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NY Gov. Cuomo’s Terrible, Horrible, No Good, Very Bad Plan to Protect Your Kids

NY Gov. Cuomo’s Terrible, Horrible, No Good, Very Bad Plan to Protect Your Kids

New York Governor Andrew Cuomo recently unveiled a legislative proposal packaged as part of a budget amendment to expand already onerous residency and presence restrictions for some sex offenders in New York.

The proposal expands blanket presence and residency restrictions for sex offenders who are on parole or post-release supervision by vastly increasing the number of places they cannot be near. It would outlaw the presence of some sex offenders within 1,000 feet of school grounds, “any facility or institution that offers kindergarten or pre-kindergarten instruction,” or any other place that is “used for the care or treatment” of minors. The proposal also prohibits level 2 and 3 sex offenders — those whom the state deems most at risk to re-offend — from staying at homeless shelters that serve families, even if they are no longer under supervision.

In dense urban environments like New York City, such restrictions — which make it illegal for sex offenders to merely exist in many places — are tantamount to banishment. While sex offender registries (and many of the restrictions that go along with them) have proven to be ineffective and inhumane, public defenders, experts, and advocates say that few restrictions are as ineffective and punitive as those proposed by Cuomo.

“It’s hard to believe that we are debating banishment as an acceptable public safety measure in 2018,” Christina Swarns, attorney-in-charge of New York’s Office of the Appellate Defender, which provides appellate representation to individuals convicted of felonies, told The Appeal. “This conversation is particularly absurd given the overwhelming evidence that people convicted of sex offenses are more likely to re-offend when isolated and denied medical, social and economic supports. Banishment is a punishment that should remain in the dustbin of history.”

The theory behind the restrictions advanced by Cuomo is that by banishing people convicted of sex crimes from places where children are present, children will be safer. Proposals like Cuomo’s operate on the assumption that sexual offending is perpetrated by serial predators roaming the streets, but the data demonstrates that sex offenses far more commonly take place within the confines of families, relationships, schools, and workplaces — where victims know and trust their perpetrators. It is social proximity, not geographicproximity, that facilitates the majority of sex crimes.

While proponents of the Cuomo proposal suggest it targets those deemed most likely to re-offend, Lauren Stephens-Davidowitz, a supervising attorney with the Office of Appellate Defender, told The Appeal that the risk assessment tool used by New York State has never been subject to scientific scrutiny. For example, it treats a sex offender’s status as a juvenile as an aggravating (rather than mitigating) factor in assigning a risk level. So it’s unclear if the risk levels assigned by authorities, such as the Level 2 and 3 categories, are based on criteria that are scientifically sound.

Further, the research conducted on geographic restrictions like those proposed by Cuomo demonstrate that they do not succeed at their goal of increasing public safety by preventing sexual offenses. Worse than being merely ineffective, policies that force out people who are most in need of services and support, like those on the sex offender registry, actually make re-offense more likely. “The evidence is fairly clear that residence restrictions are not effective,” according to a 2015 Department of Justice research brief on sex offender management. “In fact, the research suggests that residence restrictions may actually increase offender risk by undermining offender stability and the ability of the offender to obtain housing, work, and family support. There is nothing to suggest this policy should be used at this time.”

In addition to pushing people out of their communities, they also prevent prisoners from being released back into them. Swarns of the Office of Appellate Defender told The Appeal that there are an unknown number of inmates who in custody past their serve-out dates because they cannot provide a residential address that complies with existing residency restrictions on sex offenders. In 2016, New York’s Legal Aid Society and several other organizations sued state and city officials for holding nearly 200 people past their maximum sentence since 2014. If Cuomo’s proposal is passed, it seems likely that this problem will only become worse.

Courts, however, are beginning to show an increased willingness to strike down such restrictions on sex offenders. In 2015, a unanimous Massachusetts Court of Appeals observed that “the days are long since past when whole communities of persons, such Native Americans and Japanese-Americans may be lawfully banished from our midst.” Also in 2015, the California Supreme Court overturned blanket residency restrictions applied to sex offenders, noting that they “greatly increased the incidence of homelessness” amongst people on the registry. In 2016, the federal Sixth Circuit Court of Appealsstruck down several aspects of Michigan’s sex offender registry and noted that it “consigns [the plaintiffs] to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live.”

Despite court rulings, scientific research, and even an admonition from the Department of Justice, geographic restrictions on sex offenders continue to be supported by politicians like Cuomo and New York State Senator Jeffrey Klein. Advocates, policy experts, and public defenders say that these policies are not based in fact or science and place not in my backyard politics over public safety.

Texas’s First Death Sentence of 2018 Crystallizes the State’s Longstanding Capital Case Crisis

A marker for the founding of rural Hardin County
Nicolas Henderson / Flickr [CC BY 2.0]

Texas’s First Death Sentence of 2018 Crystallizes the State’s Longstanding Capital Case Crisis

A Texas man tried and convicted in late February of murdering his girlfriend’s daughter is the state’s first death sentence in 2018 — but it also may be its latest example of prosecutorial misconduct in a capital case.

On February 28, a jury in Hardin County, a small East Texas county near the Louisiana border, handed down a death sentence to 40-year-old Jason Wade Delacerda. According to Delacerda’s defense attorneys, it was the conclusion of a trial in which prosecutors attempted to hide exculpatory evidence, violated a rule barring witnesses from talking with other witnesses about the case, and played an emotional song from the hit 2012 movie Pitch Perfect in a bid to allude to evidence the judge had already ruled inadmissible.

Such allegations of misconduct in Texas are not limited to Delacerda’s case — in 2017, nearly half of the stays of execution granted in the state involved cases that “may have been tainted by false or unreliable evidence,” according to the website The Open File, which tracks prosecutorial misconduct.

“I’d say that this is a pervasive problem,” Amanda Marzullo, executive director of Texas Defender Service, a nonprofit working to improve the quality of representation afforded to those facing death sentences, told The Appeal“This is in part because, in general, emotions run high in death penalty cases on both sides and prosecutors are particularly aggressive.”

Attorneys representing Delacerda — who faced a capital murder charge for the 2011 murder of his girlfriend’s four-year-old daughter, Breonna Loftin — claim that his trial was marred by multiple acts of prosecutorial misconduct.

One of Delacerda’s attorneys, Ryan Gertz, said that Hardin County District Attorney David Sheffield brought Delacerda’s two sons — who were set to testify against their father — into a room with their mother and her husband, who were potential witnesses, to confer with them about their testimony. Gertz said that this meeting represented a violation of Rule 614, which states that witnesses must not share their testimony with other witnesses.

Judge Steven Thomas did not formally acknowledge the Rule 614 violation, but prevented Delacerda’s sons from testifying in the guilt phase of the trial on the grounds that it included inadmissible character evidence. Thomas, however, allowed one of Delacerda’s sons, the son’s mother, and her husband to testify during the trial’s penalty phase, which led to another alleged act of misconduct. Gertz claimed that prosecutors failed to provide notice to the defense that the testimony of the stepfather of Delacerda’s sons would include alleged crimes that Delacerda had not been convicted of, allowing him to tell the jury about being punched in the face by the defendant in a parking lot.

Additionally, Gertz alleged that the state committed three Brady violations, meaning that it failed to disclose evidence that is favorable to the defense as required by law. In one instance, prosecutors allegedly failed to disclose that one of the investigators in the case was arrested for child pornography and lying to a postal inspector about having it shipped to him by mail.

And during his closing statement, Assistant District Attorney Bruce Hoffer made what Gertz said was an improper attempt to appeal to the jury’s sympathies by displaying a picture of Breonna while playing the song “Cups” from Pitch Perfect featuring the refrain “You’re gonna miss me when I’m gone.”Hoffer later told the media that the song choice was inspired by a statement Breonna allegedly made to her grandmother, “Will you miss me when I die?” weeks before her death that the judge had ruled inadmissible because it was considered hearsay.

“It was ridiculous,” Gertz said. “I’ve never had anybody so blantantly appeal to a jury’s emotions as that, the only thing that would’ve been worse than that song would’ve been ‘Wind Beneath My Wings.’”

The Hardin County district attorney’s office did not return a request for comment from The Appeal.

Claims of prosecutorial misconduct — including Brady violationsjunk scienceand unreliable witnesses — in capital cases like Delacerda’s are commonplace in Texas.

In 2017, the execution of Paul David Storey — who was convicted in the 2006 murder of Jonas Cherry during a robbery of a mini golf course — was stayedafter his attorneys discovered that prosecutors lied to the jury about the victim’s family’s wishes to pursue the death penalty.

During Storey’s 2008 trial, prosecutors insisted that Cherry’s parents sought to have Storey executed, despite the fact that they had told the state that they didn’t believe in the death penalty. “As a result of Jonas’ death, we do not want to see another family having to suffer through losing a child and family member,” Glenn and Judith Cherry later wrote in a 2017 letter to the Texas Board of Pardons and Paroles, “due to our ethical and spiritual values we are opposed to the death penalty.”

Also in 2017, the execution of Kosoul Chanthakoummane, a man convicted and sentenced to death for the 2007 murder and robbery of a real estate agent in Collin County, Texas, was stayed after defense attorneys argued that the state had relied upon discredited forensic evidence, including bite marks. As of January of 2017, bite mark evidence has resulted in more than two dozen wrongful arrests and convictions.

Such cases demonstrate that even though executions are on the decline in Texas, the state remains a locus for misconduct in death penalty prosecutions.

Compounding the misconduct crisis is the fact that systemic issues in death penalty cases are less likely to be remedied in small counties like the one where Delacarda was tried. Redirecting limited public resources toward costly capital cases means that pressure on prosecutors to secure a death sentence is high, encouraging a do-whatever-it-takes-to-win approach.

“For the rural counties they’re going to decide, can we fix our broken drainage systems,” Jim Marcus, a University of Texas law professor specializing in capital punishment told The Appeal, “or put this guy on death row?”

But difficult, longstanding problems like capital case funding do not justify misconduct, Marcus added, noting that although it is often forgotten, prosecutors are supposed to be carrying out an important duty:

“The prosecutor’s ethical obligation is not to win at all costs, their role is to do justice.”

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In Louisiana, Defendants Facing the Death Penalty Face a Wait List for An Attorney

Louisiana’s House of Representatives. Last year, a bill to eliminate the death penalty in the state failed by just one vote to make it out of committee.
Jeffrey Schwartz / Flickr [CC BY 2.0]

In Louisiana, Defendants Facing the Death Penalty Face a Wait List for An Attorney

In 2016, Louisiana Democratic Governor John Bel Edwards made good on a campaign promise to fix his state’s wildly underfunded public defender system by pushing the state legislature to increase funding to public defender offices working on regular felony and misdemeanor cases.

But there was a catch: the majority of the increased funding didn’t come from new taxes or other sources of additional revenue — instead, $3 million was simply cut from the $8.5 million budget for death penalty defense.

As a result, indigent defendants charged in death penalty cases in Louisiana, in either the pre-trial or post-conviction phase, are facing capital defense lawyers resisting new appointments as well as a waiting list for an attorney.

This is the first time that indigent capital murder defendants in Louisiana have faced a wait list since 2007, when the state’s capital defense standards were overhauled by the Louisiana Public Defender Board (LPDB).

“Before the [2016] budget cuts, we had just begun to meet standards for trial and appeal, but not post-conviction,” said Ben Cohen, a capital defense lawyer who is of counsel with the Promise of Justice Initiative, a New Orleans-based criminal justice reform non-profit, referring to the creation of the LPDB in 2007 and the capital standards it adopted.

The LPDB oversees the state’s public defender offices, including law offices specializing in indigent death penalty defense, such as the Capital Post Conviction Project of Louisiana.

But after the 2016 cuts to capital defense, the wait list returned, a shocking reversal for a state that was just beginning to meet constitutional minimums for indigent capital defendants. Historically, Louisiana has consistently struggled to adhere to the Sixth Amendment’s right to counsel requirementespecially in death penalty cases.

Traditionally, Louisiana has spent a fifth of its indigent defense funding on capital appeal cases, a drain on its already modest public defense system. Louisiana funds its indigent defense through a combination of state funding and local revenue, which is mostly provided by traffic tickets and differs from district to district. In 2017, for example, just 38% of funding came from the state, while 62% came from local revenue sources.

State lawmakers are cognizant of capital punishment’s enormous costs and in March of 2017 a death penalty abolition bill was introduced in the state house but then failed to pass the criminal justice committee by a single vote. In late April that year, a similar bill in the senate successfully advanced out of committee but then died after it lost critical political support.

One of the death penalty abolition bill’s fiercest opponents was Hugo Holland, a former assistant district attorney with the Caddo Parish district attorney’s office, which became notorious in 2015 when then-DA Dale Cox said that the state should “kill more people.”

Like his onetime boss Cox, Holland is a death penalty evangelist. “If a stray kitten was hit in the street, I’d pick it up and take it to the vet, pay the bill and then try to adopt it out,” Holland, who owns a cat named after Lee Harvey Oswald, told the Advocate in 2017. “But it would not faze me in the least to watch a man executed, and that would include hanging or firing squad.” After being forced to resign from the Caddo DA’s office in 2012 for falsifying paperwork to obtain eight M-16 rifles from a military surplus program for supposedly dangerous “front line” prosecutions, Holland began contracting with DA’s offices in Louisiana to handle high profile capital cases, including a cold murder case that was the oldest prosecution of a suspected serial killer in United States history. Holland serves as a prosecutor on such significant cases despite the fact that he’s faced numerous accusations of misconduct, such as withholding exculpatory evidence.

But Holland is not just a prosecutor; he has been hired by the Louisiana District Attorneys Association (LDAA) to lobby against criminal justice reformas well as state funding for indigent defense.

Holland’s role as Louisiana’s prime public defense antagonist was on display during a February 1 hearing in Alexandria, Louisiana regarding legal representation for Matthew Sonnier, who was indicted for first-degree murder in November of 2017. In Louisiana, first-degree murder is punishable by life without parole — or death — and Holland is prosecuting Sonnier on behalf of the Rapides Parish district attorney’s office.

At the hearing, Sonnier’s appointed attorney Richard Bourke filed a motion to withdraw from the case, based on his already overwhelming workload. According to the American Bar Assocation guidelines for death penalty representation, “in making assignments of counsel to a particular capital case, the Responsible Agency should give careful consideration to counsel’s qualifications, skills, and experience…and the relative onerousness of prospective lawyers’ existing caseloads.”

Bourke explained that his office, the New Orleans-based Louisiana Capital Assistance Center, had already reached the maximum contractual hours it could bill the state to possibly hire more attorneys, and that given his own workload, he could not effectively represent another capital defendant.

“Your honor, my workload at the minute makes it impossible for to ethically accept the appointment of another capital case,” Bourke told the court. “The workload associated with these cases is simply too great for me to assume responsibility in another case, without then having to fail to perform adequately in the cases I’m already on, and for Matthew Sonnier.”

Holland simply declared that attorneys representing indigent capital clients waste state resources, and questioned the LPDB’s James T. Dixon about its funding of offices like Bourke’s, claiming “I can show you the funds are being misspent … What I’m gonna do is ask those people … sitting over here to do their jobs.” But during the hearing, Holland didn’t present any actual evidence of misspending by any law office specializing in indigent capital defense.

Nonetheless, since the reemergence of the wait list for indigent defendants facing the death penalty, Dixon has been subpoenaed by Holland and other prosecutors over a dozen times to testify on the lack of sufficient funds for defense in capital cases, as attorneys attempt to resist their appointments. In an interview with The Appeal, Dixon of the LPDB dismissed Holland’s claims of misspending. “We have a waiting list because of a lack of funding, not anything else,” Dixon said.

Holland declined to be interviewed for this article, writing in an e-mail that after a “quick perusal” he concluded that The Appeal has a “particularly anti-prosecutor and anti-capital punishment leaning.” He then said that the “meat” of his claims would be revealed in a future hearing.

In keeping with Holland’s theory that defense attorneys misspend public funds, he lobbied for the 2016 budget cuts that eviscerated the budget for death penalty defense. “Hugo Holland lobbied to move that funding from capital defense organizations to non-capital services,” said Cohen, the capital defense lawyer. “But they just robbed Peter to pay Paul.”

Cohen says that Holland is singularly influential in moving the conversation around the death penalty and capital defense spending.

“The only person who would be that kind of counterweight would be the pope,” Cohen remarked, “Holland attacks anyone who gets in his way and everyone else is much more measured and restrained.”

Because of the crisis in capital defense spending, according to Cohen, it would be 20 years, at the earliest, before a defendant could be put to death if he or she were arrested anytime after August 2018 and had exhausted all of their appeals. Until that time, he estimates, the state will spend a quarter of a billion dollars to execute a single defendant.

It’s particularly wasteful spending because over the past 30 years, more than half of death sentences in Louisiana have been reversed by higher courts, by far the highest rate in the nation among states that still have the death penalty, spotlighting the need for funding of post-conviction appeals. And the years of overworked and ineffective counsel in Louisiana have left many on death row without any chance to remedy the mistakes of their lawyers.

On March 5, the Supreme Court refused to hear the case of Todd Wessinger, who was sentenced to death in 1997 for killing two restaurant employees by a Baton Rouge jury that hadn’t been presented with serious mitigating evidence including Wessinger’s brain damage. Wessinger’s first post-conviction attorney suffered “a mental breakdown” wrote Justice Sonia Sotomayor in her dissent, and did no work on his appeal, while his next appellate attorney exerted almost no effort on the case. “The layers of ineffective assistance of counsel that Wessinger received,” Justice Sotomayor wrote, “constitute precisely the type of error that warrants relief under this Court’s precedent.”

While Wessinger’s Cert Petition was denied by SCOTUS, Matthew Sonnier found some temporary relief in a Louisiana courtroom. At the end of the February hearing in Alexandria, the judge released Bourke from Sonnier’s case and halted the prosecution for four months to determine if new funding could be identified. There will be a new hearing in June regarding whether the state will have enough money to pay for his defense; until then, he’ll stay on a wait list for an attorney, which has ballooned to a dozen defendants as of February 21.

It’s unclear if the future will bring further funding for capital defense in Louisiana because the state legislature is currently in the midst of a special session focused on closing a massive budget gap. In previous years, that gap had been filled with cuts to healthcare and education that have cut both of those services in the state to the bone. Perhaps this time, to help plug that hole, state representatives might return to the house bill that died by a single vote in committee last year and abolish the death penalty.

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