The Constitution does not permit a warrantless police search of a vehicle parked in a driveway next to the owner’s house, the Supreme Court ruled Monday. The court rejected an argument by Virginia police who claimed their search of a motorcycle believed to be stolen fell under the “automobile exception” to the Fourth Amendment, which allows broader searches of vehicles stopped along the side of the road.  The justices ruled that the officers violated the Fourth Amendment when they went to the motorcyclist’s home and found the distinctive orange-and-black Suzuki motorcycle that they’d been looking for under a tarp in the driveway.

The Fourth Amendment normally requires police to have a warrant to conduct a search. But one exception to that general rule, known as the “automobile exception,” was at the heart of this case: It allows police to search a car without a warrant if the car is “readily mobile” and they have probable cause to believe that it contains evidence of a crime. But the Supreme Court in Collins v. Virginia that the exception does not justify an intrusion on the “curtilage” of a home – the area immediately surrounding the house, where residents expect privacy.

For criminal defendant’s not rich enough to afford bail, Milwaukee County judges allow, without any individualized determination that there is a “compelling need” for shackling, the pretrial shackling of defendants in violation of their presumption of innocence.  I have previously challenged this practice in Milwaukee County but the decision of United States v. Sanchez-Gomez, 859 F.3d 649 (9th Cir. 2017) suggests review of this practice is appropriate.

BLOG BULLETS:

• An Arizona district court attempt to avoid complying with the Ninth Circuit holding that defendants can’t be shackled even in non-jury court proceedings has been rebuffed, at least for the time being, in an emergency appeal by the Arizona Federal Public Defender.
• Watch for ways courts may try to weasel out of the Ninth Circuit holding; examples include equating “flight risk” justifying denial of bail with a security concern justifying shackling and one court’s claim it can require defendants to file a written request prior to hearings.
• And don’t waive the right to be unshackled just for some benefit like being at the front of the calendar; we have to stand unified on this.

 
NOW THE BLOG:
Congrats are in order to our colleagues at the Federal Public Defender in Arizona, and a “Shame on you” to the judges in that district.  You’ll recall (I hope) my joyful post several weeks back about the Ninth Circuit’s en banc opinion in United States v. Sanchez-Gomez, 859 F.3d 649 (9th Cir. 2017) (en banc), holding that criminal defendants can’t be routinely shackled in non-jury court proceedings any more than they can be routinely shackled in jury court proceedings.  (See “If You Haven’t Already, You Can Sure Throw Off Those Chains Now,” June 2017 (attached below)  As discussed in that post, the Ninth Circuit held that defendants can be shackled in non-jury proceedings only if (1) the court makes an individualized decision that a compelling government purpose would be served and (2) shackling is the least restrictive means for maintaining security and order in the courtroom.

Some district judges and magistrates (perhaps driven by their marshals who want to cry “security” every chance they get and prioritize the most de minimus interest in security at the expense of every other interest) apparently don’t want to accept the Ninth Circuit’s ruling.  While I’m not sure they’re completely alone, the district judges in Arizona have apparently gone the furthest in this respect – at least as a bloc – apparently claiming they don’t have to follow Sanchez-Gomez until the Ninth Circuit issues its mandate, which is currently stayed.  This is in clear contravention of well-established Ninth Circuit law, which makes it crystal clear an opinion is binding precedent as soon as it’s issued, regardless of whether the mandate (which, by rule, is automatically held in every case for 21 days absent exceptional circumstances) has issued.  See, e.g., United States v. Gomez-Lopez, 62 F.3d 304, 306 (9th Cir. 1995); Chambers v. United States, 22 F.3d 939, 942 n.3 (9th Cir. 1994), vacated on other grounds, 47 F.3d 1015 (9th Cir. 1995); Wedbush, Noble, Cooke, Inc. v. SEC, 714 F.2d 923, 924 (9th Cir. 1983).

Fortunately, neither our colleagues at the Federal Public Defender in Arizona nor a Ninth Circuit motions panel have put up with this.  The Federal Public Defender filed a petition for writ of mandamus to force compliance with Sanchez-Gomez, accompanied by a motion for emergency injunction ordering its district court judges to comply with Sanchez-Gomez, and a Ninth Circuit motions panel granted the injunction and ordered a response to the petition.  For your reading enjoyment, the order and the petition and motion setting out the facts and the legal arguments are attached here, here, and here.

In the meantime, watch for other ways judges, marshals, and/or the government may try to weasel out of Sanchez-Gomez.  One example I’ve heard of is an argument that anyone who is subject to detention on flight risk grounds (or perhaps danger to the community grounds as well?) is also subject to shackling, apparently on some theory that flight risk means the defendant might try to flee the courtroom or otherwise be disruptive.  This almost fails the laugh test, since someone being a flight risk because he or she may not show up for a court appearance after being released is a far cry from someone running out of the courtroom during a court appearance in the presence of the judge, the attorneys, and multiple deputy marshals.  In a case where a statutory presumption of detention applies, it also flips the burden, because Sanchez-Gomez places the burden on the government and court to find a “compelling” need for shackling.


I’ve also heard of a judge who previously had a policy that required defendants to file a written request to be unshackled prior to court appearances possibly taking the position he could continue with that policy after Sanchez-Gomez.  That’s another improper flipping of the burden since Sanchez-Gomez clearly creates a presumption of no shackling and places the burden on the court and government to show a compelling need for shackling.  If anyone should be required to file a written request prior to a hearing, it should be the government and/or marshal.

Then there’s the issue of subtle pressures – or not so subtle pressures – to waive the right to be unshackled, like the Central District of California form I discussed in the post several weeks ago.  In a way, that’s like trying to turn us and/or our clients against each other.  If no one waives, there won’t be any non-waivers to be pushed back to the end of the calendar.  But if we start being tempted by an offer of being allowed to go first if we waive the right to be unshackled, it’s a slippery slope, just like using scabs to break a strike.  This is a place where a unified stand is important.

The bottom line is that the way they’ve been treating our clients for the past 15 or more years – and the way they’re trying to keep treating them – is demeaning to the clients, demeaning to us, and in a very real way demeaning to the judges and the courts.  And it’s completely unnecessary in light of how extremely rare defendant disruption in court has been – both before and after shackling.  There isn’t now – and never was – any empirical showing of a problem in need of the shackling solution.  It is – and always was – a solution in search of a problem.

REPRINTED FROM: July 25, 2017 By Carl GunnHanging Out with Carl Gunn
 
If You Haven’t Already, You Can Sure Throw Off Those Chains Now.
June 20, 2017
BLOG BULLETS:

• The Ninth Circuit sitting en banc recently affirmed a prior panel holding that routine shackling of defendants for non-jury court proceedings is impermissible; there is a presumption defendants should not be shackled, and shackling is permissible only based on an individualized determination that there is a “compelling need” for shackling.
• The en banc opinion has some wonderful language about treating defendants with dignity and giving our courtrooms at least an appearance of justice.
• In our Central District of California, the government has drafted a waiver and is attempting to pressure defendants to give up their right not to be shackled, and we should resist any cooperation with that shameful effort.

 
NOW THE BLOG:
In a post a couple of years ago, I wrote about a Ninth Circuit panel opinion invalidating a San Diego policy – similar to ones I understand existed in most districts – providing for routine shackling of most defendants for most non-jury district court appearances.  This outrageous practice got started – or at least accelerated – soon after the 9/11 attacks when our institutions and authorities started kowtowing to “homeland” – and every other kind – of security concern almost every time it got raised.  One example that affected us was a position United States Marshals started taking that they need to shackle defendants to protect others in our courtrooms, despite the almost complete lack of any empirical experience that courtroom violence or disruption was anything other than extremely rare.  We’d litigated this 10 years ago in our Central District and initially won, but then lost.  Recently, in San Diego, the Federal Defenders office there relitigated it and won in a case decided by another Ninth Circuit panel – which actually had one of the same judges as in the first case.  For citations of the opinions in the first case, what followed it in terms of practice, and the new opinion in the San Diego case, see the prior post, titled, “Throw Off Those Chains!,” in the September 2015 link at the right.  It was a wonderful rejection of an outrageous and offensive practice.

Well, I have even better news now than I had two years ago.  The Ninth Circuit granted en banc review in the San Diego case and affirmed the panel’s holding in United States v. Sanchez-Gomez, No. 13-50561, 2017 WL 2346995 (9th Cir. May 31, 2017).  The holding in the en banc opinion rings loud and clear:

We now clarify the scope of the right and hold that it applies whether the proceeding is pretrial, trial, or sentencing, with a jury or without.  Before a presumptively innocent defendant may be shackled, the court must make an individualized decision that a compelling government purpose would be served and that shackles are the least restrictive means for maintaining security and order in the courtroom.  Id., 2017 WL 2346995, at *9 (footnotes omitted).  Put simply, routine shackling in non-jury proceedings is dead, and our clients can be shackled only if (1) there is an individualized determination shackling is necessary; (2) there’s a “compelling” need for it; and (3) there is no other less restrictive means for maintaining security and order in the courtroom.

And for those of us who have been offended – indeed, even outraged and nauseated – by this practice, there’s vindication in the court’s explanation of and rationale for the holding, which highlights the basic concern for human dignity that makes shackling our clients so offensive. 
First:
This right to be free from unwarranted shackles no matter the proceeding respects our foundational principle that defendants are innocent until proven guilty.  The principle isn’t limited to juries or trial proceedings.  It includes the perception of any person who may walk into a public courtroom, as well as those of the jury, the judge and court personnel.  A presumptively innocent defendant has the right to be treated with respect and dignity in a public courtroom, not like a bear on a chain.  Id., 2017 WL 2346995, at *9.  As expressed in a concurring Second Circuit opinion our en banc court goes on to quote, “[t]he fact that the proceeding is non-jury does not diminish the degradation a prisoner suffers when needlessly paraded about a courtroom, like a dancing bear on a lead, wearing belly chains and manacles.”  United States v. Zuber, 118 F.3d 101, 106 (2d Cir. 1997) (Cardamone, J., concurring), quoted in Sanchez-Gomez, 2017 WL 2346995, at *9.

Second:
And it’s not just about the defendant.  The right also maintains courtroom decorum and dignity:

The courtroom’s formal dignity, which includes the respectful treatment of defendants, reflects the importance of the matter at issue, guilt or innocence, and the gravity with which Americans consider any deprivation of an individual’s liberty through criminal punishment.  And it reflects a seriousness of purpose that helps to explain the judicial system’s power to inspire the confidence and to affect the behavior of a general public whose demands for justice our courts seek to serve.
Deck [v. Missouri], 544 U.S. [622,] 631 [(2005)].  The most visible and public manifestation of our criminal justice system is the courtroom.  Courtrooms are palaces of justice, imbued with a majesty that reflects the gravity of proceedings designed to deprive a person of liberty or even life.  A member of the public who wanders into a criminal courtroom must immediately perceive that it is a palace where justice is administered with due regard to individuals whom the law presumes to be innocent.  That perception cannot prevail if defendants are marched in like convicts on a chain gang.  Both the defendant and the public have the right to a dignified, inspiring, and open court process. Sanchez-Gomez, 2017 WL 2346995, at *10.

We might point to lots of other things that also tarnish this image from our defense perspective, but this nauseating shackling policy certainly contributed to the stain.  Perhaps in recognition of the less idealized view that some defendants and their counsel might have of our courts and courtrooms, the Sanchez-Gomez opinion later explains, in distinguishing the jail conditions case of Bell v. Wolfish, 441 U.S. 520 (1979):

But Bell dealt with pretrial detention facilities, not courtrooms.  (Footnote omitted.)  Those facilities are meant to restrain and keep order, not dispense justice.  We emphatically reject the idea that courtrooms are (or should be) perceived as places of restraint and punishment, or that courtrooms should be governed exclusively by the type of safety considerations that justify detention facility policies.  We must make every reasonable effort to avoid the appearance that courts are merely the frontispiece of prisons.

Sanchez-Gomez, 2017 WL 2346995, at *12.  And, on the same note:

We must take seriously how we treat individuals who come into contact with our criminal justice system – from how our police interact with them on the street to how they appear in the courtroom.  How the justice system treats people in these public settings matters for the public’s perception, including that of the defendant.  Practices like routine shackling and “perp walks” are inconsistent with our constitutional presumption that people who have not been convicted of a crime are innocent until proven otherwise. . . . We must treat people with respect and dignity even though they are suspected of a crime.
Sanchez-Gomez, 2017 WL 2346995, at *13.

As an aside, I recently found out the government in our Central District of California where many defendants appear in groups are trying to get our clients to sign waivers of the right to be unshackled, with the suggestion made that your case will get called first if you sign the waiver, and possibly suggestions by deputy marshals of things like you might get back to the jail late and miss dinner if you choose not to sign the waiver and go last.  Our government officials – including deputy marshals and prosecutors, and, yes, even judges – who encourage this sort of penalty for the exercise of a now clearly recognized right should be ashamed.  And we as defense attorneys shouldn’t participate by having our clients sign the waiver.  We of all people need to make sure our clients are “treat[ed] . . . with respect and dignity”; we of all people need to make sure they aren’t “marched in like convicts on a chain gang”; and we of all people need to make sure they aren’t “needlessly paraded about a courtroom, like a dancing bear on a lead, wearing belly chains and manacles.”

By Carl GunnHanging Out with Carl Gunn

In a time when some judges deny implicit racial bias in our criminal justice system, it may be wise to consider the full racial views of judges.

For instance, in 1952, a young Supreme Court clerk wrote a memorandum entitled “A random thought on segregation cases” that stated:

The court was considering Brown v. Board of Education, the great school desegregation case. The question for the justices was whether to overrule Plessy v. Ferguson, the 1896 decision that said “separate but equal” facilities were constitutional.

I realize it is an unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed.  Memorandum  from  William  H.  Rehnquist  to  Justice  Robert  H.  Jackson,  A  Random  Thought  on  the  Segregation  Cases  1,  circa  December  1952,  Robert  Houghwout  Jackson  Papers,  Library  of  Congress,  Manuscript  Division  [hereinafter  Jackson  Papers],  Box  184,  Folder 5

The memo, prepared for Justice Robert H. Jackson, was written in the first person and bore the clerk’s initials — “WHR,” for William H. Rehnquist.  The memo was disclosed by Newsweek in Supreme Court: Memo from Rehnquist, Newsweek, Dec. 13, 1971, at 32, 32.  The article was released on December 5, after Rehnquist had testified before the Senate Judiciary Committee, after a majority of the committee had voted favorably on his nomination, but immediately before the floor debates began Rehnquist’s nomination to the Supreme Court.

On December 8, 1971, Rehnquist wrote a letter to Senate Judiciary Committee chairman James 0. Eastland (D-Miss.) explaining that the memo "was prepared by me at Justice Jackson's request; it was intended as a rough draft of a statement of his views at the conference of the Justices, rather than as a statement of my views." 117 CONG. REC.45,440 (1971).

Many, if not most, commentators say Rehnquist was not being truthful in his statement that the memo represented a belief by Justice Jackson rather than William H. Rehnquist.  MICHAEL KLARMAN, FROM JIM CROW TO CIVIL RIGHTS 304-09 (2004); WILLIAM M. WIECEK, 12 HISTORY OF THE SUPREME COURT OF THE UNITED STATES: THE BIRTH OF THE MODERN CONSTITUTION: THE UNITED STATES SUPREME COURT, 1941-1953, at 420, 689, 691, 696-703 (2006); RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN v. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY 607-09 n. * (1976); Brad Snyder & John Q. Barrett, Rehnquist’s Missing Letter: A Former Law Clerk’s 1955 Thoughts on Justice Jackson and Brown, 53 B.C.L. Rev.631 (2012); Gregory S. Chemack, The Clash of Two Worlds: Justice Robert H. Jackson, Institutional Pragmatism, and Brown, 72 TEMP. L. REV. 51, 54 n. 21 (1999); Laura K. Ray, A Law Clerk and His Justice: What William Rehnquist Did Not Learn from Robert Jackson, 29 IND. L. REV. 535, 553-59 (1996);Bernard Schwartz, Chief Justice Rehnquist, Justice Jackson and the Brown Case, 1988 SUP. CT. REV. 245, 245-47.

Later clerks such as E. Barrett Prettyman Jr. in 1955 referred to the Rehnquist antics as “foolishness.”  In an interview, Mr. Prettyman said “there is absolutely no doubt in my mind” that the 1952 memo represented Mr. Rehnquist’s views and not those of Justice Jackson.  “The fact that a justice and a chief justice lied in order to advance himself,” Mr. Prettyman said, referring to Chief Justice Rehnquist in his confirmation hearings, “the fact that he thought the way he did about Brown — which was that it would be a national disgrace — those facts alone justify an exploration of what happened.”

In the end, is it really the right to confirm conservative judges who will endorse Brown not because of racial bias in our criminal system, but because of the desire of a judge, like Rehnquist Bork and Thomas, to get confirmed?

President Trump said at a conference on sanctuary cities this week: “These are not people. These are animals.”
His insinuation that immigration status or criminal record somehow determines humanity is not only appalling – it’s dangerous.

We’ve heard this dehumanizing rhetoric before.

During the Holocaust, the Nazis called Jews Untermenschen  –  subhumans. Before the Rwandan genocide, Tutsis were called “cockroaches.” And just recently in our own country, we learned that extremists behind a bomb plot to kill Somali Muslims called their intended victims “cockroaches.”

Dehumanizing rhetoric — unacceptable from anyone — is especially dangerous when it comes from the mouth of the president.

It’s also troubling that five days before Trump’s “animals” comment, his chief of staff, John Kelly, told an interviewer that undocumented immigrants are “not people that would easily assimilate into the United States, into our modern society.” Despite Kelly offering caveats to present his comments as not painting all immigrants as bad people, his statement about assimilation echoes the kind of rhetoric many would like to think we left in the past.

His words recall Georgia Gov. Clifford Walker’s declaration in 1924 that he “would build a wall of steel, a wall as high as Heaven, against the admission of a single one of those Southern Europeans who never thought the thoughts or spoke the language of a democracy in their lives.”

Walker, who was speaking at a Ku Klux Klan rally, according to CNN, made those comments 10 years after a eugenicist, Edward Alsworth Ross, had written something similar:

Observe immigrants … You are struck by the fact that from ten to twenty [percent], are hirsute, low-browed, big-faced persons of obviously low mentality. Not that they suggest evil. They simply look out of place in black clothes and stiff collar, since clearly they belong in skins, in wattled huts at the close of the Great Ice Age.
It is chilling that the White House chief of staff’s statement evokes words spoken at a Klan rally and written by a eugenicist. It’s truly frightening, however, when the administration’s rhetoric is paired with a policy to separate immigrant children from their parents and put them in military bases or “in foster care or whatever.”

Or when the administration’s rhetoric is paired with the presidential pardon of an Arizona sheriff found guilty of ignoring a judge’s order telling him to stop violating the civil liberties of Latinos.
Or when it’s paired with an Immigration and Customs Enforcement that holds American citizens in detention centers, destroys water supplies left for migrants in the desert and knowingly deports people to their death.

Words matter.

Tell the president to stop using racist and dehumanizing language by adding your name to our petition.

REPRINTED FROM: SOUTHERN POVERTY LAW CENTER. WEEKEND READ ISSUE 80

Meek Mill is free — for now.

His experience is troubling because of how normal it is. Sixty thousand people land back in prison for minor parole violations every year. But his story also illustrates a way forward.

In and out of prison for the last decade, the songwriter and recording artist is out on bail after being detained last year on probation violations. His case is ongoing, and there’s no assurance that he won’t wind up back behind bars.

Like millions of people — particularly young men of color — Mill has been swept up in the cycle of incarceration. Despite the fanfare, his story is tragically ordinary. But it suggests that major reforms to the way we implement probation (community supervision in lieu of or in combination with prison time) and parole (community supervision after someone is released from prison) may keep many Americans from being unnecessarily incarcerated.

For Mill, his trouble started with a 2008 conviction for gun possession. There is some evidence that the original conviction was itself a mistake; the newly-elected Philadelphia District Attorney Larry Krasner said Mill may have been unjustly convicted based on false police testimony, a rare thing for a lead prosecutor to even suggest.

Mill spent time in prison, and upon release faced repeated entanglements so many people convicted of a crime endure. He was put on probation, failed drug tests, and was eventually prohibited from leaving Philadelphia, a nearly impossible condition for a performing artist who regularly tours the country. Late last year, a judge sent him to prison for violating terms of his release.

Probation and parole should be designed to get people back on track – not ensure they end up back in jail. But for Mill, being on parole and then probation led to restrictions and court appearances that stretched on for nearly a decade and eventually landed him back behind bars.

Rather than a means of rehabilitation, parole for Mill turned into another pathway back to prison — failing him, and so many others, at its stated purpose. 

But prosecutors and judges can change that. And to his credit, Krasner is trying. Last month, he sent a memo calling on them to rethink both arrests and their use of parole and probation. Among his recommendations to prosecutors:

• Request shorter probation/parole sentences;
• Avoid using prison for minor (“technical”) parole or probation violations, and;

• Decline to charge someone with violating parole or probation due to marijuana use (one of the very things that landed Mill back in prison). 
  
• These three changes alone would have spared Mill his senseless return trip (detrimental to him but also incredibly costly for taxpayers), and could have major effects on Philadelphia and the nation. The entire approach is a new one that could both enhance community safety, and help people transition back from prison into everyday life. Krasner’s rethinking of local priorities comes amid recommendations released by the Brennan Center, describing how prosecutors can help reduce mass incarceration, and a new joint initiative with Fair and Just Prosecution to train prosecutors around a reform-oriented mission.
  Meek Mill’s story is troubling because of how normal it is. Sixty thousand people land back in prison for minor parole violations every year. But his story also illustrates a way forward. His success is based on many factors, but a progressive voice on the prosecutorial side was extremely helpful. Voters in Philadelphia made that happen. Voters across the country can do the same.
  
• AUTHOR: James Cullen*Coauthored and with research help from Justice Program intern Ty Parks.
   
  Reprinted from Brennan Center for Justice
  
  

Misdemeanor punishment is often deemed lenient, especially in the shadow of mass incarceration’s long prison sentences.  A typical sentence for a misdemeanor commonly consists of probation and a fine.  The full collateral and informal consequences of that misdemeanor, however, will often be far more punitive.  Those consequences can include months in jail, either pretrial or as a consequence of failing to pay fines and fees; reduced employment and earning capacity triggered by arrest and conviction records; the loss of housing, public benefits, financial aid, and immigration status.  In other words, the full punitive consequences of a misdemeanor are far from lenient, and the extra-judicial consequences can so far outweigh the legal sentence that it hardly makes sense to refer to them as “collateral.”

Misdemeanors have traditionally received short shrift in the legal scholarship and in the public debate over criminal justice.  But this inattention is a mistake.  Misdemeanors make up 80 percent of U.S. criminal dockets.  Most convictions in this country are for misdemeanors—this is what our criminal system does most of the time to the most people.  For a brief overview of major issues and misdemeanor scholarship, you can take a look at this survey, Misdemeanors, 11 Ann. Rev. L. & Soc. Sci. 255 (2015).

A spate of recent scholarship is starting to delve deeper into key features of the misdemeanor landscape such as low level policing, bail, and debtor’s prison.  These articles explicate not only the punitive collateral consequences of a brush with the misdemeanor process, but the systemic forces that make those consequences widespread and difficult to regulate.  For example, in Arrests as Regulation, 67 Stan. L. Rev. 809 (2015), Eisha Jain charts how arrests are used not only to initiate criminal cases but as fodder for decisionmakers as diverse as landlords, employers, and social workers.  The collateral consequences of even a minor arrest can thus have ripple effects throughout a person’s personal and economic life, even if they are never charged or convicted.

The dramatic influence of bail has become increasingly well-recognized, especially in misdemeanor cases, because of how often it induces guilty pleas by those who cannot afford to pay it.  In Toward an Optimal Bail System, 92 N.Y.U. L. Rev. 1300 (2017), Crystal Yang evaluates the full costs of bail, including future economic costs to detained defendants as well as to the state, and balances them against the benefits of pretrial detention.  By monetizing the potential social costs and benefits of the bail decision, she offers broad insight into the weighty collateral consequences of pretrial detention for minor offenses.

In a similar economic vein, the past few years have revealed just how often the low level criminal system imprisons people because they cannot pay their debts. In The Excessive Fines Clause: Challenging the Modern Debtors’ Prison, 65 UCLA L. Rev. 2 (2018), Beth Colgan analyzes the constitutionality of the widespread use of monetary sanctions.  Such sanctions have special significance for misdemeanors where the long term effects of legal debt, including incarceration, are often wildly disproportionate to the offense.  Colgan offers an expanded doctrinal framework for evaluating the direct and indirect consequences of monetary sanctions, squarely confronting the perennial link between misdemeanor punishment and poverty.

These articles represent the tip of the scholarly iceberg. They may not have the word ‘misdemeanor’ in their titles, but they are part of new wave of scholarship that takes the low level criminal process seriously.  They are potent reminders that the cumulative burdens of misdemeanor arrest, pre-trial incarceration and debt have substantial systemic significance, and that their punitive consequences can far outweigh formal sentences imposed by low level courts.

REPRINTED FROM Collateral Consequences Resource Center
Author:  Alexandra Natapoff is Professor of Law at the University of California, Irvine School of Law.  A 2016 Guggenheim Fellow, she is the author of a forthcoming book on the American misdemeanor system.
 

The Bible explains that that while the Lord is merciful, God will by no “means clear the guilty, visiting the iniquity of the fathers on the children and the children’s children, to the third and the fourth generation.”  Exodus 34:6-7; Exodus 20:5.  As so often in the Bible, the contrary is also found:  Deuteronomy 24:16 says “Fathers shall not be put to death for their sons, nor shall sons be put to death for their fathers; everyone shall be put to death for his own sin” and that “The son will not bear the punishment for the father’s iniquity, nor will the father bear the punishment for the son’s iniquity; the righteousness of the righteous will be upon himself, and the wickedness of the wicked will be upon himself.” Ez 18:20.

The Bible therefore does not tell us if innocent children will be punished for the sins of a father.  But some new research might.  Researchers have identified father absence as a contributor to juvenile delinquency. Consequently, politicians and community leaders are making efforts to re-engage fathers. However, it is possible that the presence of fathers is not, in itself, a substantial protective factor and, in some cases, can even be more detrimental than father absence. 

In the Journal of Adolescence Volume 62, January 2018, Pages 9-17 it was found that if a father is abusive, it is better that he be absent from the household.  The authors of The differential influence of absent and harsh fathers on juvenile delinquency found that youth in the harsh-father group engaged in more offending behaviors and used more substances than youth in the absent-father group. This difference remained even after controlling for the mother-child relationship.

The key findings:

• Most of the boys with harsh fathers were Latino while most with absentee fathers were black.
• Boys with harsh fathers had a higher rate of delinquency than those with uninvolved dads. The sons of hostile men reported committing more crime and using a larger variety of drugs and alcohol.
• Kids with harsh fathers or absentee fathers reported engaging in more offending behaviors and using more substances than kids with “high quality” relationships with their dads.
• About 29 percent of youth in the sample did not have a parent with a high school diploma. About 36 percent had a parent who went to college or received some level of training after high school.
• “Father absence is widely acknowledged as a key contributor to delinquency, leading to efforts to promote father involvement with youth to deter juvenile delinquency. However, not all involved fathers develop positive, high-quality relationships with their sons, and father presence in some cases can be more detrimental than father absence.”

 

The Bible explains that that while the Lord is merciful, God will by no “means clear the guilty, visiting the iniquity of the fathers on the children and the children’s children, to the third and the fourth generation.”  Exodus 34:6-7; Exodus 20:5.  As so often in the Bible, the contrary is also found:  Deuteronomy 24:16 says “Fathers shall not be put to death for their sons, nor shall sons be put to death for their fathers; everyone shall be put to death for his own sin” and that “The son will not bear the punishment for the father’s iniquity, nor will the father bear the punishment for the son’s iniquity; the righteousness of the righteous will be upon himself, and the wickedness of the wicked will be upon himself.” Ez 18:20.

The Bible therefore does not tell us if innocent children will be punished for the sins of a father.  But some new research might.  Researchers have identified father absence as a contributor to juvenile delinquency. Consequently, politicians and community leaders are making efforts to re-engage fathers. However, it is possible that the presence of fathers is not, in itself, a substantial protective factor and, in some cases, can even be more detrimental than father absence. 

In the Journal of Adolescence Volume 62, January 2018, Pages 9-17 it was found that if a father is abusive, it is better that he be absent from the household.  The authors of The differential influence of absent and harsh fathers on juvenile delinquency found that youth in the harsh-father group engaged in more offending behaviors and used more substances than youth in the absent-father group. This difference remained even after controlling for the mother-child relationship.

The key findings:

• Most of the boys with harsh fathers were Latino while most with absentee fathers were black.
• Boys with harsh fathers had a higher rate of delinquency than those with uninvolved dads. The sons of hostile men reported committing more crime and using a larger variety of drugs and alcohol.
• Kids with harsh fathers or absentee fathers reported engaging in more offending behaviors and using more substances than kids with “high quality” relationships with their dads.
• About 29 percent of youth in the sample did not have a parent with a high school diploma. About 36 percent had a parent who went to college or received some level of training after high school.
• “Father absence is widely acknowledged as a key contributor to delinquency, leading to efforts to promote father involvement with youth to deter juvenile delinquency. However, not all involved fathers develop positive, high-quality relationships with their sons, and father presence in some cases can be more detrimental than father absence.”

 

THE CONSTITUTION DEMANDS DEAF DEFENDANTS HAVE IMMEDIATE AND CONTEMPORANEOUS ACCESS TO COURTS AND RECORDS
 
To enhance the integrity and quality of what takes place in court, to foster fairness and respect for the judicial process, the First and Sixth Amendment demands that a defendant be allowed access to court and the ability to participate in the judicial process.  Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603-06 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,578, 580 (1980).  The values that animate the presumption in favor of access require as a "necessary corollary" that, once access is found to be appropriate, access ought to be "immediate and contemporaneous."  Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791 (1976)
 
The right of access to the court extends not only to a trial itself but to pretrial proceedings.  Waller v. Georgia, 467 U.S. 39, 44, 45, 47 (1984); Ayala v. Speckard, 131 F.3d 62, 68-69 (2nd Cir. 1997).  This right of access includes access to court proceedings as well as the record and documents.  Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir.1994); see also Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819 (1984); Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306 (1978).
 
THE AMERICAN WITH DISABILITIES ACT TREATS DEAF DEFENDANS AS A DISCRETE AND INSULAR MINORITY REQUIRING EQUAL PARTICIPATION IN COURT PROCEEDINGS
 
The Americans with Disabilities Act 2 ("ADA") 42 U.S.C. §§ 12101-12213 seeks to secure the acceptance of persons with disabilities into most of the daily activities by requiring accommodations be made for their disabilities.  The ADA states that individuals with disabilities are a "discrete and insular minority." This language is taken directly from United States v. Carolene Prod. Co., 304 U.S. 144, 152 n.4 (1938) (Justice Stone's formulation to determine whether a discriminatory classification should be given "more exacting judicial inquiry" or whether such classification requires only a rational basis to be upheld).  By using the "discrete and insular minority" language, Congress defines people with disabilities as a minority group with the power to deflect challenges to the ADA unless those declining to accommodate disabilities can demonstrate a 'compelling state interest" for the discriminatory treatment.  Therefore, any violation of the ADA must be viewed as a violation of the Equal Protection Clause.  People with disabilities constitute a broad constituency which has traditionally been denied equal, active participation in the courts.  Perlin, On "Sanism", 46 SMU L. REv. 373 (1992).
 
Congress found that individuals with disabilities are a discrete and insular minority who face restrictions and limitations resulting from stereotypic assumptions not truly indicative of their abilities to participate in and contribute to society.  42 U.S.C. § 12101 (a)(7).  Thus, classifications that segregate persons with disabilities are to be given the same level of constitutional scrutiny under the ADA that classifications based upon race are given under the Fourteenth Amendment and the federal civil rights laws.  Timothy M. Cook, The Americans with Disabilities Act: The Move to Integration, 64 TEMP. L. REv. 393, 397, 433-39 nn.280-235 (1991). 
 
In order to qualify for statutory protection under the ADA, a person must be a "qualified individual with a disability."  42 U.S.C. § 12111(8) (1992); 28 C.F.R. § 35.104.  Qualified individuals with disabilities are those who: (a) have a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (b) have a record of such an impairment; or (c) are regarded as having such an impairment. 42 U.S.C. § 12102(2) (1992). This definition is drawn from § 504 of the Rehabilitation Act, 29 US.C. § 706(8).  Disabilities are listed at 45 C.F.R. 84.3(j)(2)(i) and 28 C.F.R. § 35.104. The act covers physical impairments including any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting any one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory (including speech organs); cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine.  Mental impairments include mental or psychological disorders such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. U.S. Dept. of Justice, Americans With Disabilities Act, Technical Assistance Manual Title II, No. 1 BUSINESS MANAGEMENT GUIDE (CCH, March 5, 1992).  The legislative history makes clear that the term includes such conditions, diseases, and infections as: orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, asymptomatic and symptomatic HV, mental retardation, emotional illness, specific learning disabilities, and past drug addiction.  28 C.F.R. § 35.104.  See also S. REP. No. 116, 101st Cong., 1st Sess. 22 (1989).  PTSD is a covered disorder under the ADA.  Paul F. Mickey, Jr. & Maryelena Pardo, Dealing with Mental Disabilities Under the ADA, 9 LAB. LAW. 531, 535 n.17 (1993).  Importantly, under the ADA, protection is also extended to individuals with a record of impairment, but who may not now be impaired.  42 U.S.C.§ 12102(2)(B); 28 C.F.R. § 35.104.
 
Part A of Title II and the Department of Justice (DOJ) regulations promulgated thereunder state that "no qualified individual with a disability shall, by reason of such disability be excluded from participation in or denied the benefits of the services, programs or activities of a public entity,”  Public entity is defined as any state or local government, any department, agency, or instrumentality of a state of local government, the National Railroad Passenger Corporation, and certain rail commuter authorities. 42 U.S.C.§ 12131(1) (1990); 28 C.F.R. § 35.104.  A Court is a public entity to which the ADA applies.  The Wisconsin Judicial System has admitted as much.  http://www.wicourts.gov/services/public/ada.htm
 
A trial court must therefore provide the following accommodations to a deaf defendant:
 

1. Before proceeding with the competency hearing, the defendant’s IQ should be determined.  This testing should be administered by an educational psychologist who can also determine at what educational level the defendant reads and writes.  If the defendant has a low IQ, she may not have linguistic competence to stand trial.  M. Vernon & L.J. Raifman, The Miranda Warnings and the Deaf Suspect, 14 BEHAV. SCI. L. 121-135 (1996).  The defense has filed a brief explaining the meaning of the term “linguistic incompetence.”  Having a low I.Q. also demonstrates the defendant’s vulnerability to being led astray, taken advantage of, and not being fully aware of the significance of the crime with which she is charged.
2. During all court proceedings involving the defendant, a certified interpreter should be present. Because the defendant has  poor English language skills as a result of being deaf, the defense would request a certified deaf interpreter (CDI).  However, if the defendant prefers, the defense would accept closed captioning rather than a sign language interpreter if the defendant has the ability to read with understanding.
3. During all court proceedings, a certified deaf interpreter should be made available to the defense so that the defendant and her attorney can interact with one another.
4. The defense would respectfully request that all court proceedings be videotaped and audiotaped. This is the only way to obtain a complete record can be made of the court proceedings. Otherwise, there is no record of what was said in sign language while in court. In addition, the videotape makes it possible to assess the competence of the interpreter and exactly what the interpreter signed.
5. At all court hearings, the interpreting be done consecutively, not simultaneously. This makes the interpreting far easier to do correctly.