Central light rail station

One of Minnesota’s earliest legal hangings happened here.

Now that Brendan Dassey’s murder conviction has been overturned, it is timely that another overturned murder conviction comes into the news. This one, however, will not and indeed cannot end as Dassey’s apparently has. The 1944 case of George Stinney is not well-known, probably overshadowed by headlines of the war at the time. It started when fourteen-year-old George was herding his family’s milk cow in rural part of South Carolina, when two white girls happened by and asked young George about local flower picking possibilities. When the girls went missing, George joined the search party and revealed that he had seen them the previous day. As soon as the girls’ murdered remains were found, George went on record as being the last to see them alive. So when George’s parents were away from home that day, officials came and took away George and his brother.  (His frightened sister watched from a chicken coop she was hiding in.) The officials whisked George into an interrogation, and emerged one hour later claiming that he had confessed to the murders. George was immediately transported to Columbia, SC where he was executed. The details of his electrocution are heart-wrenching, as he weighed only 95 pounds and was too small for the electric chair accessories. Stinney’s entire legal proceedings transpired over only 83 days. Though Stinney’s conviction was overturned in 2014 on grounds that his confession was false and coerced, his case is emblematic of the skewed justice that was typically experienced by black Americans in the Jim Crow South. Last week we learned that lawyers are currently planning to file a civil rights lawsuit on behalf of Stinney’s surviving family.

Think hurried executions following convictions based on unsupported evidence could never happen in our fair community? One of Minnesota’s earliest executions left many doubts as to the subject’s actual guilt. Ann Bilansky was convicted in 1859 of murdering her husband with arsenic. The evidence brought against her was largely circumstantial, and consisted mostly of testimony from a witness with questionable credibility.  Numerous petitions for Bilansky’s commutation were submitted to Governor Ramsey.  Even the prosecutor himself wrote the day before her scheduled execution that he had come to experience “grave and serious doubts” about Bilansky’s guilt. Nonetheless her execution was carried out publicly at Cedar and Fifth Streets (now the Central Station of the light rail), with about 100 spectators in attendance. She maintained her innocence until the end, proclaiming that she would find “justice in heaven.” With the 2016 election season cranking up, it’s noteworthy that both the Bilansky and the Stinney judicial proceedings were clouded by various political motives and ambitions of its participants. Her story is a fascinating read you can enjoy over Labor Day weekend.

 

Voter Disenfranchisment?

Voter registration card

Wisconsin, North Dakota, Texas and North Carolina all had voter fraud laws struck down recently by various federal courts.  In each case, the state law in question was found to disenfranchise nonwhite voters. North Carolina was the leader of this pack, with laws that the Court found to be tailored with “surgical precision” to disenfranchise black voters. All of these cases come a mere 3 years after the U.S. Supreme Court struck down essential parts of the 1965 Voting Rights Act in  Shelby County v. Holder.  In that case, the Supreme Court determined that the Act’s more “extraordinary measures” and “disparate treatment of the states” were no longer necessary tools to combat voter discrimination.  Previously the Act had required that states identified with a history of discrimination obtain approval from the federal government before they could make changes to their election laws that might restrict voting rights.  Looking at the named four states, only parts of North Carolina had been specifically targeted by the 1965 Act.  But with the exception of Texas, the offending laws for each of these states had been enacted shortly after the Supreme Court’s Shelby County ruling.

Minnesota enjoys high voter participation, likely the result of such voter-friendly tools as same-day and online registration However, Minnesota’s voter registration has not always been completely inclusive.  The word “white” remained in the Minnesota statutory requirements for voter registration until 1868, and Minnesota only ratified the 15th Amendment in 1870.   Even today, Minnesota’s big voter disqualifier remains the ineligibility of felons to vote until their civil rights have been completely restored, including (sometimes lengthy) time spent on probation or parole. It can be argued that the effect of felon disenfranchisement is disproportionately race-skewed, and some might say intentionally so, given that many such laws were enacted shortly after the Civil War.

If you would like to learn more about the history and application of the Voting Rights Act, consider reading The Most Fundamental Right: Contrasting Perspectives on the Voting Rights Act edited by Daniel McCool.  It is available here in the law library.  If you would like to hear more about voter eligibility and registration in early Minnesota, be sure to attend our program this September 26, wherein Dr. William Green will present “Civil Rights in Minnesota: The Early Years.”

 

Minnesota Sentencing Guidelines

Courtroom 052

Be aware that today the 2016 Minnesota Sentencing Guidelines (MSG) go into effect.  Now if you or a client have recently been charged with a felony, you probably don’t need to worry about these new updated Guidelines.  As explained on the front page, the Guidelines only apply to “felonies committed on or after the effective date,” so the 2015 Guidelines would still apply to you.  These are still available in the Guidelines  archive, along with all of the other old Guidelines going back to the original 1980 version.

The most notable change to the 2016 Guidelines pertains to drug offenses, essentially reducing penalties and enhancing treatment options for first-time offenders of small quantities.  These changes were made as part of the goal of the Commission to send more addicts to treatment and reduce the state’s prison population.  The Guidelines Commission adopted changes to reduce sentences for first-time offenders, and allow judges and prosecutors to use mitigating factors to reduce sentences for people with addiction issues.  The commission added new aggravating factors, including selling drugs to a minor  or selling drugs in a broad geographic area.  Reflecting these changes is the incorporation of a whole new sentencing grid for drug offenders.

The Guidelines still allow judges much discretion in sentencing due to its use of mitigating factors, aggravating factors, and suggested sentencing ranges.  They also allow judges additional flexibility to make departures from recommended sentences based on various factors, for which the judge must submit a departure report.  Earlier this summer Ramsey District Court Judge Judith Tilsen gave a thoughtful interview for Minnesota Public Radio about a judge’s role in determining sentences, including application of the MSG grids.

When they first came about in 1980, the MSG were a groundbreaking tool.  The Minnesota Sentencing Guidelines Commission was established by the Minnesota Legislature in 1978 with the task of eliminate gross disparities that might be related to race, income levels, or the judge who issued your sentence.   Minnesota went on to become the first jurisdiction to implement state-wide sentencing guidelines drafted by a sentencing commission.   Since their adoption, federal government has since adopted such guidelines and 19 states have also followed.

 

 

Bernard Comes Down to Breath vs. Blood

Man driving vehicleLast week the 8-member U.S. Supreme Court released its opinion in the much-watched Birchfield v. North Dakota, which the Court heard in a consolidation with two other cases, including Minnesota’s own Bernard v. Minnesota. Remember that Bernard started as a 2012 police encounter on the river bank in Dakota County wherein the intoxicated-appearing defendant refused the breathalyzer test.   It is significant because of Minnesota’s implied consent statute criminalizes the refusal to take a DWI test (instead of mere grounds for license revocation).  (Minnesota adopted this more punitive law in 1989.  See 1989 Minnesota Laws, Ch. 290, Art 10.) Minnesota’s statute also states that one who drives in the state consents to chemical testing of breath, blood, or urine.

In its opinion, the Court (Justice Alito and four of his colleagues) held that the breathalyzer was not an intrusive test, and therefore its administration can be part of a legitimate search incident to a lawful arrest.  The Court drew the line at blood tests, holding that they were too invasive to be part of a lawful search incident to a lawful arrest, and thus required a warrant. So, Minnesota’s implied consent statute still stands, at least as far a breath testing as concerned. Three of the justices disagreed that there was a difference in blood and breath tests for Fourth Amendment purposes.  Justice Sotomayor (joined by Justice Ginsburg) dissented, pointing out that most breath tests in Minnesota are performed about 45 minutes after a person is detained, with plenty of time to get a warrant. Arguing the reverse, Justice Thomas’ dissent objected to “splitting hairs” between breath tests and blood tests, proposing that neither tests require warrants.  The Court did not analyze the constitutionality of testing urine in this context, which one might guess falls somewhere between breath and blood in the Court’s Birchfield analysis.

So what does this ruling mean for Minnesota and other states?  Expect to continue seeing this gadget in the criminal justice arena, despite challenges to its accuracy and effectiveness.

(Legal history buffs who enjoy this blog should read the Birchfield opinion for the information treats provided by the Court.  For instance, the opinion in State v. Noble (1926), 119 Ore. 674, 250 P. 833 is from an early case analyzing early drunk driving laws on Oregon.)

 

Borrowing Against Payday

loan business sign

The Consumer Financial Protection Bureau (CFPB) proposed a rule last week aimed at curbing predatory payday lending by requiring lenders to take steps to ensure that consumers can repay said loans, and also to cut off repeated debit attempts that rack up fees against the borrower.  The CFPB referred to such loans as “debt traps,” due to the fees and penalties that users may not be aware of.  Fees can be assessed for either extending the loan or defaulting on it.  Since the loans are recouped directly from bank accounts, bank overdraft penalties are another common result.  These fees add insult to the injury in that such lenders may be charging interest fees of 300% or more.  The CFPB proposal brought attention to the plight of the vulnerable consumers that take out these payday loans and get caught in the debt cycle, but it also highlights the plight of those who decide to use such loans in the first place.  Opponents of this proposal pointed out that these loans serve people that might have few if any alternatives otherwise, so the question becomes whether or not these loans are a helping hand or “predatory quicksand.”  Read the entire CFPB report here.

The issue of payday loans is not new in Minnesota.  Minnesota’s payday loans statute requires lenders to check the credit history of their customers, and limits such loans to only four per customer within a year.  Last fall the Minnesota Supreme Court upheld the state’s payday lending law, which curbs high-interest, short-term loans.  In State of Minnesota vs. Integrity Advance LLC, the Court held in a suit brought by the Minnesota Attorney General that MN Statutes §47.60 and §47.601 are not violations of the commerce clause, because they only regulate commerce within the state.  Here is how Minnesota law compares to that of other states in the regulation of payday loan services.

If you are considering taking out a payday loan, read this fact sheet from the Minnesota Attorney General’s office first. If you have found yourself ensnared in a “debt trap” that started with a payday loan, there are some legal resources you might turn to. Pro bono organizations like Volunteer Lawyers Network (VLN) can offer debt collection defense for qualified individuals.  If you are currently facing collection efforts brought against you in Conciliation Court, you may be eligible to speak to an attorney through our Housing and Conciliation Court clinic.

 

 

Is this Subsidized Housing for White People?

Tilsner Artist LoftsThe Twin Cities arts community surfaced in the news lately, but not for the sake of art. It was because last month the Institute on Metropolitan Opportunity at the University of Minnesota Law School released its report The Rise of White-Segregated Subsidized Housing,” which examined the makeup of local artist lofts and their tax credit system in comparison to more conventional subsidized housing.  The study found that subsidized artist housing in the Twin Cities is overwhelmingly occupied by white populations, in stark contrast to other local public housing.  As an example, the Tilsner Artists Cooperative in the heart of Lowertown is 92% white, according to the report.  These findings made headlines in publications including The Atlantic as well as this week’s Minnesota Lawyer.

No one suggests that there is a deliberate, conscious effort to keep these artist lofts white-occupied.  Yet the report raises questions about the nature of the use of the Low Income Housing Tax Credit (LIHTC) system utilized by the artist housing projects.  Other unspoken forces may be at play.  Neighborhood residents may be more accommodating of “artists” occupying the historic building on their block, rather than “poor people.”  And the application process itself may be subtly unfavorable to artists of color.  To be fair, not all artist housing in the Twin Cities has such racially-skewed numbers.  At the 653 Artist Lofts in Frogtown, only 50 percent of residents are white. But these accommodations are much more modest in comparison to those like the Tilsner.  Indeed, some of the housing illuminated in this report stands out in its luxury factor.  This picture from the Pioneer Press of the rooftop deck of the Schmidt Artists Lofts shows truly stunning living amenities.

Is this an unfair attack on artists lofts?  Developers and housing advocates say that artist housing projects hit a variety of city goals, such as historic preservation and redevelopment of vacant industrial sites in neighborhoods that could sometimes use an economic development boost.  They keep an artistic element in areas that are gradually gentrifying.  They also feature in very public community events like the St. Paul Art Crawl.  Artists lend a vibe to a neighborhood that affluent residents will pay money to have in their backyards, which we might call the “YIMBY” syndrome.  Also, where do artists and art communities stand in a free market setting without such subsidies as these to keep their work space affordable? The recent fate of the Jax Building gives us an idea.

Here’s a final, provocative question: Do these luxury work-life homes risk depriving artists of contact with a more diverse and representative society, which might inspire them to create more socially visible and relevant artwork?

 

Image - U.S. Supreme CourtMinnesota came into focus last week as part of Donald Trump’s presidential campaign.  Specifically, Minnesota Supreme Court Justice David Stras was part of a short list of potential U.S. Supreme Court appointees that Mr. Trump might pick if he were to be elected.  (Like the late Justice Rosalie Wahl, Stras has his beginnings in Kansas.)  A graduate of the University of Kansas School of Law, Justice Stras clerked for U.S. Supreme Court Justice Clarence Thomas.  Before then he held other clerkships and also practiced white collar criminal and appellate law in the firm of Sidley Austin Brown & Wood.  He became an adjunct professor at the University of Minnesota Law School in 2004, which he held until his appointment to the Minnesota Supreme Court by Governor Tim Pawlenty on July 1, 2010.  He was a popular professor at the “U”, as is reflected in the University of Minnesota Law Review’s tribute to Justice Stras.

In its recent article, the Minnesota Lawyer pointed out that Mr. Trump may be employing political strategy with his short list. (In fairness, what isn’t political when you are running for president?) All the names on his list are not only conservative thinkers in the judicial realm, but also hail from the Midwest.  Mr. Trump’s election game will likely depend on appealing to Midwestern states.  (“Conservative” can be a rather circumstantial concept where justices are concerned.  Stras dissented with Justice Alan Page in the headliner DWI case of State v. Bernard, now awaiting its final fate at the hands of the U.S. Supreme Court.)   Stras was previously named in this blog as the author of this fascinating historical article on Minnesota’s first U.S. Supreme Court Justice, Pierce Butler.  Stras may not have a long judicial record to his name, but check out some of these other articles to learn more about his analytical approach:

Of course, being on a presidential candidate’s short list of possible appointees is not a sure route to the nation’s highest bench.  Not even being an official appointee of a sitting president to an actual vacancy is a sure thing, as Merrick Garland can attest.

 

Our Modern “Asylum” System is Insane

file000863913766People living with mental illness are disproportionately represented in the criminal justice system. It is estimated that 1 million people with mental illnesses are arrested and booked in the U.S. each year.  This is no surprise to anyone who reads the local news.  Criminal arrests and convictions in our community are frequently revolving around defendants with confirmed mental health issues.  After last month’s law office tragedy, we are only too aware that local attorneys frequently find themselves representing mentally ill clients who can become dangerous.

The bigger problem is that mental illness is an affliction that our society hasn’t found a perfect way to manage.  In the early days of our country, the mentally ill were cared for at home by their relatives, which was easier when people lived in rural communities with open spaces and fewer neighbors.  What became known as the “insane asylum” became more standard as our society became more urban and mobile.   (Read this interesting article about Minnesota’s history of institutionalizing the mentally ill.) These asylums developed a bad reputation in the 20th Century for their record of human rights violations, and many people understandably cheered the deinstitutionalization movement of the 1970’s.  Unfortunately, the end result was thousands of people needing help in managing their mental conditions, and not getting it.  Instead, their resulting instability often landed them behind bars.  And whereas people might feel safer when the people they consider to be dangerous are locked up,  jails seldom offer the consistent structure and treatment needed for their mental conditions.

It is  step in the right direction that lawmakers are considering the best training for law enforcement in handling mental health calls.  Other positive steps within the criminal justice system for handling the mentally ill include Minnesota’s 48 hour rule and the 2nd Judicial District Mental Health Court.  Albeit positive steps, they are no substitute for ongoing care and maintenance that the mentally ill are likely to need.  Read more about the dilemma in this recent Pioneer Press article.  The New York Times is also featuring an in-depth editorial discussion on this subject.

 

 

57-DSC_6403Our law library proudly promotes local criminal expungement resources to our patrons or others who might benefit from them. We are in partnership with the Second Judicial District, Volunteer Lawyers Network (VLN), and the Saint Paul Public Library to bring criminal expungement workshops to the public. Thus we were interested in the recent the Minnesota Court of Appeals decision in the case of State v. S.A.M, which involved a Rochester man seeking expungement of his 2003 felony conviction.  The Court held that his record could not be expunged because his previous guilty plea was to a charge not included in the list of expungible felonies under Minn. Stat. §609A.02.  It didn’t matter that the conviction in this case was subsequently “deemed a misdemeanor” per plea bargain terms.  Further, the Court declined to apply the language of sentencing statute Minn. Stat. §609.13 in order to make the appellant’s felony a misdemeanor for expungement purposes, because the original judgment was entered as a felony and not a misdemeanor.   This case is examined in this week’s issue of Minnesota Lawyer.

It’s not unusual for criminal defendants to plead guilty to a different charge in order to reach a quicker (and legally affordable) resolution to their prosecutions.  According to the U.S. Department of Justice90 to 95 percent of all criminal cases nationwide are resolved through plea bargains.  The expungement law does not specifically address situations where petitioners might have received a stay on a felony charge which was then converted to a misdemeanor. This gap in the law potentially leaves hundreds of expungement petitioners without the second chance remedy heralded by the 2014 expungement overhaul.  Indeed, the Court noted with some sympathy that its ruling  reveals a distinct hole in the expungement net, but held that it was up to the legislature to provide any needed clarification.

Does this ruling leave you with questions on if or how your expungement petition might be affected? Don’t reach any conclusions before discussing your case with an attorney.  If you are just starting to consider expungement, try a VLN seminar at a local public library. If you are preparing your petition paperwork, come to the Second Judicial District’s criminal expungement workshop which meets on the second and fourth Thursdays of each month here in the law library.

 

Nino’s Quieter Legacy (Justice Antonin Scalia)

Newspaper headline and bookThere was no ignoring last weekend’s news of the sudden death of Supreme Court Justice Antonin Scalia. Best known as the premier originalist on the nation’s highest bench, Scalia represented the position that the Constitution and each of its amendments mean exactly the same now as was intended on the day of their adoption. This is in contrast to the school of thought that views the Constitution as a living document, and that the task of interpreting it must adapt with the times.  (For a more in-depth look at Scalia’s interpretive style, consider his book Reading Law, wherein he and Bryan A. Garner spell out the principles of originalist interpretation.)  Typically employing his unique flair with words, Scalia was commonly regarded as both a champion and powerful voice for conservative causes before the Court.  Check out some of Scalia’s wittiest word-bites.

Scalia’s quieter legacy is the one he leaves behind to his surviving bench mates. By all recent news accounts, he was an engaging man who delighted in analyzing and debating the Constitution with his eight colleagues. The counter-position to his constitutional originalism was often represented by Ruth Bader Ginsburg, who usually analyzed fr0m the Constitution-as-living-document position. She remembered her friend and colleague this week, recounting their pointed opinion-and-dissent duets, which she says reached a higher quality as a result of their joint counter-efforts. Their professional camaraderie actually became an opera in 2013 (an art form that they were both big fans of). Indeed, all of his colleagues treasured their warm close relationships with him, and had the highest respect for the jurisprudence he brought to their team.  This is a special legacy in our era of hyper-partisan politics, which has destroyed any such camaraderie within our Congress.

One can honor Scalia’s legacy in this quiet fashion, by simply actively appreciating those people in our lives who force us to be a little sharper, a little more thorough, and a little more prepared. Even when (especially when) their positions might be diametrically opposed to ours, these are the people who can ultimately bring out the best in us and spur us to our greatest accomplishments.