Dallas County, Texas bail hearings conducted in secret

The Dallas County Jail books about 67,000 people every year, a population roughly equal to that of the Houston suburb Missouri City, reported the Texas Tribune.

The conveyor belt driving Dallas County’s hulking jail complex, the seventh largest in the country, operates in a courtroom deep inside the Lew Sterrett Justice Center downtown. That’s where magistrates hold around-the-clock hearings to determine bail. On any given day, about 70 percent of the jail’s roughly 5,000 inmates are there because they can’t afford the price tag placed on their pretrial freedom. Arrestees say that before they enter bail hearings, jailers warn them that the price could increase if they talk without permission. The hearings often last less than 60 seconds.

Though the bail hearings have serious ramifications for defendants, they are largely conducted in secret. Attorneys, family members, community activists and journalists are not allowed inside these court proceedings. The Dallas County Sheriff’s Department says that’s because guards “need to focus on the safety of the inmates and magistrate judge.” In January, lawyers with the ACLU of Texas, Civil Rights Corps and the Texas Fair Defense Project sued Dallas County officials on behalf of several poor people, many of them homeless, who were stuck in jail because they couldn’t afford bail. The lawsuit alleges this system of “wealth-based detention” lets rich defendants buy their freedom and violates poor arrestees’ constitutional rights to equal protection and due process.

The attorneys are also suing on behalf of two advocacy groups, Faith in Texas and the Texas Organizing Project (TOP), which have tried and failed for months to gain access to Dallas County’s bail hearings. Faith in Texas organizer Brittany White says, “They’re making decisions about someone’s freedom in secret.”

Elizabeth Rossi, an attorney with Civil Rights Corps, a Washington, D.C.-based nonprofit, alleges that Dallas County is violating the First Amendment rights of community members who want to monitor court hearings. “These hearings result in the mass pretrial detention of poor people and people of color,” Rossi said. “Dallas must open these hearings so that a bright light can be shed on the devastating, mass violations of civil and human rights that are happening in the jail every day.”

For several weeks, I asked multiple Dallas County departments to explain why the public can’t view these bail hearings; none would discuss the matter, citing the pending bail lawsuit. Dallas County felony court judge Brandon Birmingham, a defendant in the case, wouldn’t comment either, but he has in the past escorted at least one reporter to the jail to observe hearings. Citing his busy schedule, Birmingham wouldn’t do the same for me during a trip to Dallas in late March, though he offered to help sometime in the future. Sheriff’s department spokesperson Melinda Urbina later sent me an email stating Birmingham “did not obtain permission from us to allow an observer to enter,” and that bail hearings are closed to the public for security reasons.

It’s not hard to imagine why Dallas County likes to conduct its bail hearings in private. In Harris County, video footage of hearings, which are open and recorded, has become critical evidence in a nearly identical lawsuit and also bolstered advocates’ campaign to build public support for reform. Footage of magistrates browbeating poor defendants was even cited in the federal court ruling that declared Harris County’s bail practices unconstitutional last year.

The footage also inspired state Senator John Whitmire, D-Houston, to file a complaint with the State Commission on Judicial Conduct, which in January issued rare public admonishments against three Harris County magistrates for refusing to consider other conditions of release for poor people, such as so-called pretrial bonds that use monitoring instead of cash to make sure that defendants show up for court. The fallout from those videos has even raised the question of whether elected judges lied about Harris County’s bail practices.

Rossi argues that closed-door legal proceedings are just one reason Dallas County’s bail system is arguably worse than Houston’s. In Dallas, according to the lawsuit, poor arrestees languish even longer in jail. Rossi says that her group has found indigent people charged with petty crimes stuck in lockup for nearly two weeks on $500 bail, still without a lawyer or court date. She says she never encountered that kind of neglect, “where someone appears to get lost in the jail,” in Harris County.

In February, a federal appeals court largely upheld a groundbreaking ruling in the Harris County case that declared it unconstitutional to jail people before trial just because they’re too poor to pay bail. The ruling concluded that a heavy reliance on cash bail exacerbates racial disparities in the criminal justice system and leads to an unacceptable pattern of “sentence first, conviction after.” The ruling also cited research showing that people in jail are much more likely to plead guilty and face longer jail sentences compared to those who can afford to pay for pretrial release.

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Toll jumping can now be a felony in Pennsylvania

Drivers who routinely don’t pay tolls in Pennsylvania could be convicted of a felony, according to the Wall Street Journal.

The Keystone State’s Turnpike Commission has begun to file criminal charges against motorists it deems egregious scofflaws. The recent initiative involves enlisting local prosecutors to pursue theft-of-services criminal cases, which reach felony status when the sum owed exceeds $2,000.

Study: Black students disciplined more often and more harshly than white

Black students continue to be disciplined at school more often and more harshly than their white peers, often for similar infractions, according to a new report by Congress’s nonpartisan watchdog agency, which counters claims fueling the Trump administration’s efforts to re-examine discipline policies of the Obama administration. reported the New York Times.

The report, issued by the Government Accountability Office, is the first national governmental analysis of discipline policies since the Obama administration issued guidance in 2014 that urged schools to examine the disproportionate rates at which black students were being punished.

Critics of the Obama-era guidance have questioned whether students of color suffer from unfair treatment under school discipline policies. The G.A.O. found that not only have black students across the nation continued to bear the brunt of such policies, but the effects were also felt more widely than previously reported — including by black students in affluent schools.

Additionally, the agency found that school suspensions began to fall the year before the Obama administration urged schools to move away from the overuse of such measures, undermining claims that the guidance forced schools to cut suspensions. While the Obama administration’s aggressive civil rights investigations did reveal that black students were subjected to harsher treatment than their white peers for similar infractions, the G.A.O. found that it did not impose any new mandates on districts to reduce their suspension rates.

The findings are likely to bolster arguments for preserving the 2014 guidance and undercut conservative claims that the guidance has resulted in federal overreach and a decline in school safety.

Education Secretary Betsy DeVos hosted groups of educators and advocates for and against the disciplinary guidance, the 12th set of round tables the department has held in the past year — and the first Ms. DeVos attended in person.

Nina Leuzzi, a prekindergarten teacher at a Boston charter school, said she kept her word to her class of 20, predominantly minority 4-year-olds, in making her case to the secretary for why the guidance should stay. When the children asked her why she was traveling to Washington, she told them it was to keep them safe.

“Rescinding this would send the message that there is no longer a concern about discrimination in our schools,” Ms. Leuzzi said.

Nicole Stewart, a former vice principal in San Diego, told Ms. DeVos that pressures to reduce suspensions had made schools dangerous. She said administrators did not expel a student with a knife at her school because he had a disability. Weeks later, he slit a student’s throat, she said.

“It is no wonder that our kids don’t think that rules and consequences apply to them,” Ms. Stewart said. “We are not modeling what consequences look like in the real world.”

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The Cadaver King: Racism, opportunism or both?

Elie Mystal’s New York Times book review of “The Cadaver King and the Country Dentist,” by the Washington Post journalist Radley Balko and Tucker Carrington, a law professor at the University of Mississippi, provides insight to an interesting twist on the impact of “junk science", particularly in the South.

In The Cadaver King there is no murder mystery. The book details the wrongful convictions of two men, Kennedy Brewer and Levon Brooks, in the separate murders of two girls in the same rural Mississippi town in the early 1990s. But the real killer of both 3-year-olds is revealed to the reader before the wrong men are even put on trial. We are also spared the anguish of wondering if the system will ever get it right, for we know the men have already been freed thanks to the work of the nonprofit criminal exoneration organization the Innocence Project.

The crime having been solved early on, Balko and Carrington devote the bulk of the book to pulling back the curtain on the justice system’s little-known but systemic problem that put Brewer and Brooks behind bars: faulty and biased forensic evidence. Junk science convicted these men; real science set them free. The inability of judges and jurors to tell the difference is why innocent men languish in jail while the prosecutors who put them there run for higher office.

Mississippi would have been better served by the actual actors from “CSI” conducting its forensic investigations than the autopsy specialist Steven Hayne and his “sidekick,” the bite-mark analyst Michael West. The book isn’t even really about exposing these men, as they’re already disgraced. Instead, Balko and Carrington have written a cry for help: “What happened in Mississippi may be the most wide-reaching scandal to date. Few states have encountered revelations that strike as forcefully at the very foundation of its criminal justice system. And few states’ public officials have shown less concern or taken less action after having learned of the problem.”

But, like so many who have demanded criminal justice reform, the authors are likely to fail. Not because they’re wrong, or because not enough judges and lawyers and politicians know they’re right. But because fixing the problem is just too hard.

The real tension in Balko and Carrington’s book is why it’s too hard — whether our society’s tendency to incarcerate innocent individuals results from basic incompetence, or bald racism.

The authors propose an answer: “There’s no question that Hayne and West thrived in a system that was created and honed during Jim Crow, and that for decades was used to reinforce the segregated social order. There’s also no question that the system’s problems continue to disproportionately affect minority and poor populations across the state. But no one has described Hayne as a racist. … Instead, Hayne could be described more as an opportunist.”

The bigotry in our criminal justice system is one of its key features, not an unfortunate bug. Mississippi wouldn’t allow quack science to convict the wrong people if white citizens primarily bore the burden. The namesake “bad guys” in this book are allowed to exist because their work puts black men behind bars, not in spite of it.

What’s the remedy for a person who has been convicted based on so-called science that we now know to be faulty, corrupt or both? One doesn’t need a law degree to answer that question. Common sense or a modicum of human decency suggests that those found guilty based on bad evidence deserve justice. But to grant all such retrials would be too much for this country’s criminal courts to bear.

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Louisiana's racist origin for non-unanimous criminal verdicts

Louisiana's unique law that allows a jury to send a person to prison for life without the consent of all 12 jurors did not happen by accident, reports the New Orleans Advocate.

The drafters of the state constitution Louisiana adopted in 1898 said they aimed to “perpetuate the supremacy of the Anglo-Saxon race in Louisiana,” primarily by scrubbing from the rolls nearly all of the roughly 130,000 black people then registered to vote.

But delegates knew they couldn’t simply ban black people from the voting booth or jury service without running afoul of the 14th and 15th amendments. The U.S. Supreme Court had explicitly said so. Instead, the jury laws those delegates drew up allowed for convictions with only nine of 12 jurors agreeing, meaning that if one, two or even three black people made it onto a jury, their votes wouldn’t matter.

These days, 10 votes are required for conviction instead of the original nine, and today’s defenders of split verdicts say Louisiana’s law now stands not for racism but for efficiency, by limiting hung juries and potential retrials.

But the effects are the same, according to an exhaustive, first-of-its-kind analysis by The Advocate.

The Advocate reviewed about 3,000 felony trials over six years, turning up 993 convictions rendered by 12-member Louisiana juries in which the newspaper was able to document the jury votes.

The remainder included trials ending in hung juries, those halted by last-minute plea deals, lesser felony trials with six-member juries and many others with scant records.

Although the majority-verdict law disadvantages all defendants, the newspaper’s review found that its effects on black people accused of crimes are especially profound. It acts as a capstone to a trial system that becomes more tilted against black defendants at each stage: when jurors are summoned, when they’re picked for juries, and in deliberation rooms where voices of dissent can be ignored.

Black people make up roughly one-third of the population in Louisiana, but they comprise two-thirds of state prisoners and three-fourths of inmates serving life without parole. Louisiana, America’s incarceration capital, also leads the nation by far in these life sentences, nearly all of them the result of jury verdicts.

The newspaper’s analysis found that 40 percent of trial convictions came over the objections of one or two holdouts. When the defendant was black, the proportion went up to 43 percent, versus 33 percent for white defendants. In three-quarters of the 993 cases in the newspaper's database, the defendant was black.

In many cases, black defendants are not being judged by juries “of their peers” — at least not racially speaking. The newspaper scrutinized what happened to nearly 41,000 prospective jurors who reported for duty in felony trials in nine of the state’s 10 busiest courthouses and found that these jury pools were whiter than their communities, and the juries picked from them were whiter still.

The average jury in East Baton Rouge Parish, for instance, has nearly two fewer black people than it would if the panel reflected the population. In St. Tammany Parish, juries have about half as many black members as the parish's population.

Oregon, the only other state to allow split verdicts in felony cases, demands unanimity when the charge is murder.

If that 10-2 scenario arose in any of the other 49 states, the judge likely would order the jurors to keep working until one side swayed the other to reach unanimity — or until the deadlock was too hopeless to break. Then, the judge would declare a hung jury and a mistrial.

Yet another possible outcome would be a compromise, with the jurors settling on a verdict of manslaughter rather than murder.

It’s hard to predict which way the chips would fall, even for some dissenting jurors themselves.

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Trump administration will not release pregnant immigrants from detention

The Trump administration will no longer seek to automatically release pregnant immigrants from detention -- a move in line with the overall efforts by the administration to hold far more immigrants in custody than its predecessors, reported CNN.

The change in policy could pave the way for more pregnant women to be held in detention facilities while they await lengthy court proceedings about whether they can stay in the US, facilities that are already decried by critics for tough conditions. The decision comes as immigration advocates have assailed the administration's efforts to hold more immigrants in detention writ large and its increased arrest of noncriminal immigrants.

The change in policy was sent by Immigrations and Customs Enforcement to Congress on Thursday morning and later announced in a conference call with reporters. The policy was first finalized in December, officials said.

According to Philip Miller, a top official in ICE's Enforcement and Removal Operations, as of March 20, there were 35 pregnant women in detention in ICE's custody. Since December, 506 pregnant women have been detained, Miller added.

He said it was difficult to estimate how many more pregnant immigrants would be detained under the new policy. Immigrants who are caught trying to cross the border illegally already are required to be in detention -- although once they pass a threshold test for asylum claims, the government can choose to release them. He also could not say how the policy applied to nursing mothers.

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Can President Trump pardon himself? Richard Nixon's legal team said no

Laurence H. Tribe is the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School. Richard Painter, a law professor at the University of Minnesota, was chief White House ethics lawyer for President George W. Bush from 2005 to 2007 and is vice-chair of Citizens for Responsibility and Ethics in Washington (CREW). Norman Eisen, a senior fellow at the Brookings Institution, was chief White House ethics lawyer for President Barack Obama from 2009 to 2011 and is chair of CREW. They wrote in the Washington Post:

Can a president pardon himself? Four days before Richard Nixon resigned, his own Justice Department’s Office of Legal Counsel opined no, citing “the fundamental rule that no one may be a judge in his own case.” We agree.

The Justice Department was right that guidance could be found in the enduring principles that no one can be both the judge and the defendant in the same matter, and that no one is above the law.

The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself.

The pardon provision of the Constitution is there to enable the president to act essentially in the role of a judge of another person’s criminal case, and to intervene on behalf of the defendant when the president determines that would be equitable. For example, the president might believe the courts made the wrong decision about someone’s guilt or about sentencing; President Barack Obama felt this way about excessive sentences for low-level drug offenses. Or the president might be impressed by the defendant’s subsequent conduct and, using powers far exceeding those of a parole board, might issue a pardon or commutation of sentence.

Other equitable considerations could also weigh in favor of leniency. A president might choose to grant a pardon before prosecution of a person when the president believes that the prosecution is not in the national interest; President Gerald Ford pardoned Nixon in part for this reason.

Or a president may conclude that even if a person may have committed a crime, he was acting in good faith to protect the national interest; President George H.W. Bush pardoned former defense secretary Caspar Weinberger in the Iran-contra affair in part for this reason.

In all such instances, however, the president is acting as a kind of super-judge and making a decision about someone else’s conduct, the justice of someone else’s sentence or whether it is in the national interest to prosecute someone else. He is not making a decision about himself.

Self-pardon under this rubric is impossible. The foundational case in the Anglo-American legal tradition is Thomas Bonham v. College of Physicians, commonly known as Dr. Bonham’s Case. In 1610, the Court of Common Pleas determined that the College of Physicians could not act as a court and a litigant in the same case. The college’s royal charter had given it the authority to punish individuals who practiced without a license. However, the court held that it was impermissible for the college to receive a fine that it had the power to inflict: “One cannot be Judge and attorney for any of the parties.”

The Constitution embodies this broad precept against self-dealing in its rule that congressional pay increases cannot take effect during the Congress that enacted them, in its prohibition against using official power to gain favors from foreign states and even in its provision that the chief justice, not the vice president, is to preside when the Senate conducts an impeachment trial of the president.

The Constitution’s pardon clause has its origins in the royal pardon granted by a sovereign to one of his or her subjects. We are aware of no precedent for a sovereign pardoning himself, then abdicating or being deposed but being immune from criminal process. If that were the rule, many a deposed king would have been spared instead of going to the chopping block.

We know of not a single instance of a self-pardon having been recognized as legitimate. Even the pope does not pardon himself. On March 28, 2014, in St. Peter’s Basilica, Pope Francis publicly kneeled before a priest and confessed his sins for about three minutes.

President Trump thinks he can do a lot of things just because he is president. He says that the president can act as if he has no conflicts of interest. He says that he can fire the FBI director for any reason he wants (and he admitted to the most outrageous of reasons in interviews and in discussion with the Russian ambassador). In one sense, Trump is right — he can do all of these things, although there will be legal repercussions if he does. Using official powers for corrupt purposes — such as impeding or obstructing an investigation — can constitute a crime.

But there is one thing we know that Trump cannot do — without being a first in all of human history. He cannot pardon himself.

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