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Oregon prosecutors to judges: You’re Fired

Oregon prosecutors to judges: You’re Fired

District attorneys in Oregon have a new tactic to deal with judges that hand down rulings against their offices: they’re effectively getting rid of them. County circuit judges in both Lane and Multnomah counties have been disqualified from hearing criminal cases this year following accusations from district attorneys that the judges failed to be “fair and impartial.”

Accusing a judge of bias isn’t something that should be done casually. The ability to rule fairly and impartially is the chief job of a judge, and charges that they aren’t capable of doing so can have serious consequences. But Oregon’s process is quite simple for seeking to disqualify a judge from a case. In Multnomah County, prosecutors filed an affidavit challenging Judge Judith Matarazzo and announcing they would no longer bring new criminal cases before her. Under Oregon law, little to no evidence is required to back up claims that a judge can’t be fair and impartial.

Prosecutors’ complaints amount largely to dissatisfaction with rulings in which Matarazzo decided not to adopt their sentencing recommendations, and a problem with what the office believes to be leniency in DUI cases. The office also accuses her of starting, and in some instances completing, hearings and settlement conferences in the absence of a prosecutor on more than one occasion. Matarazzo told The Oregonian/OregonLive that although she is deeply disturbed by the accusations, “There’s not much I can do.”

In Lane County, Oregon, similar accusations were brought by prosecutors against Judge Josephine Mooney in March. Because of the complaints informally charged by District Attorney Patty Perlow, Mooney is no longer hearing any criminal, juvenile delinquency, or civil cases involving the Lane County District Attorney’s Office. In Mooney’s case, a formal affidavit was never filed — instead, she agreed to stop presiding over these cases after Perlow’s office filed memos complaining about her conduct to another judge, according to documents obtained by The Register-Guard.

This practice isn’t isolated to Oregon. Between 2014 and 2015, the beleaguered office of Orange County District Attorney Tony Rackauckas successfully prevented county Superior Court Judge Thomas Goethals from hearing 55 of 58 murder cases assigned to him. Rackauckas’ office repeatedly accused Goethals of bias that made him unfit to preside over the cases in question, and successfully disqualified him under the state’s Code of Civil Procedure.

Orange County Superior Court Judge Richard M. King ruled the repeat disqualifications were inappropriate. The court found that the efforts by Rackauckas’ office were “based on Judge Goethals calling out the prosecution on misconduct,” and they “ha[d] the appearance of attempting to intimidate, punish, and/or silence Judge Goethals, and to send a warning to the other local judges that similar rulings will produce a similar fate.” California’s 4th Circuit Court of Appeal, despite finding the prosecutors’ actions to be “abusive,” ultimately allowed them to stand under existing California law. Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law School, argued the case on the Superior Court’s behalf. He told In Justice Today that the disqualification practice “violates [the] separation of powers.” In dissent, Associate Justice David A. Thompson agreed, arguing that the ease with which prosecutors were able to disqualify Judge Goethel amounted to an unconstitutional interference of one branch of government (the judiciary) by another (the executive).

As Chemerinsky’s petition to the court points out, the disqualification claims were not brought against Goethals out of the blue. The DA office’s attacks on the judge began at the same time that Goethals began calling out the office for misconduct and exposing the office’s illegal use of jailhouse informants. In the spring of 2015, Goethals deemed the entirety of Rackauckas’ office unfit to work on the murder trial of Scott Dekraai. The “blanket papering” of Goethals by the DA’s office was an unabashed move of retaliation.

Though the appellate court did allow the disqualifications to stand, the ruling was sharply critical. “As courts work to keep doors open and to provide timely and meaningful access to justice to the public, the extraordinary abuse of [judicial disqualification] is a barrier to justice and its cost to a court should be reconsidered,” wrote Justice Kathleen O’Leary in the opinion.

Thanks to Josie Duffy Rice.

Bail bond industry fights back against reform

Bail bond industry fights back against reform

On July 17th, a judge in Chicago ruled that courts there could no longer hold people in jail on bail simply because they could not afford it. This is the latest in a series of judicial and legislative actions designed to reform the cash bail system that has come under increasing scrutiny in the wake of abusive court practices uncovered in Ferguson, MO and following the death of Kalief Browder in New York City.

Ferguson was just one of many cities that has been found to use cash bail to pressure defendants into agreeing to plea deals rather than taking their cases to court. Defendants often spent several days in jail on cases where incarceration for an actual conviction was highly unlikely. According to an investigation by The Atlantic, almost two-thirds of people in local jails are awaiting trial, and a full 90% of them are there because they cannot afford bail.

In the case of Kalief Browder, the results turned out to be fatal. Browder was held for three years based on an unsupported accusation that he stole a backpack. He spent two of those years in solitary confinement as a juvenile. After years of trying to pressure him into a plea deal, the Bronx DA’s office admitted that they had no case. Shortly after his release he killed himself, having never recovered from the traumas of his abuse in jail.

Across the country advocates are pushing for reforms to the bail system through legislative changes, judicial rulings, and local DA races. Their ability to change the conversation on bail is epitomized in a statement released to officials across the country by former Attorney General Eric Holder stating that, “Courts must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.”

In January a new law took effect in New Jersey eliminating their cash bail system. Defendants are instead subjected to intensive community supervision. Washington, DC eliminated its cash bail system in the early 90’s. Currently, over 91 percent of defendants show up for trial, creating massive savings in jail costs.

These reforms, however, have not gone unchallenged by the commercial bail bond industry which makes millions every year loaning money to people to cover their bail. These bonds usually cost defendants 10 percent of the bail amount — whether or not they show up in court. This means that poor people either languish in jail in conditions that make them more likely to accept unfavorable or even false plea deals, or pay significant fees to bail bond companies.

Nationally, the bail bond industry has been mobilizing. At the local level, bail bond companies have been pouring cash into legislative and DA races to try to block or at least temper reforms that would reduce their role.

In Maryland, lawmakers and judges have been pushing for the elimination of cash bail. According to Common Cause MD, the bail bond industry responded by pouring $87,000 into the pockets of state legislators and the governor. They were successful in blocking a total ban but were unable to stop a major reduction of cash bail. According to the Washington Post, between 2011 and 2014, bail bond groups gave $168,000 to local politicians in Maryland and $115,000 to those in California. State politicians in have received $78,000 at the state level. The former DA of Dallas County alone received $70,000.

In New Mexico, the bail bond industry spent tens of thousands to change an anti-cash bail constitutional amendment into a version that preserves its central role.

Cash bail has been a central feature in the current District Attorney race on Brooklyn. All of the major candidates have expressed concerns about the existing system. Over half of the people in jail while awaiting trial in New York City are there because they can’t afford their bail.

Candidate Marc Fliedner has called for eliminating cash bail in any case where the DA’s office is unlikely to seek jail time for the underlying offense. Another candidate, Anne Swern, has said that she would eliminate cash bail for all but a handful of misdemeanor cases. The current DA, Eric Gonzalez, has been more moderate in his position stating that he wants to reduce reliance on cash bail for most misdemeanors, but allow DAs to request it if they have specific public safety concerns.

Gonzalez is also the only candidate taking money from the bail bond industry. According to recent campaign finance filings, he has received at least $7,750 directly from two major bail bond companies, Empire Bail Bonds and IC bail bonds. Empire also hosted a major fundraising event, the results of which are not known. Gonzalez’s opponent, Marc Fliedner, was quoted as saying “investment [by bail bond companies] in Gonzalez’s campaign makes his protestations that he wants to change the system ring entirely false.” Candidates Vincent Gentile and Anne Swern also expressed concerns about the seeming contradictions of accepting this money.

Bail reform is a central element of any program to reduce incarceration rates, especially in local jails. It also represents a basic social justice issue as the burdens of the current system rest overwhelmingly on the poor. If politicians are serious about these reforms they need to reject campaign contributions from the bail industry.

Alex S. Vitale is Professor of Sociology and Coordinator of the Policing and Social Justice Project at Brooklyn College. He is the author of the forthcoming “The End of Policing” and “City of Disorder: How the Quality of Life Campaign Transformed New York Politics.” The views and opinions expressed in this article are Professor Vitale’s and do not necessarily reflect the views of the Fair Punishment Project.

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Execution policy on trial in Arizona as journalists seek transparency

Execution policy on trial in Arizona as journalists seek transparency

On July 23, 2014, Joseph Rudolph Wood was supposed to be executed in a quick and painless way—injected once with 50mg of midazolam and 50mg of hydromorphone. Instead, he suffered through a lethal injection protocol that lasted 117 minutes, snorting and gasping for air as he was injected with 15 doses of the drugs.

Following news of Wood’s botched execution, multiple news organizations — including the Guardian and Associated Press — filed a lawsuit to make Arizona’s execution protocol more transparent. According to the lawsuit, the public is entitled to information about death penalty protocol under the First Amendment. Absent some modicum of transparency, it “cannot meaningfully debate the propriety of lethal injection executions if it is denied access to this essential information about how individuals are being put to death by the state.” On Tuesday, the publications finally got their day in court, arguing that the state must reveal the source of its lethal injection drugs and identify executioners’ qualifications.

The trial is the latest in a series of efforts by journalists to understand how states are procuring and administering their lethal injection drugs, following a spate of botched executions.

Drugs approved by the Federal Drug Administration (FDA) were previously manufactured in Europe and sold to the U.S., but international suppliers have stopped providing them for moral reasons in recent years. As a result, states are scrambling to find alternative suppliers and drugs (like the anesthetic midazolam), even turning to unregulated compounding pharmacies that aren’t approved by the FDA. Pharmacists and former state attorneys general have argued that midazolam in particular is not an adequate substance to render a person unconscious, yet states are still using it as a sedative in the lethal injection process. Doctors and nurses are also prevented from participating in death penalty procedures by the country’s largest medical associations.

In Arizona, it was clear that Wood’s executioners lacked expertise and relied on a drug that doesn’t have the backing of the medical community.

“The department said one dose of this drug combination would be enough to kill a prisoner, and it was not enough,” his attorney, Dale Baich, said in 2014. “Under the Arizona protocol, if the prisoner remains conscious, a backup set of drugs can be administered, but there’s nothing in the protocol that permits fourteen additional doses to be administered when the prisoner is unconscious.”

Changes have been made to Arizona’s execution method since Wood’s death. Via camera, reporters are now allowed to watch prisoners as they enter the execution room, in addition to watching as catheters are attached to people’s bodies. A camera must also be fixated on the executioners’ control board. The Arizona Department of Corrections (ADOC) is now supposed to use thiopental or pentobarbital, both of which the state has difficulty procuring. But ADOC policy authorizes its director to alter the lethal injection policy, and cameras can be turned off “in the event of a legitimate penological objective.”

Tuesday’s trial indicates that Arizona’s death penalty is still shrouded in secrecy. It is now up to a judge to decide if the public has a right to know more about the process.

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