, Dookhan signed reports not only for herself, but for other staffers who were supposed to supervise or confirm her work. Contrary to lab rules, she also took calls from police, who told her what drug they expected would be found in the samples they had sent her.

When Dookhan’s mishandling of samples, faked reports and other misconduct came to light in August 2012, the large number of cases potentially involving false evidence raised serious problems not just for defendants who may have been wrongfully convicted, but also for courts, prosecutors and public defenders.

Advocates, including the national American Civil Liberties Union and its state chapter, sought for several years across-the-board overturning of convictions in cases tied to evidence processed, or testimony given, by Dookhan.

Last year, the state’s high court declined, but ordered state district attorneys to winnow down the list of nearly 24,000 convicted in such cases to show which the prosecutors thought strong enough to be retried, without Dookhan-provided evidence. About 60% of those convicted with Dookhan’s assistance faced only minor charges for drug possession, and many have already completed their sentences. Prosecutors had earlier tried, but failed, to persuade the court to leave persons convicted in any of the cases to pursue individual legal remedies, at their own expense, with separate consideration of each case.

In January, the court ordered seven district attorneys to finalize their lists of cases from their districts they view as worth prosecuting again, and submit by April 18. 

The approximately 2,500 cases the prosecutors opted to keep exceeds earlier estimates, which suggested fewer than 1,000 of the cases would survive. But the state court has the last word, since it reserved the right to dismiss additional cases if it thought prosecutors plan to re-file an unreasonably large number of cases.

The Dookhan scandal illustrates the dangers of relying on drug-testing labs, liked the one where Dookhan worked, which have few or no certification requirements, minimal training and lax supervision. One misdemeanor charge against Dookhan was that she had misstated her professional credentials, claiming a nonexistent master’s degree —  a falsehood which went undetected by her employer.

In another drug-testing lab in the state, at about the same time as Dookhan’s misconduct, supervisors similarly failed to detect serious, long-running violations by another chemist – including stealing drug samples, smoking drugs in the workplace, and using the lab to manufacture crack cocaine.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonerResource.com.

Nearly 24,000 criminal drug convictions may be linked to a chemist convicted of perjury and evidence tampering in state-prosecuted cases.

Nearly 24,000 criminal drug convictions may be linked to a chemist convicted of perjury and evidence tampering in state-prosecuted cases.

Florida Weighs Restoring Voting Rights for Released Felons

Activists are working to undo the voting rights ban for released prisoners in Florida through a November ballot initiative.

Activists are working to undo the voting rights ban for released prisoners in Florida through a November ballot initiative.

By Christopher Zoukis

For 150 years, Florida has had one of the nation’s harshest policies toward restoring the voting rights of released inmates – lifetime disenfranchisement for former felons – but the state’s voters may soon get a chance to reverse that ban, which is also under legal challenge.

A long-standing provision in Florida’s constitution permanently prevents voting by an estimated 1.6 million Floridians, a figure roughly equal to the adult population of Miami-Dade County. Along with Kentucky and Iowa, Florida is the only state currently providing for lifetime disenfranchisement for felons who have completed all parts of their sentences. In the years since 2000, four other states (Delaware, New Mexico, Nebraska, and Maryland) have dropped laws similar to Florida’s.

Activists are working to undo the ban through a ballot initiative, the Voting Restoration Amendment, which would become law if approved by 60% of voters going to the polls in November 2018. The proposal would automatically restore voting rights to ex-felons who have completed all terms of their sentences, including probation or parole. The measure would not apply to persons convicted of murder or sexual felonies. Those individuals would remain permanently disenfranchised unless both the governor and the state cabinet vote to restore their voting rights.

As state law requires, the Florida Supreme Court held a March 6 hearing to examine whether the wording of the Voting Restoration Amendment complies with the standards ballot initiatives must meet in order to go before the voters. The initiative must be clearly worded and address only a single issue. A decision on whether the initiative is properly drawn is expected soon. Supporters were encouraged that Pam Bondi, the state’s Attorney-General, seen as a potential opponent, took no position on the measure during the court hearing.

In 2011, Bondi and Gov. Rick Scott, shortly after taking office, reversed major parts of a broader clemency process adopted by ex-governor Charlie Crist. As amended by Scott and his cabinet, ex-felons have to wait at least five years after finishing their sentences before they can apply to the governor and his cabinet for restoration of their voting rights. Fewer than 2,500 of those requests have been approved during Scott’s time in office, and a backlog of about 10,500 applications awaits action.

If the state Supreme Court clears the new initiative to win a spot on the 2018 ballot, supporters will also have to muster almost 700,000 more signatures from registered state voters – which could be a lengthy and expensive undertaking. A similar effort in 2016 fell far short.

In other action aimed at overturning the Florida lifetime disenfranchisement of felons, on March 13 seven former felons and the nonpartisan Fair Elections Legal Network filed a class-action lawsuit against Gov. Scott and other state officials, attacking the state’s disenfranchisement law as unconstitutional.

The lawsuit argues the state’s mandate on felon disenfranchisement has a disparate impact on racial minorities. It also alleges that the governor, who has the deciding vote in some voting rights restoration cases, has in some cases rejected requests because the applicants have gotten traffic tickets after completing all terms of their sentences. In other instances, applicants complained of being quizzed about whether they were using alcohol or controlled substances.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonerResource.com.