Building a Pipeline of Reform-Minded Prosecutors

by Sheila Bapat, Program Director, California Bar Foundation

California Bar Foundation has been excited to partner in the Meet Your DA event series here in California. Led by the ACLU of Northern California, this four-part event series is shining a light on the power of District Attorneys (DAs) and how prosecutors can be vehicles for social change. The final event in this series will take place in Los Angeles this week, on November 1. It has been a privilege to partner with the ACLU along with Smart Justice California and the American Constitution Society for Law & Policy to reach law students throughout the state with this message.

California Bar Foundation’s mission is to build a better justice system -- for all Californians. We believe that every Californian deserves access to justice, and that lawyers working in this system should be representative of the communities they serve. We fund legal aid fellowship opportunities and scholarships for diverse law students throughout California who are devoted to making social change. We also fund pipeline programs throughout California to empower high school, community college and college youth to consider careers in the law.

To truly build a better justice system, lawyers with power—including prosecutors—must be representative of, and seek to work for, the people of California. Our strategy is to invest in a pipeline of diverse law students who will one day become leaders of our profession.

Why do we focus on supporting diverse law students? California is a majority-minority state. While Latinos and African-Americans make up 38.8 percent and 6.5 percent of California’s population respectively, they make up 42 percent and 29 percent  of California's incarcerated population, respectively.  Nearly two-thirds of men incarcerated in California are black or brown.

The legal profession can help change this. A very small percentage of California lawyers are black or brown and people of color as a whole make up just 20 percent of the state’s lawyers.  A study by Stanford’s Criminal Justice Center found that in 52 of the 58 California counties, 70 percent of prosecutors are white.  And while 40 percent of California’s population is Latino, only 9 percent of prosecutors are Latino. Nationwide, the numbers are worse. According to a report by the Women Donors Network, 95 percent of all elected prosecutors in the United States are white.

Diversity is important for creating a better justice system -- it is not just for the sake of diversity. As the Stanford Criminal Justice Center has noted, “prosecutors are more likely to charge black defendants than white defendants with offenses carrying stiff mandatory minimum sentences, and more likely to charge black defendants than white defendants under laws providing longer sentences for habitual offenders.”

Right now, law students of color are generally not inclined to be prosecutors. Many seek to be a public defender or some other form of justice advocate, and we are committed to continuing to build a pipeline for these critical areas as well.

But we also need to ensure we have diverse, reform-minded law students who want to be prosecutors, too. Given the level of discretion prosecutors have, criminal justice reform efforts need reform-minded prosecutors in order to succeed. As Adam Foss has noted, “The unfairness of it all made me want to be a public defender. The power dynamic made me want to be a prosecutor.”

For all of these reasons, we are now building a pipeline of reform-minded prosecutors of the future.

Once the Meet Your DA event series wraps up, our work will just be beginning. We will partner with diversity pipeline programs throughout the state -- programs that empower high school, community college and college youth to consider careers in the law -- to provide exposure to reform minded prosecutors.

We will continue organizing webinars and events for law students to gain exposure to reform-minded prosecutors in collaboration with the many terrific organizations in California doing this work.

Finally, we will be providing paid fellowship opportunities for law students and recent graduates who are committed to being reform-minded prosecutors in California.

We are excited to partner with ACS and so many other groups in this critical pipeline work to ensure that prosecutors of the future are committed to criminal justice reform.

"A" Ratings from the NRA

by Victoria Bassetti

*Victoria Bassetti is leading ACS' analysis of US Attorneys.

While campaigning for office, President Trump actively courted National Rifle Association members. "The eight-year assault on your Second Amendment freedoms has come to a crashing end,” President Trump said during a speech earlier this year at the NRA’s leadership forum. "[You] have a true friend and champion in the White House," he told them.

His nominees to be U.S. Attorneys, the top federal law enforcement officers throughout the states, show he meant it.

Eight of the 46 men and women President Trump has selected thus far to be a U.S. Attorney have either worked with or for the National Rifle Association or have received “pro-gun” ratings from it.

The Trump U.S. Attorneys include a man who was described as a “key player” in crafting the NRA’s answer to the Newtown shootings, a woman who helped author the NRA’s amicus brief in District of Columbia v. Heller, a landmark 2008 Supreme Court Second Amendment decision, and a man who sought out promotion by the “Shooter’s Bar” website which bills itself as the “oldest publicly available list of pro-Right to Keep and Bear Arms (RKBA) attorneys.”

Another five either held or sought elected office and were endorsed or given “A” ratings from the NRA.

The presence of NRA-supported prosecutors in the ranks of President Trump’s Department of Justice nominees comes as no surprise. Sessions, the President’s pick to be Attorney General, voted with the Gun Owners of America 90 percent of the time during his last two years in the U.S. Senate. He was heralded by the NRA’s Institute for Legislative Action as a “true defender of our rights.”

But as they take office and begin to enforce federal laws, the question is how much of an impact will their views have on their prosecutorial and policy decisions?

They are stepping into a fraught environment.

The recent mass shooting to Las Vegas has turned up the pressure on Congress and the Administration to act on gun violence. It has even resulted in the rare legislative proposal that the NRA can back – a ban on so-called bump stocks, a gun accessory that for all intents and purposes enables a gun to fire automatically or like a machine gun.

On a prosecutorial front, this spring, Sessions announced an increased federal focus on addressing violent crime and using gun prosecutions to do so. “This Department of Justice will systematically prosecute criminals who use guns in committing crimes,” he said.

U.S. Attorneys have substantial say in helping shape Department prosecutorial priorities and in determining what sorts of legislative or policy proposals to support. They also conduct the day-in-and-day-out work of investigating violent crime and enforcing current gun laws.

More than anyone, they know whether and how directives from Washington, D.C. are practical or are having a real impact. After all they are the men and women on the ground, meeting with the local community and bringing real cases in court.

In the three months following Sessions announcement, federal gun prosecutions jumped 23 percent. A large portion of the jump could be attributed to state cases being transferred over to federal prosecutors. It is a bureaucratic, numerical answer to gun violence rather than a strategic or innovative approach.

Observers warned: “Researchers, in fact, long ago concluded that the long prison sentences and elevated incarceration rates that result from increasing federal prosecutions have scant influence on violent crime rates.”

Addressing gun violence in America is going to take a lot more than banning one piece of gun equipment and taking over more state criminal prosecutions.

Many of President Trump’s nominees to be the top federal law enforcement officer in their local communities have embraced NRA positions. They have supported expanding the ability of people to carry concealed weapons or arming school administrators and teachers in response to the Sandy Hook shootings.

These are the people who will have the Attorney General and President’s ears when it comes to dealing with gun violence in America. Will any of them come to the table with new or pioneering solutions? Or will they be content with following their boss’s lead, embracing NRA positions come what may? Thus far too many seem to fall into the latter category.

Stand Up for Public Service Loan Forgiveness

by Isaac Bowers, Director of Law School Engagement & Advocacy, Equal Justice Works

Many students reading this have an idea of what they want to do after they graduate law school. Whether it is to work in your community as a public defender, join a prestigious law firm as a new associate, or clerk for a judge at the state or federal level, each of you have chosen a different path to take. One option many law students forego in the hopes of a high paying private sector job is working in the public sector. This can include working for the government, a 501(c)3 nonprofit, or various legal aid organizations across the country. To better prepare yourself for a career in the public sector, there are many things you should know, and an important program you should fight to protect.

Public sector employees are lower-income professionals that are working for the greater good in their community, whether that is through non-profits or the government. These public sector attorneys rely on Income-Driven Loan Repayment plans, Loan Repayment Assistance Programs, and most importantly, Public Service Loan Forgiveness, to be able to afford the high price law degree necessary to work as a public sector attorney. Public Service Loan Forgiveness (PSLF) offers relief to these public sector workers across the country, and unfortunately, the current administration has proposed eliminating or capping PSLF at $57,500. While eliminating PSLF would be devastating for our public servants, capping the program at this level would be only marginally less harmful to our public sector.

For example, in the legal field served by Equal Justice Works, a survey conducted by the National Legal Aid and Defender Association showed that about half of the 2,007 lawyers in the survey would not have taken their current public sector position, or would leave for a position with a higher salary, if a cap was put in place. This would leave the country without the legal aid and public defenders vital to ensuring access to justice for everyone in our legal system. Attorneys in other sectors, like prosecutors, would greatly decrease as well.

Ensuring PSLF works for graduate and professional students is not just critical to the legal profession. Many professions require or rely on graduates with professional or graduate degrees to fill crucial positions, such as teachers, doctors, therapists, social workers, physical therapists, nurses, and many others. Nonprofit and governmental institutions that rely on people with these degrees would face recruitment and retention problems that parallel those in the legal field.

Capping PSLF at an amount that limits its utility for graduate and professional students is shortsighted for other reasons as well. First, graduate and professional students are proportionately more likely to work in the public sector than those with only undergraduate degrees. Forty-eight percent of full time workers age twenty-five to fifty-nine with graduate and professional degrees work in the public sector.

Second, a study done by Equal Justice Works has shown that after ten years, the average graduate and professional student borrower will have repaid 91 percent of the amount they initially borrowed, while the remaining balance forgiven is largely interest on the original loans. Given the economic benefits provided by the public sector, it is clear that investing in graduate and professional students should be a big deal for the federal government.

This is where you come in. 

Equal Justice Works is building a coalition of organizations, from state level prosecutors to teachers and police officers, to advocate for PSLF, but we can’t do this on our own. Students at law schools and graduate schools across the United States need to speak up about how important PSLF is to their futures.

How you advocate for PSLF is up to you! The important thing is that we bring more students on to advocate for Public Service Loan Forgiveness and ensure that Congress and the White House don’t prevent a generation of professionals from joining the public sector.

Abortion, Immigration, and the Courts – Three Judicial Approaches

by Amy Myrick, Staff Attorney for Judicial Strategy, Center for Reproductive Rights 

It had to happen: an administration seeking to remake the Constitution into a rubber stamp for rights violations found the place where abortion and immigration converge.  In a federally contracted shelter in Texas, an unaccompanied 17-year-old immigrant who did not want to be pregnant waited over a month while federal officials relentlessly blocked her from receiving an abortion.  Jane Doe was forced to endure what ultimately became a grueling spectacle and multiple court hearings before she could access what has long been a protected constitutional right in the United States.

The government’s argument in this recent case, Garza v. Hargan, is glaringly unconstitutional. Under a line of cases starting with Roe v. Wade (1973), and ending with Whole Woman’s Heath v. Hellerstedt (2016), it’s settled law that the Constitution protects the right to access abortion, and the government cannot place a “substantial obstacle” in the path of a woman - adult or minor - seeking to exercise that right.  Whether claiming to advance the government’s preference for childbirth or its view of what is in a pregnant minor’s “best interests,” or both, the government has no authority to unilaterally block a woman’s access to abortion.  But in the Garza case, the government did just that.

Before federal officials halted her, Jane Doe had already sought and received a judicial bypass in Texas state court. Under this process, a minor who does not want to involve her parents has a right to go expeditiously before a judge, represented by an appointed guardian ad litem.  After the judge authorized her abortion, government officials from the Department of Health and Human Services’ Office of Refugee Resettlement (ORR) refused to release Jane Doe from custody so she could travel to her appointment, blocking her from obtaining an abortion, even as her pregnancy progressed to almost 16 weeks. The government clung to two equally untenable arguments that it was not actually stopping Jane Doe from having an abortion. First, she could remove herself from its custody by voluntarily giving up any rights she had to immigrate to the U.S., instead returning to her home country where she faced abuse and where abortion is illegal.  Alternatively, if at some point ORR identified and approved a sponsor who would house and care for her while her immigration case progressed, then she would be out of the government’s custody and free to proceed with an abortion.

In situations like this, vindication of constitutional rights can only happen in the courts. And the U.S. Court of Appeals for the District of Columbia, sitting en banc, came through, holding that that the government could not continue to block Jane Doe’s access – reversing a three-judge panel of the same court that held otherwise just days before.This legal resolution is correct, and allowed Jane Doe to have her abortion without additional trauma. But it also provides insight into the role that courts and judges play when another branch of government goes off the constitutional rails. 

The en banc decision was a per curiam, without a written opinion. Three other opinions were filed – a concurrence, and two dissents. Collectively, they show the range of ways that judges can respond to an administration that traffics in glaring constitutional violations, and defends them in court with arguments that turn precedent on its head.    

Option One:  Enforce Precedent

Judge Patricia Millett – who also sat on the three-judge panel that would have held for the government, wrote a concurring opinion in the en banc review, which expanded on her previous dissent.  In both, she called out the government’s arguments for what they are – “freakishly erratic” assertions that “def[y] controlling Supreme Court precedent.” She told the government in certain terms that it cannot change the meaning of the law or Constitution by making funhouse arguments: “The government’s mere opposition to J.D.’s decision is not an individualized ‘best interests’ judgment within any legally recognized meaning of that term, and its asserted categorical bar to abortion is without constitutional precedent.”

Option Two:  Upend Precedent

Judge Karen L. Henderson, also on the three-judge panel, wrote a solo dissent from the en banc decision.  Judge Henderson’s opinion faults the government, but for a very different reason. She would have decided a monolithic question on which the government repeatedly and conspicuously declined to take a position:  do undocumented people have the right to abortion, or other rights guaranteed by the Fifth and Fourteenth Amendments?  Judge Henderson wrote: “The government has inexplicably and wrongheadedly failed to take a position on that antecedent question. I say wrongheadedly because at least to me the answer is plainly— and easily—no. To conclude otherwise rewards lawlessness and erases the fundamental difference between citizenship and illegal presence in our country.” In sweeping terms, she asserts that undocumented people either have nonexistent or very limited due process rights. She accordingly disagrees that Supreme Court precedent on abortion applies to Jane Doe, and would recognize the executive’s authority to “pursue its legitimate interest in protecting fetal life” without constitutional constraints.

Notably, the only participants in Jane Doe’s case who were willing to make the argument that Judge Henderson found persuasive were the attorneys general of Texas, Louisiana, Missouri, Nebraska, Ohio, Oklahoma, and South Carolina, acting as amici. 

Option Three:  Hollow Out Precedent 

Judge Brett Kavanaugh, the third member of the original three-judge panel, penned a dissent after the en banc review that Judges Henderson and Griffith joined. Judge Kavanaugh would have held that because the Supreme Court has upheld a 24-hour waiting period before abortion, and permitted some burdens on access if they are not “undue,” the government was free to block Jane Doe’s abortion while it tried to find a sponsor who would take her out of detention. Judge Kavanaugh wrote that under current Supreme Court precedent, it would not be an undue burden for the government to delay her abortion (already delayed by a month) until she was 17 weeks pregnant, at which time a court would revisit the question and the government could make additional arguments if it wanted to continue to block access. 

While the Supreme Court has upheld a 24-hour waiting period and other parental involvement laws provided that they include an expeditious bypass (such as the one Jane Doe used), it has never come close to upholding this scenario: weeks of intentionally-imposed delay after a woman has decided to have an abortion and completed any state-mandated requirements – especially not where the government admits to hindering her based on its own opposition to abortion. Judge Kavanaugh’s holding pretends to apply precedent, while hollowing it out to mean absolutely nothing.      

The en banc court came through for Jane Doe, righting an egregious constitutional violation by applying long-settled precedent. But the range of opinions in this case show that when an administration tries to remake constitutional law, judges have choices.  They can apply settled law, drastically rewrite it, or subtly revise legal standards to accommodate rights violations.This administration will provide the courts with no shortage of rights violations, in reproductive rights, immigration, and countless other areas. Precedent is not always perfect, but when it’s clear, and the government tries to muddy it, the courts need to see through the mess.  

Donald Trump: The Great Distractor

by Reuben Guttman, Founding member, Guttman,Buschner & Brooks PLLC

*This piece was originally posted on Huffington Post.

There is a scene in the movie Private Parts – the life and career of Howard Stern – where NBC officials, committed to dumping the shock jock, check out the latest ratings and learn, to their dismay, that the DJ’s popularity has rocketed. Pouring through the data, they find that the “number one reason” people tune into Stern is because they are waiting to hear what he will say next.

For all the time that Donald Trump spent on the Stern show, this may be the one lesson he learned. From North Korea’s “rocket man” to “crooked Hillary,” and a dash of Ryan and McConnell bashing, people tune in to this President to hear what he will say or tweet next. For their part, the members of the news media seem to fixate on Trumpian commotion.

Call him the great distractor. While the world focuses on Trump and wonders what he will do or say next, his minions are busy dismantling government. It is as if the Trumpeteers are robbing the rule of law while Trump is distracting the security guards.

Consider Department of Education Secretary Betsy DeVos. Last month – before the Harvey Weinstein sexual harassment scandal broke – the Secretary appeared before an audience at George Mason University and spoke about Title IX enforcement.

Promulgated by Congress 45 years ago, Title IX ensures that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any education program or activity receiving federal financial assistance.” Title IX is part of a myriad of civil rights laws enforced by the Department of Education’s Office for Civil Rights. These laws also proscribe discrimination based on race, color, national origin, disability, and age.

For her part, DeVos spoke out against campus sexual misconduct, noting that she is “grateful to those who endeavored to end sexual misconduct on campuses.” It was – at one level – a seemingly uneventful speech. Yet, on another level, it was a speech replete with dog-whistle-like messaging communicating an intent to dismantle regulation proscribing sexual harassment and discrimination at our nation’s colleges.

Referring to an unidentified school official, DeVos said she was told that the Department’s “Office for Civil Rights has ‘terrified’ schools.” Citing another unnamed school official, DeVos noted that “[o]ne university leader was rightly appalled when he was asked by an Office for Civil Rights official: ‘Why do you care about the rights of the accused?’” Referring to required processes to investigate and address sexual harassment, DeVos said, “It’s no wonder so many call these proceedings ‘kangaroo courts.’” She complained that “[t]his failed system has generated ‘hundreds upon hundreds of cases’ at the Office for Civil Rights while generating “dozens upon dozens of lawsuits” filed “by students punished for sexual misconduct.” And – like her boss who freely opines on matters squarely within the orbit of an independent judicial process – she spoke of a football player who had been dismissed from school – in her mind wrongfully – because he had been determined to have engaged in sexual harassment. “There are men and women, boys and girls, who are survivors, and there are men and women, boys and girls who are wrongfully accused,” said DeVos.

And DeVos said this: “Punishing speech protected by the First Amendment trivializes actual harassment. It teaches students the wrong lesson about the importance of free speech in our democracy.”

No Madam Secretary; you are wrong! Our nation has long regulated speech when it hinders equal opportunity in employment, housing, public accommodation, and, yes, education. And at least in the employment context, our half-century-old civil rights laws view the legality of the speech from the vantage point of the listener and not the speaker. And no Madam Secretary, it is not for you to determine how much a woman will take before it is called harassment.

The Secretary of Education has now telegraphed her intention to dismantle Title IX compliance enforcement. If this were the only regulatory scheme that Trump’s minions were trashing, it would be tragic but perhaps manageable. Unfortunately, there are regulatory wrecking balls at all government agencies. And, of course, trade agreements and nuclear non-proliferation agreements are not safe from demise.

At some point the Trump presidency will end. We will than begin the process of picking through the rubble of a dismantled regulatory system that once fostered equal opportunity from education to the workplace and housing, protected workers on the job from hazard, and safeguarded our natural resources from contaminants. The measure of our task will of course depend on how much damage we can prevent, and prevention means not being distracted by the side show of the great distractor Donald Trump.

The Power of Executive Clemency to Promote Systemic Change

by Renato Mariotti, Partner, Thompson Coburn LLP

*Renato Mariotti is a panelist for ACS’s congressional briefing Pardon the Disruption: The Reach, Limits and Effect of Executive Clemency

Usually, people only pay attention to the pardon power when it is the subject of controversy, like the pardon of former Sheriff Joe Arpaio earlier this year. Although pardons are typically thought of as a way to achieve justice in individual cases, executive clemency can be used to promote systematic change in state and federal policy.  For example, on his first day in office, President Carter pardoned civilians who violated the Military Selective Service Act by draft-evasion acts or omissions during the Vietnam War. President Carter intended for this blanket pardon to create reconciliation in the country and “heal the scars of divisiveness.”

More recently, President Obama began a clemency initiative in 2014 that focused on commuting the sentences of or pardoning people who received mandatory-minimum sentences for nonviolent drug offenses during the “War on Drugs.”  Through this initiative, President Obama encouraged people serving lengthy prison terms for nonviolent drug convictions to apply for clemency and prioritized those petitions from individuals convicted of drug trafficking offenses. President Obama’s clemency initiative focused on the fact that these individuals likely would have received considerably lower sentences if they were convicted of the same offense today.  President Obama ultimately commuted the sentences of 1,715 individuals, the vast majority of whom were serving sentences for drug convictions.

While President Obama’s initiative was an important first step, most people convicted of nonviolent drug offenses are convicted of state crimes, not federal crimes.  I believe state governors should adopt a program similar to President Obama’s, inviting clemency petitions from non-violent drug offenders serving state or federal sentences.  Like President Obama, they could invite individuals serving sentences for drug-related convictions to apply for clemency to if they meet the following conditions:

  • The individual is currently serving a federal or state sentence for a drug-related offense;
  • The individual does not have any felony convictions or arrests, other than ones related to their drug conviction(s);
  • The individual does not have a history of violence prior to or during their term of imprisonment;
  • The individual has already served more than 25% of their sentence or 10 years, whichever is less; and
  • The individual has demonstrated good behavior in prison.

These petitions would then be decided on a case-by-case basis by the Governor’s office.

This policy would benefit state governments and taxpayers that are bearing the cost of imprisoning non-violent drug offenders who would likely be sentenced to significantly lower sentences if sentenced today.