Category: News Scan

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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NY Cops At War With de Blasio:  Following the enactment of several measures keeping criminals on the streets and last weekend’s shooting of two New York police officers by a repeat violent offender,  one police union has declared war on the city’s Mayor.  Greg Norman of Fox News reports that a fiery tweet from the head of the Sergeant’s Benevolent Association declared “NYPD cops have been assassinated because of you.”   The most recent shootings targeted police in a patrol vehicle, injuring one officer, then the same suspect walked into the precinct and began firing, injuring a lieutenant, only to surrender when he ran out of bullets.  The suspect, habitual felon Robert Williams, was free on parole after a 2002 attempted murder conviction, and had been rearrested in 2018 for fighting with police, and was released from custody pending trial.

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A largely unnoticed bill introduced last December in the House of Representatives (H.R.5383) called the “New Way Forward Act” would repeal federal laws which punish illegal immigration and protect illegal alien criminals from deportation.  Katy Grimes of the California Globe reports that the bill, which is sponsored by 44 House Democrats including Alexandria Ocasio-Cortez of New York, Ilhan Omar of Minnesota and Karen Bass of California, “rolls back harmful immigration laws that, for decades, have led to racial profiling and disproportionately resulted in incarceration….” according to proponents.  As Rep. Jesus Garcia of Illinois noted the bill would break the “prison to deportation pipeline.”  While this measure has no chance of passage, some might be concerned that 10% of the members of the House of Representatives would like to see this bill become law.  With the exception of Fox News, no national news organization has bothered to report on this measure.

Killer of Five Faces Execution Thursday:   A Texas man convicted of the 2002 murders of his wife,  his 7-year-old and 9-month-old daughters, his sister in law and father in law, is scheduled for execution by lethal injection Thursday.  Brian Bingamon of the Austin Chronicle reports that the U.S. Supreme Court rejected Abel Ochoa’s last appeal in October of 2019.  Unless a lower court orders a stay or the state grants clemency, his execution will be carried out.  At trial Ochoa claimed that he was suffering from a crack-cocaine induced delirium when he committed the murders, which included his reloading his gun, chasing down his 7-year-old daughter and shooting her four times.  The jury took 10 minutes to unanimously find him guilty.  On direct appeal and habeas corpus Ochoa claimed that his trial attorney was incompetent, the jury was biased, and that his alleged sexual abuse as a child and possible mental illness mitigated his responsibility for the murders.

Update:  Ochoa was pronounced dead at 6:48 p.m Thursday.