San Quentin News

Written By Incarcerated - Advancing Social Justice

Realignment may have created more dangerous county jails

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Since the U.S. Supreme Court ordered California to overhaul its overcrowded prisons in 2011 and realignment reforms were implemented, inmate-on-inmate homicides have risen 46 percent in county jails statewide.

Killings have tripled and even quadrupled in several counties, according to a report by Jason Pohl and Ryan Gabrielson of the Sacramento Bee. Pohl and Gabrielson speculate that realignment has changed conditions in county jails to mirror conditions in once- overcrowded prisons.

Autopsy reports show victims have been stabbed, bludgeoned or strangled with jail staff finding bodies hours after the attacks.

The state’s largest county jail population, Los Angeles County, has been the exception to the rise of jail homicides. A federal court order placed the nation’s largest jail system under an outside monitor in 2014 overhauling operations after officers were caught allowing fights among in- mates and other abuses. Los Angeles County has not had a homicide in more than three years. However, for the rest of California jails, inmate homicides soared by 150 percent, from 12 killings seven years prior to realignment to at least 30 in the seven years after realignment.

Seven years prior to realignment, Riverside County had only one jail inmate killed; five prisoners have been killed since. In the same period, San Diego County went from two to five homicides.

The diversion of people from overcrowded state prisons has changed jail populations to a mixture of people accused of crimes and those convicted of felonies. Three-quarters of those killed in jails since 2011 were awaiting trial, according to Pohl and Gabrielson.

“You have the importation of prison politics into the county jail in concert with people being there longer and having to handle their problems there,” said Jonathan Caudill, professor of criminology at the University of Colorado, who has studied realignment in California. “It’s like fire and gasoline.”

Julio Negrete was booked into Riverside County jail on drug charges in 2013. The next day officers went to escort Negrete to a bond meeting but couldn’t find him. They searched the cell from top to bottom, found some bloody socks, then found his strangled body under the lower bunk. Video footage showed he had been attacked 10 hours earlier. Jail officials said in a written statement that the sheriff’s department is “always troubled” by inmate violence and investigates every assault in its jails.

Former San Francisco County Sheriff Ross Mirkarimi who now re- views inmate deaths in county jails said that the system has fundamental blind spots. “Those who are hell-bent on committing murder know how to defeat those blind spots.”

Attorney Michael Bien represents inmates in lawsuits against California prisons and several county jails cited boredom and frustration alone.

Cell phones being monitored in jails and free world alike

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The government spies on incarcerated citizens who use illegal cellphones in correctional facilities. Those aren’t the only people government officials spy on. They are also listening to and tracking free citizens, according to Criminal Legal News (CLN).
The technology used is called a cell-site simulator, also called a “stingray.” This device directs a cellphone to connect to it instead of a cell tower.

“Police operating the devices can track the location of all connected cellphones within a certain radius, and also can potentially intercept metadata about calls,”CLN reported. This includes call duration, the number that was called, text messages, information on data usage such as browser information, and the content of calls. “All of this takes place unbeknownst to users whose cellphones have been hijacked.”
According to CLN, as of 2016, there were 23 states and the District of Columbia with law enforcement agencies that were using cell-site simulators. It also stated that the Cato Institute reported federal agencies using stingray technology, including the FBI, ATF, ICE, DEA, U.S. Marshals Service, NSA, DHS and the IRS.
“Concerns over their use have been met with silence from police and prosecutors,”CLN reported. “In some cases, prosecutors have gone so far as to dismiss criminal charges to avoid disclosing any information about stingray use.”
It was reported that the FBI is the agency that coordinates the sale and use of stingray technology; one of the requirements for local law enforcement to use the technology is to accept a comprehensive nondisclosure agreement (NDA).
“The (NDA) requires police and prosecutors to refuse to hand over information about stingray technology or usage to defense attorneys and judges alike,”CLN reported, adding that the device can “hijack a cellphone and force it to report in to the government, all while it sits quietly in an unsuspecting user’s pocket.”
According to CLN, law enforcement agencies will sometimes deny the existence of an NDA.
The Fourth Amendment to the U.S. Constitution guarantees people the right to “be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.”
“Cell-site simulators are an example of how new technology can be leveraged to skirt constitutional limitations on the power of the police,”CLN said, adding there are a lot of law enforcement agencies that do not have a policy on officers use of this technology.
CLN reported, however, that Harvard Law School published in its July 2016 issue of National Security Journal that law enforcement in the U.S. has for a long time used stingrays to run roughshod over the Fourth Amendment.
“This is because law enforcement agencies and device manufactures have gone to great lengths to keep information about stingray capabilities, and use, secret,”CLN reported.
According to CLN, a 2016 report by The Daily Dot revealed cell-site simulators were developed more than 20 years ago by the Harris Corporation, the Pentagon and federal intelligence agencies. It was used for military technology.
The website USASpending.gov, according to CLN, reported Harris Corporation receiving $3.6 million in federal funding; in 2017, it had more than 2,000 federal contracts.
The American Civil Liberties Union, according to CLN, has created a list of about 300 cases that it believes used stingray technology.
“The real concern is that local law enforcement agencies are using these devices to investigate all kinds of crimes, often without going through the traditional procedures required prior to a search, namely seeking a warrant,” CLN said.
The CLN article said, “Police technology will continue to become more expansive and powerful, and the longer it takes legislatures and courts to produce a legal framework capable of keeping up with technology and ensuring that constitutional rights are protected, the more threatening the surveillance state will become.”
In a 2014 U.S. Supreme Court case, Riley v. California, Justice Samuel Alito wrote, “Legislatures, elected by the people, are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future.”

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Supreme Court grants new trial based attorney’s assertion of client’s guilt

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The U.S. Supreme Court has ordered a new trial, despite evidence of the man’s guilt, in a case where the defendant testified he is innocent while his lawyer argued he is guilty.

Robert McCoy was charged with three counts of murder in Louisiana. The three victims were his estranged wife’s family members. Lewinston police apprehended McCoy in Idaho a few days later.

McCoy pleaded not guilty and maintained his innocence. Throughout the court proceedings, McCoy said he was out-of-town when the homicides happened and corrupt police committed the murders in a drug deal gone bad.

Attorney Larry English took over the case from another attorney who McCoy reported having difficulties with. After reviewing the case, English felt the evidence against McCoy was overwhelming and the best strategy to avoid the death penalty involved conceding guilt.

McCoy objected to English conceding his guilt and tried to terminate his lawyer. English tried to get himself released from the case as well. The trial judge refused and set trial to start two days later.

At trial, English told the jury, “Robert McCoy committed these crimes,” but he also asked for mercy in light of McCoy’s “serious mental and emotional issues.” The jury voted for death penalty on all three counts.

McCoy moved for a new trial, alleging that defense counsel’s concession of guilt violated his Sixth Amendment right to the effective assistance of counsel.

Louisiana’s lower courts found the concession proper because the defense counsel had a reasonable strategy to avoid the death penalty in light of the evidence.

On May 14, six Supreme Court justices decided that it is a structural error (an automatic reversal without showing prejudice) when a defendant insistently maintains his innocence to counsel and the court and his lawyer concedes his guilt to the jury anyway. (See McCoy v. Louisiana, 200 L.Ed. 2d 821.)

The high court recognized that under the Sixth Amendment’s constitutional right to counsel, the defendant has a right “to decide that the objective of the defense is to assert innocence,” Justice J. Ginsberg wrote.

“Because the error was structural, a new trial is the required corrective”

The defense attorney may make many strategic decisions, the high court noted. But the right to assert innocence, testify on one’s own behalf and forgo an appeal are decisions reserved for the client alone.

“The state typically spends $71,000 a year to house an inmate. It costs about $5,000 total to help put one [incarcerated] student through community college”, reports Fast Company. 

“These are not strategic choices … they are choices about what the client’s objectives in fact are,” Ginsberg wrote. “The trial court’s allowance of English’s admission of McCoy’s guilt despite McCoy insistent objections was incompatible with the Sixth Amendment.”

This case differs from a previous 2004 ruling in Florida v. Nixon (543 U.S. 175). In that case, trial counsel informed the defendant of the strategy to concede guilt and the defendant was non-responsive. The Supreme Court ultimately ruled that trial counsel didn’t need to obtain the defendant’s express consent to pursue a reasonable trial strategy based on conceding guilt.

McCoy’s case was remanded back to the Louisiana state courts for a new trial.

Justice Alito dissented. He was joined by Justices C. Thomas and J. J. Gorsuch.

“Because the error was structural, a new trial is the required corrective,” wrote Justice J. Ginsburg, who delivered the opinion of the court.

Normally, when an ineffective assistance of counsel claim is alleged, the person making the claim must prove both that the lawyer failed to provide effective assistance and that, if not for the error, the defendant is likely to have won trial. (Strickland v. Washington, 466 U.S. 668, 692  1984).

USSC rules bail hearings undocumented immigrants

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Plea bargain challenges are not barred to defendant

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The U.S. Supreme Court has ruled that plea bargains do not prohibit defendants from challenging the constitutionality of their convictions.

The decision held that even though a guilty plea waives a defendant’s right to appeal their case or challenge the sentence, it does not waive their right to question the state’s right to charge them in the first place.

Criminal Legal News reported the case as Class v. United States (2018).

“There are over 4,800 legal restrictions facing people with convictions  after sentence completion…73% of these legal barriers are permanent.” “SAFE AND SOUND: …” by Californians For Safety and Justice Nov. 2017 

The case involved Rodney Class, who had pleaded guilty to illegal possession of a firearm. He appealed his conviction, but was rejected by the U.S. Court of Appeals for the District of Columbia Circuit because of his plea, the report said. He claimed his conviction was unconstitutional because it violated the 2nd Amendment.

His appeal was upheld 6-3 by the U.S. Supreme Court.

“64% of California’s jail population is awaiting trial or sentencing as of December 2016.” Most remain in pretrial custody because they cannot afford bail.  Jail Profile Survey, http://www.bscc.ca.gov/

The relevant question before the court was “[d]oes a guilty plea bar a criminal defendant from later appealing his conviction on grounds that the statute of his conviction violates the Constitution?” wrote Justice Stephen Breyer, for the court.

The court analysis was based on 50 years of prior cases relating to plea bargains and recognized that not all guilty plea challenges are within its jurisdiction. But, the justices agreed, in some instances they are.

“In 1935 the Supreme Court declared that a prosecutors job is more than merely winning every case by racking up convictions; it also included seeing that justice is done.” “Pressing Pause on Marijuana Convictions” NYT Opinion July 30, 2018

The court explained that class action claims did not focus on “case-related constitutional defects that occurred prior to the entry of the guilty plea. They could not, for example, have been ‘cured’ through a new indictment by a properly selected grand jury.”

Their decision rested on the fact that class was not challenging the fact that he did the deed, but instead disputing the right of the government to “constitutionally prosecute” him for it.

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USSC rules bail hearings undocumented immigrants

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U.S. Supreme Court

The U.S. Supreme Court in early March ruled 5 to 3 in the case of Jennings v. Rodriguez that the Immigration and Nationality Act does not permit regular bail hearings for undocumented immigrants detained by U.S. immigration officials, according to The Atlantic.

The five justices of the majority ruled that the Immigration and Nationality Act statute does not permit bail hearings for immigration prisoners and accordingly authorized officials to hold detainees for weeks, months and even years.

In 1994 the Immigration and Naturalization Service, on any given day, held about 5,500 immigrants in detention facilities. In 2017, Immigration and Customs Enforcement (ICE) projected a 2018 detention population of 51,379, which would make its Enforcement and Removal Operations (ERO) division almost the seventh-largest prison system in the country.

“…immigration offenses now account for about half of all federal prosecutions.”  THE NEW YORK TIMES Dec 22, 2017

The ERO has quietly expanded into a loosely supervised and secretive system that has held detainees for multiple years without due process, according to the article.

In fact, as of the latest data, in 2016, only about 10 percent of detainees were held in federal facilities; roughly 25 percent were housed in state, county and city facilities, and 65 percent were held in private for-profit prisons.

Critics contend that the local and private detention facilities, which are governed by agreement with ICE officials, are rife with poor physical conditions, inadequate medical care and physical and sexual abuse of the inmates, according to The Atlantic.

This exploding population of prisoners is fueled by an influx of arrests. Most people have not been charged with or are awaiting trial for any crime. Many have done nothing wrong, except request admission to the United States under our law when Customs and Border Protection Officers believe they are not entitled to do so.

ICE reported “24,476 of the 185,507 inmates in the federal Bureau of Prisons system were not citizens…” THE NEW YORK TIMES Dec. 22, 2017

Throughout much of the nation’s history, immigration law and policy were focused on helping new immigrant populations assimilate to American life and gain citizenship instead of arresting, prosecuting or expelling new arrivals, said Hiroshi Motomura, a professor at the University of California at Los Angeles.

This old policy has changed into an internal-espionage and police-control apparatus aimed at controlling “illegal immigrants.”

In his dissenting opinion, Justice Stephen Breyer wrote, “I would find it alarming to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail. I would read the statutory words as consistent with, indeed as requiring protection of, the basic right to seek bail.”

The Supreme Court refused to consider the constitutional issues at play in the case, sending it back to the Ninth Circuit, where it originated.

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California’s next governor faces executions

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Electric chair

California’s next governor could be forced to make a life-or-death decision that the state’s top executive hasn’t faced in over a decade; whether to spare an inmate facing execution.

There are nearly 750 people on death row at San Quentin State Prison, more than any other state, and decisions made by the next governor will help set the pace of executions going forward. Five of the top six top candidates oppose the death penalty. But few say they’d use the office’s commutation power to broadly move inmates from death row to life in prison.

“Unless Jerry Brown steps in or one of these candidates for governor steps in, I think there’s going to be executions in California,” said Erwin Chemerinsky, the dean of  UC Berkeley Law School. “It seems like it’s a matter of time.”

California hasn’t executed an inmate since  Clarence Ray Allen on Jan. 17, 2006. And more than half of the inmates on California death row have waited more than 20 years since their convictions, according to state data. In 2016, Golden State voters narrowly approved a ballot initiative  to speed up the death penalty, Proposition 66, and several legal barriers to execution have fallen since then.

It’s too soon to say for sure when – or whether – executions will restart. Prop 66 was upheld by the state Supreme Court last year, and the state correction department put forward a new single–drug execution procedure in January. In March, a state judge in Marin County lifted one of several injunctions against carrying out executions.

More than a third of millennial say that if a man compliments a woman’s looks it is harassment, according to a recent survey by The Economist/YouGov reports The New York Times 1-17-18.

Still, other legal barriers remain, including a long standing federal court case in San Francisco questioning the legality of lethal injections. The judge handling the case, Richard Seeborg, has issued stays on the execution of roughly 20 California death row inmates who have exhausted the appeals. Any decision to lift those stays could be further appealed, although  U.S. Supreme Court precedent makes it difficult to challenge lethal injection procedures.

Commutations

A California governor hasn’t commuted the sentence of a death row inmate since Ronald Reagan spared convicted murderer Calvin Thomas in 1967. But several anti-death penalty  governors around the country, including Martin O’Malley in Maryland and Pat Quinn in Illinois, have issued blanket commutations removing inmates from death row in recent years.

With 343 homicides in 2017, Baltimore “had the highest murder rate in its history, and by far the highest among the nation’s 30 largest cities,” according to The New York Times 1-17-18

Lt. Gov. Gavin Newsom, the frontrunner in the race, said he wasn’t planning to follow in their footsteps. Instead, he wants to put the issue of the death penalty “back on the ballot” even though California’s have rejected a repeal measure twice in the last six years.

Newsom thinks he could change that by running a stronger anti-capital punishment campaign.

“We need to have a more sustainable conversation with the public, and I would like to lead that,” he said. “We haven’t had a governor, with respect, that’s led this conversation. There’s been a  lot of  timidity on the death penalty.”

Antonio Villaraigosa, the former mayor of Los Angeles, said he would be willing to commute the death sentences of individual inmates “where the record shows that that would be appropriate.” However, “the next governor’s going to have to enforce the law, and the death penalty’s the law of the land,” Villaraigosa stressed.

Pro-death penalty 

State Treasurer John Chiang, a Democrat, and San Diego County businessman, John Cox, a Republican, have both cited their Catholic faith for their opposition to capital punishment. But both said they would respect the pro-death penalty decision in the last ballot initiative.

“I am personally opposed to the death penalty and voted for Proposition 62, but as governor, I would enforce the will of the voters,” Chiang said.

Intimate partner violence accounts for 15 percent of all violent crime. One in three women and one in four men in the United States has experienced some form of physical violence by an intimate partner. Husbands are five times more likely to kill wives than vice versa. A third of female homicide victims are killed by an intimate male partner or ex-partner, according to FBI reports. http://www.bjs.gov/content/pub/pdf/ndv0312.pdf

Former state schools chief  Delaine Eastin, who has trailed in the polls, sounded the most willing to make use of commutation. If elected, she said she would want to use the governor’s clemency power to commute the death sentence of inmates “who’ve shown some sense of remorse or some sense of contribution to society.”

“I actually think some of them would be better served if they had to live with the consequences of what they did, rather than spending a fortune to put them to death,” she said.

The only candidate who personally supports the death penalty is Assemblyman Travis Allen, an Orange County Republican who vowed in an interview to “clean out this death row in  California.”

“Why should California allow these people the luxury of life when they have taken it so cruelly from so many others?” he asked.

“Every single day that these people are alive is another insult to the families of their victims.”

Many hurdles

Unlike most states, the executive clemency power is limited in California – the state constitution says governors can’t commute the sentence of an inmate who has two felony convictions  unless four of the seven State Supreme Court justice concur. About half of California death inmates have two or more felonies on the record, experts estimate.

But  the high court justices issued an order in March suggesting that they would give governors more latitude on the issue and only intervene if they believed a use a clemency would “represent an abuse of that power.” That’s a switch from past courts, which have rejected clemency grants based on justices’ determinations about the merits of individual cases.

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