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ACLU, LWV sue Debra Bowen over voting rights

Former inmates on post-release community supervision and mandatory supervision should be eligible to vote, civil-rights groups argue in a lawsuit filed Tuesday against California Secretary of State Debra Bowen.

Bowen issued a directive in 2011 that people in these categories – which were created under the prison realignment plan pursued by Gov. Jerry Brown and the Legislature – were ineligible to cast ballots.

But the lawsuit – filed in Alameda County Superior Court by the American Civil Liberties Union of Northern California and the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area on behalf of the League of Women Voters of California, the All of Us Or None inmate-rights group, and several individuals – notes the state constitution specifies that every adult Californian has a right to vote except while “imprisoned or on parole for a conviction of a felony” or mentally incompetent.

More than 58,000 people have been wrongly disenfranchised by Bowen’s “administrative fiat,” the lawsuit claims.

“Voting is a civic duty, and prohibiting people who are living in the community under these new forms of community supervision from participating in this critical part of our democracy serves no useful purpose and is likely to impede re-integration and rehabilitation into civil society,” the lawsuit says.

Also, Bowen violated the California Administrative Procedure Act by issuing her directive without giving any public notice or allowing comments, the suit claims. “These requirements are meant to ensure that people who will be affected by a government rule or policy can have a voice in its creation and to provide, as our supreme court has put it, some security against ‘bureaucratic tyranny.’”

UPDATE @ 11:47 A.M.: A similar lawsuit was filed in 2012, but the state Court of Appeal and Supreme Court both declined to review the case, so Bowen’s interpretation of the law stood. Bowen won’t comment on pending litigation, a spokeswoman said Tuesday.

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Assembly passes drug sentencing reform bill

The Assembly approved a bill Wednesday that would reform California’s sentencing laws for simple drug possession, a move supporters say would reduce costly jail populations, get more people into rehab and let authorities focus on more serious crimes.

SB 649 by state Sen. Mark Leno, D-San Francisco, would give county prosecutors flexibility to charge low-level, nonviolent drug crimes either as misdemeanors or felonies – making them what’s known as “wobblers.” It also would give judges discretion to deem a non-violent drug possession offense to be either a misdemeanor or felony after consideration of the offense and the defendant’s record.

This wouldn’t apply to anyone involved in selling, manufacturing or possessing drugs for sale. SB 649 now returns to the Senate for a concurrence vote before heading for Gov. Jerry Brown’s desk.

Mark Leno“We know we can reduce crime by offering low-level offenders rehabilitation and the opportunity to successfully reenter their communities, but we are currently doing the opposite,” Leno said in a news release Wednesday.

“We give non-violent drug offenders long terms, offer them no treatment while they’re incarcerated, and then release them back into the community with few job prospects or options to receive an education,” he said. “SB 649 gives local governments the flexibility to choose reduced penalties so that they can reinvest in proven alternatives that benefit minor offenders and reserve limited jail space for serious criminals.”

The Legislative Analyst’s Office estimates reduced penalties for drug possession will save counties about $159 million per year. Leno notes that 13 states, the District of Columbia and the federal government treat drug possession as a misdemeanor, but don’t have higher drug-crime rates.

Though introduced earlier, the bill moves California in the same direction as the new federal policy U.S. Attorney General Eric Holder announced last month in San Francisco: Federal prosecutors will stop seeking longer mandatory sentences for many nonviolent drug offenders, part of a broad new effort to focus on violent crimes and national security while reducing the nation’s gigantic prison population.

Margaret Dooley-Sammuli – senior criminal justice and drug policy advocate for the ACLU of California, which is among the bill’s sponsors – said Wednesday that SB 649 “is just the kind of common sense solution to California’s incarceration crisis that voters have been demanding, and the legislature deserves credit for choosing to be smart on crime.”

“Felony sentences don’t reduce drug use and don’t persuade users to seek treatment, but instead, impose tremendous barriers to housing, education and employment after release – three things we know help keep people out of our criminal justice system and successfully reintegrating into their families and communities,” said Lynne Lyman, state director of the Drug Policy Alliance, another sponsor of the bill. “I was heartened to see some Assembly Republicans standing in favor, or at least not opposed, to this common sense solution.”

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Bill would force police to get warrants for emails

A Bay Area lawmaker’s new bill would require California law enforcement agencies to get a search warrant before asking service providers to hand over a private citizen’s emails.

SB 467 by state Sen. Mark Leno, D-San Francisco, is sponsored by the Electronic Frontier Foundation, a San Francisco-based civil liberties group. Leno introduced a place-holder version of the bill last month, but rolled out its operative language today.

go get a warrant“No law enforcement agency could obtain someone’s mail or letters that were delivered to their home without first securing a search warrant, but that same protection is surprisingly not extended to our digital life,” Leno said in a news release.

“Both state and federal privacy laws have failed to keep up with the modern electronic age, and government agencies are frequently able to access sensitive and personal information, including email, without adequate oversight,” he said. “SB 467 repairs the existing holes in California’s digital protection laws, ensuring that electronic communications can only be accessed by law enforcement with a warrant.”

Some law enforcement agencies have claimed investigators don’t need a warrant to obtain any email that has been opened or has been stored on a server for 180 days. The U.S. Department of Justice’s Office of Legal Policy recently announced it would support changes to federal law that would require a warrant in such cases.

“California, the home of many technology companies, should be a leader in protecting the privacy of people’s electronic communications,” EFF staff attorney Hanni Fakhoury said in Leno’s release. “Many of the state’s technology companies have already indicated that they require a search warrant before disclosing the contents of communications. With SB 467, the warrant requirement becomes the status quo for all electronic communication providers and all law enforcement agencies across the state.”

The American Civil Liberties Union also supports the bill, which “would ensure that content stored in the cloud receives the same level of protection as content stored on a laptop or in a desk drawer,” said Nicole Ozer, the Northern California ACLU’s technology and civil liberty policy director.

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Bills would end federal marijuana ban, levy taxes

Even as states keep chipping away at marijuana prohibition, some House members keep trying to change the federal law.

A bill being introduced by Rep. Jared Polis, D-Colo., would end federal marijuana prohibition, letting states decide their own policies; it also would set up a regulatory process like the one for alcohol for states that choose to legalize the drug. Commercial marijuana producers would have to buy a permit, as commercial alcohol producers now do, to offset the costs of oversight by the newly renamed Bureau of Alcohol, Tobacco, Marijuana and Firearms.

And a bill by Rep. Earl Blumenauer, D-Ore., would establish a 50 percent federal excise tax on the first sale of marijuana, from the producer to the next stage of production, usually the processor. It also would impose an occupational tax on those operating in marijuana, with producers, importers and manufacturers facing an occupation tax of $1,000 per year and any other person engaged in the business facing an annual tax of $500 per year.

“Absolutely, there’s an opportunity for us to make at minimum a $100 billion difference over the next 10 years,” Blumenauer said on a conference call with reporters this afternoon, as the nation moves away from high law enforcement and prison costs and marijuana starts generating public revenue.

Polis said November’s successful legalization ballot measures in his state and Washington mark “an enormous evolution of American opinion on the issue.”

Most Americans now believe the war on drugs has failed and “enough is enough, let’s try a new way,” he said. “It’s an idea that’s time has come.”

Jesselyn McCurdy, senior counsel for the American Civil Liberties Union’s Washington legislative office, said the war on drugs has had disproportionate impact on communities of color. Students for Sensible Drug Policy executive director Aaron Houston said young people are disproportionately impacted as well.

“It’s clear that we’ve reached the tipping point,” said Bill Piper, national affairs director for the Drug Policy Alliance. “The American people are demanding reform, and members of Congress are starting to give it to them.”

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9th Circuit to rehear challenge to state DNA law

The 9th U.S. Circuit Court of Appeals agreed Wednesday to rehear a challenge to California’s law requiring law enforcement officers to collect DNA samples from all adults arrested for felonies.

The lawsuit was filed in 2009 by the American Civil Liberties Union of Northern California; spokeswoman Rebecca Farmer said Wednesday that oral arguments will be heard by an 11-judge “en banc” panel during the week of Sept. 17.

The state Legislature in 1998 enacted a law requiring DNA sampling from people convicted of certain offenses. But in 2004, 62 percent of California voters approved Proposition 69, which expanded the law to require DNA collection from “any adult person arrested or charged with any felony offense … immediately following arrest or during the booking.”

A three-judge panel of the 9th Circuit appellate court had upheld that law in February, finding “that the government’s compelling interests far outweigh arrestees’ privacy concerns” because “DNA analysis is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes, and exonerate innocent suspects.”

The Electronic Frontier Foundation in March joined with the ACLU in calling for an en-banc rehearing, arguing that the warrantless seizure and repeated search of DNA taken from people who’ve merely been arrested – not convicted – is unconstitutional.

But in a brief filed in April arguing a rehearing, the state attorney general’s office noted that “(v)irtually every federal court to have considered the question agrees that the collection of a DNA sample for forensic identification, pursuant to a
lawful arrest and subject to statutory restrictions on collection, use and confidentiality, comports with the Fourth Amendment.”

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ACLU, Guardian sue FBI for Occupy records

The American Civil Liberties Union of Northern California and the San Francisco Bay Guardian sued the FBI in federal court today to find out whether and to what extent agents have investigated or watched members of the Occupy movement.

Filed under the auspices of the Freedom of Information Act, the lawsuit says the ACLU and the Guardian filed a public information request in March that the FBI promised to fast-track – and then never provided a response.

The lawsuit says the FBI has a long history of surveilling constitutionally protected political and religious activity, and says the FBI already acknowledged that “potentially responsive documents may exist” related to requests for records about Occupy San Francisco and Occupy Wall Street.

“There is great urgency in shedding light on the extent of the FBI’s role in surveilling Occupy activists, and in particular, on whether the FBI has complied with local and national norms in monitoring those engaged in First Amendment activity,” the lawsuit says.

In a web posting announcing the lawsuit, ACLU staff attorney Linda Lye said that although “the right of protest goes to the heart of our democracy, and the FBI exists to keep us safe, the FBI has a perverse history of interpreting its mission to mean that it can spy on political activists including Martin Luther King Jr.”