California Supreme Court Says Keeping People Locked Up Just Because They Can't Make Bail Is Unconstitutional

from the forgetting-all-about-the-presumption-of-innocence dept

Bail can no longer be used to keep still-presumed-innocent people locked up in California. In a unanimous decision [PDF], the state's Supreme Court has declared keeping people locked up just because they can't afford bail is unconstitutional.

The decision doesn't entirely eliminate bail -- it can still be used in some cases -- but it cannot be the default operating mode for handling arrestees. The court starts the opinion by pointing out there's a big gap between principle and practice when it comes to bail. The state has a compelling interest to use bail to insure trial appearances and provide public safety. That point isn't being argued.

What's actually happening is the state is regularly depriving arrestees of their freedom by demanding cash bail in nearly every case, whether or not it addresses these compelling interests.

In principle, then, pretrial detention should be reserved for those who otherwise cannot be relied upon to make court appearances or who pose a risk to public or victim safety. [...] But it’s a different story in practice: Whether an accused person is detained pending trial often does not depend on a careful, individualized determination of the need to protect public safety, but merely — as one judge observes — on the accused’s ability to post the sum provided in a county’s uniform bail schedule.

What should be an individualized examination of an arrestee's threat to the public safety or unwillingness to further participate in their own prosecution has been cast aside in favor of demanding bail in almost every case. This default option sets up two tiers of rights, with greater rights (freedom being at the top of the list) handed to those who can afford to bail themselves out.

It's not like the government doesn't have other options that serve its interests. It doesn't always have to be cash. It can be almost anything else that allows the state to keep an eye on arrestees while still allowing them to enjoy their freedom until their day in court.

Other conditions of release — such as electronic monitoring, regular check-ins with a pretrial case manager, community housing or shelter, and drug and alcohol treatment — can in many cases protect public and victim safety as well as assure the arrestee’s appearance at trial.

If the state wants to stay constitutional when considering bail, it needs to do more than set an amount and see if the arrestee can pay it. First, the court says, trial courts must assess arrestees' ability to pay bail and may not send the person back to jail just because they can't.

If there are more urgent public safety concerns, the state can keep an arrestee locked up. But it has to prove to a court an extreme measure like this is justified.

In order to detain an arrestee under those circumstances, a court must first find by clear and convincing evidence that no condition short of detention could suffice and then ensure the detention otherwise complies with statutory and constitutional requirements.

Anything short of that violates rights.

Allowing the government to detain an arrestee without such procedural protections would violate state and federal principles of equal protection and due process that must be honored in practice, not just in principle.

The damage done by an always-on bail system is immeasurable. It can destroy lives. And it costs taxpayers a lot of money while providing very minimal gains in public safety. We, as a nation, lock up millions of innocent people every year. The stats are staggering.

On any given day, nearly half a million people — none of whom has yet been convicted of a charged offense — sit in America’s jails awaiting trial. (Crim. Justice Policy Program, Harvard Law School, Bail Reform: A Guide for State and Local Policymakers (Feb. 2019) p. 1 [“increases in pretrial detention rates are ‘responsible for all of the net jail growth in the last twenty years’ ”].) This represents nearly 20 percent of the world’s pretrial jail population. (Id. at p. 7.) Just six California counties (Alameda, Fresno, Orange, Sacramento, San Bernardino, and San Francisco), for example, spent $37.5 million over a two-year period jailing people who were never charged or who had charges dropped or dismissed.

Decreasing the number of people locked up prior to being charged by altering the contours of the bail system is win-win. It reduces the chances an arrestee will see their life fall apart while they're still waiting for their due process to kick in and it limits the amount taxpayers have to pay to keep people only accused of a crime locked up. Public safety is still a consideration in bail cases, but the government will have to provide some evidence to back its claims an arrestee is too dangerous to be given their freedom back until their case is called.

Filed Under: california, cash bail, criminal justice

Virginia Governor Passes A Long List Of Police Reforms, Including A Ban On No-Knock Warrants

from the just-forty-nine-states-to-go dept

They're not screwing around with police reform in Virginia. Plenty of states and cities are reevaluating the way law enforcement money is spent and how agencies operate following nationwide protests against police brutality, but few of these discussions have resulted in solid changes. There's been more discussion than action. Virginia's governor is all about action, it would appear. As NBC12 reports, a long list of reforms has been signed into law by Governor Ralph Northam.

Governor Northam has been working closely with legislators on these measures since early summer after the deaths of George Floyd and Breonna Taylor sparked unrest.

“Too many families, in Virginia and across our nation, live in fear of being hurt or killed by police,” Governor Northam said. “These new laws represent a tremendous step forward in rebuilding trust between law enforcement and the communities they serve. I am grateful to the legislators and advocates who have worked so hard to make this change happen. Virginia is better, more just, and more equitable with these laws on our books.”

The entire list of signed bills can be viewed here, most of which deal with law enforcement issues. Much of what's included here is surprising -- not because it's groundbreaking, but because it simply didn't exist before now. It's hard to believe it's 2020 and we're just now getting around to doing things like mandating background checks for law enforcement hires and making it a felony for law enforcement officers to engage in sexual relationships with arrestees and inmates.

But there are plenty of other positive changes -- many of which aren't in place elsewhere in the county. With these passages, Virginia becomes only the third state in the nation to ban no-knock warrants. Another passed bill severely restricts what agencies can obtain through the Defense Department's 1033 program, forbidding the acquisition of high caliber firearms and weaponized aircraft. (To be fair, no law enforcement agency has ever acquired a "weaponized aircraft," and it seems unlikely the DoD would approve the transfer of one to local cop shops.)

Also newly enacted are training mandates for new law enforcement officers, including de-escalation techniques and bias awareness. Bad cops will no longer be as shielded from accountability, thanks to changes to the decertification process. The state's Criminal Justice Services Board -- which will now include more diverse viewpoints -- has been granted the power to initiate decertification proceedings, something law enforcement agencies seem very hesitant to do themselves.

This will also trickle down to the local level. Cities and towns are now permitted to form their own civilian review boards. And they won't be completely toothless. They'll be given the power to issue subpoenas and, more importantly, make binding disciplinary decisions that can't be overridden by local law enforcement officials. The state's Attorney General can now initiate lawsuits and pattern/practice investigations into the state's law enforcement agencies, something it apparently was unable to do previously.

Again, while many of these reforms are welcome and necessary, the depressing flipside is that all of this wasn't in place prior to this year. Law enforcement agencies in Virginia (and around the nation) have spent decades operating with minimal oversight. The end result is the mess we've seen everywhere. Years of zero accountability haven't given us better cops or better community relationships. It's given us barrels of apples rotting from inside. Things are slowly starting to turn around. Unfortunately, it's taken thousands of deaths, billions of dollars in lawsuit settlements, and several months of uninterrupted protests to make legislators understand they can no longer maintain the status quo.

Filed Under: 1033 program, criminal justice, no-knock warrants, ralph northam, virginia

Skynet, But For Welfare: Automating Social Services Is Killing People

from the our-hands-are-clean-said-the-gov't-since-it's-just-robots-doing-the-work dept

We've talked before about the over-reliance on tech to do certain jobs that cannot be simplified to the sum of mathematical parts. The criminal justice system is starting to turn over sentencing to algorithms -- something that seems like the smart thing to do but removes judicial and prosecutorial discretion from the mix, leaving defendants with the unpalatable option of challenging software they're never allowed to examine.

Police departments are also moving towards predictive policing. Relying on historical data, cops are hoping to head off future crimes by allocating resources to areas where crime appears to be more likely to be committed. Sounds good on paper, but in reality, all it does is reinforce biases and push law enforcement to treat everyone in targeted areas as criminals. If the data being fed in reflects biased policing, crunching the numbers even harder isn't going to erase that. It's only going to reinforce it. And, again, suspected criminals aren't able to access the data or software that puts them in law enforcement's crosshairs.

A certain amount of automation is expected as government agencies seek to streamline public services. The problem isn't necessarily the tech. It's the removal of human interaction. As has been stated here frequently, moderation at scale is impossible. So is automated governing. Automated processes are as prone to failure as the people overseeing them. But when you decide software is going to do almost all of the work, those who need the assistance of other humans most are cut out of the loop.

Citizens looking for government assistance have grown accustomed to jumping through red tape hoops. Now, the hoops are inaccessible, but still must be jumped through. The most marginalized members of society are given URLs instead of contact names and numbers when many of them have no reliable access to the internet or a computer. A new series by The Guardian shows the human cost of going paperless. It's happening all over the world, and it's literally killing people.

The most disturbing story comes from Dumka in India. Here, we learn of the horrifying human impact that has befallen families as a result of Aadhaar, a 12-digit unique identification number that the Indian government has issued to all residents in the world’s largest biometric experiment.

Motka Manjhi paid the ultimate price when the computer glitched and his thumbprint – his key into Aadhaar – went unrecognised. His subsistence rations were stopped, he was forced to skip meals and he grew thin. On 22 May, he collapsed outside his home and died. His family is convinced it was starvation.

That's the worst case scenario. But there is plenty of ugliness in between. Governments aren't looking to defense budgets or law enforcement agencies to make cuts. Instead, they're adding to their bottom lines by pursuing citizens they think have screwed the government. Another process being automated is governments' attempts to collect alleged overpayments of social services funds. There's a statute of limitations on most debt, but software is being used to resurrect ancient debt governments feel they're owed. This is resulting in the destruction of people's lives and finances as they find themselves unable to challenge these automated determinations.

In Illinois, the Guardian has found that state and federal governments have joined forces to demand that welfare recipients repay “overpayments” stretching back in some cases 30 years. This system of “zombie debt”, weaponized through technology, is invoking fear and hardship among society’s most vulnerable.

As one recipient described it: “You owe what you have eaten.”

It's not just "zombie debt." It's also "robodebt." The determinations of owed debt are made by automated processes. The collection process is also automated, separating those suddenly facing possibly undeserved clawbacks from the human assistance they need to determine whether or not the claim is valid. Bureaucracies have always been faceless. With the addition of cold calculations, they've weaponized this facelessness to deter citizens from pushing back against a decision-making process composed of 1s and 0s. This, too, is linked to a rising human cost.

Compare and contrast the public statements with reality. Here's how the UK government is pitching its transition to automated governance:

“We are striking the right balance between having a compassionate safety net on which we spend £95bn, and creating a digital service that suits the way most people use technology,” said a DWP [Department for Work and Pensions] spokesperson. “Automation means we are improving accuracy, speeding up our service and freeing up colleagues’ time so they can support the people who need it most.”

If this sounds like a positive development, it's only because you haven't seen it in action.

[C]laimants have warned the existing automation in UC’s “digital by default” system has already driven some to hunger, breakdown and even attempted suicide. One described the online process as a “Kafka-like carousel”, another as “hostile” and yet another as a “form of torture”. Several said civil servants already appeared to be ruled by computer algorithms, unable to contradict their verdicts.

The same thing is going on in Australia. The government's embrace of "austerity," combined with its fondness for automating social services and debt collection processes has resulted in a world of hurt for the many Australians unable to challenge automated determinations or connect with actual humans willing to help them through the process. Asher Wolf's Twitter feed is an invaluable resource for these issues, detailing the fallout of automated social assistance programs all around the world.

It's not that all automation is bad. It's that automation without strict oversight or human control isn't making anything better for the most vulnerable members of society. When governments pay millions to let machines make decisions affecting humans, humans almost always seem to come out on the losing end. Legislators may proudly display charts showing incremental gains in efficiency, but few are willing to discuss the constituents they've sacrificed on the altar of automation. No system is perfect, but one that relies more on math than human discretion isn't an improvement.

Filed Under: aadhaar, algorithms, automation, criminal justice, india, law enforcement, police, social services

Pennsylvania Legislators Quickly And Quietly Passed A Law That Strips Power From Its Reform-Minded DA

from the dirty-deeds-done-with-amazing-alacrity dept

The residents of Philadelphia elected Larry Krasner as their new DA in 2018. Krasner promised reforms to the criminal justice system. And he delivered. He secured 33 resignations from prosecutors and staff who didn't feel they could back his reforms. Shortly after this, he received the best possible (inadvertent) endorsement for his reform efforts, one that took the form of criticism from the head of the local police union.

Krasner eliminated cash bail for nonviolent defendants and made it clear he would not tolerate misconduct or abuse by police officers. More importantly, he did more than talk. Two officers were criminally charged for performing an illegal stop of a pedestrian and Krasner secured an indictment from a grand jury against a cop who shot an unarmed man in the back.

Local law enforcement isn't happy. Neither are many politicians. As Akela Lacy and Ryan Grim report for The Intercept, moves have been made to blunt Krasner's reform efforts.

Lawmakers in Pennsylvania have quietly muscled power away from reformist District Attorney Larry Krasner, passing new legislation giving authority to the state’s attorney general to prosecute certain firearms violations in Philadelphia — and nowhere else in the state. The provision will expire in two years, or just after Krasner’s first term ends.

The bill silently sped through the legislative process. It was referred to the Judiciary committee on June 11th and signed into law by the governor on July 2nd. That's amazing turn-time for a bureaucracy. It appears there are plenty of state legislators who prefer their prosecutors to be hard-nosed punishers, rather than actual arbiters of justice who realize the normal way of doing things (cash bail, stiff sentences, over-prosecution of minor crimes) contributes very little to anyone's idea of "justice."

Krasner's office has responded by pointing out the obvious.

In a statement, Krasner’s office said the move is an attempt by the legislature to undermine the will of voters who turned out in record numbers to elect him. “District Attorney Larry Krasner was elected by an overwhelming margin to push for badly needed criminal justice reforms in one of the most highly incarcerated big cities in the country, and he has serious concerns about what Act 58 does, the potential precedent it sets, and what it signifies for the justice movement at large,” said spokesperson Jane Roh, referencing the legislation the new law amends.

Unfortunately, sometimes you have to point out the obvious to put something on the record in black-and-white -- something the legislators who hastily shepherded this bill through the state legislature can't ignore. And there's more to it than a bunch of legislators yearning to stick it to the new reformer. It appears some legislators were completely unaware targeting Krasner was the goal of this legislation.

Multiple legislators made statements to The Intercept indicating the version the House approved did not match the Senate version, which was apparently surreptitiously changed to narrow the focus of the bill to Philadelphia and Krasner in particular. The version these legislators voted for gave smaller towns better access to attorney general resources. The final bill does none of that. All it does is wrest power away from Krasner and hand it to the state's AG.

Meanwhile, the AG's office is claiming this has nothing to do with Krasner -- whose power it preempts -- and everything to do with the city's gun violence problem. But this is bullshit because the problem the AG's office and supportive legislators have with Krasner's exercise of prosecutorial discretion is that he exercises it too often.

Supporters of the legislation say Philadelphia was singled out not because of Krasner, whose office would still technically have jurisdiction over the offenses, but because the city is home to the bulk of the state’s gun violence. “The Philadelphia DA continues to have the authority to prosecute these crimes, should he decide to start enforcing the law,” Republican Rep. Rob Kauffman, who sponsored the bill and worked directly with White to craft the amendment, wrote in a statement to The Intercept. “This wasn’t done statewide because prosecuting these gun offenses doesn’t seem to be a statewide issue.”

If Krasner passes on gun cases, the AG can now prosecute instead. Prosecutorial discretion means nothing when another prosecutor can push cases dropped by a city DA. The city has found one way to undermine a DA who actually changed things. I'm sure they'll keep experimenting until they can undo the good he's done.

Filed Under: criminal justice, criminal justice reform, da, larry krasner, pennsylvania, philadelphia, prosecutors

AI Isn't Making The Criminal Justice System Any Smarter

from the BIAS-2.0 dept

We've covered the increasing reliance on tech to replace human judgment in the criminal justice system, and the news just keeps getting worse. The job of sentencing is being turned over to software owned by private contractors, which puts a non-governmental party between defendants and challenges to sentence length.

The systems being used haven't been rigorously tested and are as prone to bias as the humans they're replacing. The system used by Washington, DC courts to sentence juvenile defendants hasn't been examined ever, and yet it's still being used to determine how long a person's freedom should be taken away.

This system had been in place for 14 years before anyone challenged it. Defense lawyers found nothing that explained the court's confidence in using it to sentence juveniles.

[I]n this particular case, the defense attorneys were able to get access to the questions used to administer the risk assessment as well as the methods of administering it. When they dug into the validity behind the system, they found only two studies of its efficacy, neither of which made the case for the system’s validity; one was 20 years old and the other was an unreviewed, unpublished Master’s thesis. The long-held assumption that the system had been rigorously validated turned out to be untrue, even though many lives were shaped due to its unproven determination of ‘risk’.

One system used in courts all over the nation is developed by Equivant (formerly Northpointe). It's called COMPAS (Correctional Offender Management Profiling for Alternative Sanctions). COMPAS uses a set of questions to determine how much of the book is thrown at defendants, using data that only makes the United States' carceral habits worse.

Northpointe’s core product is a set of scores derived from 137 questions that are either answered by defendants or pulled from criminal records. Race is not one of the questions. The survey asks defendants such things as: “Was one of your parents ever sent to jail or prison?” “How many of your friends/acquaintances are taking drugs illegally?” and “How often did you get in fights while at school?” The questionnaire also asks people to agree or disagree with statements such as “A hungry person has a right to steal” and “If people make me angry or lose my temper, I can be dangerous.”

The US locks up an alarming number of people every year and an alarming percentage of them are black. Feed this data into a system that wants to see if it's locking up enough black people and the data will tell judges to keep hitting black people with longer sentences. It's a feedback loop no one can escape from. Every new sentence using these calculations only adds more data telling the system it's "right."

Not only is the "improved" system introducing its own algorithmic biases, its proprietary biases are no better than those it's replacing. This is how the system has been proven wrong repeatedly. It spits out lower recidivism risk scores for white defendants, only to have those defendants commit more crimes in the future than their black counterparts -- even when black people arrested for the same criminal activity have been given considerably higher risk scores by COMPAS.

That's not the only problem. Since it's privately-owned, defense lawyers and researchers have been unable to examine the software itself. You may be able to challenge it based on sentencing data (if you can even manage to get that), but you won't be able to attack the software itself because it wasn't developed by the government.

Equivant doesn’t have to share its proprietary technology with the court. “The company that makes COMPAS has decided to seal some of the details of their algorithm, and you don’t know exactly how those scores are computed,” says Sharad Goel, a computer-science professor at Stanford University who researches criminal-sentencing tools. The result is something Kafkaesque: a jurisprudential system that doesn’t have to explain itself.

The new way gives us the same results as the old way. But it can't be examined. It can only be questioned, and that's not really getting anyone anywhere. A few sentences have been challenged, but every day it's in use, COMPAS keeps generating sentences for "risky" defendants. And these sentences go right back into the database, confirming the software's biases.

Filed Under: ai, compas, criminal justice
Companies: equivant, northpointe

The Criminal Justice System Is Relying On Tech To Do Its Job And That's Just Going To Make Everything Worse

from the laying-the-groundwork-for-human-misery dept

The criminal justice system appears to be outsourcing a great deal of its work. On the law enforcement side, automatic license plate readers, facial recognition tech, and predictive policing have replaced beat cops walking the streets and patrolling the roads. Over on the judicial side, analytic software is helping make sentencing decisions. This is supposed to make the system better by removing bias and freeing up government personnel to handle more difficult duties algorithms can't handle.

As is the case with most things government, it works better in theory than in practice. ALPRs create massive databases of people's movements, accessible by a hundreds of law enforcement agencies subject to almost zero oversight. More is known about facial recognition's failures than its successes, due to inherent limitations that churn out false positives at an alarming rate. Predictive policing is the algorithmic generation of self-fulfilling prophecies, building on historical crime data to suggest future crimes will occur in high crime areas.

While the judicial side might seem more promising because it could prevent judges from acting on their biases when handing down sentences, the software can only offer guidance that can easily be ignored. That and the software introduces its own biases based on the data it's fed.

The logic for using such algorithmic tools is that if you can accurately predict criminal behavior, you can allocate resources accordingly, whether for rehabilitation or for prison sentences. In theory, it also reduces any bias influencing the process, because judges are making decisions on the basis of data-driven recommendations and not their gut.

You may have already spotted the problem. Modern-day risk assessment tools are often driven by algorithms trained on historical crime data.

As we’ve covered before, machine-learning algorithms use statistics to find patterns in data. So if you feed it historical crime data, it will pick out the patterns associated with crime. But those patterns are statistical correlations—nowhere near the same as causations. If an algorithm found, for example, that low income was correlated with high recidivism, it would leave you none the wiser about whether low income actually caused crime. But this is precisely what risk assessment tools do: they turn correlative insights into causal scoring mechanisms.

Correlation is not causation. Past performance is not indicative of future results. And an individual being sentenced is not the average of 20 years of historical crime data. The software may steer judges away from personal biases, but it creates new ones to replace them. It's a lateral "improvement" that does little more than swap the inputs.

Once you've got a system brought up to speed on garbage in, the biases multiply and perpetuate. Sentencing decisions based on biased data generate more bad data for the sentencing software… which then leads to successively harsher sentences for the same criminal act with each iteration. As the recursive data rolls in, the sentencing recommendations will justify themselves because who can argue with raw data?

This is not to say tech should not be used by the criminal justice system. It's that it needs to be subject to rigorous oversight and its employers made aware of its limitations, including its innate ability to reinforce biases, rather than remove them. This isn't something to be taken lightly. The lives and liberties of Americans are literally at stake. Taking a hands-off approach to tech deployment is highly irresponsible, and it indicates those in power care very little about what happens to the people they serve.

Filed Under: algorithms, criminal justice, technology

New Jersey Judicial Commission Says State's Courts Are Maximizing Revenue, Minimizing Justice

from the long-list-of-suggested-fixes-just-waiting-to-be-ignored dept

If there's something our nation's courts do well, it's make life as difficult as possible for anyone caught in its gears. The premise of "innocent until proven guilty" has been made a mockery by prosecutors who stack charges until defendants give up and give in. Plea deals end more than 90% of criminal cases before they ever go to trial.

Criminal infractions subject only to tickets and fines become jailable offenses as well, once the courts are finished piling on. A $50 parking ticket can balloon into hundreds or thousands of dollars in fees and the routine issuance of bench warrants assures some who have committed moving violations spend a few hours or days in jail as part of the process.

The New Jersey Judicial Commission recognizes the problem. It's having trouble working towards a solution, but at least it's trying. Much like anywhere else in the country, depriving drivers of their licenses in lieu of collected fees doesn't do anything to help the state collect fines. People with suspended licenses either can't get to work or take a calculated risk to ensure their income flow doesn't come to a halt. With automatic license plate readers flagging drivers with suspended licenses, cops are finding it easier to turn small driving infractions into life-crippling situations.

The Judicial Commission's report [PDF] makes it clear how devastating this can be for drivers unable to pay steadily-increasing fees. (h/t The Newspaper)

In a survey conducted of individuals that had at that time or previously had their license suspended, 42% lost their jobs as a result of the suspension; 45% who lost their job as a result of the suspension could not find another job; and 88% of those that were unable to find another job reported a decrease in income.

Some of this devastation is the fault of the courts, which have not been fully assessing citizens' ability to pay fines in a timely manner. But some of this lands on prosecutors, who punitively ratchet up charges for no discernible reason, as in this example provided by the Commission.

Julie received a speeding ticket for traveling 65 in a 55 mph zone. The ticket was payable, and could be paid online on NJMCdirect.com for a penalty of $95.00. That amount included the fine, court costs, and surcharges. Because a guilty finding results in 2 motor vehicle points being assessed by MVC, Julie appeared for her court date to seek a different result. After discussion with the prosecutor, the charge was amended to unsafe driving, N.J.S.A. 39:4-97.2, a violation that carries no motor vehicle points but a $250 surcharge. Julie’s total penalties went from $95 to $389.

If these fees aren't collected quickly enough, courts often end up yanking people's driving privileges. This swiftly escalates normal tickets into unpayable territory, especially once everything leeching off the court system asks for its cut of the take. This is a "small sample" of fees that may be tacked onto normal misdemeanor citations at the judge's discretion.

$100 assessed on domestic violence offenders to fund grants for domestic violence prevention, training, and assessment, as created by N.J.S.A. 2C:25-29.4;

$250 for the Computer Crime Prevention Fund for disorderly persons/petty disorderly persons violations under Title 2C, Chapter 20, as created by N.J.S.A. 2C:43-3.8; $500 for the Drug Enforcement and Demand Reduction Fund for disorderly persons/petty disorderly persons violations under Title 2C Chapter 35, controlled dangerous substances, or Chapter 36, drug paraphernalia, as created by N.J.S.A. 2C:35- 15;

$50 criminal laboratory fee for each conviction under Title 2C, pursuant to N.J.S.A. 2C:35-20a;

$50 for the Victims of Crime Compensation Office for disorderly persons/petty disorderly persons violations under Title 2C, and certain Title 39 violations, as created by N.J.S.A. 2C:43- 3.1a(2)(a), (c); and

$75 for the Safe Neighborhoods Services Fund for disorderly persons/petty disorderly persons violations under Title 2C, and N.J.S.A. 39:4-50, driving under the influence, as created by N.J.S.A. 2C:43-3.2.

The outcome for the courts and prosecutors is clear: there's money to be made destroying lives. The New Jersey court system made $400 million in profit in 2017 alone. The excess revenue was split between the courts and local governments.

Few within the system want to see this steady flow of excess income interrupted. Some positive changes have been made in some New Jersey courts, providing those with an inability to pay fines with greater leniency and other restitution options. But other courts have seen the process of administering justice devolve into pure graft.

Chief Justice Stuart Rabner issued an April 17, 2018 memorandum to all judges of the Municipal and Superior Courts regarding fines and penalties in Municipal Court. In that memo, Chief Justice Rabner highlighted two recent events that demonstrate the precise conduct this Committee was convened to address. The first was a Municipal Court judge who “diverted fines against defendants in a way that generated more revenue for municipalities and less for the county.” That Municipal Court judge pled guilty to a fourth-degree crime of falsifying records, and is barred from ever holding public office. The second relates to a Municipal Court judge who opened a 2014 court session “by announcing that any fines imposed were due that day, and that any defendants who refused to pay would be sentenced to county jail.” The judge later fined a defendant $239, including court costs, and when that defendant was unable to make a payment, the judge sentenced him to five days in jail and had him arrested.

The Committee has handed down a long list of recommendations to change New Jersey's court system for the better. It includes reminding them that the US Supreme Court has ruled it's unconstitutional to jail people for their inability to pay fines -- something that seems to be ignored with alarming regularity. It recommends doing away with standardized fine collection and provide judges with more leeway to reduce fines and fees as needed when indigent citizens are affected.

It also suggests there be more direct monitoring of other tactics -- like contempt charges and bench warrants -- that seek to impose higher fees on defendants if not depriving them of their freedom on top of their income. Failure to curb these two tactics just sends those already in financial distress into holes they may never be able to escape. At this point, the New Jersey court system has 2.5 million outstanding bench warrants related to traffic tickets and misdemeanors. Continuing to add to this total serves no purpose and shows the system is doing a ridiculously poor job collecting outstanding fees and/or deterring future violations.

Perhaps the best suggestions are the simplest: hit drivers with restricted licenses rather than suspensions and write off old fees/fines where the offense was minor, like parking tickets. This should clear several thousand bench warrants immediately and provide indigent drivers with the ability to continue making a living while paying back court fees and fines.

The government isn't supposed to be a profit-driven entity. But the way most court systems are set up, this becomes almost inevitable. Tech advances like plate readers and traffic cams have greatly increased court systems' cash flow by automating the process of ticketing and locating drivers. The problem is these governments now feel this revenue stream should continue unchecked and uninterrupted, with annual increases generally expected by all who benefit from it. This perverts incentives and turns the justice system into a revenue generator that grinds up and spits out those unlucky enough to find themselves tangled up in it.

Filed Under: criminal justice, new jersey

County Attorney Formally Asks ACLU To Stop Saying Factual Things About Pending Drug Legislation

from the please-stop-undermining-my-spin dept

A state prosecutor who claims to be supportive of lowering drug possession incarceration rates is mad at the ACLU for pointing out the legislation she's backing doesn't support this position at all. The ACLU's activism has led to the county attorney's unfortunate decision to send a formal letter to the group kindly asking it to knock it off. (via the ACLU's Will Gaona)

In response to an online campaign, Pima County Attorney Barbara LaWall sent a letter to the American Civil Liberties Union of Arizona asking that it “cease and desist from disseminating a misleading solicitation.”

The ACLU was “dumbfounded” by the letter, which it found to be without “legal merit,” a spokesman told the Star.

Earlier this month, the civil-rights group urged people to contact LaWall and ask her to withdraw her support for House Bill 2241, which would increase penalties for people convicted of several crimes involving certain opiates, including heroin and fentanyl.

“This is a dangerous bill that will force Arizonans suffering from drug addiction into prisons for years without treatment,” a March 19 ACLU of Arizona Facebook post reads. “Take action now and tell Barbara LaWall to publicly withdraw her support for HB 2241!”

As cease-and-desists go, LaWall's is pretty low-key. The letter [PDF] notes LaWall is not complaining about the people who've contacted her office as a result of the ACLU's post. She's also not requesting the ACLU say nothing more about the issue. Instead, she's asking the ACLU to correct its "misinformation."

Contrary to the statement disseminated in the ACLUs solicitation, HB 2241 does NOT punish individual drug users who possess or use these drugs to feed their addictions, and it is highly misleading to suggest that HB 2241 would punish drug users by sending them to prison. This Bill increases the sentence for convicted drug traffickers and drug dealers who flood our community with the deadly poisons of fentanyl, carfentanyl, and heroin. It docs NOT punish those who are arrested for simple drug possession.

This is not even technically true. Under LaWall's guidance, the county has already incarcerated people for possessing as little as one-tenth gram of heroin. Statewide, more than 20% of drug felony cases involve less than one gram. The ACLU's opposition to the bill stems from the lack of language separating those who sell small amounts to fund their own habits from those actually "flooding" communities with large quantities of opioids. Even drugs traded for anything of value -- no matter what quantity -- would trigger mandatory minimum five-year sentences for those convicted.

LaWall's letter has prompted an angry response from the ACLU, which believes the letter was sent to intimidate it into silence. All the ACLU has done is point out the flaws with the bill and that it runs contrary to LaWall's publicly-stated support for reducing drug-related incarcerations. LaWall's response to the ACLU's criticism -- no matter how mildly stated -- is still a demand the ACLU stop making factual statements about the bill she supports.

It's not that LaWall is unaware of these criticisms. Earlier debate on the bill produced the same criticism the ACLU is now being asked to stop: that the bill would result in more incarceration and less diversion of addicts to resource that may allow them to kick the habit and return successfully to society.

But anything drug-related -- especially bills attempting to address drug overdoses -- is going to be propelled more by emotion than logic, as is evidenced by this statement from a supportive state legislator.

Explaining his vote in support of the bill, state Rep. Mark Finchem, R-Oro Valley, said: “I don’t care how much one person hands off to another. If somebody is selling dope to my kid, I want them in prison.”

Well, let's hope your kid doesn't get caught with any purchased drugs, Mr. Finchem. If they do, the new law does them no favors. Considering prosecutors are viewing amounts less than a gram as felonious -- with the possibility of tacking on distribution charges if Finchem's child has shared or sold any to others -- his offspring could be facing five years minimum just for purchasing enough drugs to feed their own habit. The bill doesn't absolve purchasers, nor make it any easier for them to end up in a diversion program, rather than in jail.

The ACLU's criticisms are valid. The county attorney's request the ACLU stop portraying the legislation as opposed to LaWall's stated beliefs is not. Fortunately, neither the bill nor LaWall's demands are moving forward at this point. It's always a bad look when public servants start telling members of the public to exercise their First Amendment rights less. But it's even worse when this attempt starts with the public servant calling facts "misinformation."

Filed Under: arizona, barbara lawall, cease and desist, criminal justice, free speech
Companies: aclu

Congress 'Fixes' Child Porn 'Loophole' With 15-Year Prison Sentences For Teen Sexting

from the if-it's-already-broken,-why-not-make-it-worse? dept

Congress agrees (with who, I don't know): to save our nation's children from the scourge of sexting, we much incarcerate our nation's children. As Elizabeth Nolan Brown reports for Reason, the way to salvation sext-free kids runs through our nation's prison pipelines, where they'll be rehabilitated through the power of life-crippling criminal sentences and accelerated to adulthood via actual sexual assault at the hands of prisoners/guards.

Teens who text each other explicit images could be subject to 15 years in federal prison under a new bill that just passed the House of Representatives. Rep. Sheila Jackson Lee (D-Texas), ranking member of the House Judiciary Subcommittee on Crime, has called the measure "deadly and counterproductive."

[...]

Introduced by Rep. Mike Johnson (R-Louisiana) in March, the "Protecting Against Child Exploitation Act of 2017" passed the House by an overwhelming majority last week. Only two Republicans—Reps. Justin Amash of Michigan and Thomas Massie of Kentucky—voted against the bill, along with 53 Democrats.

Yes, you read that right. The bill would add mandatory minimums to child pornography production -- even if both participants are minors. Mandatory minimums would also apply to thoughtcrime. Rep. Bobby Scott -- one of the few opponents of the bill -- was the first to point out that this draconian child porn law would criminalize consensual behavior between teenagers. He also pointed out that the bill seeks to punish "solicitation," which takes this past actual production of forbidden images into the realm of the hypothetical.

What's more, "the law explicitly states that the mandatory minimums will apply equally to an attempt or a conspiracy," Scott noted:

That means if a teenager attempts to obtain a photo of sexually explicit conduct by requesting it from his teenage girlfriend, the judge must sentence that teenager to prison for at least 15 years for making such an attempt. If a teenager goads a friend to ask a teenager to take a sexually explicit image of herself, just by asking, he could be guilty of conspiracy or attempt, and the judge must sentence that teenager to at least 15 years in prison.

As Brown details in her thorough report on the bill, the proposed law is supposed to close a "loophole" that prevented some child porn prosecutions. At least that's what its supporters are saying. In reality, the loophole isn't a loophole, but rather a bad decision made by prosecutors.

19-year-old Anthony Palomino-Coronado was accused of molesting his 7-year-old neighbor repeatedly over the course of several months. In investigating the case, police discovered one photo of the abuse that had been taken and subsequently deleted from Palomino-Coronado's phone.

Combined with the victim's testimony, the photo should have guaranteed state police little trouble in trying to prosecute Palomino-Coronado for sexual abuse of a child. But federal prosecutors preempted such a prosecution by deciding to instead try Palomino-Coronado in federal court for producing child pornography.

It was a bad call—the case "could have been brought in state court and the defendant would have been subjected to extremely long, lengthy prison time," Rep. Scott noted during floor debate. But federal law against producing child pornography requires a minor to have been recruited "for the purpose of" producing photo or video. In this case, the court concluded, the long-term pattern of abuse, combined with the fact that only one explicit image was ever taken (and subsequently deleted), meant the perpetrator's purpose was not producing child porn but, rather, his own sexual gratification. If the feds had simply let the state handle the case as one of sexual abuse, Palomino-Coronado would probably be behind bars right now; instead, they overreached with the child porn charge, and now he's free.

To try to make amends for this prosecutorial blunder, the DOJ is pushing to have this terrible new law enacted. Not that there's any lack of supporters for the idea of tossing teens in jail. Sponsor Mike Johnson cited noted legal expert, the apostle Paul.

Johnson, a freshman congressman (and vocal Trump supporter), dismissed opponents' concern that the measure would be used in ways he didn't intend it to be used. "In Scripture, Romans 13 refers to the governing authorities as 'God's servants, agents of wrath to bring punishment on the wrongdoer,'" he said in response to their floor concerns. "I, for one, believe we have a moral obligation, as any just government should, to defend the defenseless."

My guess is Johnson's definition of "defenseless" doesn't cover sexting teens -- not if he's using Biblical authority to shore up his shaky legal assertions. Other supporters are equally as naive, claiming federal prosecutors won't use the law to prosecute sexting teens, blithely ignoring the fact that child porn laws have routinely been misused to do exactly that.

This is the road to hell legislators love to travel. And why not? It's routinely re-paved with good intentions and has lanes wide enough that even the most obtuse legislator can travel comfortably. When it comes to the nation's youth, nothing's too good for them. Our nation's lawmakers are ready to grant them them longer minimum sentences and more ways to avail themselves of one of our nation's oldest traditions: doing federal time on trumped-up charges. After all, you can't be for the children unless you're willing to damn the children. For their own good, of course.

Filed Under: criminal justice, doj, mandatory minimums, punishment, sexting

Public Defenders Continue To Fight Back Against California's Broken Case Management Software

from the CRIMINAL-JUSTICE-SYSTEM-has-crashed.-Restore-from-backup? dept

In California, the future of criminal case management is now. But the future appears to be broken, and "now" is looking much worse than the recent past. Odyssey is the state's buggy new case management software -- one that's been keeping people from being released, putting people with dismissed charges in jail, and otherwise making the criminal justice system even more horrible than usual. Tyler Technologies, the creator of the software, has called this transition "challenging." (It's also called this rolling cockup a "transition," so…)

Public defenders -- already overworked when things are normal -- are the ones being tasked with sorting out a long stream of erroneous computations and attempting to make things right for the human beings on the receiving end. This is an additional workload public defenders didn't need.

Since [December 2016], the public defender’s office has filed approximately 2,000 motions informing the court that, due to its reportedly imperfect software, many of its clients have been forced to serve unnecessary jail time, be improperly arrested, or even wrongly registered as sex offenders.

The court's response to multiple pleas by public defenders to force someone in the Californian government to clean up this mess? Shit happens. Deal with it.

Although the court recognizes that Odyssey has resulted in unlawful arrests and searches, clerical errors that affect a defendant's Fourth Amendment right to privacy will occur regardless of the case management system used by the court.

Understandably, this non-redress of grievances failed to satisfy public defenders. Cyrus Farivar reports they're headed back to court to appeal the court's do-nothing order.

“These delays and errors violate Government Code § 69844’s express requirement that Superior Court clerks enter judicial orders ‘forthwith,’ as well as the constitutional right to a complete and accurate record on appeal and the Fourth Amendment prohibition upon unlawful arrests and illegal searches,” Charles Denton, an assistant public defender, wrote in his April 10 brief.

The more significant point of the filing [PDF] is this: without pressure from the courts, the problems created (and exacerbated) by the new case management software's rollout will continue to snowball.

For, as we have noted, respondent’s staff concedes that, without a change in software or staffing, it will never be able to “provide a complete and fully accurate record of court proceedings”... The numbers bear this out. The bottleneck in processing commitment orders for the more than 100 state prisoners languishing in county jail is months long, and, seven months after Odyssey’s rollout, there is an ever-growing backlog of more than 12,000 “paperless” files that are missing minute orders, filings, and transcripts.

At this point, being booked in Alameda County is to be forcibly subjected to a malfunctioning criminal justice slot machine. Maybe it will pay off for a few people, but the odds are still on the house. A system that's already largely broken doesn't need assistance from outside vendors' buggy software.

Filed Under: california, case management, criminal justice, public defenders
Companies: tyler technologies