A Life Sentence for 1.2 Grams of Crack?

In his book Cruel Justice: Three Strikes and the Politics of Crime in America’s Golden State, Joe Domanick tells the story of Tommy Lee Fryman:

In 1998, Fryman was arrested in San Jose for being under the influence of cocaine. Tommy Lee was strip-searched when the cops found 1.2 grams of crack cocaine “hidden between his buttocks.” He pleaded guilty to possession of cocaine base, and because of nine prior felony convictions “alleged as strikes,” was given a three strikes sentence of twenty-five-to-life.

Here’s the kicker: If Tommy Lee Fryman had been arrested just a few years later, he would not have served a day in prison. In November 2000 California voters passed Prop. 36, which mandates treatment, not hard time, for simple-possession drug charges. At that time, California was incarcerating 36,000 men and women a year for simple possession — the highest number in the nation both in absolute and per capita terms. Of that number, about 580 people, like Fryman, had been sentenced to 25-to-life sentences for simple drug possession under the 1994 Three Strikes Law. (The close proximity in time of Three Strikes and Prop. 36 is, itself, a fairly good metric of the incoherence of California criminal justice policy.)

Fryman’s federal habeas case was argued at the Ninth Circuit this week by two students from Stanford Law School’s Three Strikes Project. Fryman’s argument is, first, that the sentence is cruel and unusual under the Eighth Amendment, and second, that the sentence violates the Equal Protection Clause, given that voters approved Prop. 36 while Fryman’s state appeals were still pending (and thus, i.e., that Fryman is being treated differently before the law than similarly situated offenders). You can listen to the oral argument at this link (the case name is Fryman v. Duncan).

Although I don’t normally cover sentencing law, this case and others like it help to explain today’s prison conditions. There is a generation or more of Californians — those who were of crime-committing-age between 1980 and 2000 — who racked up criminal records and prison stints on the basis of draconian drug sentencing practices that California voters have since rejected. A lot of those men and women are still in the system or still being hurt by the system, whether because prison ruined their life, or because they got into further trouble once labeled a criminal, or because they got out of prison and finding few resources to help them went back to using drugs, or whatever reason. Or because like Fryman, they are literally still in prison because they were caught up both in the drug war and the Three Strikes Law. And the same story could be told about New York and the Rockefeller drug laws, and many other states, and certainly about the federal system. Sentencing reform for the future is an important first step, but the roots of mass incarceration can’t be pulled out so neatly — ultimately some form of retrospective justice will also be needed, I think. Imagine what additional challenges your life might have included if you’d been sent to prison 10 or 20 years ago, and now consider that for millions of Americans, that happened.

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Ninth Circuit: Sheriff Joe-Approved Cross-Sex Strip Searches Are Unconstitutional

An Arizona pretrial detainee’s Fourth Amendment rights were violated when he was strip-searched by a female guard, the Ninth Circuit ruled last week in a sharply divided en banc decision. The case arose out of Sheriff Joe Arpaio’s notorious Maricopa County jail system. The San Francisco Chronicle‘s Bob Egelko sums up:

[Charles] Byrd was ordered to strip down to his shorts – colored pink, as required for all inmates by Joe Arpaio, the county’s hard-line sheriff – and was searched by a female cadet from a training academy. She said she had taken no more than 20 seconds, while Byrd estimated the time at a minute. No contraband was found. …

“The right to be free from strip searches and degrading body inspections is … basic to the concept of privacy,” Judge Johnnie Rawlinson said in the majority opinion, quoting an earlier ruling.

No emergency existed, Rawlinson said, because male guards were present and could have conducted the search. She said the “humiliating event” was aggravated by the presence of onlookers, one of whom videotaped the search.

Dissenting Judge N. Randy Smith said the cadet had conducted the search professionally and, although it was “unsavory to our sensibilities,” the action met legal standards.

More reporting here from CNN; the full opinion can be downloaded here (PDF). For some background on Ninth Circuit case law on jailhouse strip searches generally, see my earlier post here.

En Banc Ninth Circuit Upholds Felon Voting Ban in Washington State, Reversing Three-Judge Panel

Thanks to a reader who alerted me that the en banc Ninth Circuit has issued its ruling in Farrakhan v. Gregoire, the Washington inmate voting rights case in which it heard oral arguments just a few weeks ago. The SF Chronicle reports:

A state can prohibit felons from voting even if the ban disproportionately harms minorities, a federal appeals court ruled Thursday in a Washington state case that bolsters a similar law in California.

The Ninth U.S. Circuit Court of Appeals in San Francisco overturned a 2-1 decision by one of its panels in January that struck down the Washington law on the grounds that the state’s criminal justice system was racially biased.

That ruling, the first of its kind in the nation, would have allowed prisoners as well as parolees to vote in Washington. It also could have invalidated laws in the eight other states in the circuit, including California, if courts found that a state’s system of arresting and prosecuting suspects was racially skewed.

Two quick thoughts upon my initial scan of the full ruling (PDF link here):

Tomorrow: Ninth Circuit Oral Argument in Important Felon Voting Rights Case

Tomorrow, Tuesday, Sept. 21, the Ninth Circuit will hear oral argument in Farrakhan v. Gregoire, an important case that could affect the voting rights of prisoners in Alaska, Oregon, Washington, Idaho, Montana, Nevada, California, Hawaii, and Arizona. Back in January, a split Ninth Circuit panel ruled that, in Washington State, “minorities are more likely than whites to be searched, arrested, detained, and ultimately prosecuted,” and that, because “some people becom[e] felons not just because they have committed a crime, but because of their race, then that felon status cannot, under section 2 of the [Voting Rights Act], disqualify felons from voting.” Washington State appealed for en banc review, which is what tomorrow’s proceeding will be.

The proceedings will be broadcast live at 2 PM PST/5 PM EST on C-SPAN 3 available on C-SPAN 3 at a later time.* If you are in or near San Francisco, you could also attend the hearing in person — it’s scheduled for 1:30 PM in the Ninth Circuit courthouse at Mission and 7th. Legal Services for Prisoners with Children and All of Us or None are organizing a group to attend — here’s the flyer (.doc file).

* EDIT: When I first visited the NAACP LDF case page, it suggested there would be a live broadcast, but it looks like they’ve since edited the page to reflect otherwise.

Ninth Circuit: California Can’t Get Out of Obligations to Disabled State Prisoners By Housing Them in County Jails

In the latest ruling in the ongoing Armstrong litigation over the rights of disabled California prisoners and parolees, a Ninth Circuit panel ruled last week that California has the same obligations to those it holds under contract in county jails as it does to those in state prisons. Calling the state’s arguments to the contrary “barely colorable, constituting attacks on manifestly valid regulations,” Judge Reinhardt’s opinion noted that “even in the absence of a regulation explicitly saying so, a State cannot avoid its obligations under federal law by contracting with a third party to perform its functions.” The opinion opens:

More than a decade and a half ago, disabled prisoners and parolees brought this action against the California officials with responsibility over the corrections system and parole proceedings. They sought accommodations to their disabilities that are required by the Americans with Disabilities Act, the Rehabilitation Act, and the Constitution. Defendants denied that they had any obligation to provide such accommodations, forcing plaintiffs to undertake years of litigation. Plaintiffs prevailed repeatedly in the district court and in this court. For most of the last decade, the litigation has been in a remedial phase.

Now, however, defendants are again denying any obligation to accommodate a set of disabled prisoners and parolees held under California’s authority. Defendants house significant numbers of prisoners and parolees in jails operated by California’s fifty-eight counties. Defendants contend that they have no responsibility for ensuring that any disabled prisoners and parolees that they so house receive accommodations. … That argument, and defendants’ other arguments contesting their obligations to their prisoners and parolees housed in county jails, are without merit. Accordingly, we affirm the portion of the district court’s decision that holds that defendants are responsible for providing reasonable accommodations to the disabled prisoners and parolees that they house in county jails.

However, the ruling was not a pure victory for the plaintiffs. The panel also found that there was insufficient evidence to support the district court’s sweeping remedial order, and remanded back to the district court for a fuller evidentiary hearing, though in a paragraph carefully spelling out for the plaintiffs what they need to do next:

Ninth Circuit to Rule on California’s Prop 9 (That’s Not a Typo)

With all the press that California’s Prop 8 has been getting as it journeys through the federal courts, I’ve been remiss in failing to note on this blog that Prop 9 is also being challenged. Passed in 2008 (in the same election as Prop 8), Prop 9 or Marsy’s Law was marketed as the “Victims’ Rights and Protection Act,” and made a number of changes to parole hearing procedures in California. Among its major effects was to lengthen the time before indeterminately sentenced offenders are eligible for a parole eligibility hearing.* Opponents of Prop 9 noted that California already grants parole in an exceedingly low number of murder/manslaughter cases (<1%), and that many of the rights purportedly granted to victims by Prop 9, such as expanded rights to be heard at parole eligibility hearings, already existed either at the county level or pursuant to the Victims’ Bill of Rights of 1982 (otherwise known as the first Prop 8).

Nevertheless, the proposition passed with about 54% of voters in favor, and is now being challenged in the federal courts under the Ex Post Facto Clause. The Prison Law Office has summarized the law’s implications and possible objections to the law in a handy memo (PDF link). Although I have not had time to digest all the information about this case myself, I can confidently direct readers who want to know more over to California Corrections Crisis which has been following the case and summarized last week’s oral arguments at the Ninth Circuit. Stay tuned and I’ll be sure to keep you posted when the Ninth Circuit panel issues its ruling. The docket info is Gilman v. Schwarzenegger, No. 10-15471.

* Prop 9 also includes provisions that would curtail due process to parolees already out (who, given California sentencing law and policy, are usually determinately sentenced offenders), including imposing new limits on the right to appointed counsel at parole revocation hearings. However, California was quickly stayed from implementing these provisions because they appear to violate a previous injunction issued in an earlier lawsuit, Valdivia v. Davis. CDCR appealed the stay and I believe the most recent activity was the Ninth Circuit’s March 2010 ruling remanding the litigation back to the district court “to reconcile the Injunction and Proposition 9” (opinion PDF), but perhaps readers are aware of more recent developments.

Ninth Circuit: Nevada’s Women-only Prison Guard Policy Violated Title VII

After a Nevada inmate was impregnated by a male prison guard in a private Corrections Corporation of America facility, the state canceled its CCA contract and implemented a new hiring policy for its women’s prisons. Under the policy — which is no longer in place — all supervisory (or “lieutenant”) positions would be filled by women and the line prison guard staff would be 70% women. In a Title VII challenge to that policy filed by several male prison guards, the Ninth Circuit has reversed a district court grant of summary judgment for the state. The panel reasoned that sex is not a bona fide occupational qualification for a supervisory position in a women’s prison, rejecting the state’s implications that men are more likely to tolerate sexual abuse, that male supervisors are more likely to sexually abuse inmates, and that female guards are “less susceptible to manipulation by inmates” (PDF p. 9688). Judge Marsha Berzon, writing for the panel, criticized these arguments as stereotypical: “Disturbingly, in suggesting that all men are inherently apt to sexually abuse, or condone sexual abuse of, female inmates, NDOC relies on entirely specious gender stereotypes that have no place in a workplace governed by Title VII” (PDF p. 9695).

San Francisco County Jail’s Blanket Strip Search Policy Is Reasonable, Ninth Circuit Says

An en banc panel of the Ninth Circuit held today that San Francisco County Jail’s blanket strip search policy is reasonable under the Fourth Amendment — overruling earlier Ninth Circuit precedent that required individualized reasonable suspicion for jailhouse strip searches. The opinion is worth reading in full, for it comes complete with a provocative, though somewhat digressive concurrence by Chief Judge Alex Kozinski (sampler: “I’m convinced that airport searches would be far more intrusive if upper and middle-class Americans were exempt”) and a vigorous dissent by Judge Thomas, co-signed by Judges Wardlaw, Berzon, and Rawlinson, opening with a litany of the plaintiffs’ allegations. Litigators’ tip: When challenging an intrusive search policy under the Fourth Amendment, it’s always helpful if one of your plaintiffs is a Catholic nun:

Mary Bull was arrested at a political protest for pouring red dye mixed with corn syrup on the ground. At the police station, according to her testimony, she was pushed to the floor and her clothes forcibly removed. Her face was smashed against the concrete cell floor while jailors performed a body cavity search. She was left naked in the cell for eleven hours, then subjected to a second body cavity search. After another twelve hours in the jail, she was released on her own recognizance. She was never charged with a crime.

Charli Johnson was arrested for operating a motor vehicle with a suspended license. She alleges she was forcibly strip searched by male officers in a hallway, and that she was kept in a cold room, naked for twelve hours with male officers regularly viewing her. No contraband was found. She was released the next day. No charges were ever filed.

Sister Bernie Galvin, a Catholic nun and a member of the Sisters of Divine Providence, was arrested at an anti-war demonstration for trespassing. She was strip searched at the jail. No contraband was found.

Ninth Circuit to Inmate Voters: Not So Fast

A few weeks ago, a Ninth Circuit panel ruled that Washington State’s felon disenfranchisement law violates the Voting Rights Act (full opinion can be downloaded here), because it has the effect of disproportionately disenfranchising minority voters. (Three other federal circuits have upheld similar laws in other states.) Today, the panel granted Washington’s request to temporarily suspend its ruling, so as to give the state time to appeal to the Supreme Court (stay order can be downloaded here). Basically, the panel agreed not to issue right away a mandate that would have required state and county election officials to immediately begin allowing inmates and felons on community supervision to register and to cast ballots. That means inmates won’t be able to vote in the county special elections currently ongoing throughout Washington State.

Ninth Circuit Reinstates Lawsuit over 2005 Suicide in California Jail

In 2005, 29-year-old Robert Clouthier hanged himself with a bed sheet while in custody at a Contra Costa County, Calif. jail, where he’d been booked on battery and vandalism charges arising out of a violent outburst against his father. Last week, the Ninth Circuit issued its ruling in a lawsuit filed by Clouthier’s parents against Contra Costa County and against three jail officials, who, the Clouthiers allege, failed to prevent their son’s suicide, despite knowing about his grave mental health problems, in violation of his Fourteenth Amendment due process rights. The court reinstated the Clouthiers’ suit as to one of the defendants — the mental health specialist who took Clouthier off suicide watch — partially overturning the district court’s grant of summary judgment.

The day that Clouthier arrived at the jail, as part of a routine intake mental health screening, he

told [county mental health specialist Sharlene] Hanaway that he was suicidal, and that he wanted to be “unconscious for the rest of his life.” Hanaway described Clouthier as “despondent, hopeless, suicidal” and “one of the most suicidal inmates she had ever seen.” Hanaway’s notes state that Clouthier had made numerous past suicide attempts, including one incident two months earlier that required hospitalization after he cut his wrists. [Her] notes reflect that Clouthier had taken medication for several years, but that he had ceased doing so two and a half years ago.

(Clouthier v. County of Contra Costa, No. 07-16703, 9th Cir., Jan. 14, 2010, p. 1123)