SCOTUS extends police authority to stop a vehicle based on a hunch

The US Supreme Court ruled this week that it is reasonable under the Fourth Amendment for a police officer to make an investigative traffic stop after running the license plate of a vehicle and learning that the owner’s driver’s license has been revoked, even if the officer is unsure that the owner is driving the vehicle, reported Jurist.

The question of whether the stop was reasonable came to the court through a Kansas case, Kansas v. Glover. In the state trial court, Glover attempted to suppress all evidence seized during the stop, claiming that the officer lacked reasonable suspicion. The district court granted the motion to the suppress—a decision that has been disputed by the appellate courts. The Kansas Court of Appeals reversed the district court’s decision. Then, the Kansas Supreme Court reversed the Court of Appeals. Finally, the US Supreme Court, in an 8-1 decision, reversed the Kansas high court.

In the opinion of the Supreme Court, authored by Justice Clarence Thomas, the court said that “the level of suspicion [that reasonable suspicion] requires is considerably less than proof of wrongdoing by a preponderance of the evidence” and “depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”

The court went on to say that “common sense suffices to justify” the officer’s inference that the owner was driving with a revoked license, and “Kansas law reinforces that it is reasonable to infer that an individual with a revoked license may continue driving.” In Justice Sonia Sotomayor’s dissent, she argued that the inference made was not a product of the officer’s training. The majority responded by saying that “[t]he inference that the driver of a car is its registered owner does not require any specialized training; rather, it is a reasonable inference made by ordinary people on a daily basis.”

The court concluded by reaffirming its precedents that the “the ultimate touchstone of the Fourth Amendment is ‘reasonableness,'” and that the officer in this case “drew an entirely reasonable inference.” The court held that the stop was reasonable because the officer lacked any information that would rebut the reasonable inference that the owner of the vehicle was driving.

Justices Elena Kagan and Ruth Bader Ginsberg joined the court’s opinion, while also concurring. In the concurring opinion authored by Kagan, the note that the Kansas statutory scheme demonstrates that a revocation of a license stems from serious and repeated offenses, giving way to a reasonable inference that the owner was likely to continue breaking the law. They found Kansas’ unique statutory scheme to be a dispositive fact that leads the court to its conclusion.

In its narrow holding, this court said it has reaffirmed its precedents on the reasonable suspicion inquiry.

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Pennsylvania Supreme Court denies request to reduce jail populations in light of pandemic

Well it didn't take long, the Pennsylvania Supreme Court denied a request by the American Civil Liberties Union (ACLU) to order the release from county jails certain classes of persons in response to possible COVID-19 outbreaks, reported Jurist.

The ACLU had filed an application for relief under the court’s King’s Bench jurisdiction, which would allow the court to decide an issue that is not pending before any lower court. The group asked for the court to order county common pleas courts to release people who are at high risk from covid-19, as well as those persons held pretrial and persons being held on short sentences for minor offenses.

In denying the order, the court emphasized that the ACLU’s request did not “take into account the potential danger of inmates to victims and the general population.” However, the court did recognize the dangers covid-19 poses to persons in county jails who are unable to practice isolation and social distancing in any meaningful way, and ordered the president judges of each judicial district “to coordinate with relevant county stakeholders” to determine appropriate measures, including “to identify individuals and/or classes of incarcerated persons for potential release or transfer . . . [i]f utilization of public health best practices is not feasible due to the population of the county correctional institutions.”

In a concurring opinion, Chief Justice Saylor wrote that, “In my view, the primary authority to release qualifying prisoners on account of a disaster emergency rests with the Governor . . . and/or the General Assembly” rather than with the judiciary.

Witold Walczak, legal director at ACLU of Pennsylvania, nonetheless thought the court’s decision represented a victory, since the order to the president judges “shows that the court agrees with our underlying premise that action must be taken to reduce jail populations in order to keep them safe.”

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ACLU files emergency request to release some inmates from county jails

The ACLU of Pennsylvania on behalf of the Pennsylvania Prison Society filed an emergency request asking the state Supreme Court to use its “King’s Bench” power to protect public health by ordering county common pleas courts to release some people from county jails, including those who are at high risk of serious illness or death if infected by COVID-19 and those who are held pretrial or on short sentences for minor offenses.

The petition argues that drastically reducing jail populations to allow jails the space to follow CDC-recommended safe social distancing and hygiene practices is the only way to prevent widespread contagion, which will inevitably infect people who are incarcerated, jail staff, and the surrounding communities. 

The emergency request asks the Supreme Court to order every Court of Common Pleas president judge to limit new jail admissions to the most serious offenses and order the presumptive release of everyone already held on cash bail or for technical and minor-offense probation violations; in a work release program; who are medically vulnerable because they are older or have certain serious health conditions; or who are within three months of completing their minimum sentence. 

The petition was filed on behalf of the Pennsylvania Prison Society and five people detained in jails around the commonwealth. It is joined by the Public Defender Association.

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GateHouse: Compassionate release of inmates a moral imperative

Matthew T. Mangino

GateHouse Media

April 3, 2020

The coronavirus is particularly hard on elderly and infirm people. There are a lot of elderly and infirm people in prison.

Prison inmates age at an accelerated rate when compared to people living outside the prison walls. The health of a 50-year-old person in prison is comparable to the health of a 65-year-old. That is not a good thing - especially in the midst of a pandemic.

Compassionate release, sometimes called medical or geriatric parole, is a process that allows for the release of prisoners who are elderly or sick. Some form of compassionate release exists in 49 states, the District of Columbia and with the federal government.

Prison demographics have changed dramatically in the last several decades. According to The Pew Charitable Trust, in Virginia for instance, 822 state prisoners were age 50 and over in 1990, about 4.5% of all inmates. By 2019, that number had grown to more than 8,000, or 21% of all inmates.

The Boston Globe recently reported that prisons are “Petri dishes for disease in the best of times, but they could become incubators for COVID-19 now.”

In prison, social distancing is impossible. Inmates are elbow to elbow when eating, showering and engaging in recreational activity. Besides the “graying” of inmates, many suffer from diabetes, cardiovascular disease, asthma, cancer and other conditions that, according to the Globe, make them more susceptible to COVID-19 which will likely result in intensive care, isolation and quite possibly death.

Compassionate release was created as a safety valve for elderly and infirm inmates. Unfortunately, even in the throes of a national health emergency, the release of ailing inmates has been anything but compassionate. As a result of the slow and cumbersome nature of the compassionate release process and its high denial rates, many infirm and terminally ill inmates die waiting on decisions - and many more will die as a result of COVID-19.

According to an investigation by The Marshall Project and the New York Times, from 2013 to 2017, the Federal Bureau of Prisons approved 6% of the 5,400 applications for compassionate release, while 266 inmates who applied died in custody awaiting a decision.

Congress created compassionate release as a way to release certain elderly and sick inmates when it becomes “inequitable” to keep them in prison any longer. Supporters viewed the program as a humanitarian measure and a sensible way to reduce health care costs by releasing inmates who pose little risk to public safety, reported the Times.

Last week, 14 United States Senators wrote to the Federal Bureau of Prisons seeking to ramp up the use of the Elderly Home Detention Pilot Program which permits terminally ill and elderly inmates to serve a portion of their sentence on home confinement.

The governor of Kentucky has reduced the sentences of 186 inmates who have been screened based on the Centers for Disease Control and Prevention guidelines and determined to be most susceptible to the COVID-19. The governor has signaled that there may be more to come. There are about 24,000 prisoners in Kentucky state prisons.

In California, where 10,500 inmates are age 60 or older, lawyers told a judicial panel overseeing prison conditions that 17,000 prisoners are a medically high risk. According to the Los Angeles

Times, lawyers argued that without immediate action, “COVID-19 will spread like wildfire in (the state’s) crowded prisons ... overwhelming hospital capacity and needlessly infecting thousands.”

This week California Governor Gavin Newsom stopped all new prison admissions, but said he had “no interest in ... releasing violent criminals from our system.”

Unfortunately, too many governors and lawmakers share Newsom’s sentiments, even if those elderly and unhealthy inmates have about zero chance of reoffending. A lengthy sentence, even a life sentence, should not be turned into a death sentence.

Compassionate release can save lives and is morally the right thing to do. Terminally ill, handicapped and infirm inmates are generally not a threat to society and are susceptible to the wrath of this terrible virus. The early release of at-risk inmates can help flatten the curve and save the lives of other inmates and prison staff.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Concerns raised over remotely administered justice

The criminal court system in New York City is pushing more of its proceedings to the virtual realm to combat the spread of the coronavirus, though public defenders are expressing concerns over how the transition could potentially delay the administration of justice, reported Politico.

Many court appearances and arraignments in NYC had already been happening by video in recent days. The state’s Office of Court Administration disseminated a memo last week detailing a transition of even more criminal court business to video. The memo, which takes effect Monday, would give more latitude to local courts to cut down on in-person appearances.

“In just over a week we have re-engineered how essential matters are being heard in criminal and family court as we continue to expand what matters we can hear virtually,” said Lucian Chalfen, a spokesperson for OCA.

But while the expansion of remotely-administered justice in New York’s criminal courts is seen by many as an important measure amid public health concerns, it is raising civil rights concerns as in-person appearances are crucial to the criminal justice process.

“It creates this barrier to representation,” said Ilona Coleman, legal director of the Bronx Defenders’ Criminal Defense Practice. “This is sort of unfortunately the situation we’re in, but I could see this being a problem.”

The memo, dated March 26, presents a two-step procedure for emergency applications along with actions to drastically reduce in-person appearances, where possible.

Attorneys must request that an essential matter — including bail applications and resentencing for incarcerated defendants — be scheduled, mostly by video, with a county court.

When a case cannot be accommodated on the county level, it may be sent forward to a court accepting emergency business citywide, the memo says, “particularly if a video appearance of a defendant in [custody] is required.”

The move has been characterized by OCA as a critical step to keeping the courts open in the wake of a disruptive global pandemic. Some court staff still appeared last week as virtual arraignments kicked off, such as clerks and security personnel, lawyers told POLITICO.

But some attorneys are unsure of what the expansion will mean for their clients. Public defenders POLITICO spoke to expressed a range of concerns about the move’s impact on clients accused of crimes or those already incarcerated, citing a potential for delays.

Some voiced concern about the courts’ ability to transition to the virtual realm, saying its capacity to hear cases could potentially be reduced. Others cited evidence-gathering challenges and the establishment of trust with their clients as potential hurdles.

“Seeing someone over a video feed is definitely different than seeing them in person. And you’re not going to pick up on as many details about them as seeing them face to face,” said Maryanne Kaishian, a senior staff attorney at Brooklyn Defenders Services.

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PA governor has ability to remove thousands of vulnerable people from state prison

Pennsylvania Governor Tom Wolf most likely has the ability to remove thousands of the most vulnerable people from state prison with the stroke of his pen as COVID-19 spreads across the state, reported The Appeal. But he is not using that authority.

In an email obtained by The Appeal and sent to a spokesperson at the Pennsylvania Department of Corrections (DOC), Anne Cornick, deputy general counsel for the state Office of General Counsel, said the agency reviewed whether Wolf has the authority to issue reprieves—temporary suspensions of prison sentences. The office, which advises the governor and other executive agencies on legal matters, determined that Wolf “could probably do it,” Cornick wrote, but “it was not the preference” to use the reprieve power.

The email was part of an internal discussion about how to respond to questions from The Appeal regarding Wolf’s ability to grant reprieves. Cornick directed the DOC spokesperson to avoid discussing the option in its response. “I think we want to give an answer that doesn’t answer directly the reprieve questions,” Cornick wrote. 

Neither Cornick nor the governor’s office responded to a request for comment. The DOC did not respond to a request for comment, but lawyers for the department asserted that the emails obtained by The Appeal were covered under attorney-client privilege.

Reprieves are a form of clemency, but they do not go as far as commutations, which permanently reduce a criminal sentence, and pardons, which absolve a person of criminal wrongdoing.

Although Wolf has previously used reprieves to delay executions, Ben Notterman, a research fellow at New York University’s Center on the Administration of Criminal Law, told The Appeal that the power is much more expansive and largely unchecked in Pennsylvania. 

“I’m sure there are logistical and public health-related considerations about the manner in which we remove people, but there don’t seem to be any legal (or moral) ones,” Notterman said in an email. “And it should be done immediately, while we are still able to limit COVID-19’s spread.”

The state Constitution gives the governor the sole authority to grant reprieves, commutations, and pardons. However, the governor must receive approval from the state Board of Pardons before issuing commutations or pardons. 

This restriction is not placed on reprieves. 

“The current COVID-19 crisis illustrates precisely why reprieves—unlike pardons and commutations—are free from regulation: the governor needs a mechanism to act immediately to avoid disaster in prisons/jails, whether the disaster is putting a potentially innocent person to death or stemming a viral outbreak that could lead to many deaths,” Notterman said.

NYU law professor Rachel Barkow, an expert on clemency in the United States, agrees with Notterman’s assessment. Barkow recently called on governors across the country to use their executive authority to remove people from prisons and jails to prevent the spread of COVID-19.

A protest in Philadelphia on Monday, urging Mayor Jim Kenney and Governor Tom Wolf to reduce jail and prison populations as COVID-19 spreads.Decarcerate PA

While officials across the country have begun to release people from jails during the pandemic, they have moved more slowly to release state prisoners. Jails typically have more options to release those held in custody. In Pennsylvania, judges can usually grant early release for most people sentenced to jail time, or they can reduce or choose not to impose bail requirements.

State prisons generally have fewer mechanisms for early release. In Pennsylvania, parole must be approved by the parole board, the compassionate release program is restrictive, and there is no furlough program for people in prison.

On Monday, the DOC announced that all incarcerated people would be put under quarantine as a precaution, a day after the agency said a man being held at State Correctional Institution Phoenix in Montgomery County had tested positive for COVID-19. He is the first incarcerated person in a Pennsylvania prison to test positive for the disease.

Prisons and jails historically have been a hub for the spread of communicable diseases. A lack of access to personal hygiene supplies, an inability to isolate or socially distance, and typically substandard medical care tend to allow for the proliferation of disease. For example, the rate of tuberculosis in prisons is nearly twice that of the general population, according to a study published in the Annals of the American Thoracic Society. 

New York City’s Rikers Island jail complex has already seen rapid growth in COVID-19 infections. As of Monday, 167 people on Rikers Island had tested positive for the disease, a figure that is doubling roughly every two days. 

Bret Grote, legal director for the Abolitionist Law Center, said the U.S. needs to begin releasing people in prison to halt the spread of the disease. More than 20,000 people are already released from Pennsylvania prisons every year, he said, “and if political will is to be commensurate to the magnitude of the looming crisis, at least 10,000 can be safely released in an expedited fashion to relieve the burden on the system and limit transmission of COVID-19 inside the prison and among the broader community.”

There are currently more than 45,000 people held in state prisons in Pennsylvania. As of last week, the DOC had only four ventilators to serve that entire population.

As of the end of 2018, more than 10,000 people being held in a state prison were 50 years old or older. According to the University of Oxford, people over 50 are at least four times more likely to die if they test positive for COVID-19 than people under 50. 

“Political cowardice must not allow our people behind the walls to become a sacrifice population,” Grote said

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ACLU files emergency petition with PA Supreme Court to release county jail inmates

The American Civil Liberties Union (ACLU) of Pennsylvania filed an emergency petition to the Pennsylvania Supreme Court seeking the release of some in the Commonwealth’s county jails, reported Jurist. The petition argues it is a necessary measure to allow jail space to follow CDC-recommended safe social distancing practices to prepare for COVID-19.
The petition asks the Supreme Court to use its “Kings Bench” power to relieve some of the jails’ most vulnerable populations, as well as those awaiting trial or on short sentences for minor offenses.

“Leading public health officials have warned that unless courts act now, the ‘epicenter of the pandemic will be jails and prisons,'” the petition states. “The U.S. Centers for Disease Control and Prevention (“CDC”) has explained that correctional and detention facilities ‘present unique challenges for control of COVID-19 transmission among incarcerated persons, detention center staff, and visitors.’”

Other states have implemented similar measures, outlined in the ACLU’s petition, including New Jersey, which was the first March 23, and South Carolina, where its Supreme Court ordered that everyone held in jail on bond in a non-capital case be released, unless there exists an “unreasonable danger” or “extreme flight risk.” US Attorney General William Barr directed the Bureau of Prisons (BOP) to use home confinement for inmates currently held in jail or prison when appropriate in response to an increase of COVID-19 cases among prison populations on Thursday last week.

“We urge this Court, in the strongest terms, to join the growing chorus of courts who have decided to act in an effort to save lives. The time to act is now,” the petition said.

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