Thursday, August 31, 2017
Bail in the US court system has resulted in human rights violations for thousands of defendants. Anyone who watched 60 Minutes this past week would have seen the impact of bail requirements on the hundreds of detainees at the Cook County Jail and the efforts of its warden to remedy a broken system. Nearly all of the detainees were men of color and at least half of whom were being held on non-violent offenses such as driving without a license, stealing small amounts of goods. The warehousing of men of color was evident.
Bail has been used as a mechanism to ensure that those too poor to pay bail are further locked into poverty. US courts have historically required bond (bail) for misdemeanor charges. Even the lowest of bail, sometimes $100.00, is beyond the financial ability of many defendants.
Civil and human rights violations result. The Universal Declaration of Human Rights demands that each individual enjoy the right to work. Yet for the poorest among us, minor infractions can result in loss of work because of incarceration pending trial. Poor defendants' further decline into poverty is accelerated due to the resulting unemployment. Among other human rights violations, is the right to fair trial. Defendants forced to remain in custody are denied access to counsel. Even if counsel is appointed, which is not assumed at misdemeanor arraignments, those in custody are dependent upon the unpredictable visits of counsel. They are deprived of the ability to collect exculpatory evidence.
Not least among the violations is the lack of respect and dignity endured by some of our most vulnerable residents. Mothers accept plea deals so they can be reunited with their children. Fathers plea so they can return to their families, hoping to be able to continue supporting them through work and parenting.
Bail reform projects have been increasing across the country. In Texas, a civil rights lawsuit was filed challenging misdemeanor bail practices as due process violations. Federal District Court Judge Lee Rosenthal ordered Harris County to stop the practice of permitting defendants in misdemeanor cases to languish in jail pending trial because they cannot afford bail. Harris County encompasses Houston and should be a warning to other cities. The ruling on the temporary injunction is 193 pages long and details myriad constitutional violations. Given the extent f the court's deliberations and examination strongly portends Plaintiff's success on the merits. In Massachusetts, donations to bail organizations have resulted in hundreds of the incarcerated being released as the organizations post bail on behalf of the poor.
This sort of large-scale disruption has been a long time coming in the criminal justice system. Out of the chaos will come fiscal benefits to municipalities who no longer will incur the expense of housing indigent misdemeanor defendants. More locations are voluntarily reforming bail schemes. Colorado is reviewing its bail system while New Jersey eliminated most monetary bails.
At its annual meeting in August, the American Bar Association recommended major bail reforms.
Our bail system is one of our national human rights shames. Kudos to those creating change.
Friday, June 3, 2016
Among this term’s cases that were not deadlocked due to a missing 9th justice, is Foster v. Chatman.
Mr. Foster is a cognitively challenged black man who has been imprisoned nearly thirty years waiting execution following a murder conviction. The issue before the court was whether Mr. Foster's right to trial before a jury of his peers was defeated through the prosecution’s manipulation of the juror selection process. Mr. Foster, who is African American, argued that the prosecutor impermissibly eliminated black jurors thus creating a biased jury pool. The court, in a seven to one opinion, determined that the prosecution demonstrated racial bias in jury selection and remanded the case to the lower court.
The legal impact of the decision will be limited. Mr. Foster’s lawyers gained access to the thirty-year-old prosecutor’s file which showed, among other discriminatory evidence, a “b” written next to the names of the black prospective jurors. Such blatant evidence is rarely available. With progressively more focus on criminal justice practices that limit or deny civil rights protection to people of color, it is likely that written documentation of exclusionary jury practices no longer appear in prosecutor’s notes. The case is unlikely to influence future discrimination cases except in one regard: it is possible that some judges will scrutinize more closely the Batson claims of prosecutors that there were “ legitimate reasons” for eliminating black jurors. But under the current status of case law favoring prosecutors even enhanced scrutiny is not likely to change discriminatory practices.
In addition, two justices noted, there may be procedural barriers beyond the bias issue that prevent Mr. Foster from receiving a new trial.
But will the prosecutor in question benefit from the passage of time thereby avoiding disciplinary action?
ABA Model Rule 3.8 emphasizes the special duty of prosecutors to assure justice, in addition to their duties to be competent lawyers on behalf of the state. Under the rule, prosecutors have a duty to seek and preserve justice as well as to prosecute individuals deemed a threat to the public. Commentary to the rule reads in part: "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate." This includes an obligation to ensure that the defendant receives "procedural justice".
Unlike other model rules, as adopted by the various states, there are relatively few disciplinary decisions sanctioning prosecutors for behavior that frustrates or thwarts justice. The apparent lack of discipline for prosecutors (think of the lack of discipline for the now notorious prosecutor in Making of A Murderer) ignites vigorous law classroom debate. Many disciplinary complaints allege conduct as concerning as that found in the documentary. But even when the facts of the complaint are acknowledged, often no or mild discipline follows.
The ethics discussion typically progresses from one concerning individual cases to the larger problem of whether or not the lack of discipline results from a bias to protect the state. What is the fear behind disciplining wayward prosecutors? Are ethics boards concerned about a flood of complaints that might result in a mirroring of the justice systems overcrowded dockets? If so, that fear must be insufficient to prevent disciplinary boards from applying their independent judgment. Adverse collateral consequences to legal systems must not be a factor in determining whether justice has been manipulated by a key state actor.
My prediction is that among the consequences of holding prosecutors to their dual obligations will be the cheering of those many prosecutors who take their larger responsibilities of ensuring justice to heart.
Wednesday, May 25, 2016
Justice Stephen Breyer may be the only current member of the Supreme Court to have argued that the inevitably long delays death row prisoners suffer before execution is a significant factor leading to the unconstitutionality of the death penalty but his persistence in arguing for this position has provoked passionate rejoinders. Just recently Breyer dissented from the Court’s decision not to review the case of a California man who was sentenced to death 32 years ago.
According to the authoritative Death Penalty Information Service “inmates in the U.S. typically spend over a decade awaiting execution.” Some prisoners have been on death row for well over 20 years and others have been executed after 30 years. No surprise then that many, often confined 23 hours a day in solitary confinement, die in prison, or attempt or successfully commit suicide.
Breyer (and Justice John Paul Stevens before him) argue that delay “subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement,” as well as undermining the supposed function of the death penalty.
In a scathing post, Harvard Law professor Noah Feldman, writing in his regular Bloomberg View column, takes Breyer to task for claiming that “death delayed is worse than death itself.” According to Feldman, taking a line similar to that of the late justice Antonin Scalia, Breyer is really asserting that execution should “be administered quickly... to avoid the convicted person living on many years in prison.” Alas, Feldman has totally misconstrued the argument about long confinement on death row which is not that executions should take place shortly after sentence but that legitimate due process concerns over reliability, procedural fairness and the irrevocability of death have led judges as well as other actors in the criminal justice system to create a legal process which produces disproportionate human suffering, pain so great that it contributes to an unconstitutional result.
The core of Feldman’s indictment of the Breyer position is his claim that “In every case where an inmate has been in death row for many years, it’s by choice...the result of numerous appeals by his lawyers, and numerous delays in hearing those appeals by state and federal courts.”
This is a distorted concept of choice. Feldman believes it is freely present in “In every case” because a defendant can simply “skip the appeals” and ask to die. Many would think that a choice in name but not in reality. And he attributes postponement of decision by the courts, not in any way to the judges who delay and their justifiable concerns about reliability or doubts about capital punishment, but only to the prisoner’s hunger for days more of life.
What Feldman fundamentally misses is that the Supreme Court has created a system that does not work because it has not and probably cannot resolve a clash of inconsistent constitutional values. The Court has approved laws in those states (mostly in the South) that actively execute but it has also decided that in the service of proportionality the Constitution requires steps supposed to ensure individualized but not arbitrary or discriminatory selection of the condemned. The result of this required judicial scrutiny of death cases is that those statistically few individuals who are actually executed only die after the deterrent and retributive aims of the criminal law are no longer served by their death. After decades of delay, even a victim’s family members are hardly likely to feel great satisfaction that justice has been done. The point is one can just as easily argue that a dysfunctional death penalty should be totally eliminated as what Feldman advocates, “The remedy for death delayed, after all, can only be death itself.”
One last proposition Feldman asserts seems to come from a place remote from direct experience. He rejects Justice Breyer’s concern that living in prison under the threat of execution for years and years is a kind of torture. “ Many of us will die in the next 32 years,” he writes, “And none of us knows as exactly on what day that will occur.”
To be sure death is never pretty and we are never sure of its arrival. Still to equate the prospect of how a cell-confined man expects to die—years of last minute reprieves granted or denied, isolation from others, knowing that prison guards will come with a hood and strap him on a gurney, drugs of unknown capacity forced into your body—with the death most of us expect or hope for—surrounded by loved ones, supported by medical personnel—is sheer illusion.
The real choice now with capital punishment is not the inmate’s but ours. It is whether we have had enough of what the late Justice Harry Blackmun called “tinkering” with a system of costly, brutal, unnecessary and, yes, long delayed mostly symbolic executions. Breyer’s lone dissent notwithstanding, this is a constitutional question that the Supreme Court will have to confront. Perhaps soon after this year’s election, but if not, then shortly thereafter.
Editors' Note: Prof. Meltsner is Matthews Distinguished Professor of Law at Northeastern Law School and was one of the lawyers in Furman v Georgia, the 1972 Supreme Court ruling against the death penalty. This piece originally appeared in Huffington Post.
Wednesday, January 27, 2016
If I had to name a single U.S. Supreme Court case that effectively highlights the entrenched problems of the American criminal justice system, it would be Montgomery v. Louisiana: from the 1963 murder of Charles Hurt Jr., a white deputy sheriff in East Baton Rouge, to the conviction of Henry Montgomery, a developmentally disabled African-American teenager, to the ensuing half-century during which Montgomery has been warehoused at the Louisiana State Penitentiary in Angola.
In other words, when Montgomery v. Louisiana is viewed through almost any critical lens, the deep fissures in our broken system are clearly apparent: the legacy of Jim Crow as reflected in the disproportionate representation of people of color in today’s courtrooms, jails, and prisons; the nation’s continued reliance on mass incarceration to solve intractable societal ills; and the refusal of many prosecutors, judges, and juries to consider criminal offenders — even those who are children or are intellectually compromised — as worth more than the worst thing they have ever done.
In November 1963, Deputy Hurt was shot and killed in a park in Scotlandville, a town in the segregated South that has since been annexed by Baton Rouge but which at the time was the largest majority African-American town in Louisiana.
At the time of his death, Deputy Hurt was on patrol, looking for kids who were truant from school. One of his daughters has described her late father as someone who “saw beyond race at a time when such vision was uncommon at best” and even initiated a “Junior Deputy” program for boys from Scotlandville.
Immediately after the shooting, there was a wide-ranging search for Hurt’s killer, with hundreds of deputies and police from neighboring parishes setting up roadblocks and making mass arrests in Scotlandville. Dozens, if not scores, of African-American men from 12 to 59 years old were arrested, held and questioned about the murder.
Among those arrested was Henry Montgomery, a mild-mannered 10th-grader with intellectual limitations who had turned 17 only two weeks earlier. Unfortunately nicknamed the Wolf Man due to his oversized teeth (an “alias” that was publicized prior to the trial), Henry lived with his grandparents, as his mother was autistic and had her own challenges.
Detectives brought Henry to his grandparents’ house, where he pointed out a .22 caliber pistol in the rafters and then accompanied them to the park where he re-enacted the crime. The detectives audiotaped Henry’s confession, during which he stated that he had left school to take a nap in the park and had run into Deputy Hurt behind the recreation center. When Hunt was patting him down, Henry panicked and shot him with the pistol he had placed in his jacket pocket.
In February 1964, a jury of 12 white men deliberated for a day and half before returning a guilty verdict and a death sentence for Henry Montgomery. The Louisiana Supreme Court reversed his conviction two years later and ordered a new trial due to the trial court’s denial of both a motion to continue and a motion for a change in venue, which had been based on threats of cross burnings by the Ku Klux Klan before the trial and East Baton Rouge Parish’s adoption of a resolution proclaiming the first day of the trial to be “Charles Hurt Day.”
Five years later, although the mood of the community was calmer, it took another all white and male jury a mere 90 minutes to convict Henry of first degree murder, after which he was sentenced for an offense committed as a juvenile to mandatory life without parole (JLWOP) and sent to Angola.Fast-forward 50 years. Henry Montgomery is 69 years old and the U.S. Supreme Court has held in a 6-3 vote, written by Justice Anthony Kennedy and including Chief Justice John Roberts along with the liberal contingent of the court, that its June 25, 2012 decision in Miller v. Alabama declaring that life without parole should be reserved for only the “rarest of children” whose crimes reflect “irreparable corruption” applies retroactively.
This means that Montgomery, along with the approximately 1,000 or more inmates whose sentences were imposed before Miller (in states that had subsequently found Miller not to apply retroactively or had not yet addressed the question), will now have an opportunity for release.
In fact, the court in Montgomery has gone a step further than many anticipated by suggesting that, rather than conduct resentencing hearings in which the parties must opine whether the inmate was “permanently incorrigible” at the time of the original sentence, states may instead consider whether the inmate should be considered for parole, i.e., release from prison under specified conditions.
The court even referenced (although it did not confirm) Henry Montgomery’s good behavior at Angola, including the fact that he established an inmate boxing team and served as a role model to other inmates, as “relevant” examples of “one kind of evidence that prisoners might use to demonstrate rehabilitation.”
The process by which the court decides that a decision is retroactive was established in its 1989 ruling in Teague v. Lane, which requires retroactive application when the court declares a new rule of “substantive” law but not one of “procedural” law.
With Montgomery, the court ruled that Miller’s prohibition of mandatory life without parole for juvenile offenders was more than a procedural rule merely requiring the judge or jury to consider the defendant’s “youth” before the sentence. Instead, the court ruled that Miller more profoundly “rendered life without parole an unconstitutional penalty” for juveniles whose crimes “reflect the transient immaturity of youth,” and, thus, was the announcement of a new substantive rule.
In classic form, Justice Antonin Scalia’s dissent, joined by Justices Clarence Thomas and Samuel Alito, contends not only that the court lacks jurisdiction to decide the case (meaning that the rule of Miller was procedural and not substantive), but that “the decision it arrives at is wrong.” He asserts that the court’s resolution of the jurisdictional issue is ends-oriented, driven by the majority’s desire to reach the merits rather than a commitment to follow precedent, which he calls “nothing short of astonishing.” He argues that rather than apply Miller to the facts at hand, the majority rewrites it: “This whole exercise, this whole distortion of Miller, is just a devious way of eliminating life without parole for juvenile offenders.”
It remains to be seen whether Montgomery v. Louisiana will be the death knell for JLWOP. As it stands, judges maintain the discretion to conclude that particular juvenile offenders convicted of homicide are, in fact, intrinsically incapable of redemption and will never be fit to re-enter society. There may be resentencing hearings and reviews by parole boards, but there are no guarantees of release, as we have already seen in states that have found Miller to be retroactive.
Yet, it cannot be denied that Justice Kennedy has continued to chip away at what he considers to be “disproportionate” and thus unconstitutional punishment for juveniles: with Roper v. Simmons, it was the death penalty; with Graham v. Florida, it was JLWOP for nonhomicide offenses; and with Miller v. Alabama, it was mandatory JLWOP for homicides.
With Montgomery, the court’s most consistent swing voter has authored an opinion that leaves little room for the state to justify sentencing a juvenile to die in prison. As Justice Kennedy wrote over a decade ago in Roper, “When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity.”
Editor's Note: This post first appeared on the Juvenile Justice Information Exchange
Monday, November 30, 2015
Advocates, service providers, attorneys, and people working in membership-based organizations were invited to share stories and recommendations regarding policing and domestic violence and sexual assault in response to a nationwide survey that was open for a one-month period in April to May 2015. More than 900 people responded.
Our report, Responses from the Field: Sexual Assault, Domestic Violence, and Policing, captures their responses. While respondents told us about promising practices, most of which included significant collaborations between law enforcement and advocates, overall, we heard very discouraging stories. Respondents reported significant police racial and ethnic bias, as well as bias on the basis of sexual orientation and sexual identity, poverty, immigration status, language, and against victims who have a criminal history including sex workers. They described how contact with the police has negative collateral consequences for victims including in immigration, child protective services involvement, and economic consequences. Respondents also reported that a significant number of victims have goals that do not align with those of the criminal justice system including the desire to seek a non-punitive intervention, the need to “move on” coupled with the expectation that criminal justice involvement will be lengthy and (re)traumatizing, and the fear that they would lose control of the process.
For additional information, see the report, at the link above, and the blogpost at Move to End Violence, written by co-authors Sandra Park, ACLU, Donna Coker, University of Miami School of Law, and me. We welcome your feedback, comments, and suggestions for re-thinking the role of the criminal justice system within efforts to end gender-based violence.
Thursday, August 27, 2015
Last week, the Inter-American Commission on Human Rights (IACHR) found that the United States violated Bernardo Aban Tercero's rights to due process and a fair trial that are enshrined in the American Declaration of the Rights and Duties of Man. Tercero, a Nicaraguan national who has been on death row since 2000, is scheduled for execution in Texas on Wednesday. Tercero had deficient capital counsel at trial, sentencing, and at every stage of his post-conviction proceedings. His trial attorneys never conducted a comprehensive investigation into his social history, as required by the American Bar Association (“ABA”) Guidelines on minimum standards of representation in a capital case. There is also no evidence that Tercero himself was ever evaluated for mental illness or intellectual disability which could make him ineligible for the death penalty, despite significant evidence of risk factors. Human Rights First, which filed a petition in the case, is urging Governor Greg Abbott and the Texas Board of Pardons and Paroles to adhere to the IACHR’s recommendations to stay the execution pending review of the trial and sentencing.
Dallas News reports that on August 25th, the Texas Court of Criminal Appeals halted yesterday's scheduled execution. The Appeals Court returned the case to the trial court for review.
Monday, March 30, 2015
While students at Columbia University hold demonstrations encouraging the school to divest ownership shares in private prisons, an order of nuns has devised a different solution for ensuring prisoner human rights. The Sisters of Mercy of the Americas, through their Mercy Investment Services, Inc., have be purchasing shares in those prisons.
Fund manager Sr. Valerie Heinonen has been purchasing shares in private prison companies since 2000. The fund strategy is to purchase a sufficient amount of shares to influence change in the way that private prisons are run. Heinonen told CNN Money: "What we want is the establishment of a human rights policy at these companies".
The two largest owners of private prisons are Geo Group and Corrections Corporations of America. The companies have been hugely successful. According to CNN Money, the stock of Geo Group has risen 130% over the past three years. But, many argue, those profits are made on the backs of prisoners whose human rights are disregarded.
With the decline in incarceration rates, empty private prisons have been used to house detained immigrant children and adults. As reported by CNN, Mercy has raised concerns around food, housing and education for detained children and adults. Sr. Heinonen said: We've also been concerned about legal access for people." The Mercy Fund and prison ownership companies are in communication, addressing the human rights concerns. The Mercy Fund has also used corporate process successfully. After its initial success with a corporate environmental ballot, prison waste is being recycled. The nuns then moved on to typing executive compensation to social, as well as financial, success. Said Sr. Heinonen: "By the time we got started with the human rights policy, we had had had some success with other shareholder initiatives." Now the prisons have official human rights policies.
Prison reform by shareholders and others is a long term venture. But the investor strategy gives the shareholders clout that is no longer available to those who sell their stocks in protest.
Friday, March 27, 2015
The current issue of the Canadian Journal of Human Rights is a special volume focused on solitary confinement and human rights. Articles in the interdisciplinary journal include prisoner writing and philosophy as well as comparative analyses from Europe and the United States.
In the U.S., though its use has decreased since a peak in the 1990s, solitary confinement remains pervasive and concerning; an estimated 80,000 prisoners are currently detained in solitary confinement in the U.S. Indeed, even the mainstream media has picked up the issue, with no less than Vanity Fair publishing an essay on "the horrors of solitary confinement" in its January 2015 issue and the New York Times running Emily Bazelon's essay on "the shame of solitary confinement" the following month.
Activists are determined to bring an end to the practice, and have called for a complete ban on prolonged solitary confinement of more than 15 days. Lawsuits have been one vehicle. A suit in New York City led to favorable reforms. Pelican Bay prisoners mounting a pending suit in California recently won a motion to maintain past prisoners as members of the class, increasing the pressure on the state. Also in California, Statewide Coordinated Actions To End Solitary Confinement (SCATESC), began March 23, 2015, with actions in Arcata, Oakland, San Diego, San Jose, Santa Cruz and in Philadelphia, PA. More locations will join on April 23rd and then 23rd of each month following.
The upcoming University Periodic Review of the U.S. by the Human Rights Council will provide another occasion for scrutiny of U.S. prison practices. A consortium of groups, led by the Center for Constitutional Rights, submitted a succinct document to the Council addressing solitary confinement. The final paragraph of the submission aptly sums up the current struggle for reform:
"The US warehouses tens of thousands of prisoners in prolonged solitary confinement, a practice
that is well-known cause to devastating psychological and physical effects. These harms are disproportionately visited upon people of color, politically-active prisoners, and those whose
gender or sexual identity is perceived to make them vulnerable to sexual assault. The US Government must take concrete steps to end the use of prolonged solitary confinement; to ensure
meaningful process prior to such confinement; to develop standards that prevent the
discriminatory use of solitary confinement; and to compile data on the use of solitary
confinement across the country."
Monday, December 22, 2014