About 95 percent of people who are incarcerated will return home to their communities.
Prosecutors, although wielding immense power and a prominent platform, have traditionally viewed their roles as relatively confined to the “front end” of the criminal legal system and to a person’s path through that process—deciding whom and what to charge, negotiating a plea or trying the case, and determining upon conviction what sentence to recommend. Reform-minded elected district attorneys (the terms “district attorney,” “DA,” or “elected prosecutor” are used in this article generally to refer to any chief local prosecutor, including state’s attorneys, prosecuting attorneys, and attorneys general with local jurisdiction) have increasingly recognized that many opportunities exist to improve justice system responses during these stages, including rethinking decision making around charging low-level offenses, diverting cases that do not need to be in the criminal legal system, proactively addressing over-incarceration, and recommending alternative responses in lieu of prison. See Fair & Just Prosecution, 21 Principles for the 21st Century Prosecutor 3–11 (2018). These practices are helping create a new normal in the field of prosecution, particularly as communities grow tired of past “tough on crime” approaches that have placed our nation in the dubious position of incarcerating at a rate second to none. Yet, despite strides that have limited incarceration through reforms such as these, there are still roughly 1.8 million people in our nation’s prisons and jails.
About 95 percent of people who are incarcerated will return home to their communities. See Recidivism and Reentry, Bureau of Just. Stat. (BJS). Sadly, our current justice system is not set up to help people live, work, and thrive once they are home. In fact, because of the lack of preparation, support, and services, many formerly incarcerated individuals wind up re-incarcerated. According to a BJS review of criminal history data from 34 states, 6 in 10 people released from prison in 2012 were rearrested within three years. And from its study of people released in 2005, BJS found that 77 percent were arrested again within five years of release.
To reduce the number of people cycling through the system, more must be done while people are incarcerated and during the critical initial weeks and months after release to foster successful reentry into the community. As a growing cohort of reform-minded DAs around the country understands, a holistic view of public safety—and one that best protects our communities—requires engagement, coordination, and support for individuals at every stage of the criminal legal process and beyond to close this revolving door. This means that prosecutors must also step outside of their traditional role.
DAs are often leaders in setting public safety values and priorities in their communities. They can and should use their power and voices to support individuals with reentry, both during incarceration and after their release. DAs can help reduce the number of people cycling in and out of the system by working to limit the inhumane conditions inside jails and prisons and the resulting adverse impact on individuals behind bars, advocating for programming and rehabilitative services in correctional facilities, removing barriers and hurdles that inhibit successful transition into the community upon release, and equipping people for reentry with the tools and opportunities they need to resume their lives. See Cyrus R. Vance Jr., Stanley Richards & Courtney M. Oliva, Reimagining the Role of the Prosecutors in the Community: Prosecutors, Reentry, and Public Safety 8–9 (Inst. for Innovation in Prosecution at John Jay Coll. 2019).
This article will discuss these important strategies and how DAs can (1) use the tools available to them to minimize the harms of incarceration and support programming and services that will help individuals prepare for reentry and reintegration and (2) engage in efforts to support communities and ensure that people are set up for success post-release.
During Incarceration: Minimizing the Adverse Impact of Incarceration and Supporting Reentry Programming and Services
Far too often, conditions behind bars are inhumane and can exacerbate the problems and challenges that precipitate criminal conduct. Incarceration negatively impacts self-worth and personal growth, stifles familial and community connections, and creates barriers to leading productive lives outside of prison walls.
Though the prison and jail population has declined in recent years, the United States still maintains the largest incarceration rate per capita in the world. See John Gramlich, America’s Incarceration Rate Falls to Lowest Level Since 1995, Pew Rsch. Ctr. (Aug. 16, 2021). Correctional facilities remain overcrowded, which adversely affects living conditions, facility management, and the health and safety of those who are incarcerated.
These conditions only worsened during the COVID-19 pandemic. Correctional facilities serve as congregate care settings, with limited access to appropriate protective equipment and materials to maintain sanitary conditions, limited ability for incarcerated people to adopt public health mitigation measures such as social distancing, and relatively low rates of vaccination. Fair & Just Prosecution, COVID-19 and the Criminal Justice System: Improving Conditions of Confinement and Protecting Constitutional Rights (2021).
In addition to conditions that can adversely impact physical health, incarceration can produce long-term adverse psychological consequences resulting from dehumanizing treatment including deprivation of liberty and privacy, witnessing violence, extreme atypical living norms, and separation from others. See Craig Haney, The Psychological Impact of Incarceration: Implications for Post-Prison Adjustment (prepared for the From Prison to Home Conf., Jan. 30–31, 2002). Moreover, there is often an inability to maintain a healthy lifestyle, with limited access to nutritious food, time outdoors, or physical activity, and a woeful lack of access to treatment and resources for individuals with chronic physical health, mental health, and substance use issues.
These psychological and physical harms—when coupled with the isolation from everyday life—make returning to outside society a daunting task, and particularly challenging to navigate on one’s own. The process of returning home often requires accessing information and seeking services from multiple entities for health care, housing, education, and employment—entities that incarcerated people have been disconnected from or without access to anywhere from several weeks to many years. For these reasons, it is critical to provide programming and services inside facilities prior to release that can make the necessary connections and help people prepare for this challenging transition.
As leaders with a mandate to improve community safety, DAs need to be engaged in helping ensure that our correctional facilities and systems are set up to help people succeed upon release. They can do so by working to minimize the harms of incarceration, advocating for people to be treated with dignity and respect while confined, and supporting programming and services that will help prepare individuals for reentry and reintegration.
Promote Humane and Rehabilitative Conditions in Confinement
Prosecutors have a key role to play in advocating for humane and constitutional conditions of confinement, including access to necessary health care and rehabilitative opportunities. As a first step, all prosecutors should visit jails and prisons to get a full picture of the impact of their decisions, as well as to monitor conditions behind bars. They should acknowledge their duty to promote the safety, rights, and just treatment of individuals who are in correctional facilities based on prosecutorial decisions and advocacy. In 2019, over 40 DAs from around the country pledged to visit prisons and jails and to require their line prosecutors do the same. See Fair & Just Prosecution, Building Empathy Through Experience: Elected Prosecutors’ Pledge to Facilitate Officewide Prison, Jail and Juvenile Facility Visits (Jan. 9, 2020). As they noted in this joint statement, “it is vital for prosecutors to understand the true impact of their decisions and to see firsthand the jails, prisons and juvenile facilities in their jurisdiction.”
When unsafe and unconstitutional conditions are identified, prosecutors also have an obligation to shed light on these problems and ensure that an investigation occurs. At times, that might involve referring cases to the U.S. Department of Justice Civil Rights Division for monitoring, prosecution, or other remedies.
In addition to taking measures to advocate for and ensure health, safety, and well-being inside facilities, elected prosecutors can also use their voices to advocate for an entirely different approach to incarceration, one that is guided by principles of human dignity. Fair & Just Prosecution, Lessons Learned from Germany: Avoiding Unnecessary Incarceration and Limiting Collateral Consequences (2020). In countries like Germany and the Netherlands, corrections systems are organized around the central tenets of resocialization and rehabilitation. See Ram Subramanian & Alison Shames, Sentencing and Prison Practices in Germany and the Netherlands: Implications for the United States (Oct. 2013). In these systems, life in prison is not predicated on extreme or harsh punishment—instead it aims to instill fundamental skills that people need to succeed in the community and relies on normalized everyday life and the use of incentives and rewards to create behavior change. DAs should work with correctional and law enforcement leaders in their communities to learn from and adopt these proven models and best practices.
Advocate for Behavioral Health, Educational, Vocational, and Other Programming
While corrections directors and administrators lead and oversee the programming and services provided inside correctional facilities, securing the necessary buy-in, support, and funding to implement new or expanded services is often a challenge. This is where the voice and support of DAs can go a long way. Prosecutors can become champions of behavioral health, educational, vocational, and other services behind prison walls by highlighting their effectiveness in reducing recidivism and urging local and state officials to provide the necessary resources for their implementation.
Behavioral health services within correctional facilities are critical. Research estimates that around 65 percent of incarcerated people have a substance use disorder. And evidence has shown that taking measures to provide comprehensive treatment while individuals are incarcerated is effective in reducing both drug use and reoffending after they return to the community. See Nat’l Inst. on Drug Abuse, Drug Facts: Criminal Justice (last updated June 2020). For persons with an opioid use disorder, these treatment services include offering a choice among all forms of FDA-approved medications for OUD, which have also been shown to reduce the risk of drug overdose death after a person’s release. Prosecutors can advocate for the use of this and other evidence-based behavioral health treatment services in prisons and jails. See Press Release, Law Enf’t Action P’ship & Fair & Just Prosecution, Law Enforcement Calls for Medication-Assisted Treatment Programs in Correctional Facilities (Apr. 3, 2019).
Additionally, prosecutors can adopt policies to help ensure that the treatment and services that people receive while incarcerated will be supported and continued upon their release into the community. In jurisdictions such as Philadelphia, Pennsylvania, and Burlington, Vermont, District Attorney Larry Krasner and State’s Attorney Sarah George, respectively, encouraged access to and implemented policies that encourage the use of life-saving opiate treatments like buprenorphine, as well as harm reduction tools (including use of fentanyl test strips) to detect and prevent potential overdoses. See Brandon del Pozo, Lawrence S. Krasner & Sarah F. George, Decriminalization of Diverted Buprenorphine in Burlington, Vermont and Philadelphia: An Intervention to Reduce Opioid Overdose Deaths, 48 J. L. Med. & Ethics 373 (2020). Research and evaluation of reentry programs and services has shown that interventions that facilitate connections to therapeutic and substance use treatment post-release are some of the most promising and effective. See Grant Duwe, The Use and Impact of Correctional Programming for Inmates on Pre-and Post-Release Outcomes 2–3 (Nat’l Inst. of Just. 2017).
In addition to behavioral health services, educational programs—both traditional and vocational training—have been shown to be among the most effective interventions at reducing recidivism. A RAND study found that people who participate in any kind of educational program while incarcerated are up to 43 percent less likely to reoffend and return to prison. See Lois M. Davis et al., How Effective Is Correctional Education, and Where Do We Go from Here? The Results of a Comprehensive Evaluation (RAND Corp. 2014). These individuals are also more likely to find a job after their release. Prosecutors can advocate for and support initiatives that will help bring resources, funding, and technology to ensure adequate educational offerings within correctional facilities. Recently, for example, the U.S. Department of Education announced the expansion of the Second Chance Pell experiment to reinstate Pell Grant eligibility for incarcerated students. Elected prosecutors should work with corrections officials, and others in their community, to ensure that incarcerated people are aware of this funding opportunity and know how to access it.
Participate in Transitional Planning and In-Reach Initiatives
To better enable people to prepare for life following incarceration, system leaders should work collectively to facilitate connections and provide guidance prior to release that will put people in better positions once back in the community.
DAs should work with other system officials to support such programming. This includes partnering with corrections, probation, and parole entities to identify and support community-based organizations that can provide in-reach and transitional services such as reentry planning. In Massachusetts, for example, the Suffolk County DA’s Office partnered with the Boston Police Department, Suffolk County Sherriff, and State Department of Probation, Correction, and Parole through the Boston Reentry Initiative. This project helped people who were still incarcerated to obtain social service assistance and other planning support to facilitate their return to the community upon release from prison. See Program Profile: Boston (Massachusetts) Reentry Initiative, Nat’l Inst. of Just.: Crime Solutions (June 10, 2011).
Additionally, an individual’s ability to maintain connections with family and community while in jail or prison is a key component to a successful transition back to life in the outside world. DAs should urge the adoption of local and statewide policies that ensure available and affordable prison communications options. In 2015, for example, 51 former attorneys general urged changes to ensure that telephone communications for families of incarcerated people aren’t cost prohibitive. See Peter Wagner & Alexi Jones, State of Phone Justice, Prison Pol’y Initiative (Feb. 2019). Attorneys general and other elected prosecutors nationwide should continue pushing for changes to policies and practices that impose high costs on prison and jail phone calls and other forms of electronic communication. They should also help remove other hurdles to maintaining social connections by, for example, supporting efforts to place individuals in correctional facilities that are close to the communities they come from and mitigating excessive costs or red tape.
After Release: Ensuring Sufficient Support for Success in the Community
Once back in the community, formerly incarcerated people face a number of barriers that impact various aspects of everyday life, ranging from the burdens of oversupervision, to the obstacles created by criminal histories, to lack of coordination among many services and supports. DAs committed to promoting safer and healthier communities need to acknowledge these barriers and play a leadership role in working with policymakers to eliminate and alleviate them.
Work with Probation and Parole to Limit Unnecessary, Excessive, and Ineffective Supervision
Following incarceration, many individuals are placed under some form of community supervision. This supervision has increased exponentially over the past few decades. Today, one in 55 people nationwide is on probation or parole. See Adam Gelb et al., Pew Charitable Trusts, Probation and Parole Systems Marked by High Stakes, Missed Opportunities (2018).
People under supervision must comply with a laundry list of conditions, requirements, and limitations on top of the many other challenges they face as they aim to navigate life post-release. Too often these lengthy and overly restrictive supervision conditions do nothing to improve community safety. Instead, they often lead to re-incarceration for minor noncriminal and technical violations such as breaking curfew or missing an appointment with a probation or parole officer. In 2017, these violations made up a quarter of all state prison admissions. See Council of State Gov’ts Just. Ctr., Confined and Costly: How Supervision Violations Are Filling Prisons and Burdening Budgets (June 2019). Continually crowding our nation’s prisons and jails with individuals who make these small mistakes perpetuates a cycle of criminal legal system involvement and makes it difficult for people to move forward with their lives. Prosecutors should work with judges and probation and parole entities to reduce the number of conditions and requirements that often result in people being reincarcerated for minor rule violations, and they should oppose, rather than reflexively seek, incarceration for such violations.
Elected prosecutors can also employ policies in their offices to reduce unnecessary and excessive supervision. Most reoffending occurs in the initial weeks and months under supervision, so terms that extend on for many years are often counterproductive and interfere with people’s ability to lead independent and productive lives. In Philadelphia, for example, District Attorney Larry Krasner reduced the number of people under community supervision by one-third—from 42,000 people in 2018 to 28,000 in 2021—by implementing policies that guided staff prosecutors not to seek supervision terms longer than 36 months for felonies and 12 months for misdemeanors. See Samantha Melamed, How Philly, the Nation’s Most Supervised Big City, Cut Its Probation Numbers by a Third, Phila. Inquirer (Apr. 19, 2021). And in the Western Judicial Circuit in Georgia, District Attorney Deborah Gonzalez has recognized that there is no evidence that lengthy probation makes communities safer or more secure, and as a result directed line prosecutors to support limiting the length of probation to two years, when statutorily permissible. See Memorandum from Off. of the Dist. Att’y, W. Jud. Cir., Fairness and Equity in the Western Judicial Circuit District Attorney Office (Jan. 1, 2021), in DA Gonzalez Outlines Policies of Reform in Memorandum to Staff, Classic City News (Jan. 2, 2021).
Limit the Impact of Criminal History Records
Criminal history records can follow individuals for a lifetime, impacting housing, education, employment, and even an individual’s ability to remain in this country. These collateral consequences harm not just the individual, but also their family and broader community. There are a number of ways that DAs can mitigate these life-altering adverse effects of a criminal conviction.
Access to housing and justice system involvement are inextricably linked. Having a criminal record creates a host of barriers to securing safe housing, including by potentially restricting housing assistance or impacting credit ratings; imposing limitations on living with certain family, associates, or acquaintances due to community supervision conditions; and limiting job opportunities that would make stable housing affordable. As a result, it is not surprising that people who have been incarcerated even just once are seven times more likely than non–justice system involved people to face homelessness, and people who have been incarcerated more than once are 13 times more likely to experience homelessness. See Five Charts That Explain the Homelessness-Jail Cycle—and How to Break It, Urb. Inst. (Sept. 16, 2020).
Additionally, numerous policies and practices limit or restrict employment prospects and the ability to obtain professional licensure. On average, the unemployment rate for formerly incarcerated people is 27 percent, compared to just six percent for the general population. See Lucius Couloute & Daniel Kopf, Out of Prison & Out of Work: Unemployment Among Formerly Incarcerated People, Prison Pol’y Initiative (July 2018). These are not coincidences; a number of system failures, broken processes, and limitations placed on people with criminal histories add extra hurdles to finding shelter and work. Criminal history records and convictions also further disenfranchise individuals returning to their communities by restricting the right to vote and impacting access to social service benefits.
DAs can serve a critical role in advancing and championing efforts to limit these unnecessary and harmful effects. There is a growing movement around the country to advance “clean slate initiatives,” which allow people the opportunity to seal or expunge records after a certain amount of time—initiatives that many forward-thinking elected prosecutors are embracing and, in some cases, leading. In 2021, over 80 prosecutors and law enforcement leaders joined a statement in support of these important reforms. See Press Release, Fair & Just Prosecution, Joint Statement on Supporting Clean Slate Initiatives (Apr. 2021). In Washtenaw County, Michigan, Prosecuting Attorney Eli Savit established a Conviction Integrity and Expungement Unit. See Washtenaw Cnty., Off. of Prosecuting Att’y, 2021 Year End Report. Capitalizing on Michigan’s recent expungement laws, PA Savit’s office partnered with community organizations to assist individuals with the expungement process and cover costs associated with filing. To inform residents of the new laws and services being provided, the office implemented community outreach efforts to talk to residents across the county and held multiple expungement fairs. In 2021, the office, in collaboration with community partners, was able to assist more than 500 county residents expunge their records. Dallas County, Texas, District Attorney John Creuzot’s office supports similar efforts by partnering with the clerk’s office for an annual Expunction Expo—just last year, the partnership helped to expunge roughly 800 criminal records. See Annissa Obasi & Karen Wise, Dallas County’s Expunction Expo, Tex. Dist. & Cnty. Att’ys Ass’n (July–Aug. 2021). A number of these initiatives have even made the clearing of these records automatic, further reducing individual burdens and barriers and acknowledging that everyone deserves a second chance.
Prosecutors can advocate for other law and policy changes so that people are not impeded by the collateral consequences of convictions. A number of DAs have recognized the importance of the devastating immigration consequences resulting from often minor convictions. Many DAs—including District Attorneys Diana Becton of Contra Costa County, California, Eric Gonzalez of Brooklyn, New York; Michael Dougherty of Boulder County, Colorado, and Larry Krasner of Philadelphia, Pennsylvania, as well as County Attorney John Choi of Ramsey County, Minnesota, and Prosecuting Attorney Carol Siemon of Ingham County, Michigan—have implemented policies requiring that line prosecutors consider a person’s potential immigration consequences when making charging and plea bargaining decisions. See Memorandum from Off. of Ramsey Cnty. Att’y, Prosecution Policy Regarding the Consideration of Collateral Consequences in Plea Negotiations and Sentencing (Jan. 31, 2019); Memorandum from Off. of Dist. Att’y, Contra Costa Cnty., Immigration Policy (May 8, 2019). Prosecutors can also support individuals’ right to vote and sit on juries. Hillsborough County, Florida, State Attorney Andrew Warren created a process to help eligible persons resolve court fines and fees in order to restore their right to vote. See Hillsborough County Restoration of Voting Rights for Returning Citizens, Off. of State Att’y, 13th Jud. Cir. (Dec. 17, 2019). District of Columbia Attorney General Karl Racine and Lincoln County, Maine, District Attorney Natasha Irving have supported efforts to enable people with criminal convictions to serve on juries, with studies and legal scholars demonstrating that jury service is optimally positioned as a means for furthering reintegration into society. See James M. Binnall, Felon Jurors in Vacationland, 71 Me. L. Rev. 71 (2019). These are a few examples of how DAs can engage—but they can and should be doing more, including pushing for legislative and policy reforms that in other ways work to eliminate criminal history barriers to housing supports, education, social services, employment, licensure, voting rights, and jury service.
Foster Community Engagement and Coordination
Just as system leaders and stakeholders play a role in helping prepare people for their return to the community, they also play a role in ensuring that the community is equipped to receive people who are coming home. To this end, a number of states and local jurisdictions have established reentry working groups or councils, organized networks of community groups, individuals, and governmental agencies across a variety of disciplines that have a role or interest in coordinating available services and supports. Having a mechanism in place for coordination is essential to help community groups and service providers adequately respond to and support the reintegration of people following release from incarceration.
As with many aspects of the criminal legal system, prosecutors can’t transform the reentry process on their own. Reentry councils, however, foster collaboration of leaders across the criminal legal system, as well as across health, labor, and other sectors that are critical to post-release success. Elected prosecutors can and should serve as leaders on these councils.
King County, Washington, Prosecuting Attorney Dan Satterberg sits on the Statewide Reentry Council. The Council works to increase collaboration between state and local programs relevant to reentry, improve outcomes for people returning to the community, develop statewide goals, and recommend system and policy changes to improve reentry services and supports across the state. See Wash. Rev. Code § 43.380. Similarly, in San Francisco, California, District Attorney Chesa Boudin serves as a member of the San Francisco Reentry Council, which includes 24 members across the disciplines of social services, youth and family services, housing, public health, probation, and parole that play a role in preparing for and supporting the return of individuals into the community. See Reentry Council, City & Cnty. of San Francisco. As part of these efforts, DAs have the opportunity to support and meet victims, families, and community members and hear their needs and concerns directly. Where such councils don’t exist, DAs can use their role as public safety leaders in their community to bring stakeholders together to create them.
Every contact point and interaction with the criminal legal system impacts not only the lives of those convicted of a crime, but also their families, networks, and society at large. Therefore, the decisions and responses that system leaders employ impact us all as well.
Prosecutors play a major role in the criminal legal system and in the ongoing conversations in their jurisdictions and around the country about improving public safety. Elected DAs have a duty to utilize their power and voice to help facilitate better outcomes for both the individual and the entire community. That duty does not end with a conviction or sentence, but rather extends beyond a case’s disposition to efforts that can support the individual’s reentry and reintegration. During incarceration, prosecutors can urge humane and rehabilitative conditions of confinement, advocate for programming and services to support successful reentry, and participate in transitional planning and in-reach initiatives. And for individuals released back into the community, prosecutors can work with probation and parole to end unnecessary and ineffective supervision, limit the impact of criminal history records, and foster community engagement and coordination.
When prosecutors engage in reentry efforts from incarceration through release and reintegration, they help close the revolving door of our jails and prisons, and as a result enhance public safety and help people lead healthy and productive lives. Many reform-minded prosecutive leaders are rising to the challenge; hopefully their efforts will encourage others to act.
Judge Lynn Hughes had issued a lifetime ban against a female litigator after she won an appeal related to comments he made in an earlier case.
A federal appeals court had stern words for a Texas federal judge who issued a lifetime ban to a female litigator who previously accused him of sexism in the courtroom.
The U.S. Court of Appeals for the Fifth Circuit revoked that ban issued by U.S. District Judge Lynn Hughes of the Southern District of Texas, known as an exclusion order, but it was a concurrence from circuit Judge James Ho that drew attention from the legal community on social media.
“It is apparent from the transcript of the proceedings that the district judge believes he has been falsely accused of discriminating against the AUSA based on her sex,” wrote Ho. “But be that as it may, it’s hard to imagine a less persuasive way for a judge to rebut the charge that he discriminated against a female attorney than by expelling her from his courtroom—not just in one case, but in every case that she may bring for the rest of her career.”
Hughes, a Ronald Reagan appointee, has frequently been criticized for making racist and sexist comments in the courtroom. In 2012, Hughes allegedly made comments about a litigants race, and called the swastika “a symbol of good luck.”
And in 2015, the Fifth Circuit removed Hughes from a qui tam case involving Shell Exploration, because he ignored the panel’s instructions on remand.
In 2018, the Fifth Circuit reversed Hughes and criticized his conduct in a case where the judge faulted a female prosecutor, Tina Ansari, for her handling of discovery in a criminal case and implied that things were better when lawyers wore suits and “girls” were not allowed. The Fifth Circuit ordered the district court’s chief judge to assign a new judge to the case on remand.
And in Wednesday’s opinion Ho joined the list of Fifth Circuit judges who have admonished Hughes.
“Now fast forward to the present case: That same district judge issued a verbal order from the bench, excluding that same AUSA [Ansari] from his courtroom—not only in this case, but in all future cases as well,” wrote the Trump appointee. “By all accounts, the district judge issued the order to punish the AUSA for the USAO’s appellate briefing in [an earlier case].”
According to the government’s brief, the interaction started when Huges excused Ansari, the target of Hughe’s sexism in 2018, from the current case after she walked into the courtroom for a pretrial conference
“I would like to have a reason why I am being excused,” Ansari said.
“I understand you would like that. You will be disappointed,” Hughes responded.
“I’ll be disappointed by your reason?” Ansari followed up.
“No, because you are not going to have my reasons,” the judge responded.
Department of Justice counsel then stepped in and asked for details from Hughes, who said he’d been displeased with the appeals court’s opinion in 2018 and thought the ruling was based on “lies and misrepresentations of the record in the government’s appellate brief.”
Hughes instead stressed the comment about women’s clothes he’d been admonished for earlier were not directed at counsel, but actually “addressed to a different person in the room and was referring to historical facts about FBI agents’ dress.”
And while Wednesday’s panel acknowledged a judge may have the power to issue an order barring counsel indefinitely, they noted a proper set of facts proving such bad faith on behalf of the attorney would be required.
“The district judge relied on his inherent power, but he did not make a specific finding that the AUSA acted in bad faith,” wrote the panel made up of Ho, Chief Judge Priscilla Richman and Judge Kurt Engelhardt.
Ho’s concurring opinion has since gone viral on twitter, leading legal commentator Ken White, aka Popehat, to chime in:
Hughes secretary, Crystina Huerta, said the judge will not be responding to questions about the latest opinion.
The U.S. Department of the Interior lifted a decades-old policy that had prohibited certain Native American tribes from adopting their own water-use rules, which critics said left those resources at risk of misappropriation and was inconsistent with tribal self-determination.
Rescinding the so-called Morton Moratorium — named for former Interior Secretary Rogers C.B. Morton, who enacted the measure in 1975 — will streamline the department's review of new tribal water codes, the DOI announced in a press release.
Interior officials plan to consult tribes on aspects of that process, including the "appropriate delegation of approval authority" as well as approval criteria, according to Secretary Deb Haaland. She said the DOI "cannot be afraid to review and correct actions of the past that were designed to create obstacles for Tribal nations."
"The 'Morton moratorium' is inconsistent with the Department's commitment to upholding Tribal self-determination and the federal trust responsibility to support Tribal sovereignty," Haaland said in the statement. "Today's action underscores our efforts to move forward in this new era."
Advocates for Native American rights, including the National Congress of American Indians, have for years called on the Interior Department to drop its longtime water code ban.
That policy left "tribes vulnerable to misuse and misappropriation of tribal water without a means to enforce their water rights on their reservations," the NCAI said in a 2018 resolution calling for its repeal.
Noting the Morton Moratorium was meant to precede new federal guidance for reviewing tribal water codes, the organization said the policy had "effectively frustrated its original purpose" because the DOI never enacted those rules.
As a result, the NCAI said tribes that didn't put water-use rules in place before 1975 have risked having those resources misused or misappropriated — a substantial threat as state water users face shortages and look to shore up their own access.
"It is in the best interest of the federal government and tribes to be able to develop and implement tribal water codes in order to support tribal self-determination and self-governance over their most significant tribal natural resource — water — in order to provide a sustainable homeland for tribes and their members," the NCAI argued at the time.
The Interior Department took a similar stance in announcing the Morton Moratorium's repeal Thursday, saying the policy "imposed a procedural hurdle" for tribes that wanted to adopt new water-use rules.
"The action has created unnecessary confusion for nearly 50 years regarding the department's willingness to work with and support tribes considering water regulation within their reservations," the DOI said.
Federal regulators will nonetheless retain final authority over water codes for tribes whose constitutions don't give them full sovereignty in that arena.
It remains unclear how the Bureau of Indian Affairs will evaluate any new policies, according to David L. Ganje, a Phoenix-based natural resources lawyer.
Tribes will still "have to go through a bureaucratic dance" with the BIA, he said, adding the agency has been "inarticulate, unresponsive [and] incompetent" in handling Native American water issues in the past.
Still, Ganje cheered the Morton Moratorium's repeal, saying the policy prevented many tribal communities from realizing the full sovereignty they're owed over natural resources on their lands.
Without that authority, he said, many tribes entered water-sharing agreements — both formal and informal — with state partners. Ganje predicted Native groups will be cautious in flexing their new water rights, but said those policies will likely resemble property-rights laws they've always been able to enact for reservation lands.
"It's the right thing to do because these rights exist," he said of the DOI repeal, pointing to the U.S. Supreme Court's 1908 ruling in Winters v. United States that guaranteed water access for Native American reservations. "These are actual water rights."
Over objections from his own administration, Missouri Gov. Mike Parson signed a bill that makes it a crime for the homeless to sleep on state-owned lands, such as under highway overpasses and bridges, reports Business Insider.
Meanwhile, in California, The Guardian reports that as a result of authorities’ crackdowns on homelessness banning people from camping in certain spots, at least 200 unhoused people live outside in a remote stretch of dessert in LA County.
The Missouri law states that “no person shall be permitted to use state-owned lands for unauthorized sleeping, camping, or long-term shelters.” The first offense gets a warning, and the second gets a Class C misdemeanor, punishable by 15 days in prison, or a $750 fine, the St. Louis Post-Dispatch reported.
Cities that don’t “enforce any ordinances prohibiting public camping, sleeping, or obstruction of sidewalks,” can be sued by the Missouri attorney general.
Those “with a higher per-capita homelessness rate than the state average will not receive further state funding” until they lower their per-capital homelessness rate or enforce statewide bans, the legislation said.
The legislation also dictates that cities can only use state and federal funds to build temporary camps for the homeless, instead of permanent housing.
Since the bill’s passage, service providers and cities are scrambling to understand what the legislation means, reports the Missouri Independent.
“There’s been no clarity or guiding information issued from the governor’s office or from any state agencies at this point,” said Sarah Owsley, director of policy and advocacy for Empower Missouri, which advocates on behalf of low-income residents.
“We have reached out to [Missouri Housing Development Commission] staff, who also similarly don’t seem to really understand it.”
According to Owsley, part of Missouri officials’ lack of understanding of how to implement the law stems from the fact that the legislation originated from a template bill written by a conservative think-tank in Austin, Tx., called the Cicero Institute.
In California, The Guardian reports that a crackdown by authorities has forced at least 200 unhoused people to live outside in a remote stretch of dessert in LA County, battling the extremes. The authorities banned people from camping in certain spots, giving out citations for “loitering” and related violations and conducting encampment sweeps that advocates say destroy people’s belongings.
Data obtained by The Guardian shows that the coroner’s office has logged 246 deaths of unhoused people in the city of Lancaster and the surrounding area since 2015, including 18 deaths in the desert and 29 fatalities so far this year.
Residents are scattered in small communities dispersed throughout the desert, with some couples and individuals in isolated pockets on their own while others cluster together for safety and support.
A local government board in southern New Mexico approved a message Thursday saying that abortion clinics are not welcome in politically conservative Otero County — even though state law allows most abortion procedures.
The nonbinding anti-abortion resolution, approved in a 3-0 vote, said the commission “stands firmly against the presence in the county of Planned Parenthood clinics or any other clinics where abortion is practiced at will and on demand.”
At least two groups have announced plans to open new abortion facilities in New Mexico after the U.S. Supreme Court in June overturned Roe v. Wade and took away women’s constitutional protection for abortion nationwide.
One of them is the abortion provider at the center of the Dobbs v. Jackson Women’s Health Organization decision that overturned Roe.
Otero County Commissioner Couy Griffin sponsored of the resolution that condemns “voluntary abortion” practices. He said it responds to concerns that New Mexico may become a regional hub for people seeking abortions from neighboring states where the procedures are illegal or heavily restricted.
The resolution says abortion procedures aimed at protecting the health of a mother “will take place in a local hospital under the care of a physician,” and that the county takes a “neutral position” in instances involving incest or rape.
Otero County Attorney Roy Nichols said the resolution does not have any legal ramifications.
“This is not going to outlaw anything. This is more for the opinion to be expressed,” he said.
The Democrats who control the New Mexico Legislature support access to abortion, as does Democratic Gov. Michelle Lujan Grisham.
State lawmakers last year repealed a dormant 1969 law that outlawed most New Mexico abortion procedures as felonies, ensuring access to abortion even after the Supreme Court rolled back the national guarantee.
Raw emotions about government regulation of abortion emerged at the Otero County commission meeting in Alamogordo for debate on the resolution, with dueling references to Christian scripture and quotations from the U.S. founders aimed at bolstering arguments for and against legal abortion access.
Commissioner Gerald Matherly said he voted against a similar anti-abortion resolution three years ago and supported the new measure because it leaves out opposition to abortions in instances of rape, incest or when a woman’s life is in danger.
“The state helps (with) birth control pills, they’re helping the mothers after the babies are born,” Matherly said. “I don’t believe that a person can just go out and have a wild Friday night — she gets pregnant and can go off and get an abortion. She should have, some people should have, responsibilities.”
Griffin — a firebrand conservative who was convicted of entering a restricted area at the U.S. Capitol in the Jan. 6, 2021, insurrection — urged other rural, conservative counties to adopt identical resolutions to try to contain the proliferation of abortion clinics.
“If the governor wants to embrace it in Santa Fe, if they want to have abortion clinics in Las Cruces, if they want to do it in Albuquerque, they are well within their rights to do so,” Griffin said. “But if they don’t want it Carlsbad, if they don’t want it in Roswell, if they don’t want it in Farmington, then those county commission boards need to get the same kind of resolution passed.”
Lujan Grisham signed an executive order last month that prohibits cooperation with other states that might interfere with abortion access in New Mexico, declining to carry out any future arrest warrants from other states related to anti-abortion provisions.
The order also prohibits most New Mexico state employees from assisting other states in investigating or seeking sanctions against local abortion providers.
A Louisiana judge on Monday temporarily extended an order blocking the state trigger law but did not yet grant a preliminary injunction that would keep abortion available until a district court determines whether the near-total state abortion ban, with no exceptions for rape or incest, violates the Louisiana Constitution.
The legality of abortion in Louisiana has changed rapidly in the weeks since the Supreme Court struck down Roe v. Wade and gave states the power to enact restrictions. The ensuing confusion has left patients and abortion providers scrambling as the courts have blocked, unblocked and then reblocked the ban.
“We are still getting a lot of desperate phone calls from women who are angry or sobbing,” said Kathaleen Pittman, who runs an abortion clinic at Hope Medical Group in the Louisiana city of Shreveport. “They seem so totally beaten down because they have been trying to access care and, in one moment, it is available in a few weeks. The next minute, it may not ever be available here.”
The hearing was the latest step in a lawsuit brought by abortion providers who have challenged the state trigger law as “constitutionally vague.” A judge in Baton Rouge asked both sides of the suit to file new documents by Tuesday morning before he decides whether to grant a preliminary injunction that would keep the near-total state abortion ban from taking effect until a panel of judges rules on the merits of the case, which could take weeks.
The laws “do not clearly determine what conduct has been made illegal and what conduct is allowed,” said Joanna Wright, an attorney representing the abortion providers who are challenging the state abortion restrictions. “The Louisiana Constitution requires that criminal laws provide proper notice of what is and is not illegal.”
Shortly after the Supreme Court decision in late June, the plaintiffs sought a temporary restraining order that allowed abortion providers to keep offering services as the case moved forward. That order was granted June 27 but then dissolved July 8, when the lawsuit was moved to a different jurisdiction. For a few days, abortion was illegal throughout Louisiana.
Another judge granted a second temporary restraining order last week, again pausing the state abortion ban. “When we were granted the most recent” temporary restraining order “I don’t know how to describe the staff except for giddy,” Pittman said. “The relief was palpable around here.”
When the first restraining order expired, physicians at her clinic continued to meet with prospective patients and offer them counseling, ultrasounds and initial consultations. But patients could not access abortions while the courts considered the request to temporarily block the ban. “Some of these women had been waiting weeks, or even months,” Pittman said.
Hope Medical Group had a waiting list of 300 to 500 patients even before the Supreme Court decision to roll back the federal protections guaranteed by Roe. Many patients scheduled to have an abortion shortly after the Supreme Court decision had their appointments canceled as the clinic halted the procedure for several days because of the state trigger law. Some were able to reschedule after the district court blocked the trigger ban, but abortions stopped again when the first temporary restraining order expired a judge granted a second temporary restraining order and Hope Medical Group resumed abortions once more Thursday. “Some of the women we’re seeing today have already had appointments canceled on them twice now,” Pittman said Thursday, the first morning that her clinic was able to perform abortions after the second restraining order took effect.
Louisiana Attorney General Jeff Landry has sought to discourage patients from seeking abortions even while the state ban is blocked by the courts. When some clinics resumed services after the second restraining order went into effect, Landry tweeted a “reminder.”
“Louisiana’s laws banning abortion have not been enjoined,” he wrote. “Subject to certain exceptions, abortion remains a criminal offense in our State! Anyone performing abortions, pending outcome, will be culpable when the case is closed in favor of the laws of our State.”
But legal experts say criminal laws are not typically applied to actions that took place when those laws were blocked by the courts. “Most people would tell you there is a real retroactivity problem there,” said Elizabeth Sepper, a professor of law at the University of Texas at Austin. “You can’t apply criminal law that didn’t exist at the time to a provider who was operating under” a temporary restraining or preliminary injunction.
Landry also criticized the district court for temporarily blocking enforcement of the state abortion laws that have been supported “at the ballot box and through their elected legislature again and again and again.”
“To have the judiciary create a legal circus is disappointing and what discredits the institutions we rely upon for a stable society,” Landry tweeted after a judge granted the second temporary restraining order. “The rule of law must be followed, and I will not rest until it is. Unfortunately, we will have to wait a little bit longer for that to happen.”
The district judge may decide later this week whether the Louisiana trigger law that bans abortion will continue to be blocked as the case wends its way through the courts. If the law is not blocked, the three abortion clinics in the state will have to close their doors to patients, Pittman said. “We absolutely have to have that preliminary injunction,” she added.