A legal battle is under way over whether prison inmates have the right to vote.
In April a three-judge panel for the 9th Circuit Court of Appeals ruled in Farrakhan vs. Gregoire that the Washington State law denying incarcerated felons the right to vote violated the 1965 Voting Rights Act by disenfranchising minority citizens.
“We believe that the 9th Circuit was correct and the right to vote should not be denied to incarcerated felons,” said Rebekah Evenson and Donald Specter of the Prison Law Office at San Quentin. “But the fact is the Farrakhan ruling never applied to California’s incarcerated felons because the legal challenge was brought in Washington State only.”
Recently the same issues arose in the Massachusetts case Simmons v. Galvin in the 1st Circuit Court of Appeals. That court ruled the Voting Rights Act does not apply to nor does it protect felons.
Moreover, the 9th Circuit agreed to rehear the Farrakhan case with an expanded panel, “Which means the prior ruling in Farrakhan has been de-published — it’s not binding anymore,” said Evenson. “California needs to put in a similar challenge…the Massachusetts three-judge panel does not have the power to overrule another three-judge panel.”
“When the 9th Circuit hears it again, they could do so by a randomly selected 11-judge panel,” Specter commented.
In a memorandum the California secretary of state’s elections office says “There has been no court finding or ruling that a similar situation applies in California and the law has not been altered, either by statute or by court order, to allow any California residents who are in prison or on parole for conviction of a felony to register to vote,”
The inmates in Farrakhan asked for a Certificate of Appealability and for Solicitor General Elena Kagan to write a brief on whether the felon disenfranchisement claim is valid. Evenson said the solicitor general’s view often is very persuasive for the U.S. Supreme Court in deciding whether to consider an appeal.
“There is no deadline to submit this brief,” Evenson said. “The solicitor general could submit it earlier, but I doubt it will be on the Supreme Court’s docket until 2011.”
President Obama has since nominated Kagan for a seat on the U.S. Supreme Court.

A federal appeals court for the western United Sates has issued a stunning decision upholding the rights of incarcerated felons to vote in Washington State. The ruling by a three-judge-panel of Ninth Circuit Court of Appeals in the case of Farrakhan vs. Gregoire in Seattle held that the disenfranchisement law denying incarcerated felons the right to vote violates the 1965 Voting Rights Act by disenfranchising minority voters.
The court’s finding represents a dynamic shift in America’s federal courts of appeals from a case that was booted between district courts and the court of appeals for 14 years. Last January the Ninth Circuit firmly placed the actions of denying incarcerated felons their right to vote with practices that violate the constitution under the Federal Voting Rights Act, such as literacy tests and poll taxes. Laws that prevent felons from voting in other Ninth Circuit states such as Alaska, Arizona, California, Hawaii,
Idaho, Montana, Nevada, Northern Mariana Islands and Oregon are now included.
The case was first filed in 1996 by Muhammad Shabazz Farrakhan while he was serving a three year sentence at Washington State Prison in Walla Walla. : As the case evolved five other inmates, all members of a racial minority group, joined the suit as plaintiffs. Evidence presented in the case included key research by a University of Washington sociologist who found that African Americans are nine times more likely to be incarcerated than whites. The plaintiffs demonstrated to the panel that minorities in Washington are stopped, arrested and ultimately convicted in higher disproportionate numbers than whites, thus making the bar against incarcerated felons voting inherently discriminatory.
The defendants also presented evidence which showed that the ratio of arrests for violent crime among African Americans and whites is less than four-to-one. One result of that is that 25 percent of African American men in Washington are disenfranchised from voting. The results also found that African Americans are 70 percent more likely, along with, Latinos and Native Americans 50 percent more likely than whites to be searched in traffic stops.
The studies “speak to a durable, sustained indifference in treatment faced by minorities in Washington’s criminal justice system. These disparities cannot be explained by ‘factors independent of race.’” Wrote Judge A. Wallace Tashima in his decision
 
State Attorney General Rob McKenna has said his office will appeal the ruling back to a larger 9th Circuit panel or perhaps to the United States Supreme “If upheld by the Supreme Court this decision would apply to all felons currently in prison and on parole all across America.” McKenna disputes two items; the analytical legal reasoning of the court and the research. “This is a misapplication of the Voting Rights Act by the 9th Circuit.”
It is an unarguable foundation that the 9th Circuit held its ruling on which is members of some minority groups are continuously imprisoned more than white people, and that this disparity cannot all be explained under the fact that minorities commit more crimes. Although in Farrakhan the lower court had found “compelling” evidence of bias in Washington’s criminal justice system. (From Crosscut Daily E-Mail By Daniel Jack Chasan.)The judges concluded it was the highly unequal rates of incarceration that had in fact, stopped minorities from voting.
But in the end the 9th Circuit blazed a different course of legal thought the majority surmised if a racially biased system kept minorities from voting, there was no need to look further.

For more than 10 years the California Innocence Project has fought to free innocent men behind prison walls, and it’s had some notable success.
The project is housed at the campus of the California Western School of Law in San Diego, where the organization held a reception and gala was attended by three of its successes and Justin Brooks and Jan Stiglitz, co-directors of the program.
The three exonerees are Timothy Atkins, Adam Riojas and John Stoll, who served time at San Quentin.
Stoll was convicted of 17 counts of child molestation and sentenced to 40 years. He revealed that his 20 years of imprisonment spent for crimes he did not commit were both scary and painful.
“It’s a mixture of emotions,” Stoll said. “I had never been in trouble or ever been arrested for anything and then there I was in San Quentin State Prison.” Stoll, 66, was convicted in Kern County. He is one of eight men California’s innocence project has vindicated.
Thousands of letters are read yearly from inmates family members and friends.
With 12 law students, Brooks and the “DNA dozen” sift through mountains of paper work until they find a letter that falls within their standards. That standard is believing in an inmate’s innocence. Then they set about methodically proving “actual innocence.”
Riojas was imprisoned for 13 years for second-degree murder, a crime that carries 15 years to life. Riojas, too, was exonerated through DNA.
Atkins, another DNA exoneree stated, “Every day, it eats at your heart. You’re there and you know you didn’t do it.” He was convicted in Los Angeles County and served 20 years of a 32 years-to-life sentence for first-degree murder and armed robbery.
San Diego County District Attorney Bonnie Dumanis said, “They do an important job, and I respect them for the work they do. The maturing science of forensics often compels second looks.”
“Bonnie will sit down with us, but everyone else, they fight with us for everything,” stated Brooks.
Dumanis credits the Innocence Project’s team for its focused efforts. “We don’t always agree, but at least we sit down and take a look at cases and evaluate them. Prosecutors and police are not eager to reopen cases.”
She added, “We may have evidence that has been preserved, but wasn’t useful in the past because the science hadn’t been developed. But is useful now, and can help in those cases when someone has insisted they were innocent.”
District Attorney Steve Cooley of Los Angeles County said, “It’s very commendable. But let’s have a reality check. Creating new theories or doubt about a case, the evidence is tainted – somebody else did it, doesn’t mean that they are necessarily innocent. It means the evidence changed, and sometimes changes occur after the key witnesses are dead, or their criminal associates are now deceased.”
He denied prosecutors or police deliberately resist relooking at cases. However, Brooks and Jan Stiglitz, his co-director and a Cal Western professor, remain frustrated with what they view as an absence of following-through after exoneration.
“The DAs very rarely give public notice when the wrongly convicted are found to be innocent or look for the guilty person,” Stiglitz said. Only a scant number of cases pursued by the Innocence Project involved DNA “In some older cases, the biological evidence has been destroyed,” said Jeff Chin, the Innocence Project’s assistant director. “Our staff looks for other pieces of evidence.”

The three-judge panel has thrown down a bold ruling in the Plata/Coleman v. Schwarzenegger battle. The legal triumvirate consists of United States District Judges Lawrence Karlton, Thelton Henderson and Ninth Circuit Judge Stephen Reinhardt.
Their ruling mandates that the California Department of Corrections and Rehabilitation (CDCR) must comply with the minimal constitutional required standards for the mental and physical health care of every inmate housed in prison. The judges also ordered CDCR to lighten its load by reducing the body count by approximately 40,000, to a percentile capacity of 136.0 to 137.5 percent. Judges Henderson, Reinhardt, and Karlton ultimately found prison overcrowding to be CDCR’s primary cause for their severe and continuous medical violations.

EXPERT OPINIONS

Former San Quentin Warden Jeanne Woodford, who worked for S.Q. for 27 years and as acting Secretary of CDCR, was among the panel of experts who testified that she “absolutely believes that the primary cause [of medical problems] is overcrowding.” Woodford further stated, “I think it’s unbelievable that in this state we have the kind of overcrowded conditions that we have; that we do little or nothing to prepare people for the return to society.”
Joseph Lehman, who has 35 years of corrections experience with 15 combined years as head of corrections in Pennsylvania, Washington, and Maine said in his August 15, 2008 report that, “crowding” ‘is the primary cause’ of the inability to provide medical and mental health services. “It’s overwhelming the system both in terms of sheer numbers, in terms of the space available, in terms of providing health care.”
On January 23, 2008 the court appointed J. Kelso as the Plata/Coleman Receiver. Kelso reviewed inmate deaths to determine whether they were preventable. In 2007, of the 110 deaths not the result of homicide or self-inflicted injuries, 44 deaths (40 percent) were found to be preventable or potentially preventable.
Doctor Robert Shansky stated in his report that, “ CDCR’s medical care delivery system cannot provide a constitutional level of care because the prison system incarcerates more prisoners than can be adequately treated.”
Doctor Craig Haney followed in his report by saying, “This overwhelming overcrowding problem has incapacitated the system’s ability to deliver constitutionally adequate health care.”
Doctor Pablo Stewart, a licensed psychiatrist with over 22 years of experience in correctional psychiatry, testified on the nature of constitutional violations. He cited “inadequate suicide monitoring and prevention, inability to timely access appropriate levels of care, inability to access mental health care clinicians due to shortage, and inadequate medication management practices.”

CRITICAL MASS

Prison overcrowding pushes wardens to choose which emergency situation takes place over the others such as the recent riot in a Kentucky prison and at Chino’s Medium A prison yard here in California. Events such as these make health care less of a priority. Added to the fact that double and tripled bunk beds automatically produce less and less space.
This forces prison officials to go outside the norms and use empty spaces, hallways, and gymnasiums. Structures not designed to be used by humans as “living pens.” Such usage is not approved under California building and safety codes. These makeshift housing zones quickly become cramped, unsanitary and toxic and the continuous understaffing potentially makes these living quarters volatile for the inmate.
 
This modality of prison “un-health care” ultimately effects those housed there as well as prison staff. These correctional officers leave their shifts possibly carrying staph infections such as influenza, tuberculosis and viruses like “H1N1”, home to their own families and friends.

THE COURT’S DECISION

In making their ruling the judges weighed many different measures to stop the problem but found them lacking. They did not accept the defense’s theory that the population reduction order might have a negative effect on public safety.
Also, various plans endorsed by the Governor were looked at which would subtract numbers from the prison population without playing Russian roulette with public safety. Measures studied included sentencing reform, good behavior credits, an increase in prison rehabilitation programs, and diversion of low risk offenders and technical parole violators.
 
Continuing on in this vein, the defendants argued that; resources in the community would not be able to handle the influx of released prisoners.
The court rejected this argument. The panel calculated this based on expert opinions, that releasing inmates would not have a major effect on the population of local jail facilities.
In addition, the judges said that supervision of parolees would not be affected because many of the ordeals related to parole arise from improper channeling of funds. This was pointed out especially concerning low-risk parolees and technical violations.
 
Judges Henderson, Reinhardt and Karlton also rejected the idea that resources for rehabilitation and reentry would be taxed by prison population reduction. The tribunal reasoned that a financial windfall of savings from reducing prison overcrowding could be used in a positive manner.
They suggested creating more needed programs geared toward public safety, such as more rehabilitation and reentry programs. The panel found no evidence connecting early releases with a rise in crime statistics. Evidence put forth to the court by experts noted that several other states have adopted “prison overcrowding reduction measures without harming public safety.”
The judges also denied the defendants’ request to exclude mentally-ill inmates from the release order. However they did agree that some could do better being cared for and treated inside prison. They found that most health care treatments would cost less and produce more effective results outside of prison.
After the decision was rendered the California Department of Corrections and Rehabilitation stated its intent to appeal to the United States Supreme Court. The battle could take months and even years to resolve.
In reviewing the court’s decision, as a team each justice used a plethora of evidenced based expert information. And wielded focused judicial precision by sticking to and supporting every legal standard of the Prison Litigation Reform Act. Although, the most intensive opposition was the timing of events around the ruling.
The Federal court decision came days after Governor Schwarzenegger unveiled his own reduction strategy involving 23, 000 inmates.
But the court used the defendants’ own experts and plans to pump up their decision. The court decreed that prison overcrowding has become a catastrophic sickness with only one undeniable remedy, reduction of the population.
It is apparent; the inmate explosion is a financial negative in every section of CDCR. It has been most harshly felt by California’s prisoners, who have for 14 years received unconstitutional physical and mental health care.