Month: June 2020

Nearly a third of the 3,500 inmates incarcerated in San Quentin State Prison in California have tested positive for the coronavirus as of Monday.

California is one of the states seeing new spikes in COVID-19 infections, with nearly 225,000 infections across the state and 6,000 deaths as of Monday. Total deaths in the state still rank well below New York, which has had more than 31,000 deaths, but California is seeing new highs in the daily number of new infections as well as number of new deaths.

Nowhere is the spike more obvious than at San Quentin State Prison, north of San Francisco in Marin County. The prison accounts for half of all new COVID-19 infections among the state’s inmates. Up until May, San Quentin had managed to go without any reported infections at all. Now they have more than 1,000. A representative for the California Department of Corrections and Rehabilitation told USA Today that the prison is setting up tents within the prison to serve as triage space for handling new infections.

In a press conference on Monday, Gov. Gavin Newsom said it’s possible that the infections came to San Quentin via the transfer of prisoners from Chino, formally known as the California Institution for Men, located in San Bernardino County. According to NPR, the 122 prisoners who were transferred from Chino to San Quentin in late May were not tested before being moved. This is particularly foolish since prisoners were moved to San Quentin due to Chino’s own coronavirus outbreak and related overcrowding. (Currently, Chino has more than 500 active COVID-19 infections and has had 16 deaths.)

Newsom says California has released 3,500 inmates and has identified another 3,500 who could potentially be let out in order to reduce the level of crowding and thus the chances of the coronavirus spreading. The state has identified 110 inmates at San Quentin that could potentially be released soon. According to daily population data from California’s prison system, the state prison population is down more than 11,000 inmates from this same time last year.

Despite the new spike and California’s high prison population, the state’s prison system is still seeing fewer infections than in states like Texas and Ohio. Though The Marshall Project notes that 585 inmates in state and federal prisons have died of COVID-19 as of June 25, California has seen comparatively fewer prisoner deaths so far. Hopefully the prison system will learn from this disaster caused by poor planning in its prison transfers and will avoid creating new infection outbreaks. You can’t blame this one on bars and beachgoers.

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Today the U.S. Court of Appeals for the D.C. Circuit decided U.S. Postal Service v. Postal Regulatory Commission. In an opinion for the court, Judge Thomas Griffith resolved a dispute between these two agencies, holding that the PRC could order disclosure of certain financial data related to the sending of mail from foreign countries to the United States via Inbound Letter Post.

If you’re like me, this case may seem a little odd, because one federal agency is suing another. It’s federal government versus federal government, but not in the context of an interbranch dispute.  I am aware of this happening before, as when the Tennessee Valley Authority challenged the Environmental Protection Agency, but should this really be a thing? Should not an intrabranch dispute be resolved within that branch? Apparently not if one is an independent agency.

Judge Neomi Rao apparently had a similar thought. She concurred in Judge Griffith’s holding, but also wrote a separate brief concurrence, which I reproduce below.

I join the court’s opinion in full. I write separately to note the constitutional quandary
raised by a federal court resolving a lawsuit between two Executive Branch agencies. On one side of this dispute, we have the United States Postal Service—”an independent establishment of the executive branch of the Government of the United States.” 39 U.S.C. § 201. On the other, we have the Postal Regulatory Commission—”an independent establishment of the executive branch of the Government of the United States.” Id. § 501. Litigating on behalf of the Commission, the Department of Justice has taken sides in a disagreement between two Executive Branch entities tasked with oversight and administration of the nation’s mails.

This litigation stands in tension with Article II of the Constitution, which vests all executive power in the President and assigns him the duty to “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, §§ 1, 3. “Moreover, because agencies involved in intra-Executive Branch disputes are not adverse to one another (rather, they are both subordinate parts of a single organization headed by one CEO), such disputes do not appear to constitute a case or controversy for purposes of Article III.” SEC v. FLRA, 568 F.3d 990, 997 (D.C. Cir. 2009) (Kavanaugh, J., concurring). The Constitution
creates a unitary executive and limits federal courts to deciding the rights of individuals in properly presented cases and controversies. The posture of this case thus presents constitutional questions about the power of an Article III court to resolve a purely Article II dispute. The fact that Congress specifically created federal court jurisdiction between the Postal Service and the Commission, see 39 U.S.C. § 3663, does not necessarily eliminate the constitutional concern because Congress cannot expand federal court jurisdiction beyond the Article III judicial power. See Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 65 (1996) (citing Marbury v. Madison, 1 Cranch
137 (1803)).

Our precedents are clear, however, that such disputes between “independent” agencies, such as the Postal Service and the Commission, are justiciable. See SEC v. FLRA, 568 F.3d at 997 (Kavanaugh, J., concurring) (collecting cases); see also USPS v. Postal Regulatory Comm’n, 886 F.3d 1253 (D.C. Cir. 2018). Therefore, I join the court’s well-reasoned opinion in this case.

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In 2014, Florida deputies shot and killed Jerry Dwight Brown during a small-scale drug bust. Pasco County Sheriff Chris Nocco said the deputies fired after Brown refused several orders to comply. The State Attorney’s Office cleared the deputies of any wrongdoing due to Brown’s alleged noncompliance. But last week, the Tampa Bay Times released a video of the shooting that challenges the department’s official story.

Brown was shot and killed on July 1, 2014. The 41-year-old inadvertently sold illegal prescription pills to an undercover deputy with Pasco County Sheriff’s Office (PCSO). The sting was part of a monthslong investigation into Brown. After the undercover deputy motioned for fellow deputies to move in and arrest Brown, the department claimed that they repeatedly ordered Brown to show his hands and shot him after he made a sudden movement.

Brown died at a hospital following the shooting. The department found that he was unarmed during the interaction.

The day after the shooting, Nocco told 10 Tampa Bay, “When we are ordering commands to show me your hands, when we are telling somebody they need to comply and they make motions that are not, and make our detectives feel their lives are being threatened you have a millisecond to make a decision.”

The sheriff’s office provided Reason with a redacted version of the video from the drug bust. In the video, an undercover deputy interacts with Brown outside of Big Ben’s Tires in Zephyrhills. He urges Brown to enter the vehicle to make the sale. A reluctant Brown does so, takes the pills out, and begins to count at the undercover deputy’s request. 

Armed deputies then approach the car and the video skips 11 seconds. When the video picks up again, the deputies are pointing guns and surrounding the vehicle.

On Friday, almost exactly six years after the shooting, the Tampa Bay Times released the redacted portion of the video.

Several deputies approach the side of the vehicle and begin to shout various commands at Brown. Brown tries to open the passenger door. The deputies shoot through the windshield and Brown screams. Fewer than five seconds pass from the moment the deputies issue their commands to the time the bullets puncture the windshield.

PCSO told Reason that the video, which they did not provide to the Tampa Bay Times—the paper obtained it independently—was released “in direct violation of a Florida State Statute that was in place at the time the video was recorded.” The older statute to which the department is referring exempted recordings depicting the “killing of a person” from the public record. (The language in the statute was narrowed in 2016 to exempt recordings depicting the killing of a law enforcement officer on duty from the public record.)

The department also told Reason that they did not start using body cameras until 2015, and thus have no footage from the incident, nor are they able to provide an original copy of a press release regarding the 2014 incident.

Brown’s death sparked some protests in the area in 2014 but has otherwise flown under the radar, receiving little national attention.

In February, the department reached a $262,500 settlement with Brown’s widow but did not admit liability. In its report on the redacted video, the Tampa Bay Times said the deputies responsible for the killing are still employed by PCSO.

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I’m inclined to support properly crafted three strikes laws, especially for cases like this; and the court seems to be quite right that the trial judge’s decision is unsound under the California three strikes law. On the other hand, I know that others think that such heavy recidivism enhancements are improper, and that five years would be a sound sentence for a crime such as this one, regardless of the defendant’s past criminal history. (Still others might think that five years is too long, given that the victim managed to prevent being physically injured.)

What do you think? Here are the facts and some of the reasoning from People v. Mayfield, decided last week by the California Court of Appeal (in an opinion by Justice William Bedsworth, joined by Justices Richard Fybel and David Thompson):

The members of this panel have enjoyed long careers in the practice of law. We’ve seen enough to make it difficult to shock us. But not, as it turns out, impossible.

Respondent Tyson Theodore Mayfield has an extensive criminal record that includes multiple acts of violence against racial minorities. In this case, he threatened to make a pregnant African-American woman “drop” her unborn baby while she was waiting at a bus station. As a third-strike defendant, respondent was facing a mandatory prison sentence of 25 years to life. However, the trial court [Judge Roger B. Robbins] dismissed one of his prior strike convictions in the interest of justice under Penal Code section 1385 and sentenced him to five years in prison.

The district attorney contends the dismissal constitutes an abuse of discretion, and we agree. Completely. Everything about respondent’s crime and his record shouts for application of the Three Strikes law….

Jasmine C. is an African-American woman who was eight months pregnant in September of 2018. That day, she was waiting at the Fullerton bus station for her boyfriend to pick her up when she heard respondent talking nearby. He was telling his two male companions how he hates “niggers” like Jasmine and “gets his kicks” by hurting pregnant black women. He also asked his cohorts if they wanted to see him go over to Jasmine and make her “drop her baby.”

Jasmine became frightened. Her anxiety increased even more when respondent walked over to her and said, “I don’t like pregnant niggers like you,” “I’m going to make sure you drop your baby.” Jasmine told respondent to stay away from her, but he continued to hurl racial epithets at her. Fearing for her safety, and the safety of her unborn baby, Jasmine took out her pepper spray and sprayed respondent with it.

In response, respondent grabbed Jasmine’s backpack and left the scene momentarily. He then came running back toward her with his fists balled up and told her, “You’re going to pay now, you nigger, I’m going to make sure you really drop this baby.”

By now, Jasmine was so terrified her body was shaking uncontrollably. She somehow managed to run to a nearby café and call the police before respondent was able to carry out his threat. Officers arrived a short time later and took him into custody.

He was charged with committing a hate crime by threatening Jasmine for the purpose of violating her constitutional rights and with the present ability to commit a violent injury or cause actual physical injury. The complaint also alleged one count each of making a criminal threat and petty theft. And it included a sentence enhancement allegation that the criminal threat constituted a hate crime.

In addition, the complaint alleged two prior strike convictions, two prior serious felony convictions and two prior prison terms. Those six recidivist enhancements were based on respondent’s convictions for assault with a deadly weapon in 2005 and mayhem in 2008….

All told, respondent was facing a mandatory sentence of 25 years to life in prison under the Three Strikes law, plus 13 years for the remaining enhancements. At his arraignment he pleaded not guilty, and over the course of the next several months, his preliminary hearing was continued several times to facilitate a plea bargain. During that period, respondent was unable to reach a plea agreement with the district attorney. However, the trial judge indicated he would be willing to strike one of respondent’s prior strike convictions and sentence him as a second-strike offender to five years in prison if he pleaded guilty to the charges.

The prosecution vehemently opposed this proposed disposition. On March 15, 2019, it filed a lengthy sentencing brief arguing the interests of justice did not support the trial judge’s indicated sentence. According to the brief, respondent was convicted of 18 offenses during the 20-year period leading up his current crimes in 2018[:] {1997: Driving under the influence; 2000: Driving with a suspended license; 2003: Battering a police office, resisting arrest and using illegal drugs; 2004: Petty theft and disorderly conduct; 2005: Assault with a deadly weapon; 2006: Failure to appear in court; 2007: Assault and battery; 2008: Mayhem and battery with serious bodily injury; 2016: Driving under the influence; 2017: Hate crime, assault, battery, and driving under the influence.} Eighteen—a remarkable number considering how much of those 20 years he spent in custody.

Most of these earlier convictions were for misdemeanors. However, in 2003, respondent was convicted of felony battery on a police officer, and in 2005, he suffered his first strike conviction for stabbing a man outside a liquor store. Respondent had no prior relationship with the man he stabbed. He just walked up to him, accused him of being a child rapist/murderer and slashed his face with a knife. Respondent received a two-year prison sentence for the attack. However, following his release from prison, he soon reoffended.

In 2006, respondent and a companion contacted a nonwhite couple at a gas station and asked them if they had any spare change. When the woman said no, respondent began making racist statements to her. Then he began punching the man in the face and did not relent until a bystander intervened. In the end, the man suffered a lacerated lip that required eight stitches and for a time hindered his ability to speak and eat. Respondent was convicted of battery with serious bodily injury and mayhem—his second strike conviction—and sentenced to nine years in prison.

That was in 2008. Following his release from prison, respondent was quickly convicted for drunk driving. And in 2017, one year before the instant case arose, he reoffended yet again. The victim in that case was a Turkish man with dark skin and dreadlocks. Respondent approached him outside a liquor store and asked for a light. When the man said he didn’t smoke, respondent called him a “fucking nigger” and began pounding him with his fists. The incident led to respondent being convicted of a felony hate crime, but the trial court inexplicably reduced the conviction to a misdemeanor pursuant to section 17, subdivision (b) and sentenced him to a year in jail.

In addition to providing this information about respondent’s prior cases, the prosecution’s sentencing brief noted respondent has consistently violated the terms of his probation and parole throughout the years. The brief also reminded the court respondent presently had four misdemeanor cases pending against him that were unrelated to the present case. One of those cases was for punching a fellow inmate at the Orange County jail without provocation. Respondent boasted to jail authorities that he was not going to cease his violent behavior while in custody so long as he was forced to have contact with other inmates.

Given respondent’s violent and racist conduct over the past two decades, including his actions in the present case, the prosecution’s brief argued he was a threat to public safety and deserved to be incarcerated for an indeterminate life term pursuant to the Three Strikes law. Nevertheless, the trial judge stood by his indicated sentence of five years, which predictably prompted respondent to change his plea to guilty….

The trial judge exercised his discretion under section 1385, and struck respondent’s 2005 strike conviction in the interest of justice for the following reasons: 1) the circumstances surrounding the current offense “do not indicate a greater degree of danger to society[,]” 2) “[t]here was no injury to any person[,]” 3) “[t]here was no weapon used[,]” 4) respondent’s prior strike conviction is “14 years old and now remote in time,” and 5) respondent was pleading guilty at an early stage of the proceedings.

The judge sentenced respondent to a prison term of five years, representing the requisite double the two-year midterm on the criminal threats count, plus one year for the hate crime enhancement attendant to that count. In so doing, the judge not only struck respondent’s 2005 conviction for purposes of the Three Strikes law, he also struck all of the prior serious felony and prior prison term enhancements. Sentencing on the remaining two counts was stayed pending the completion of respondent’s five-year term. So a defendant with 38 years’ exposure who had been sentenced to 9 years for his previous felony, got 5 years for this one….

In reviewing this decision, we must keep in mind the Three Strikes law is designed to “punish repeat criminal offenders severely” and “drastically curtail a sentencing court’s ability to reduce the severity of a sentence by eliminating alternatives to prison incarceration[.]” To that end, the law mandates the imposition of a 25-year-to-life prison sentence in cases—such as this one—where the defendant is convicted of a serious or violent felony and has previously been convicted of two such felonies. In other words, “If, after having suffered two qualifying felony convictions, an offender commits a third qualifying felony, the Three Strikes law presumes he or she is incorrigible and requires a life sentence.

That doesn’t mean trial courts are powerless to deviate from the Three Strikes law. Under section 1385, the trial court is empowered to strike a prior strike conviction “in the furtherance of justice.” However, that great power should only be used in “extraordinary” circumstances, when the ends of justice demand it….

What … we find considerable here is that racism and misanthropy are motives that are not likely to diminish or disappear. A defendant who boasts about his fights with other inmates and has a long and depressing history of random violence is not likely to emerge from whatever portion of five years his sentence requires him to serve with a thoughtful and pacific approach to his fellow man….

Respondent was also given a tremendous break in 2017 when the court reduced his felony hate crime to a misdemeanor. This enabled him to avoid the imposition of a lengthy prison sentence at that time. {The record does not reflect how in the world that happened.} Yet, before the dust settled on that case, he went out and committed another hate crime, against Jasmine. His unrelenting criminal behavior since suffering his first strike conviction in 2005 demonstrates him to be an unchanged man, with a stubborn character and no discernible prospects for reform….

All of this convinces us the trial court abused its discretion in offering him a reduced sentence…. The judgment is reversed and the matter is remanded to permit respondent to withdraw his guilty plea and plead anew.

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Foreign groups that receive American funding to fight HIV and AIDS must still pledge to oppose sex work, following a U.S. Supreme Court ruling in favor of the requirement. A similar requirement for U.S. nonprofits was struck down as unconstitutional in 2013.

In the recent case, United States Agency for International Development v. Alliance for Open Society International, Inc., U.S. groups whose international affiliates must still abide by the rule sought to have it overturned, too, arguing that compelling anti-prostitution speech from these foreign affiliates was attributed to the American groups and therefore violated their First Amendment rights.

But in a 5-3 decision, the Court rejected their plea.

“In short, plaintiffs’ foreign affiliates are foreign organizations, and foreign organizations operating abroad have no First Amendment rights,” wrote Justice Brett Kavanaugh in the majority’s opinion. While anti-prostitution statements “may be incorrectly attributed to the American organizations,” these groups “are free to choose whether to affiliate with foreign organizations and are free to disclaim agreement with the foreign affiliates’ required statement of policy.”

Also siding in favor of the law were Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas. Justice Elena Kagan did not participate in the case.

In a dissenting opinion, Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor suggest that the court “asks the wrong question and gives the wrong answer. This case is not about the First Amendment rights of foreign organizations. It is about—and has always been about—the First Amendment rights of American organizations.”

“The last time this case came before us,” writes Breyer, “we held that the First Amendment forbids the Government from distorting their speech by requiring, as a condition of receiving federal funds, that they ‘pledge allegiance’ to a state-sponsored message. This time, the question is whether the American organizations enjoy that same constitutional protection against government-compelled distortion when they speak through clearly identified affiliates that have been incorporated overseas. The answer to that question, as I see it, is yes.”

“Just as compelling a clearly identified domestic affiliate to espouse a government message distorts respondents’ own protected speech, so too does compelling a
clearly identified foreign affiliate to espouse the same government message,” adds Breyer, rejecting the majority’s suggestion that American affiliates suffered no harm by simply contradicting the compelled messages put forth by foreign affiliates.

“When the Government demands as a condition of federal funding that their clearly identified affiliate ‘espouse a specific belief as its own,’ respondents may express a contrary view through some other corporate channel only on pain of appearing
hypocritical,” he writes. “Leveraging Congress’ Article I spending power to distort respondents’ protected speech in this way therefore violates respondents’ First Amendment rights—whatever else might be said about the affiliate’s own First
Amendment rights (or asserted lack thereof ).”

It’s easy to imagine the conservative justices in this case coming to the same conclusion as Breyer if the compelled speech were of a different variety.

Republicans have (rightfully) objected to, for instance, a California law compelling crisis pregnancy centers that oppose abortion to display messages about where women could get an abortion. Would that suddenly be OK if the California centers themselves were excluded but any international anti-abortion groups they partnered with to help pregnant women in need were still compelled to advertise abortion services?

It’s interesting to note that in 2018 when the Supreme Court decided that California’s compelled speech law was indeed unconstitutional, Justices Alito, Thomas, Gorsuch, and Roberts all agreed with that assessment. Meanwhile, the three justices now opposing the prostitution pledge on First Amendment grounds—Breyer, Ginsburg, and Sotomayor—all said that California’s crisis pregnancy center speech law should be upheld.

Wouldn’t it be nice if our Supreme Court justices could maintain the same respect for free speech and the First Amendment regardless of what subject that speech was about?

For now, however, it looks like the only way to remedy America’s rule requiring groups to denounce prostitution is for Congress to once again take up the issue.

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