Author: Michael Rushford

The U.S. Supreme Court has agreed to hear a habitual felon’s challenge to the sentence he received under Armed Career Criminal Act.  Alexandra Jones & Tim Ryan of Courthouse News report that in Borden v. United States, a criminal with three prior convictions for aggravated assault, claims that the nine-year sentence he received as a felon in possession of a firearm under the Act violated his right to due process.  The Act defines crimes involving a “reckless trigger” as crimes of violence subject to sentence enhancements.  Borden argues that a divide among the federal circuits on Act’s enforcement required a Supreme Court review of his constitutional challenge.   The case will be argued this fall.

The  early warnings about New York’s lenient bail reform law, which took effect in January, have come true according to a Fox News story published today.   The New York Police Department reported a 22.5% increase in major crime in February, compared to last year.  While murder was down, robbery, assault, burglary, grand larceny and auto thefts were all up. The Department noted that in the first 58 days of the year, 482 offenders arrested for felonies were set free under the new law and then rearrested for committing 846 new crimes, 299 of which were major crimes.  According to police, all of these offenders could have been held in jail prior to bail reform.

Nathaniel Woods, convicted in 2005 of the murders of three Birmingham police officers, is scheduled to be executed by lethal injection tonight.  Bill Hutchinson of ABC news reports that death penalty opponents and some civil rights activists are demanding that Governor Kay Ivey grant Woods a reprieve.   A jury found that Woods and accomplice Kerry Spencer lured four officers serving an arrest warrant into a suspected crack house in Burmingham on June 17, 2004 where Spencer shot them all with a rifle, killing three.  The forth officer survived to testify at Woods’ trial.  On appeal Woods claimed that his trial attorney was ineffective and misinformed him about a possible plea bargain.  A 2016 Alabama Court of Criminal Appeals decision indicates that witnesses heard Woods threaten to kill the police if they came back to his house, and the he pointed out one of the officers coming in a back door so  Spencer could shoot him.  Among the celebrities calling Woods innocent and insisting his execution be halted is Kim Kardashian West.   Update:  Woods was pronounced dead at  9:01 PM Thursday.

Almost 40 years ago, one-term President Jimmy Carter completely changed the balance on the Ninth Circuit Court of Appeals, the largest and most litigious circuit in the country.   In 1978, after the Democrat majority in Congress expanded the 19-member court to 29, President Carter had the unprecedented opportunity to fill those 10 seats and replace another 5 judges who retired.  Carter did not just appoint liberal judges.  He appointed some of the most liberal judges ever to serve.   These new appointments sharply tilted the once-conservative court to the left, creating a Valhalla for criminal defendants and litigants seeking to advance progressive social causes through the courts.   Maura Dolan of the Los Angeles Times reports, that for the first time since 1981,  10 new appointments to the court by President Trump has significantly reduced the divide between Republican and Democrat judges.   “Ten new people at once sends a shock wave through the system,” one unnamed 9th Circuit judge said.

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A leading argument behind the current movement to limit or eliminate bail is that the traditional cash bail process discriminates against minority arrestees.  Tom Simonite of Wired reports that to fix this disparity,  many jurisdictions are utilizing computer software to peruse nine factors about an arrestee including age,  past convictions and current charges.  No data on an arrestee’s race are considered.   The Oakland, CA nonprofit  MediaJustice found that these algorithms are used in 46 states to guide judicial decisions on bail, sentencing, parole and probation.  Law enforcement representatives have been skeptical, noting that using software to decide which arrestees are held in jail or set free removes responsibility from those charged with making those decisions, who should be encouraged to err on the side of caution.  The software doesn’t consider public safety.

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Beginning in 2011, shortly after Jerry Brown began his third term as Governor, a series of bills he signed into law, and several ballot measures financed by progressive criminal justice reform advocates have changed California’s criminal justice system.  Since the late 1980s, state laws and policies, many adopted by the voters as ballot measures, reduced violent and property crime crime rates in California by 50% and homicide by more than two-thirds, by increasing sentences for repeat offenders and cracking down on quality of life crimes like drug use, vagrancy, vandalism and theft.  All of this has changed over the past nine years. Today, selling and using drugs, stealing property valued under $950, sleeping and going to the bathroom on city sidewalks and parks are no longer punishable offenses.  Repeatedly stealing cars, burglarizing businesses and beating your wife, girlfriend or children are no longer crimes that come with a prison sentence and some 30,000 criminals who were serving time for these crimes have been released back onto the streets, along with rapists and murderers that new laws have made eligible for early release.

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Nicholas Todd Sutton who, at age 18, killed his grandmother, a high school friend and a Knoxville contractor in 1979, then killed a fellow prison inmate in 1985, was executed in the electric chair at 7:28 p.m. last night.  The Tennessean reports  that Sutton, who found religion while his appeals dragged through the courts, told observers, “I’m just grateful to be a servant of God.”   Jack Durschlag of Fox News reports that Sutton’s killing spree began in 1979 when he knocked his grandmother Dorothy Sutton unconscious with a piece of firewood, wrapping her in garbage bags and chaining her to cinder blocks before throwing her alive into the Nolichucky River.  He later shot and killed Charles Almon, 46, and beat his friend Charles Large, 19, to death.

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A panel of the Eleventh Circuit Court of Appeals has upheld a District Court’s preliminary injunction to block enforcement of a Florida law that requires 17 ex-felons to fulfill the financial obligations of their sentences before they are allowed to vote.  The law was passed by the Florida Legislature last year to clarify a 2018 initiative constitutional amendment adopted by voters which gives felons the right to vote after they have competed “all the terms of their sentence including parole and probation.”  The legislative measure specified that fines and restitution are also among the terms of the sentence.  On January 16, the Florida Supreme Court issued an advisory opinion finding that fines and restitution are part of a criminal’s sentence, but did not address any federal constitutional issues.  In its Per Curiam opinion issued today the Circuit panel upheld the District Court injunction in a case where a group of 17 ex-felons have sued claiming that denying them the vote because they cannot afford to pay the fines and restitution required by their sentences, violates the 14th Amendment.  The panel determined that the plaintiffs had a “substantial likelihood of success on the merits” of this claim.  The injunction only allows the 17 ex-felons involved in the lawsuit to vote.  The state’s estimated 1.4 million felons who have not yet paid off their fines and restitution will be restricted from voting until the lawsuit is resolved.  The state intends to petition the Eleventh Circuit seeking en-banc review of the panel’s ruling.

Articles in the New York Times and the New York Daily News provide more evidence that criminal justice reform has become a top issue, especially in Democrat controlled communities.  The shift in majorities in the Virginia Legislature has sparked bills to allow the early release of murderers over 50-years-old and expand parole opportunities for criminals convicted of violent crimes.  The state had eliminated parole for most offenders in the 1990s to keep serious offenders off the streets but as Democrat Senator David Marsden notes, “People are now more likely to believe that people deserve a second chance.”

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Part of a 2016 California ballot measure adopted by the voters to speed the death penalty process is now being enforced, but it won’t result in any executions.  Louis Casiano of Fox News reports that the provision of Proposition 66 that allows the state to house condemned inmates in other prisons rather than keeping them on Death Row at San Quentin, will be implemented this year.  Inmates on Death Row must request a transfer and be evaluated to determine if they can be moved to another prison.  One of the initiative’s authors, CJLF Legal Director Kent Scheidegger, told reporters “One of the arguments made against the death penalty was it cost too much to house them at San Quentin, which is an antique facility.”

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