Sunday, October 25, 2015

The 411 on the APP of DWB

All Police codes have deeper meanings. As we have come to learn that medical charts use acronyms to determine treatment of lack thereof and the same codes and laws that are applied to individuals they encounter change on the whim of the Officer and the color of the individual whom they are in contact with.

This is not news but to some it may be.  The acronym DWB - driving while black - has been around a long time.  But as more acts of violence associated with the traffic stops, the deaths in jail and the excessive fees and fines for those who have faced a traffic stop this news is new for some.

The New York Times analyzed the limited data available with regards to the nature of traffic stops and the proportion of those performed on black individuals.   While cities and towns have approximately 20% or more of "other" colors, little is known.  Apparently their lives don't matter yet.

All while the fines and fees and debtors prisons are also facing lawsuits and attentions for their preponderance of impoverishing the already impoverished.    Blood meet stone.

Court by Court, Lawyers Fight Policies That Fall Heavily on the Poor

The New York Times
OCT. 23, 2015

Two Harvard Law graduates are taking on the justice system by focusing on local courts and policies that often land the poor in jail. Traveling to Tennessee, they aim to end private probation abuses.


CLANTON, Ala. — In January, Christy Dawn Varden was arrested in a Walmart parking lot, charged with shoplifting and three other misdemeanors, and taken to jail. There, she was told that if she had $2,000, she could post bail and leave. If she did not, she would wait a week before seeing a judge. Ms. Varden, who lived with her mother and two children, had serious mental and physical health problems; her only income was her monthly food stamp allotment.
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Two days later, a civil rights lawyer named Alec Karakatsanis sued on behalf of Ms. Varden, alleging that bail policies in Clanton, a city of 8,619, discriminated against the poor by imprisoning them while allowing those with money to go free.

The response was quick: Clanton, while defending its policies, told the court that defendants would be able to see a judge within 48 hours. Within a couple of months, the city agreed to release most misdemeanor defendants immediately, without their posting bail.

Since then, Mr. Karakatsanis has sued six additional jurisdictions in four different states, representing single mothers, homeless men and people with mental disabilities, all who would have been free but for some ready cash. His novel legal strategy has proved effective: So far five of the cities have changed their policies. The suits, which are now being replicated around the country, have won support from the federal Justice Department and rulings that endorse his assertion that the money bail system is unfair to the poor.

There are many more Clantons among the nation’s 15,000 trial courts, civil rights lawyers say, and the key to broad change lies with state and local governments. So courthouse by courthouse, groups as small as Equal Justice Under Law, founded by Mr. Karakatsanis and a fellow Harvard Law School graduate, Phil Telfeyan, and as large as the American Civil Liberties Union are waging a guerrilla campaign to reverse what they consider unconstitutional but widespread practices that penalize the poor. These include jail time for failure to pay fines, cash and property seizure in the absence of criminal charges, and the failure to provide competent lawyers.

More often than not, they are winning — and even pebble-size victories can have a large ripple effect. After a handful of lawsuits in Alabama accused a private probation company of using the threat of jail to collect high fees, the company announced last week that it would leave the state.

In Ohio, a report from the A.C.L.U. on debtors’ prisonlike practices, which jailed offenders for failing to pay fines, helped win changes without legal action. In Washington State, a similar report on four counties led to changes in three; this month, the A.C.L.U. sued the fourth, Benton County, saying it still refused to assess people’s ability to pay fines before jailing them. Last week, the organization filed another debtors’ prison case against Biloxi, Miss.

“I don’t think we have to sue all of them,” said Nusrat Choudhury, a staff lawyer with the A.C.L.U.’s racial justice program. “What we’re trying to do with these two cases is show that there’s a nationwide recognition.”

Fred Smith Jr., a law professor at the University of California, Berkeley, said the sustained focus had started to sway federal judges who were normally hesitant to intervene in local courts. “Now that federal courts are exposed to how bad things have gotten in so many jurisdictions, I think that federal judges are shocked and want to do something about it,” Mr. Smith said.

But judges’ power is limited. Because the cities in the bail cases have backed down rather than fighting it out in court, there have been no appeals and thus no opportunity for higher courts, whose rulings would apply more broadly, to weigh in.

“It’s something I think about every day,” Mr. Karakatsanis said. “The legal system doesn’t have any magic cure.”

In addition, out of respect for state and local governments, federal courts have long made a habit of avoiding ruling on substantive issues, instead focusing on procedural ones such as whether a plaintiff has standing to sue or whether the officials being sued have immunity.

But recently, according to Mr. Smith, the legal scholar, there has been a subtle shift in the other direction. He pointed to a debtors’ prison lawsuit by Equal Justice against Montgomery, Ala., where a federal judge granted a preliminary injunction to halt arrests for unpaid traffic tickets.

Like federal courts, state courts can raise technical hurdles against cases that seek systemic change. For instance, judges rejected the claim of clients who complained that the public defenders’ office in Luzerne County, Pa., was severely underfunded, with a waiting list of several hundred people. Courts said the clients could, if convicted, bring individual claims that their lawyers were not effective, but could not contest the office’s funding level in advance. The State Supreme Court has agreed to review the case.

In the bail suits, Equal Justice must find plaintiffs who are already in jail and sue before their first appearance in court, a window of just a few days.

In Clanton, where the courtroom was closed to the public, Mr. Karakatsanis obtained a list of recent arrestees from the Police Department and took it to the jail. (This approach does not always work — though he represents clients for no charge, he has been turned away from jails and even accused of a form of ambulance chasing.) He met Ms. Varden, took her handwritten affidavit and drove to Montgomery to file suit. Shortly after her release, the entire case was threatened when she died unexpectedly, but her family decided to carry on.

Mr. Karakatsanis also devised a new legal strategy. The case law on bail has generally relied on the Constitution’s guarantee of due process or its outright ban on excessive bail. Courts have long held that bail decisions must be individualized, based not solely on the crime but the defendant’s history and community ties. Yet they have also said bail is not excessive simply because the accused cannot afford it.

Mr. Karakatsanis took a different tack, using the Equal Protection Clause to argue that the poor cannot be detained for mere want of money if a wealthy person in a similar situation would go free.

For strategic reasons, Mr. Karakatsanis has limited his suits to jurisdictions that use a fixed bail schedule regardless of the defendant’s record. Conceptually, though, his target is much broader.

“Almost every state law already says that you have to consider a person’s finances when you’re setting bail,” he said. He wants the courts to go one step further and declare, “It’s not just that you have to consider it, it’s that you can’t keep someone in a cage just because they can’t pay.”

Cherise Fanno Burdeen, the executive director of the Pretrial Justice Institute and a longtime advocate of bail reform, said Equal Justice had “revitalized the legal arguments” against money bail.

“We’ve been working on it from a policy level, trying to change the culture of jails,” Ms. Burdeen said. “But a legal strategy of suing about these issues hasn’t been something that people have figured out how to do for decades.”

So far, judges have bought in. “Justice that is blind to poverty and indiscriminately forces defendants to pay for their physical liberty,” Myron H. Thompson, a federal judge in Alabama’s Middle District, wrote in the Clanton case, “is no justice at all.”

Equal Justice has used the Clanton case as a template, working with local legal groups to identify plaintiffs and bring cases against two St. Louis-area cities, Velda City and St. Ann, as well as Moss Point, Miss.; Ascension Parish, La.; Dothan, Ala.; and, most recently, Calhoun, Ga., which has yet to respond to the suit.

In Clanton, the Justice Department filed a statement of interest saying “any bail or bond scheme that mandates payment of prefixed amounts for different offenses in order to gain pretrial release, without any regard for indigence, not only violates the 14th Amendment’s Equal Protection Clause, but also constitutes bad public policy.”

Vanita Gupta, the Justice Department’s top civil rights prosecutor, said the department filed such statements not only to clarify the law, but also to signal its priorities. Though Clanton is small, she said, the statement was intended to be used in similar suits elsewhere.

“It adds momentum to an area that has much greater focus today than it did 10 years ago,” she said.

The settlements that Equal Justice has reached, however, present another problem: enforceability. Time and again, governments large and small have failed to follow through on their agreements, leading in some cases to renewed legal battles. That has happened even in large, closely watched cases with court-appointed monitors, something the bail settlements do not have.

“What I really worry about,” Mr. Karakatsanis said, “is if you don’t have a lot of people there to enforce it, they’ll just find less blatant ways to do the same thing.

And while a member of the Judiciary realizes and acknowledges that the idea of Justice being blind is only a fallacy, but does actually do something that can work and put people back to work after they have done their time. We need more of this.

How to Get Around a Criminal Record

The New York Times 

In May, a federal judge in Brooklyn took the extraordinary step of expunging the conviction of a woman he had sentenced to five years of probation more than a decade earlier for her involvement in an insurance fraud scheme that netted her $2,500.

Calling her “a minor participant in a nonviolent crime,” a Federal District Court judge, John Gleeson, decried the “dramatic adverse impact” the woman’s conviction has had on her ability to get a job to support her four children. “There is no justification for continuing to impose this disability on her,” Judge Gleeson wrote. “I sentenced her to five years of probation supervision, not to a lifetime of unemployment.”

The move was significant because there is no federal law that allows for expungement — the permanent sealing of a criminal record to the general public. In fact it appears to be the first time that a federal judge has expunged a conviction for this reason. It should not be the last.

Some 70 million to 100 million people in the United States — more than a quarter of all adults — have a criminal record, and as a result they are subject to tens of thousands of federal and state laws and rules that restrict or prohibit their access to the most basic rights and privileges — from voting, employment and housing to business licensing and parental rights.

Some of these collateral consequences make sense — like preventing people convicted of molesting children from working in schools. But many have no relation at all to the original offense.

The woman whose record Judge Gleeson expunged was hired repeatedly for social-work or health-care jobs, and then fired after employers ran a background check. As the judge wrote, it is “random and senseless” that her “ancient and minor offense should disqualify her from work as a home health aide.”

The federal government lags far behind in reducing the burdens of a conviction. About half the states allow some convictions to be expunged; almost all allow expungement for arrest records and other non-conviction records. Some expungements are automatic, while others require a petition to the court.

Of course, expungement is not a cure-all. The vast majority of employers now run background checks, many using error-strewn databases that often fail to delete sealed records.

A better, increasingly popular approach is a “certificate of rehabilitation,” which state judges issue as a way of removing certain restrictions and encouraging employers and others to take a chance on someone despite his or her record.

Another solution is the executive pardon, which restores rights lost after a conviction. Pardons were once a common method of relief from injustice, and some state governors still use it vigorously. Gov. Jack Markell of Delaware has issued almost 1,600 pardons in six years. But President Obama, like his recent predecessors, has almost entirely abandoned the practice.

Mr. Obama’s former attorney general, Eric Holder, understood the importance of giving people with criminal records a better chance at finding jobs and regaining their foothold in society. And yet the Justice Department is reflexively fighting Judge Gleeson’s expungement order, calling it “judicial editing of history.”

If the White House or Congress made a real effort to alleviate the crippling consequences of criminal records — by increasing pardons, or passing laws to give courts more options to lessen or remove those burdens — there would be no need for judges to play the role of editors.

But someone forgot to tell the FBI director speaking at a Law Enforcement conference this week.  As he blames black people and those who support the idea of reform for an "uptick" in crime. What he really means is a failure of Police to do their business as they can't do it the way they did before.  Boo hoo!

Chill Wind' in Policing Fueling National Murder Spike: FBI Head

OCT. 23, 2015,

CHICAGO — Murder rates are soaring this year in many U.S. cities partly because police are holding back from aggressive tactics, fearful of being taped on smartphones and accused of brutality, FBI Director James Comey said on Friday.

"Something deeply disturbing is happening in places across America. Far more people are being killed in many American cities, many of them people of color, and it's not the cops doing the killing," Comey told a group of students at the University of Chicago Law School.

He said the spike in murders across the country, in cities from Sacramento, California to Chicago to Washington, D.C., comes after homicides fell to historic lows in 2014.

"Part of the explanation is a chill wind that has blown through law enforcement over the last year and that wind is surely changing behavior," Comey said. "In today's YouTube world, are officers reluctant to get out of their cars and do the work that controls violent crime?"

Officers have told him they feel besieged and are taunted by people holding smartphones, Comey said.

He said there are other possible reasons for the jump in crime, but the one that seems to fit best is a change in police behavior.

Comey said part of the change is positive after a national uproar over police killings of unarmed black men. The nation must talk about how and why police use lethal force, he said.

But he also said killers must be confronted by a strong police presence involving officers who go out at night and deal with men with guns standing on street corners.

"All of us, civilian and law enforcement, white, black, and Latino, have an interest in that kind of policing," Comey said. "We need to be careful it doesn't drift away from us in the age of viral videos, or there will be profound consequences."

It makes sense to debate the causes of dropping crime rates over recent decades, but people cannot lose sight of the role of law enforcement in saving lives, he said.

Falling crime has led to debate over lengthy sentences for some non-violent criminals and the huge numbers of African-American men in prison.

Comey said that sentencing reform should be debated but questioned rhetoric about "mass incarceration."

"Yes we put a lot of people in jail, but at the same time lives were transformed and lives were saved," he said.

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