Relatedly, Oklahoma announced last week the delay of three executions until next year because of the dearth of needed drugs. It also needs more time to prepare staff for the state's new lethal injection protocols -- and the "larger, remodelled death chamber"-- put into place after Lockett's execution.
Thursday, February 19, 2015
For whatever reason I couldn't embed the must-see video that accompanies the article, so make sure to check that out. Here's how the article begins:
A civil rights lawsuit claims an inmate at the Logan County Detention Center was given a pair of pliers to remove a bad, painful tooth after being repeatedly denied dental care.
In the lawsuit, inmate Mark Traxler, 47, claims a jail employee and a nurse "approached him with a pair of dirty, rusty pliers and a roll of gauze and told him to go back to his unit and have some of the 'fellas' help him with a tooth extraction."
The suit goes on to say Traxler was held down by several inmates, including one known as "Big Jake," but that the extraction caused more pain and more damage to Traxler's teeth.
Monday, February 9, 2015
The Atlantic's Matt Ford posted this compelling piece earlier today, which begins:
Joseph Sledge’s timing could not have been worse. While serving a four-year sentence for stealing t-shirts in 1976, the 36-year-old man from Georgia escaped from a prison work farm in eastern North Carolina. That same day, Josephine Davis and her daughter Ailene were brutally murdered in their farmhouse in nearby Bladen County. Sledge immediately became the prime suspect and was charged with their murders upon his re-capture.
The case against Sledge was weak. None of the fingerprints at the scene matched his own. The only physical evidence linking him to the crime was pubic hair “of Negroid origin” found on one victim’s body. An FBI microscopic analysis said they resembled Sledge’s hairs, but cautioned that this did not “constitute a basis for positive personal identification.” No eyewitnesses to the crime could be found, but two jailhouse informants testified that Sledge had confessed to killing two white “she-devils” to them. Sledge, who always maintained his innocence, received a life sentence in 1978.
His lawyers tried to fight the conviction, but hit a dead end in the appeals courts. In 2012, a county clerk discovered an envelope in the archives containing hairs from the crime scene, long presumed lost. A private lab tested mitochondrial DNA samples from the hairs and ruled out any connection to Sledge. Investigators with the North Carolina Innocence Inquiry Commission, a state agency devoted to investigating wrongful convictions, then interviewed the only surviving jailhouse informant. He recanted his testimony. The commission’s eight members voted unanimously last December to refer Sledge’s case to a special tribunal for exoneration. On January 23, the three judges unanimously ruled that Sledge had been wrongly convicted and ordered his release. He spent almost four decades behind bars for a crime he didn’t commit.
In 49 other states, Joseph Sledge would still be in prison.
Thursday, October 30, 2014
...writes The LATimes's Abby Sewell. County DA Jackie Lacey commissioned GAINS Center for Behavioral Health and Justice Transformation to come up with a proposal for improving mental health care in the county's jails. While its work will continue into 2015, the center issued a report yesterday finding a need for more resources for training law enforcement personnel in best practices for dealing with people experiencing mental health crises. Reportedly, county law enforcement currently have few good options when finding help for them.
"It's often more time-efficient for law enforcement to book an individual into jail on a minor charge ... rather than spend many hours waiting in a psychiatric emergency department for the individual to be seen," the report said.
The report also recommended expanding an existing county program that places social workers in the courts to identify defendants who might be candidates for diversion, putting a pre-trial release program in place for such defendants, and placing more social workers in the jails.
The county also needs to improve data sharing between mental health professions and law enforcement, which of course raises a variety of difficult legal issues.
Improvement to mental health care is urgently needed as the state continues transferring nonviolent felons to local jails under a 2011 federal court order to reduce overcrowding in the state's prisons. Currently:
The percentage of inmates in county jails who are mentally ill has increased by 89% since 2011 and now stands at 17% of the male population and 24% of the female population...
But resources could become available soon. County commissioners recently promised $20 million for alternatives to prison for mentally ill offenders, and the county plans to establish crisis centers to help law enforcement handle encounters with the mentally ill. Relatedly, some of the $50 to $100 million in savings from the proposed reclassification of several non-violent felonies as misdemeanors under California Proposition 47 would be dedicated to mental health care and drug treatment.
WaPo editorial board calls on Maryland legislature to limit use of solitary confinement in state's prisons
WaPo's editorial board notes that 8% of state's prison population is held in solitary confinement, and that inmates are typically sent there for failing to follow rules. The board questions whether current policy is required to reduce the risk of violence, as some supporters say, and it doubts whether inmates commonly have cellmates. Instead, it recalls one mentally ill inmate who allegedly spent four years in solitary, and argues:
Weeks, months and years of solitary confinement can destroy people’s minds. Stories of healthy inmates leaving solitary with a mental illness are horrible but unsurprising. So are accounts of inmates who enter it with a mental illness and come out worse — if they don’t commit suicide, a particular problem in isolation programs.
Isolation can seem like an easy solution for dealing with a violent or antisocial inmate, but it can be expensive and counterproductive, deepening the psychosis that led to bad behavior. The internal report found that isolated prisoners in Maryland face “heightened risk for worsening physical and mental health outcomes.”
Sadly, the state's general assembly hasn't been any help so far:
[W]e published a letter from Susan Kerin of Interfaith Action for Human Rights noting that Maryland lawmakers recently scuttled a bill calling for an independent analysis of the state’s use of prisoner segregation. The bill merely asked for a report on living conditions and the frequency with which state facilities isolate prisoners. It sought recommendations on how to reduce the number of prisoners in isolation, how to improve conditions and how to manage juveniles and the mentally ill. All of these goals should be priorities for any state that claims to run a humane prison system.
...reports this Atlantic Journal-Constitution article. Inmates there allegedly have taken to eating toothpaste and toilet paper.
The local sheriff "categorically reject[s]" any misconduct.
Wednesday, October 29, 2014
This Sacramento Bee op-ed argues that the $50 to $100 million saved under California's Proposition 47 by recategorizing several low-level felonies as misdemeanors will be reinvested in mental health care and drug treatment, which will reduce the risk of recidivism, thereby lessening the burden on the state's already overflowing prisons and jails.
- "Prop. 47: A simple step toward reducing mass incarceration"
- SCOTUS denies review of decision requiring California to monitor compliance with ADA by local jails
Sunday, October 26, 2014
This recent post by Professor Jonathan Simon at The Berkeley Blog explains the societal and institutional importance of California's Proposition 47, which will appear on the ballot this November. Simon begins:
California Proposition 47...would change the legal classification of many “nonserious and nonviolent property and drug crimes” from felonies to misdemeanors (read the details on ballotpedia.org here.)
This simple change has important consequences. A crime classified as a felony may be punished with a sentence in state prison, while a crime that is classified as a misdemeanor may be punished only with probation or a sentence of one year or less in a county jail. If voters approve Proposition 47, Californians convicted of crimes that pose little or no risk of violence like forging a check or receiving stolen property if the amount involved is worth less than $950 dollars (the existing dollar amount was set in the 1970s), or simple possession of drugs, would no longer end up in state prisons.
Moreover, the law would allow prisoners currently under felony sentence for one of these crimes to be re-sentenced “unless court finds unreasonable public safety risk,” a change that could result in as many as 10,000 fewer prisoners in our dangerously overcrowded and degrading state prisons.
The debate on Proposition 47 has mostly turned on how dangerous these crimes and the people who commit them are. Proponents, supported by most criminological research, argue that prison is a costly (approximately 62K a year for the average prisoner in California) and unnecessary way to address these non-violent crimes. Probation and if necessary some jail time have at least as good a chance of curbing future criminal behavior (our prisons have had a very high rate of recidivism and make no effort at rehabilitation) and with lower costs fewer prisoners means more money that Proposition 47 would channel into law enforcement, drug treatment, and victim compensation.
Opponents, most of the state’s District Attorneys, claim that the law would weaken their ability to send truly dangerous people who have been convicted of a relatively minor crime to state prison and use the threat of state prison to compel less dangerous people to accept drug treatment as part of felony probation (probation is also an option for many of these non-violent, non-serious felonies, at least for first offenders).
But the real issue is not crime (which remains at historically low levels throughout California); it is mass imprisonment.
Friday, October 24, 2014
...this Saturday, Oct. 25 @ 9 a.m. at East L.A. College. The event is free and open to the public, and among the planned topics for discussion is the need for civilian oversight of L.A. County jails. As ACLU's Mark-Anthony Johnson explains, the new year likely will bring a fresh opportunity to institute this needed change. Register here.
LGBT inmates at the West Valley Detention Center in San Bernardino county, Calif. allegedly are sent to the "alternative lifestyle tank" where programs providing opportunities for sentence reductions -- e.g. drug treatment, education, and work -- aren't available, according to this report by BuzzFeed's Claudia Koerner. Moreover, in the "tank," LGBT inmates get considerably less outdoor time than other inmates. They don't have access to religious services, and they're subjected to "abuse or neglect from deputies." Although segregation of LGBT inmates may be necessary for institutional safety, the lawsuit nonetheless argues “there is no legitimate penological reason to treat GBT inmates worse than non-GBT inmates just because of their sexual orientation or gender identity.”
Thursday, October 23, 2014
...reports the AP:
Instead, officers can lock down every inmate in an affected area, or individual inmates suspected of being involved in the incident or the gangs that were involved.
The Department of Corrections and Rehabilitation also agreed to provide inmates with opportunities for outdoor exercise any time a lockdown lasts longer than 14 days.
The agreement with attorneys representing inmates came after the U.S. Justice Department said in a non-binding court filing last year that the old policy violated the 14th Amendment that requires equal protection under the law.
Justice officials said that policy was based on generalized fears of racial violence and affected inmates who have no gang ties or history of violence.
State officials did not acknowledge any violation of inmates' constitutional rights as part of the agreement.
Tuesday, October 21, 2014
Inmate in TN claims prison officials beat him and left him in a dark cell without water for two days
One Washington state prison has developed an innovative approach for improving services for inmates with intellectual disabilities, a population often subject to manipulation and abuse. As this local article reports:
For people with low intellectual function or a traumatic brain injury, life in prison can be scary. Amy Czerwinski, a health care manager for the Department of Corrections, designed the Skill Building Unit with her team.
It’s in a storage space that has been converted into a learning environment. An elaborate Halloween display of pumpkins and gourds line the beige walls, reminiscent of an elementary school classroom.
At a long table mental health counselor Nikki Rymer, helps two inmates complete workbook exercises designed to help build self-awareness and self-respect. Inmates also participate in basic skills classes, like dental hygiene.
The environment is so unlike prison, it’s almost easy to miss the two corrections officers keeping watch in a glass enclosed booth in the corner.
Angela Browne, of the Vera Institute of Justice, thinks that an alternative like this unit is in everyone’s best interest. “Anytime there’s an acute incident that’s money. And segregation uses so much space. So in the long run it’s in the state’s interest. It’s in the taxpayer’s interest,” she said.
Browne says by looking for alternatives to segregation specialized units like the one at WCC are helping to flip the paradigm for some inmates.
Monday, October 20, 2014
WaPo editorial board hopes states will stop subjecting inmates to "psychological and physical hell" of solitary confinement
WaPo's editorial board comments on the recent settlement between the Arizona DOC and the ACLU/Prison Law Project that will limit the DOC's use of solitary confinement and expand the number of hours isolated inmates are allowed out of their cells. It writes:
In some ways, Arizona’s use of solitary confinement has been worse than others’. David C. Fathi, director of the ACLU National Prison Project, said the state still automatically assigns all inmates with life sentences to serve their first two years in isolation, whether they were convicted of a violent crime or not. This is a gratuitously nasty punishment that sets prisoners up to be problem inmates. Even after the settlement, guaranteeing prisoners a mere one hour per day outside their cells is hardly lenient, only justifiable if a prisoner is an extreme risk to staff or other inmates.
Yet Arizona’s Department of Corrections has not been alone in enforcing some counterproductive, harsh rules. Systems in states across the country have devised bizarrely mean-spirited restrictions, such as denying prisoners reading material or even timepieces, making it impossible for them to keep their mind from slipping away or to determine whether it is day or night.
Mr. Fathi predicts that once Arizona sees its rates of inmate suicide and other psychiatric issues drop, prison officials will ease up even more. The optimistic view extends beyond the state’s borders: Others, too, may note the movement in Arizona, as well as in early reformist states such as Colorado, Maine and Mississippi, and decide that it is also in their interest to end the common use of unnecessary and debilitating isolation. The less optimistic view is that it will take more lawsuits to force some states to change.
Sunday, October 19, 2014
An inmate in New Mexico has filed a lawsuit alleging corrections officers didn't provide him with medical treatment after he was severely beaten by 10 other inmates, suffering a collapsed lung as a result. He also claims officers knew he was unsafe in the general population, partly as a result of information they had spread to other inmates.
State DOC spokesman Alex Tomlin claims officers provided sufficient treatment at the prison and sent the inmate to a local hospital for further care, according to The Santa Fe New Mexican's Uriel Garcia.
Florida DOC secretary Michael Crews has requested an independent audit by The Association of State Corrections Administrators into the use of force by officers in the state's prisons, according to The Miami Herald's Julie Brown. The audit stems from the nearly twofold increase in use-of-force cases since 2008. As Brown writes:
In the recently completed fiscal year, state corrections officers logged 7,300 use-of-force cases, nearly 1,000 more than the previous year, according to the department's data...
And these are only the cases that are reported by the officers and the prisons. Many others never get documented.
“Use of force’’ is a broad term. It covers any time a corrections officer uses physical force or certain chemical agents to subdue an inmate deemed to be causing a disturbance or resisting a lawful command. Officers are sometimes named as subjects, sometimes as participants.
Corrections officials know that a significant number of force applications never get reported, said Ron McAndrew, former warden at Florida State Prison.
“There were many times at Florida State Prison where I would come upon situations where I encountered an inmate who had two black eyes, a bloody mouth, and bruises up and down his body,” he said. “I would ask him what happened and he said he fell off his bunk. Well, he didn’t get injuries like that from falling off his bunk.He was too afraid to tell me that he was beaten by the officers.”
Saturday, October 18, 2014
Friday, October 17, 2014
Arizona settles legal battle over inappropriate use of solitary confinement and inadequate medical, mental healthcare in state's prisons
Earlier this week, the Arizona Department of Corrections (DOC) reached an agreement with the ACLU and the Prison Law Office to terms of settlement in the long-running legal battle over the treatment of inmates by the state's prisons. Among others things, the settlement requires the DOC to fulfill performance standards for medical and mental healthcare. It also stipulates that DOC will change rules for placing inmates with mental illnesses into solitary confinement, and it increases the number of hours those in solitary confinement are allowed out of their cells. The DOC agrees to limit the use of pepper spray to only those cases in which an inmate poses an "imminent threat" -- that is, DOC officers will no longer use it against inmates for "passive resistance to placement in restraints or refusal to follow orders." Additionally, the inmates' attorneys will be allowed to visit the prisons to ensure that these standards are met. As The Arizona Capitol Times's Howard Fische reports:
Don Specter, an attorney with the Prison Law Office, said this deal, which must be approved by U.S. District Court Judge Neil Wake, is more than just his organization and the American Civil Liberties Union accepting on faith that things will get better.
“We will be able to tour the prisons to check ourselves to see whether they’re providing adequate care,” he said. “And we will also get a lot of documentation.”
The deal comes four months after the 9th U.S. Circuit Court of Appeals gave the go-ahead for the case, alleging inadequate health care, to be handled as a class-action lawsuit.
Judge Stephen Reinhardt, writing for the appellate court, said the attorneys for the inmates provided detailed allegations of everything from “outright denials of health care” to improper isolation policies. And they also had information on how spending on certain services dropped by more than a third over a two-year period even as inmate population did not.
But Reinhardt, in refusing to require each inmate to prove his or her rights were violated, said the claims alleged “systemic failures” in the prison’s health care system “that expose all inmates to a substantial risk of serious harm.” And if that is the case, Reinhardt said that would require a wholesale revamp of the agency’s policies — and not simply correcting the problems of the 13 inmates who filed the original 2012 lawsuit.
Wednesday, October 15, 2014
Oklahoma's botched execution amounted to "medical experimentation" and torture, says inmate's family
Clayton Lockett's execution by lethal injection for the 1999 murder of 19-year-old Stephanie Neiman in rural Oklahoma did not go well. After being declared unconscious, Lockett grimaced in pain and struggled against his restraints. Eventually, the state drew the blinds on the execution chamber and the wardon called it off. But Lockett died of a heart attack roughly 45 minutes later.
Lockett's family has filed complaint against various state officiales as well as the doctor who allegedly performed "human medical experimentation in torturing Clayton Lockett to death, in vioalation of the Eighth Amendment." As The Guardian's Ed Pilkington reports:
The position of doctors is particularly sensitive as physicians take the Hippocratic Oath to show “utmost respect for human life”. Where doctors have been present in the death chamber, their role has in most cases been tightly limited to assessing whether the prisoner is unconscious and then officially pronouncing death.
However, in the case of Clayton Lockett, the state has admitted that a physician was present who actively took part in killing the prisoner. The report of the internal investigation into the Lockett execution reveals that the physician stepped in to finish the job after the paramedic who had initiated the execution failed to place the IV into Lockett’s veins.
The investigation report indicated that there had been a shortage of appropriate needles that day, and that the physician and paramedic had failed to place the IV into the prisoner’s vein, leading to the injection of a mass of lethal drugs into his muscle.
This case is noteworthy because the complaint indentified the doctor who placed the IV in Lockett by his name. States usually try to maintain in secrecy the identities of the parties involved. But, Lockett's family claims a First Amendment right to this information.
Tuesday, October 14, 2014
...said Rev. Terrance Hughes after receiving news that a jury had awarded $4.65 million to the family of his friend, Marvin Booker, who died in 2010 while in a Denver jail. Booker was a 56-year-old homeless street preacher who weighed about 135 pounds. He reportedly suffered a heart attack while restrained by five deputies during a dispute over his shoes. His family claimed the deputies used excessive force and filed a federal civil rights claim against them, the city, and the county.
The AP reports:
Inmates told investigators that the struggle began when he was ordered to sit down in the jail’s booking area but instead moved to collect his shoes, which he had taken off for comfort.
Booker, who was arrested on an outstanding warrant for drug possession, was cursing and refusing to follow orders, according to the deputies’ account. He was restrained by deputies who got on top of him, placed him in a sleeper hold, handcuffed him and shocked him with a stun gun.
Attorneys representing the family of Booker said deputies stunned him for too long and should have backed down when Booker said he was struggling to breathe. In his closing arguments, Killmer said the “dogpile” of deputies was a zealous overreaction.
Denver’s medical examiner said Booker died of cardiorespiratory arrest during restraint, and ruled his death a homicide. The report listed other factors in his death, including emphysema, an enlarged heart and recent cocaine use.
Rice said Booker’s heart problems caused his death, and a healthier inmate would have survived the encounter.
The three-week trial came amid calls for a federal investigation of the department over other high-profile abuse cases that prompted the sheriff’s department to make sweeping reforms. Former sheriff Gary Wilson resigned in July as the city agreed to pay $3.3m to settle another federal jail-abuse lawsuit by a former inmate over a beating. It was the largest payout in city history to settle a civil rights case.
Monday, October 13, 2014
Forty-nine percent, actually. And when police officers are found guilty of misconduct, only half of Americans believe they suffer meaningful consequences.
That's according to the most recent Reason-Rupe poll, which Reason Foundation director Emily Ekins highlights here. The poll also finds nearly three-quarters of Americans oppose racial profiling by police.
A closer look at the numbers reveals some rather predictable results -- whites view police conduct differently than blacks and Hispanics, a result unexplained by disparities in class. As Ekins observes:
There are significant differences in perception across race and ethnicity, as well as income and age. Younger, lower-income, and nonwhite Americans are considerably more likely than older, high-income, and white Americans to perceive injustice in the police force.
African-American and Hispanic Americans are more likely than Caucasians to believe police abuse their authority and use force excessively...Only 34 percent of Caucasians believe the police use lethal force unnecessarily, compared to 82 percent of African-Americans and 72 percent of Hispanics.
So, is the criminal justice system discriminatory?
Forty-five percent of Americans believe the criminal justice system treats whites, African-Americans and Hispanics equally, while 44 percent think the criminal system treats whites more fairly than it treats blacks and Hispanics.
Residents in urban areas are more likely to believe that police too often resort to unjustifiable use-of-force than those in rural areas. Nevertheless, nearly three quarters of all Americans still view police favorably.
Nearly three-quarters also believe nonviolent drug offenders should be allowed to vote when their sentences end, and 80 percent believe that mandatory minimum sentences for such offenders need to go.
Wednesday, October 8, 2014
Sunday, October 5, 2014
DOJ opens criminal investigation into inmate's death from thirst after spending 35 days in solitary confinement
Oklahoma officials are hoping changes to the protocol for executions will prevent the state's next killing from repeating that of Clayton Lockett, which was cancelled after he "writhed in pain, clenched his teeth and appeared to struggle against the restraints" only for him to die just more than half an hour later of a heart attack. CNS's David Lee:
Under the new protocols, the IV team is given one hour to attempt an IV insertion. If they are unsuccessful, the warden must contact the governor to advise of the problem and "potentially request a postponement of the execution."
A team member and a prison unit section chief must both confirm the viability of the IV sites, as well. The team may try to tap a femoral vein as an alternative site under the new protocols.
During Lockett's execution, the team had to tap a vein in his groin because they were unable to tap veins elsewhere. Warden Anita Trammell ordered Lockett's groin and the IV line insertion area covered with a sheet to maintain Lockett's dignity and keep his genital area covered.
Prison officials' claims of not being able to find veins on Lockett elsewhere and that the veins had been "blown out" were disputed by a preliminary autopsy in June, which noted that he had "excellent integrity and peripheral and deep veins" for the purpose of an IV insertion.
Dr. Joseph Cohen, an independent forensic pathologist, was unable to find "any significant underlying natural disease" nor a "cardiac condition" that played a role in Lockett's death by heart attack.
The new protocols also greatly reduce the number of media witnesses in executions, from 12 to 5. Preference will be given to media from where the crime was committed and to The Associated Press.
Maricopia County's (Ariz.) jails have been under federal oversight since 2008 because they're terrible. County sheriff Joe Arpaio seems to think the feds have no business telling him how poorly he can treat prisoners inside his county's jails - that just wouldn't be right. But a federal judge disagreed and ordered the county to get their jails in order. As Eric Balaban of the ACLU National Prison Project writes at the Blog of Rights:
[O]ver five years ago, federal judge Neil Wake placed the jail under federal oversight and ordered the county and Sheriff Joe to fix their dangerously substandard system. But that order fell on deaf ears, as men, women, and children at Sheriff Joe’s jail have continued to suffer and die. A female detainee who reported a history of cardiac problems and who said she was suffering chest pain was not examined by a physician despite her complaints. Instead of receiving legally mandated care, she died hours later. Two other prisoners died of complications from inadequate treatment for alcohol withdrawal.
Last year, the county tried to get out from under the federal oversight Judge Wake ordered in 2008, claiming that it had done what is necessary to care for detainees’ mental and physical health... [T]his week Judge Wake issued a scathing 66-page decision finding that the jails continue to provide detainees with inadequate medical and mental health care. He ordered the jail to remain under federal oversight until it can meet constitutional standards.
Saturday, October 4, 2014
The Miami Herald has this excellent article by David Ovalle about lingering questions in the death of an inmate suffering from a variety of mental health and medical conditions. Ovalle writes:
[Karen] Isaacs earlier this month was found slumped over dead inside the van — operated by Tennessee-based Prisoner Transportation Services of America through a contract with the Charlotte County Sheriff’s Office — during a stop at a West Miami-Dade Taco Bell restaurant.
Her case offers a window into the little-publicized world of private inmate-transport companies. And it has now spurred a law enforcement investigation into whether the transport officers provided her with proper care and attention during the grueling two-day road trip.
According to sources with knowledge of the investigation, Isaacs is believed to have acted strangely throughout the trip — apparently suffering hallucinations — while drinking little water and refusing a meal during a stop in Orlando.
And when the two transport officers finally saw that she was unresponsive in the Taco Bell parking lot, they first called their superiors in Tennessee. Only after unsuccessfully trying to revive her did the officers dial 911, sources said.
The cause of death remains unknown. An autopsy of Isaacs has so far proved inconclusive while the Miami-Dade Medical Examiner’s Office awaits the results of more tests.
Friday, October 3, 2014
The county jails have been monitored by federal officials for the last 12 years under an agreement requiring improvements in treatment of the mentally ill. On June 4, the Department of Justice announced it would seek court oversight of the jails, citing a dramatic increase in inmate suicides.
In the Sept. 25 letter, federal officials said they hoped to have a draft of a consent decree ready this week. The county's written response to the Justice Department's June 4 letter was not enough to avert federal oversight, given "the severity of the issues" and the failure of the 2002 agreement to sufficiently improve jail conditions, they wrote.
A consent decree would be overseen by a federal judge and probably cost the county millions of dollars to implement.
The June 4 letter described "dimly lit, vermin-infested, noisy, unsanitary, cramped and crowded" living conditions that exacerbated inmates' mental distress. After suicides more than doubled, from four in 2012 to 10 the following year, jail officials did little to address the situation, the letter said, calling many of the suicides preventable.
Wednesday, October 1, 2014
Yesterday in The Atlantic Professor Dawinder Sidhu examined Holt v. Hobbs, a First Amendment religious freedom case scheduled for oral argument before SCOTUS early next week. Principally, Sidhu questions whether SCOTUS will extend the same broad protection for religious belief it employed earlier this year in Burwell v. Hobby Lobby to the claims of a less sympathetic group – federal prisoners. He sets it up this way:
Religious freedom in the United States has ebbed and flowed between two competing concepts: the principled view that religion is a matter of individual conscience that cannot be invaded by the government, and the practical concern once expressed by Justice Antonin Scalia that accommodating all religious practices in our diverse society would be “courting anarchy.” In June, the Supreme Court ruled in Burwell v. Hobby Lobby that closely held corporations, whose owners objected to contraception on account of sincere Christian beliefs, could not be forced by the Affordable Care Act to include certain contraceptives in their employee insurance plans. In supporting the religious rights of business owners over a national health-care policy predicated on broad participation, the Roberts Court seemed to stake its place on the more protective end of the religious-freedom spectrum.
But the idea that Hobby Lobby creates robust protections will be credible only if the justices are willing to recognize the religious freedom of marginalized religious minorities—not just the Judeo-Christian tradition. The next religious-freedom case to come before the Court, Holt v. Hobbs, will test whether the Roberts Court’s stance on religious freedom includes a minority faith, Islam, practiced by a disfavored member of our society: a prisoner. At stake are both the state of religious freedom in the country and the Court’s reputation.
Holt involves Gregory Holt, an inmate in Arkansas also known as Abdul Maalik Muhammad. A dispute arose between Holt and the state’s Department of Correction when he sought to grow a one-half-inch beard in observance of his faith. According to the department’s grooming policies, inmates may only grow a “neatly trimmed mustache.” In 2011, Holt filed a lawsuit against the director of the department, Ray Hobbs, and other state employees, saying that the prison had violated his religious rights. After decisions by federal trial and appeals courts in favor of the department, Holt filed a hand-written petition to the Supreme Court, which agreed to review the case. The justices are scheduled to hear arguments in Holt on October 7.
This Article traces the history of capital punishment in America. It describes the death penalty's curtailment in colonial Pennsylvania by William Penn, and the substantial influence of the Italian philosopher Cesare Beccaria -- the first Enlightenment thinker to advocate the abolition of executions -- on the Founding Fathers' views. The Article also describes the transition away from "sanguinary" laws and punishments toward the "penitentiary system" and highlights the U.S. penal system's abandonment of non-lethal corporal punishments.
Texas's prisoner barbecue just one of many routine Eighth Amendment violations taking place behind prison walls
Yesterday I noted several prisoners in Texas allege that extreme temperatures inside the state's prisons violate their Eighth Amendment prohibition on cruel and unusual punishment. Because of their confinement, the prisoners can't readily alleviate the symptoms of long term exposure to the heat without help -- they have limited access to water, few fans, and usually can't open the windows in their cells. The temperatures are especially threatening to the aging prison population, and inmates taking certain medications are also vulnerable. Several of the state's prisoners have died, and now a hearing by an arm of the Organization of American States is scheduled to review these prisons' conditions.
In an op-ed in today's Los Angeles Times, renowned attorney Martin Garbus argues that the Eighth Amendment is routinely violated in prisons throughout the country. That is, Texas is not alone. Garbus writes:
As a litigator and constitutional lawyer, I have heard appalling stories from the nation's prisons and jails. One prisoner described to me how he was handcuffed to the bottom of his bunk in his underwear day after day for months. Another described how his cell was located directly beneath broken toilet pipes, which meant the cell smelled horribly of urine and excrement. I've heard how cells are unbearably hot or cold and how four prisoners are confined to spaces intended for two, with only one set of bunk beds. I've heard about showers that produce only scalding or icy water and about how, when cell toilets overflow, staff are in no hurry to fix them or to clean up.
The health risks in prisons are also unacceptable. MRSA, a bacterial infection whose strains are often resistant to antibiotics, now runs through maximum security prisons. I contracted it myself after visiting such a prison in June and was hospitalized for three days. Sexual assaults and sexual activity are well known to occur in prisons, but prisoners rarely have access to protection, such as condoms, that can help prevent sexually transmitted diseases.
And then there is solitary confinement. It is hard to tell exactly how many prisoners are in solitary each year in the United States. Today, 44 states allow it, but many states do not report how many inmates are held in solitary. A 2005 report from the Vera Institute of Justice estimated the number at 81,622.
Tuesday, September 30, 2014
The title of this post comes from this press release from the University of Texas School of Law's Human Rights Clinic announcing the October 27, 2014 hearing before the Inter-American Comission on Human Rights in Washington D.C. on the extreme heat inside Texas prisons.
Earlier this year, the Texas Civil Rights Project filed a lawsuit against the Texas Department of Criminal Justice (DCJ) on behalf of prisoners in Texas claiming that temperatures inside the state's prisons violate the prisoners' Eighth Amendment rights. CNN's Emma Lacy-Bordeaux reported at the time:
The lawsuit, broadly concerned about the lack of air conditioning across state facilities, centers on a facility in Navasota, Texas, known as the Wallace Pack Unit. Located about 70 miles northwest of Houston, the facility houses about 1,400 men. As of January, the compliant said, 114 men over the age of 70 were housed there. They have no air conditioning, and the windows which do open provide little relief, the suit claims, leading to temperatures inside that often exceed those outside.
The lawsuit alleges some 20 deaths since 1998 and details names, ages and internal body temperatures of the victims, including cases where the body temperature recorded was well over 100 degrees. One man, 45-year-old Rodney Adams, died one day after his arrival. His internal temperature registered 109.9.
Indeed, temperatures in Texas prisons often exceeded 100 degrees, a condition that affects prison staff as well as inmates. Exposure to such extreme temperatures can be particularly dangerous for elderly imates and those with specific health conditions. As NPR's Alisa Roth stated:
[T]he number of inmates prone to this sensitivity has been growing; the elderly prison population has been increasing for years, and people with mental illness make up a disproportionate percentage of inmates in the U.S.
And at least 14 prisoners reportedly have died because of heat related illnesses since 2007.
The DCJ's efforts to alleviate the effects of the heat have been few. It has added a few large fans to several of its prisons, but it doesn't appear to have otherwise substantively addressed the issue. The New York Times's Manny Fernandez reported:
A Texas law requires county jails to maintain temperature levels between 65 and 85 degrees, but the law does not apply to state prisons. The American Correctional Association recommends that temperature and humidity be mechanically raised or lowered to acceptable levels.
A prison agency spokesman, Jason Clark, said that many prison units were built before air-conditioning was commonly installed, and that many others built later in the 1980s and 1990s did not include air-conditioning because of the additional construction, maintenance and utility costs. Retrofitting prisons with air-conditioning would be extremely expensive, he said.
As a result, the agency takes a number of steps to assist inmates, Mr. Clark said, and he disputed the criticisms of inmates and their lawyers about inadequate fans, water and ventilation. On hot summer days, he said, prison officials restrict outside activity, provide frequent water breaks, allow additional showers, permit inmates to wear shorts and increase airflow by using blowers normally used to move warm air in the winter.
(h/t Grits for Breakfast)
Friday, September 5, 2014
The New York Times editorial board has become an increasingly staunch critic of the death penalty. Earlier this year, it called the death penalty a "despicable practice" that is both "racist" and "barbaric." The board again called for an end to the "irretrievably flawed" and "immoral" practice earlier this week after DNA evidence compelled a state judge to overturn the conviction of two North Carolina men for the 1983 rape and murder of a young girl. It argued:
How many more remain on death row today? Can the American people be assured that none will be killed by the state? For this reason alone, the death penalty must end.
The Times observed that the two North Carolinians were treated particularly poorly. "The arrests, confessions, trial, and convictions" of the two men were all highly questionable. Both men were just teenagers at the time of their arrests, but they nevertheless were questioned for hours without their parents or lawyers present. They also were compelled to sign confessions written by the police. The prosecution failed to inform the defense of potentially exculpatory evidence, and it declined to seriously consider a third suspect - even when police requested fingerprint analysis of a print found at the crime scene as a possible match to that suspect.
Then there's this: "The prosecutor on the case, Joe Freeman Britt, was listed in the Guinness Book of World Records as the “deadliest prosecutor” for the nearly 50 death sentences he won during his tenure. Almost all have since been overturned."
Thursday, August 7, 2014
Many taxpayers may not be enthusiastic about their dollars being used to ameliorate the housing problems of former inmates, but recent research suggests that the benefits of doing so could be significant. As Christopher Moraff noted in a recent post at The Crime Report:
[Washington State Univeristy professor Faith] Lutze and a team of researchers recently completed a comprehensive assessment of a Washington State program that aims to reduce recidivism by providing high-risk offenders with 12 months of housing support when they are released from prison.
The study tracked 208 participants in three counties and found statistically significant reductions in new offenses and readmission to prison. It also found lower levels of parole revocations among participants. While housing is the immediate goal of the program, the Re-Entry Housing Pilot Program (RHPP) operates in concert with the Department of Corrections’ Community Justice Centers to provide a range of reentry support services.
Participants live in heavily subsidized apartments, often with roommates, and are required to engage in treatment, secure employment and work toward self-sustainability. Lutze says stable housing not only reduces violations of public order laws related to living and working on the street, but it increases exposure to pro-social networks and provides a sense of safety and well-being conducive to participating in treatment and other services.
That not only improves community safety, she says, but it “reduces the economic and human costs of ex-offenders cycling through our jails and prisons just because they do not have a safe place to live.” While this seems like a common-sense strategy, programs that place housing at the forefront of prisoner reentry are actually relatively scarce in the U.S., and have historically been driven by a handful of pioneering non-profits.
Since the 1990s, the New York-based Fortune Society has graduated hundreds of ex-offenders from its transitional housing facility in West Harlem, known as “The Castle.” The program has been so successful — with recidivism rates as low as one percent — that the group received city support to open a second facility, Castle Gardens, in 2010.
A similar program run by the Delancey Street Foundation in San Francisco, offers housing and support services to drug addicts, many of them ex-offenders, in six cities.
For all their success, access to these programs is limited, and demand regularly exceeds supply.
Friday, August 1, 2014
Do recordings of phone conversations between inmates and their attorneys violate the Sixth Amendment?
Tuesday, July 29, 2014
On July 23, Arizona executed Joseph Wood by lethal injection. Although typically lasting between 10 and 20 minutes, Wood didn't die for nearly two hours. Today, The Atlantic's Matt Ford recounts Wood's execution as well as several others that have been botched this year, and offers the following:
Whatever we know about these executions, the known unknowns are greater. Because the states will not share them, we don't know the dosages of the drugs administered. We don't know the drugs' manufacturers or their quality-control procedures. We mostly don't know the credentials of those administering the drugs. More importantly, the defendants don't know any of this, either. Without this information, those sentenced to execution cannot challenge the execution procedures in court nor check for possible medical complications. State execution-secrecy laws, routinely upheld by lower courts but untested before the Supreme Court, prevent this basic level of prophylactic Eighth Amendment protection. If death by torture is not cruel, defendants contend, what is?
Defense attorneys have repeatedly begged the courts to compel corrections officials to at least reveal the source of the drugs that would end their clients' lives. They have repeatedly been refused. This time, Wood and his lawyers tried a First Amendment challenge to execution-secrecy laws, arguing that the public has a right to know how their government puts their fellow citizens to death. This would also give the inmates the facts needed to pursue Eighth Amendment challenges.
But so far, lower courts have deferred to the states' claimed need for secrecy. "The information already released by the state enables informed debate about the lawfulness and propriety of Arizona’s two-drug cocktail," replied federal Judge Jay Bybee of the Ninth Circuit. Wood appealed that decision to the Supreme Court; last night, the justices denied his petition without further comment or dissent. Less than 24 hours later, Wood died choking.
There are two executions scheduled for August 6. Missouri will put Michael Worthington to death and Texas will put Manuel Vasquez to death, both by lethal injection. The Supreme Court will likely get another chance to consider the procedures very soon.
CRL&P related posts:
- Talk of fed judge's decision declaring CA death penalty unconstitutional
- Nothing like the smell of gunpowder in the morning
- Fifth Circuit stays execution of Texas inmate alleged to be 'intellectually disabled'
- Missouri inmate seeks halt to his upcoming execution
- "Oklahoma attorney general agrees to 6-month stay of execution after botched lethal injection"
Tuesday, July 22, 2014
"'The Dignity and Justice that Is Due to Us by Right of Our Birth': Violence and Rights in the 1971 Attica Riot"
The response to the Attica riot has tended to focus on the spectacle of violence — the acts of the rioters and the state’s response to those acts. This paper distinguishes the violent events of the summer of 1971 from the grievances that inmates wished to express and their claims about rights and justice. This paper examines how the range of possibilities for theorizing and responding to prison violence and inhumane conditions that existed in the early 1970s was narrowed to a framework that recognized specific civil rights named by the state, obscuring deeper claims.
Monday, July 21, 2014
Thursday, July 17, 2014
Professor Doug Berman has the links at Sentencing Law and Policy.
Here are a couple additions:
- Hit & Run's Scott Shackford, California’s Death Penalty Struck Down as Unconstitutional for Not Actually Killing People.
- WSJ Law Blog's Ashby Jones, Federal Judge Deems California’s Death Penalty Unconstitutional.
Thursday, July 10, 2014
The U.S. Reports contain no answer to a million-dollar question: are state prisoners constitutionally entitled to a federal habeas forum? The Supreme Court has consistently ducked the basic constitutional issue, and academic work on the question idles on familiar themes.
The strongest existing argument that state prisoners are constitutionally entitled to a federal habeas forum involves a theory of incorporation under the Fourteenth Amendment’s Due Process Clause. I provide a new and different account: specifically, that the Fourteenth Amendment’s Privileges and Immunities Clause (“PI Clause”) guarantees a habeas privilege as a feature of national citizenship, and that the corresponding habeas power reaches state custody.
We now know that the common-law habeas writ did not evolve primarily as a security for individual liberty, but in service of judicial power. In Boumediene v. Bush, the Supreme Court blessed this revised writ history. This Article is the second entry in a series exploring the legal implications of those revisions. In the first article, A Constitutional Theory of Habeas Power, 99 VA. L. REV. 743 (2013), I argued that Article III judicial power secured for federal prisoners the habeas privilege identified in the Suspension Clause. The question that I reserved there — and that I answer here — was whether anything about Reconstruction changed the operation of the habeas guarantee embedded in the original Articles of Constitution.
The answer, in short, is yes. The Fourteenth Amendment PI Clause — not the Due Process Clause — expanded the constitutionally protected scope of the federal habeas privilege. The PI Clause yokes the habeas privilege to national citizenship, the rights of which neither the federal government nor states may abridge. And if, as I have argued, a federally protected habeas privilege requires a corresponding federal habeas power, then the PI Clause entitles state prisoners to a federal habeas forum.
The first-order question I answer here — whether the Constitution guarantees a state-prisoner privilege — is logically antecedent to second- and third-order questions about the privilege’s scope. Because the Constitution entitles state prisoners to a federal habeas forum, the legal community ought to hit reset on basic assumptions about Congressional power to restrict the habeas remedy, particularly in postconviction cases.
Sunday, June 22, 2014
Prisoners in Texas are claiming the conditions of the state's prisons violate their constitutional rights. It's too hot, their civil rights suit alleges. As CNN reports:
The suit cites internal data from the Texas Department of Criminal Justice which found that over the past three years the mercury topped 100 degrees Fahrenheit. "Stainless steel tables in the inmate dormitories become hot to the touch" the complaint reads and "prisoners have to lay towels down on the table to rest their elbows while sitting."
In addition to the older inmates, the complaint said a number of men have various underlying medical conditions that make them especially vulnerable to heat stroke, like 69-year-old Marvin Yates, who has chronic obstructive pulmonary disease and hypertension.
"I don't know if I will make it this summer. The heat and humidity are so bad inside I have trouble breathing," said Yates, one of three named plaintiffs, in a press release announcing the lawsuit.
The lawsuit alleges some 20 deaths since 1998 and details names, ages and internal body temperatures of the victims, including cases where the body temperature recorded was well over 100 degrees. One man, 45-year-old Rodney Adams, died one day after his arrival. His internal temperature registered 109.9.
The Eighth Amendment prohibits "cruel and unusual punishment," which SCOTUS has long held precludes punishment that degrades human dignity. Prisoners' restricted movement and limited access to prison facilities that have air conditioning - such as the administrative facilities - mean that there is virtually nothing they can do to mitigate exposure to extreme heat. Although Texas law prohibits county jails from allowing facility temperatures to exceed 85 degrees, state facilities are not likewise restricted. Then there's this:
The lawsuit alleges that hogs on Texas Department of Criminal Justice property receive better treatment than the prisoners. "TDCJ policy requires temperatures be kept no higher than 85 degrees to ensure 'pig comfort,'" the suit said, adding that the department begins "to cool the pigs when the temperature goes above 74 degrees to keep the pigs 'comfortable.'"
The lawsuit, filed by the Texas Civil Rights Project and the University of Texas School of Law Civil Rights Clinic, requests that these facilities be made to keep temperatures at 88 degrees or below.
Thursday, June 19, 2014
Despite recent research demonstrating the impact of inmate perceptions of correctional legitimacy on order maintenance, the extant literature has failed to examine the contextual reality of correctional excessive use of force claims. Utilizing legal cases from the U.S. Court of Appeals and U.S. District Courts, this article examines correctional officer excessive use of non-deadly force and identifies recurring themes in these claims. Findings highlight the common occurrence of retaliatory violence, negative attitudes, failure to listen to inmate concerns, inadequate training, and an inability to decipher reliable threat cues consistently present in correctional officer use of non-deadly force claims. Suggestions for future research and policy implications are offered.
Monday, June 9, 2014
The Los Angeles Times reports today that SCOTUS has rejected California's appeal of the lower court decision requiring the state to ensure that prisoners transferred to county jails receive the accommodations required under the Americans With Disabilities Act. Under Gov. Jerry Brown's leadership, California began transferring state prisoners to local jails after the Court found that overcrowding in state prisons so burdened medical staff that they could not provide adequate medical and mental healthcare. As The Times's David Savage writes:
In 2012, the Legislature decreed that these inmates were the "sole legal custody" of county officials.
But last year, the 9th Circuit Court of Appeals ruled that the state retained the legal duty to make sure that prisoners who have a disability are given the "reasonable accommodations" required under the Americans With Disabilities Act, even if they are held in a county jail.
"These accommodations include the basic necessities of life for disabled prisoners and parolees, such as wheelchairs, sign-language interpreters, accessible beds and toilets and tapping canes for the blind," said Judge Stephen Reinhardt for the 9th Circuit. "The state is not absolved of all of its responsibility for ADA obligations as to the parolees" just because they are now held in county jails, he wrote.
The appeals court upheld a 43-page order by U.S. District Judge Claudia Wilken which said state officials must check with each parole violator who is sent to a county jail and has a disability. She said the state must see to it that the inmate receives the accommodations required under the law.
Brown and Atty. Gen. Kamala Harris appealed to the Supreme Court in March and asked for a review of the 9th Circuit's decision. It "sets a dangerous and sweeping precedent that effectively nullifies the states' 10th Amendment right to delegate powers to local governments," they said. If left standing, it would leave the state "liable for alleged ADA violations in the county jails," they argued.
Late last year, the state said about 26,000 parolees were being held in 200 jails throughout the state, and 1,889 of them had a disability. This number is constantly changing, they said.
In reply to the appeal, lawyers for the prisoners who sued the state said Brown and Harris had exaggerated the impact of the judge's order. "At its core, the injunction merely requires the state to provide disability notifications, collect disability data and issue reports to the counties," they told the court.
After considering the appeal last week, the court said it had denied review in the case of Brown v. Armstrong.
Thursday, May 29, 2014
...says an Arizona inmate of her untreated lower abdominal wound.
Regan Clarine had been pregnant, and the prison's medical staff attempted to induce labor. But this failed. So they performed a C-section. However, the sutures that closed the incision made during the procedure came loose hours later while Clarine was back in her cell. She allegedly went untreated for two weeks.
"It was the worst pain I'd ever been through in my life."
Al Jazeera's Abigail Leonard and Adam May report the disturbing details of what happened next:
When she finally saw medical staff, she said they told her that she was lucky to be alive. They treated her with a wound vacuum. Then, she said, they employed an antiquated medical treatment.
“They decided to use sugar… like McDonald’s sugar,” she said. “They would open it and pour it inside [the wound] and put gauze over and tape it up. And I had to do that for like three weeks.”
The article continues:
Clarine’s story is one of dozens. Two years ago, Arizona privatized its prison health care system like many counties and other states have done. In a six-month investigation, America Tonight found disturbing cases of inadequate treatment, and evidence that Wexford Health Sources Inc., the first private company Arizona contracted to provide prison health care, was aware that it was violating prisoners’ constitutional rights.
Arizona’s system is currently run by Corizon Health, Inc., the largest private prison health care provider in the country. Now, for the first time ever, one of its former employees is blowing the whistle about its failures.
CRL&P related posts:
- Nothing like the smell of gunpowder in the morning
- Union requests changes to Texas's solitary confinement policy for death row inmates
- "Ohio Settles Federal Lawsuit, Will Cut Youth Isolation In State Prisons"
- Guards May Be Responsible for Half of Prison Sexual Assaults
Saturday, May 17, 2014
The controversial executions in Ohio and Oklahoma give you pause? You're questioning the justness of lethal injection? There must be a better way to kill convicted murders? No problem, says one state legislator in Utah. As the AP reports, the remedy to present injustices might come from a method of the past:
State representative Paul Ray, a Republican from the northern city of Clearfield, plans to introduce his proposal during Utah's next legislative session in January. Lawmakers in Wyoming and Missouri floated similar ideas this year, but both efforts stalled. Ray, however, may succeed.
Utah already has a tradition of execution by firing squad, with five police officers using .30-caliber Winchester rifles to execute Ronnie Lee Gardner in 2010, the last execution by rifle to be held in the state.
Ray argues the controversial method may seem more palatable now, especially as states struggle with lawsuits and drug shortages that have complicated lethal injections.
"It sounds like the wild west, but it's probably the most humane way to kill somebody," Ray said.
Utah eliminated execution by firing squad in 2004, citing the excessive media attention it gave inmates. But those sentenced to death before that date still had the option of choosing it, which is how Gardner ended up standing in front of five armed Utah police officers. Gardner was sentenced to death for fatally shooting a Salt Lake City attorney in 1985 while trying to escape from a courthouse.
He was third person to die by firing squad after the US supreme court reinstated the death penalty in 1976. Other death-row inmates have opted to die by gunfire instead of lethal injection in Utah, but they are all several years away from exhausting the appeals of their death sentences, Assistant Utah Attorney General Thomas Brunker said. Ray's proposal would give all inmates the option.
CRL&P related posts:
- Missouri inmate seeks halt to his upcoming execution
- Fifth Circuit stays execution of Texas inmate alleged to be 'intellectually disabled'
- NYTimes calls for end to 'barbaric, racist' death penalty
- When victims' families defend defendants against capital punishment
Thursday, May 15, 2014
Prof. Berman calls for re-examination of presumption of finality in sentencing, with implications for federal habeas corpus petitions
In his exciting new essay Re-Balancing Fitness, Fairness, and Finality for Sentences, Professor Douglas Berman considers when a criminal defendant’s final sentence—after exhausting state court appeals—may be reviewed or reconsidered by a federal court on account of “subsequent legal developments” pursuant to a writ of habeas corpus. For a writ of habeas corpus to issue, a criminal defendant must first demonstrate by clear and convincing evidence that the state court’s decision violated the defendant’s constitutionally protected rights. If there has been a constitutional violation, the defendant then must prove by “clear and convincing evidence” that the state court’s decision was contrary to constitutional law, or that its decision was unreasonable under the particular facts of the case.
The consideration of “sentence finality,” argues Professor Berman, ought to account for relevant distinctions between habeas corpus petitions for review or reconsideration of convictions and those for sentencing, a difference currently missing from finality discussions by courts and commentators.* He concludes:
I strongly believe that lawmakers and judges should be inclined to reverse the standard finality presumption [when] a defendant is challenging only his extended on-going prison sentence based on consequential new developments… Put another way, I contend that finality concerns ought to presumptively recede when a defendant challenges an extended prison term, especially if and when the relief sought is not reversal of past punishments already endured, but merely a new assessment of significant scheduled future punishments still in the offing.
To begin with, the historical record does not evidence a commitment to finality in sentencing at the time of the nation’s founding. To the contrary, early sentencing practices coupled with various provisions of the federal constitution suggest a desire that judges and correctional officials retain discretion in the imposition of sentences. In fact, the desire for finality is a relatively new phenomenon. Professor Berman observes that discretion was the norm until the 1960s when support for retributive sentencing policies began gaining popularity.
This historical reality should inform consideration of this period’s debate over the finality of criminal judgments in two critical ways: (1) because it was widely understood (and still well-accepted) that all sentences were indeterminate and subject to review and reconsideration by corrections officials, advocates stressing the importance of treating criminal judgments as final were necessarily focused only on finality of criminal convictions; and, (2) any problems or harms resulting from giving too much weight to the interest of finality for criminal convictions were necessarily mitigated by parole mechanisms which allowed reconsideration of any and all criminal sentences that might later be considered unfit or unfair based on subsequent legal or social developments.
Moreover, the conceptual justifications for finality vary depending on the nature of the defendant’s request—whether it pertains to the conviction or the sentence. As reflected by contemporary standards, whereas criminal trials demand determinations about “historical factual issues to be reflected by” the rote decision as to the defendant’s guilt or non-guilt, sentencing requires an examination of a much broader set of considerations to ensure that the outcome of this more nuanced decision reflects “just and effective punishment” for the wrongdoing. As Professor Berman explains:
Put most simply, sentence finality is a concern different in kind from conviction finality, and thus the finality balance struck for convictions, whatever its merits or flaws, should not, in modern times, be unthinkingly applied when a defendant only seeks review or reconsideration of an on-going sentence.
These historical, conceptual, and practical differences ought to affect the way courts analyze challenges to the standard finality presumption. That is, an inmate’s habeas corpus petition ought to receive less exacting scrutiny than a plea to review a conviction.
I’m no expert, but I find Professor Berman’s thesis persuasive. I’ve long been troubled by laws limiting the discretionary authority of those responsible for sentencing decisions, such as mandatory minimum sentencing, which shifts sentencing decisions from decision-makers to prosecutors. I also worry about faith in the nonexistence of—or perhaps ambivalence to—future circumstances that might provoke just challenges to today’s sentencing decisions—e.g. the disparity in sentencing for possession of crack and powder cocaine. Professor Berman’s bifurcation of finality in convictions and sentencing seems to go a long way towards the creation of doctrine that is more responsive to the demands of justice than the current standard.
Tuesday, May 13, 2014
Today, the Fifth Circuit stayed Texas's scheduled execution of Robert James Campbell for the 1992 rape and murder of a 20-year-old woman. Campbell's attorneys claim the state can't execute him because he's "intellectually disabled," proof of which state officials allegedly concealed. If true, according to SCOTUS precedent, the Eighth Amendment's prohibition on cruel and unusual punishments prevents Campbell's execution. As WaPo's Mark Berman and Karen Brooks Harper report:
The U.S. Court of Appeals for the 5th Circuit in New Orleans ruled Tuesday afternoon that the execution be stayed, saying that although it was regrettable that it took until “the eleventh hour” for the court to review evidence of the inmate’s intellectual disability, that was not the fault of Campbell or his attorneys.
“Because of the unique circumstances of this case, Campbell and his attorneys have not had a fair opportunity to develop Campbell’s claim of ineligibility for the death penalty,” Judge James L. Dennis wrote for the court. “In light of the evidence we have been shown, we believe that Campbell must be given such an opportunity.”
It’s unclear how long the execution will be stayed. There is no set time for the stay, said Jason Clark, a spokesman for the Texas Department of Criminal Justice.
Campbell's attorneys also have appealed Texas's secrecy as to pharmacy providing the killing drug, which purportedly presents a substantial risk that it could cause Campbell excruciating physical and mental pain. Last month, state officials halted Clayton Lockett's execution in Oklahoma after he appeared distressed, but he died of a heart attack 43 minutes after the procedure began. Unlike Oklahoma's three-drug cocktail, however, Texas only uses pentobaritral, which state officials claim has killed efficiently since its adoption two years ago.
Monday, May 12, 2014
Death row inmate Russell Bucklew is seeking an emergency injunction to prevent Missouri from killing him. Bucklew claims he has a rare medical condition the will cause "tortuous pain" during his execution, in violation of the Eighth Amendment's prohibition against "cruel and unusual punishments." The Courthouse News Service (CNS) tells his story:
Bucklew was convicted in 1997 of first-degree murder, kidnapping, first-degree burglary, rape and armed criminal action. He shot Michael Sanders to death and then kidnapped his ex-girlfriend and raped her before being wounded in a shootout with police.
Later, Bucklew escaped from prison and attacked his ex-girlfriend's mother with a hammer. A prosecutor called Bucklew "a homicidal Energizer bunny" because of his persistence in going after his victims, the Southeast Missourian reported.
In his lawsuit, Bucklew claims he has a vascular tumor that will cause extreme pain and suffering, violating his Eighth Amendment rights, if he is executed by lethal injection on May 21.
"The size of Mr. Bucklew's tumor and the weakness of his distended vessels create a very substantial risk that he will suffer excruciating, even tortuous pain during an execution," the complaint states.
"Because the vascular tumor partially obstructs Mr. Bucklew's airway, he is at high risk of choking during an execution, particularly if distended vessels in his mouth or throat rupture and bleed. This will cause gasping and coughing that Mr. Bucklew will experience as suffocation.
"There is also a grave risk that, because of Mr. Bucklew's severe vascular malformations, the lethal drug will not circulate as intended, delaying the suppression of the central nervous system and prolonging the execution - which will likely cause excruciating pain to Mr. Bucklew. These risks are heightened by the use of a compounded drug, pentobarbital, in the absence of any disclosure about the drug's safety, purity and potency. In fact, the Department of Corrections will not even confirm whether the drug is subject to any laboratory testing whatsoever."
Bucklew claims the state has no protocol for executing a prisoner with a complex medical condition such as his, and that a qualified physician should be in the chamber for the sole purpose of reviving him if the execution is not successful.
Lethal injection has become the topic of considerable debate since European producers of sodium thiopental withdrew the drug from the market. As a result, some states have turned to drug cocktails produced by domestic compounding pharmacies. They often keep the identity of these pharmacies anonymous, allegedly out of some concern about retaliation from anti-death penalty activists. These secrecy laws have been repeatedly challenged in court.
The lethal injection itself has drawn considerable attention after two highly publicized executions in Ohio and Oklahoma. In Ohio, Dennis McGuirre's execution lasted 26 minutes, during which he reportedly writhed in pain and gasped for air. Oklahoma executed Clayton Lockett two weeks ago with similar results. Lockett's execution was halted by the on-site doctor after he showed signs of distress, but he died of a heart attack 43 minutes after the procedure began. Following his death, the state agreed to a six-month stay of execution for the inmate who had been scheduled for killing the same night as Lockett so that an investigation can be completed. The NYTimes recently said the United States has "no business putting people to death by any means." It described the death penalty as "barbaric, racist," and it called states' secrecy as to the providers of lethal injection drugs "cowardly."
Missouri's lethal injection protocol is much like that of Oklahoma.
CRL&P related posts:
- "Missouri executes inmate after Supreme Court turns down stay request"
- Oklahoma court stays executions pending challenge to state's secrecy of source of execution drugs
- Judge blocks Missouri's access to execution drug
- Union requests changes to Texas's solitary confinement policy for death row inmates
- When victims' families defend defendants against capital punishment
Thursday, April 24, 2014
Well, that didn't take long. Just days after staying the executions of two death row inmates, the Oklahoma Supreme Court announced on Wednesday that the inmates did not have a right to know the source of the drug cocktails that would be used to kill them. The court dissolved the stays and the inmates soon will be executed.
Today, the governor announced that the state plans to carry out the exections of Clayton Lockett and Charles Warner on the same day. According to the AP:
It's rare for multiple executions to happen in one day, with only Arkansas, Illinois, South Carolina and Texas doing so since the death penalty was reinstated in the U.S. in 1976, according to the Washington, D.C.-based Death Penalty Information Center.
"I think it's actually becoming less common because states have deliberately spaced things out," said Richard Dieter, executive director of the center, which opposes capital punishment. "It takes a toll on a prison and its personnel."
The most recent occurrence of two inmates being executed on the same day was Aug. 9, 2000, in Texas. The last time Oklahoma did it was June 11, 1937, when convicted murderers Charlie Sands and Leon Siler were electrocuted.
Arkansas is the only state that has executed three inmates on the same day since 1976: once in 1994 and again in 1997. In both instances, all three executions were carried out in less than three hours, according to the Arkansas Department of Corrections.
Wednesday, April 23, 2014
UPDATE: SCOTUS also has reversed a lower court's decision overturning the death sentence given to a Kentucky man for the kidnap, rape and murder of a teenager in 1997. The AP reports:
Woodall pleaded guilty to kidnapping Hansen on Jan. 25, 1997, from a convenience store in western Kentucky. Woodall acknowledged that he raped the girl and slit her throat twice before taking her body to Luzerne Lake and throwing it in the water. DNA evidence, fingerprints and footprints led to Woodall.
A jury imposed a death sentence, but more than a decade later, a federal court found the jury instructions were flawed and overturned that sentence. The 6th U.S. Circuit Court of Appeals upheld that ruling in 2012.
Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito, Clarence Thomas and Elena Kagan joined Scalia's opinion reversing the appeals court.
To overturn a death sentence, Scalia said, Woodall had to show the decision involved an "unreasonable application" of clearly established federal law. But that standard can be met "only if the error alleged is so obvious that there could be no fairminded disagreement about its existence," Scalia said. In this case, the majority found the trial judge's decision was not unreasonable.
Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, said the "normal rule is that Fifth Amendment protections apply during trial and sentencing." Breyer said the high court's precedent was clear in requiring the no-adverse-inference instruction during a sentencing hearing.
SCOTUS has denied William Rousan's request for a stay of execution for the 1993 killing of a couple in Missouri by Rousan, his brother, and his son. After rehearsing the gory details of the crime, The Guardian reports:
Brent Rousan pleaded guilty to two counts of first-degree murder and was sentenced to life in prison without the possibility of parole. Robert Rousan co-operated with prosecutors and pleaded
guilty to second-degree murder. He served seven years in prison and was released in 2001.
Governor Jay Nixon declined William Rousan's clemency request Tuesday evening, clearing the way for the execution to proceed. In a statement explaining his decision, Nixon said he thought Rousan's sentence was appropriate for his alleged role as the mastermind behind the "cold-blooded plot" that led to the couple's slayings.
Earlier Tuesday, the US supreme court turned down Rousan's request to delay his execution.
Efforts to spare Rousan's life hinged an argument that has held little sway over the courts — concerns about the secrecy used to obtain the execution drug, and the possibility that a substandard drug could cause pain and suffering in the execution process.
Several states, including Missouri, now use compounded execution drugs purchased from unnamed pharmacies. Courts so far have allowed most executions to move forward. However, on Monday, the Oklahoma supreme court stayed the executions of two death row inmates who challenged the secrecy surrounding the process of procuring execution drugs.
Missouri has executed one death row inmate each month since November. Another Missouri inmate, Russell Bucklew, is scheduled for execution on May 21. Only Texas, with seven executions, has executed more inmates than Missouri's four so far in 2014. Florida has also executed four inmates this year.