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The future of civil asset forfeiture in Albuquerque at stake in mayoral race

The future of civil asset forfeiture in Albuquerque at stake in mayoral race

In 2015, New Mexico became the first state to ban civil asset forfeiture, also known as policing for profit. Law enforcement cannot take people’s valuables and use the civil court system to gain ownership of them. State law now stipulates that cash and property can only be seized by law enforcement and forfeited when the original owner is convicted of a criminal offense and prosecutors prove — in a criminal court — that the assets in question were related to the offense. But this important legislative change hasn’t stopped law enforcement in Albuquerque, the state’s largest municipality, from continuing with the practice. Calling it a “narrowly-tailored nuisance abatement law,” the city has continued to take vehicles from people who are arrested for driving while impaired or driving with a license that was suspended because of an earlier DWI — even if the vehicle doesn’t belong to the driver.

Now, more than two years after New Mexico banned civil asset forfeiture, there’s a possibility that Albuquerque will fall into line with the statewide effort to end the practice. During a mayoral candidate email forum last week, the Albuquerque Free Press asked nine candidates whether they would continue to defy the clear spirit of the state law — and seven said they would end it altogether.

Those in favor of putting a stop to the ordinance agree that cars should only been seized and forfeited if the vehicle’s owner is ultimately convicted. Several raised concerns that police are driven by profit motives, and that the current system violates due process. One candidate noted that car owners can suffer even though they didn’t commit the offense for which the car was taken. One candidate also said it is more difficult for low-income residents to get their property back — alluding to the reality that poor people often lack the financial means, time, and knowledge of the legal system to hire a lawyer who might cost more than the property itself.

According to the Albuquerque Journal8,369 cars were seized by the city between 2010 and April 2015. These seizures totaled $8.3 million that was funneled into the city budget. The news organization also found that people whose cars were taken were often presented with financially impossible choices in lieu of forfeiting the car for good: pay thousands of dollars upfront to get the vehicle back or fight for it in court while paying the cost of car storage for months. These choices are offered even if the car owner isn’t the accused offender.

“There are many ways to combat DWI, and the problematic features of civil forfeiture, while seemingly convenient and easy to overlook, do not create an effective, long-term, and fair solution to the problem,” candidate Gus Pedrotty said during last week’s forum. “As it stands, this is a punitive and regressive policy that is contradictory to our goal of having a restorative justice system — we should be wary of any policing-for-profit model.”

Despite the overwhelming inclination to end car seizures in the city, two candidates continued to support the practice. Wayne Johnson says he supports civil forfeiture but not policing for profit. He said he would suspend the program until there are more strict “parameters” for where the money goes. The other candidate, retired Albuquerque Police Department detective Michelle Garcia Holmes, says the program doesn’t go far enough.

“It is another tool in the toolbox for crime prevention,” she said. “I would like to see this practice be utilized in other cases as well, including drug and human trafficking cases.”

The mayoral election results could be a litmus test for the future of civil forfeiture in New Mexico. Albuquerque has already been sued two times for continuing the practice after state law was changed in 2015. The city’s position has been that the practice isn’t actually “civil asset forfeiture” at all, but rather “a narrowly-tailored nuisance abatement law to protect the public from dangerous, repeat DWI offenders and the vehicles they use committing DWI offenses, placing innocent citizens’ lives and property at risk.”

If one of the seven mayoral candidates in favor of ending the practice wins, Albuquerque could send a message to other cities in the state, including capital city Santa Fe, that civil forfeiture will no longer be tolerated. Such a move would bring New Mexico one step closer to truly ending the practice for good.

Thanks to Jake Sussman.

Does childhood end at 18?

Does childhood end at 18?

If someone commits a crime days after turning 18, should he be treated like an adult or a child?

In two recent cases — Miller v. Alabama and Montgomery v. Louisiana — the U.S. Supreme Court held that life-without-parole should be reserved for the rare kid (defined as someone under 18) “whose crime reflects irreparable corruption,” citing the ability of youth to evolve and scientific discoveries about young adult brain development. “Children are different,” Justice Kagan wrote, neatly summarizing modern-day medical understanding and common sense attributable to anyone who knows a teenager.

But does 18 makes sense as an arbitrary cut-off? More courts across the country are saying no. After all, people under 18 cannot drink or rent a car. Experts say that the brain continues to develop profoundly between the ages of 18 to 22. And anyone with common sense who knows someone between 18 and 22 cannot reasonably argue that they are able to make the same judgments an adult would make.

In 2015, the Washington Supreme Court held in State v. O’Dell that the mitigating factors of youth can apply to defendants over 18. In a nutshell, this means that an adult defendant may argue for a less severe sentence because of his youth.

Sean O’Dell’s case was a prime example. Ten days after his 18th birthday, O’Dell raped a younger girl. (O’Dell maintains the sex was consensual.) Because he was charged with (and ultimately convicted of) second-degree rape, O’Dell faced a 6 to 8 years prison sentence as an adult under Washington law. At the sentencing hearing, O’Dell’s lawyer argued that, had O’Dell raped the victim just two weeks earlier, he would have been charged as a juvenile and sentenced to a juvenile detention facility for a much shorter amount of time.

The facts here supported looking at O’Dell as a kid. He was still in high school and was hanging out with high school classmates — he was not a predatory older man looking for young girls. He lived with his mother and was fond of video games. And, while none of this legally supports whether O’Dell should receive a lesser sentence, there is plenty of scientific evidence that adolescents have poor judgment and are unlikely to appreciate the consequences of their actions.

As a result, the Washington Supreme Court pointed out that the statutory prison sentences did not take age into consideration — an 18 year old is treated the same as a 45 year old as a 75 year old. In its opinion, the court cited to many of the same reasons relied upon by the U.S. Supreme Court: “But [the Legislature] could not have considered the particular vulnerabilities — for example impulsivity, poor judgment, and susceptibility to outside influences — of specific individuals. The Court places a great deal of weight on scientific evidence that was really not available less than a decade ago.

And this week, a Washington State Appellate Court held that the principles of O’Dell— that youth could be considered as a factor in resentencing — was enough of a change in the law to be retroactive. This means that the defendant in this case, Kevin Light-Roth, is entitled to a new sentencing hearing so that he can have the opportunity to present evidence of his youth. It’s important to remember that these cases are not making a blanket statement about whether individuals deserve lesser sentences — rather they are simply providing the opportunity for young individuals to present evidence that they may be less culpable than others.

As courts across the country face resentencings for inmates who were unconstitutionally condemned to die in prison as youth, there is hope that the arbitrary age cut-off of 18 may soon erode to allow for individualized sentencing.

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New head of Louisiana District Attorney’s Association no friend of reform

Supreme Court of Louisiana

New head of Louisiana District Attorney’s Association no friend of reform

Earlier this month, District Attorney Ricky Babin was elected president of the Louisiana District Attorney’s Association.

He’ll take on this new role at a critical time for criminal justice reform. But Babin’s history and past statements suggest he will not be a voice for change, and will instead defend the status quo that has made Louisiana the most carceral state in America.

Babin has been the district attorney of Ascension, Assumption and St. James parishes since 2009. During his time in office, Babin has repeatedly expressed support for the state’s policies that lock people up, and according to his own website prosecuted about 3,500 felonies a year— a large number for a district with about 170,000 people.

Babin has stood in the way of reform before. Earlier this year, Gov. John Bel Edwards formed a task force aimed at decreasing the number of incarcerated people in the state. The LDAA came out strongly against proposals that would reduce the sentences of people convicted of violent crime.

And Babin was one of the most vocal critics of the task force, at one point claiming that everyone in a Louisiana prison deserved to be there.

“These people have criminal records as long as my leg,” said Babin in a New Orleans Times-Picayune article. “There is not a single person that we put in prison that doesn’t deserve to be there.”

As the chairman of the Louisiana Sentencing Commission, Babin was criticized for focusing on punishment, over other areas like rehabilitation. The sentencing commission also looked at marijuana convictions in the state but did not make their findings public, and opposed legislation that would have given juveniles sentenced to life in prison a chance at parole.

The state legislature passed a bill saying the commission had strayed too far from it’s original mission. “It was just a subtle reminder of what the Sentencing Commission is supposed to do,” said state Rep. Helena Moreno, D-New Orleans, in an interview with The Advocate.

U.S. Rep. Cedric Richmond, who sponsored legislation that created the Sentencing Commission when he was a state legislator, said the commission wasn’t interested in reducing the prison population even though it costs taxpayers $600 million a year. Louisiana jails people for nonviolent offenses at three times the rate of Florida and twice the rate of South Carolina.

“What they should be focused on is how to keep the state from spending hundreds of millions of dollars by locking people up instead of being smart on crime,” Richmond stated.

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