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Feel-Good Victims Rights Legislation Doesn’t Help Victims

Flickr user Tom Arthur

Feel-Good Victims Rights Legislation Doesn’t Help Victims

This November, Ohio voters will consider a ballot measure that, if approved, will add new crime victim protections to the state constitution.

The proposed constitutional amendment is called the Ohio Crime Victims Bill of Rights or Marsy’s Law. It is based on a similar victims rights bill enacted in California in 2008, named for Marsalee “Marsy” Nicholas, a University of California Santa Barbara student who was stalked and killed by her boyfriend in 1983.

The Ohio version of Marsy’s Law would give crime victims the right to notification of all legal proceedings involving their case. Victims would also have the right to weigh in on plea deals, receive restitution, and to be notified when their perpetrator is released from custody. But state law and the Ohio constitution already contain victims rights provisions similar to Marsy’s Law.

Proponents argue that existing victims rights laws are not enforced, but Marsy’s Law does not address the problem of enforcement nor does it create a cause of action for damages or compensation against the state or a political subdivision if government violates victims’ constitutional rights.

Also, it could have unintended financial consequences, needlessly straining an already overburdened criminal justice system.

The Ohio Office of Management and Budget predicted that Marsy’s Law could impose significant costs on the local level, “particularly as they relate to the court system and public defender costs borne by counties.”

Its language also expands the definition of victim and treats low-level crime and violent crime too similarly.

It broadly defines “victim” to include those “directly or proximately harmed.” Critics, including public defenders, private defense attorneys, and prosecutors, have warned that this definition goes beyond, for example, a shooting victim in a store robbery, to cover the store owner and even the store’s insurance company.

The measure also puts violent crime on the same level as a low-level property crime, whereas existing victims rights laws are limited to felonies and certain misdemeanor offenses. While Ohio already has well-established protocol for providing notice and assistance to victims of violent crime, the services provided to victims of lower-level crimes — like petty theft, fraud, or harassment — are less clear. And while current law allows a victim to provide a statement during particular proceedings, Marsy’s Law would allow a victim or a victim’s representative to assert his or her rights in any proceeding involving the criminal offense. At the very least, extending services to victims of lower-level crimes would slow down court proceedings, which would be detrimental to victims.

Worst of all, Marsy’s Law could impinge on the fundamental rights of people accused of crimes.

For example, the measure would allow a victim to refuse an interview, deposition, or discovery requests, all at a moment when criminal defense attorneys already face huge obstacles in obtaining the discovery they need to effectively represent their clients. And in its effort to protect victims’ privacy, Marsy’s Law could erode a defendant’s right to confront his or her accuser.

Furthermore, allowing a victim to intervene at any stage in a criminal proceeding could threaten a defendant’s fundamental rights to fairness and a speedy trial.

Writing about a 2016 Marsy’s Law initiative in Montana, retired state Supreme Court justice James C. Nelson explained how making victims’ rights paramount to the rights of defendants could actually jeopardize cases:

If the defendant’s constitutional rights to a fair trial, to due process, to effective assistance of counsel, to confront and meet accusers and witnesses face to face and to compulsory process of witnesses [are compromised], both Montana and federal constitutional law may require that the charges against the defendant be dismissed or may require a second trial — the victims’ rights notwithstanding.

This is contrary to the interests of victims.

Rather than passing feel-good legislation, the best thing we can do for victims is solve serious crimes like murder and rape, as clearance rates for both have fallen to scandalous levels. In Detroit, for example, only 14 percent of killings were cleared in 2016. In Las Vegas police cleared only about 9% of rapes. Victims do not need expensive programs freighted with Sixth Amendment issues. They need justice.

California jail hunger strikers: “We’re seeking humanity”

Alameda and Santa Clara County jail detainees round out the first week of a hunger strike for better conditions.

California jail hunger strikers: “We’re seeking humanity”

Alameda and Santa Clara County jail detainees round out the first week of a hunger strike for better conditions.

Sheri Costa’s life in Alameda County, California has always been touched by incarceration. Her father was in and out of prison her whole life, her ex-husband wound up in prison, and her brothers in law have been locked up. “It’s been a personal experience for me,” 56-year-old Costa tells In Justice Today. “It’s just been the norm in our family, which is sad to say.”

In 2015, her nephew Mario Martinez died in Alameda County’s Santa Rita Jail two days before his 30th birthday. Martinez collapsed and died of acute asthmatic respiratory insufficiency while in jail fighting charges of attempted murder and possession of stolen property, according to SFGate. Costa and her family alleged that Martinez was neglected by medical providers in the prison, who worked for Corizon Healthcare, a private corrections healthcare provider that has faced lawsuits across the country for substandard care of people in custody.

These personal connections drive Costa’s support of currently incarcerated people in Alameda and Santa Clara Counties who started a hunger strike this week to protest the conditions of the local jails. The strike began Sunday in Oakland’s Glenn Dyer Detention Facility, and spread to Santa Rita Jail. Prisoners in Santa Clara County Main Jail and Elmwood Correctional Complex plan to begin striking in solidarity on Sunday, Oct. 22, organizing as part of Prisoners United of Silicon Valley, a prisoner-led group that is backed by outside community-based civil rights groups.

The strikers have five core demands: “End indefinite solitary confinement, “end subjective grievance practices, end abuse of discretion to lockdown, end insufficient and unsanitary clothing, and end insufficient food and starvation for indigent prisoners.” As of Thursday evening, Costa says the Alameda County Sherriff’s office had not contacted the community organizers who are supporting the prisoners to sit down and discuss the issues at hand.

“We would disagree that any of their demands are not being met,” Sergeant Ray Kelly, the Alameda County Sheriff’s public information officer tells In Justice Today. “They’re making it sound like our county jail [Glenn Dyer] is some kind of very oppressive environment, and I would disagree with that…there’s a lot of care that goes on in there.”

“Our number one priority is the health and safety of those that are hunger striking, while respecting their right to protest,” added Kelly. “At some point we’re going to have to have a talk or sit down with the protesters.”

On Tuesday, Costa and groups such as Communities United for Restorative Youth Justice (CURYJ) rallied at the Board of Supervisors building in downtown Oakland. Marlene Sanchez, associate director of CURYJ who attended the rally, says these demands and issues have “been brought up before to supervisors, and they have been taking it really lightly, saying ‘no that stuff isn’t happening’….People have died inside and we still have not seen much change.”

Sanchez has heard from prisoners involved in the strike that the jails are serving them leftover food multiple days in a row, that many packages sent from loved ones are never received, and that they are not being provided with clean clothes (or a regularly opportunity to wash their clothing). Others tell her that people held in solitary confinement are sometimes not allowed out of their cells for more than two hours each month.

Kelly stipulates that the jails do not use solitary confinement, but instead use administrative segregation — which he says does not involve the same level of “sensory deprivation.” Advocates like Sanchez argue that these two labels describe the same thing, and research illustrates that prolonged isolation can have damaging mental health effects.

Costa hopes that the hunger strike will attract greater outside support for the prisoners, and draw a deeper understanding of how the mistreatment of jail detainees also effects their families. When one person breaks a rule and an entire facility is locked down for an extended period of time, she notes, families also pay the price.

“Most of these people are not even convicted,” Costa notes. “You’re taking humanity away from people who are sitting there because they can’t afford bail. They still deserve to be treated like a human being…We can do better than this.”

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NYPD is one delete button away from losing its civil forfeiture records

Criminal charges are absent from 85 percent of all forfeiture cases in the city.


NYPD is one delete button away from losing its civil forfeiture records

Criminal charges are absent from 85 percent of all forfeiture cases in the city.

On Tuesday, an attorney for New York City revealed that the New York Police Department, the biggest police department in the country, is operating without a backup storage system for its database of civil asset forfeitures. NYPD records of cash and property — reportedly worth millions — could therefore be lost with the drop of a hat.

Civil asset forfeiture is a process in which officers seize items of value — cash, cars, cell phones, jewelry, and more — from people who haven’t been convicted of a criminal offense. Police argue that the belongings in question are possibly related to a crime, or located in the proximity of people who are accused or suspected of committing a crime. But in many cases, the property owners haven’t been arrested or charged with a criminal offense, let alone convicted of one. Every state has its own policies that govern what can be seized and when, and dictates what owners must to do to obtain what was taken from them, but few people have the financial means or resources to fight for their valuables. Forfeiture ultimately occurs when ownership of seized assets is transferred to the law enforcement agencies who collected them. Sometimes people have no choice but to relinquish their belongings, because the items in question are dubbed evidence by law enforcement.

The process is widely known as policing for profit.

In 2014, an organization of public defenders called the Bronx Defenders submitted a Freedom of Information Law Request to better understand the NYPD’s civil asset forfeiture program. The organization asked for the value of seized property and cash, as well as a break-down of how the money gleaned from forfeited assets is ultimately distributed. The organization sued the NYPD two years later, stating the “NYPD did not disclose the records sought, claim specific exemptions to disclosure, or certify that, after making a diligent search, it had determined that it does not possess the requested records.” Representing the NYPD in court Tuesday, City Attorney Neil Giovanatti said there is no way for the police to pull that information, but also disclosed that there is no back-up system for the $25.5 million-dollar tool used to track property and evidence. That admission shocked Manhattan Supreme Court Judge Arlene Bluth, who called the absence of a plan B “insane” and worthy of an New York Times exposé.

“Judge Bluth is right to be skeptical about the city attorney’s the-dog-ate-my-homework excuse,” Lee McGrath, senior legislative counsel for the Institute for Justice, told In Justice Today. The Institute tracks state-level forfeiture trends and champions reform. “New York City’s Police Department is famous for its data-driven policing. It should apply the same rigor to its own operations, particularly when the conflict of interest from its keeping forfeited property is so obvious.”

So who would bare the brunt of such a major loss? Poor New Yorkers struggling to retrieve what is rightfully theirs would suffer, but “the truth stands to lose the most,” McGrath said. “It is likely that the data would reveal exactly how NYC police are using forfeiture.”

Law enforcement agencies justify civil forfeiture as a critical tool to combat large-scale drug trafficking and heavy hitters in the drug trade. In reality, the vast majority of seizures and forfeitures involve poor people of color who have no involvement with cartels or the global drug market. Police departments and district attorneys rack up anywhere from hundreds to millions of dollars in forfeiture profits by shaking down poor people of color for small dollar amounts and property — not big-time drug dealers shuffling large sums of money across state lines. Because they haven’t officially been charged with a crime, property owners aren’t entitled to an attorney who will help them fight for what is theirs. In general, they are also too poor to enlist the help of a private lawyer, and bureaucratic hurdles to retrieve property also benefit law enforcement.

Civil asset forfeiture in New York City, which hasn’t rewritten its administrative code that dictates forfeiture policy since 1881, is no exception. The NYPD’s forfeiture program is portrayed as a public safety imperative, but criminal charges are absent from 85 percent of all forfeiture cases in the city.

In 2016, the Bronx Defenders filed a class action lawsuit against the city. “We often represent low-income people whose phones and cash wages have been confiscated and spend months trying to get their money back after their case is over,” Molly Kovel, former legal director of the organization’s Civil Action Practice, said of the lawsuit. “For people without access to an attorney, the hurdles they face to get their property back are simply too high, and they often give up. We hope this case leads to much-needed reform.”

If forfeiture records are lost, so too is proof that the NYPD is policing for profit, McGrath says.

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