Monday, July 23, 2018
This past May, the Vera Institute released a report on the treatment of black Americans in the criminal justice system. The report, written by primary author Prof. Elizabeth Hinton of Harvard University, is entitled An Unjust Burden: The Disparate Treatment of Black Americans in the Criminal Justice System. No one is surprised at the over representation of black Americans in our criminal systems.
The report "presents an overview of the ways in which America’s history of racism and oppression continues to manifest in the criminal justice system, and a summary of research demonstrating how the system perpetuates the disparate treatment of black people. The evidence presented here helps account for the hugely disproportionate impact of mass incarceration on millions of black people, their families, and their communities."
The report traces the history of laws targeting black Americans as well as systemic bias that results in the disproportionate arrest of black men, in particular. While only ten pages long, the report is packed with information that would serve as an excellent introduction to the effect of bias and deliberate discrimination. A brief bibliography is included.
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.
Sunday, January 3, 2016
Recently, the U.S. Department of Justice (DOJ) launched an effort to combat practices of local criminal justice systems in which public officials, law enforcement officers, and judges collude to incarcerate people for minor offenses in order to generate revenue.
On December 2, 2015, DOJ lawyers convened a meeting of academics, state officials, and civil rights advocates to explore how the federal government can assist them in preventing these types of constitutional violations in state and local courts.
This follows the March, 2015, release of an extensive investigative report by DOJ’s Civil Rights Division, revealing that Ferguson, Missouri, officials has engaged in such practices. Yet, despite the recent scrutiny of Ferguson’s municipal court system, change in Ferguson and elsewhere has been incremental.
From Colonial times until the mid-1800s, it was common practice in the United States to jail people who failed or were unable to pay their debts, a practice that many, including the Supreme Court, have since recognized as a violation of people’s rights to due process and equal protection.
But while “debtors’ prisons” may sound like a relic of a bygone era, today the practice has made a disturbing return in the form of court costs and “legal financial obligations” that many people caught in the criminal justice system are unable to pay, creating insurmountable financial burdens for already-struggling families.
Across the United States, including here in North Carolina where I teach and practice law, people convicted of even minor criminal charges, such as loitering, littering, and unpaid traffic tickets, face an array of fees, court costs, and other forms of criminal justice debt that can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, extra fines and interest for late payment—and ultimately incarceration.
As I’ve written here before, these modern day debtors’ prisons enact devastating costs on vulnerable people who are unable to pay their fees, as well as the criminal justice system as a whole, which has had to create an extensive infrastructure to turn court and correctional officials into collection agents, diverting resources from their intended purpose.
In North Carolina, these court fees have been steadily rising—far outpacing the rate of inflation—over the past two decades. All defendants, regardless of their income level, are required to pay general court fees, which are currently $173 in district court and $198 in superior court. If these fees continue to increase at the same rate, they will exceed $500 by the year 2025. Such general fees are only a fraction of the over 100 different “legal financial obligations” or “LFOs” that can be levied on criminal defendants in North Carolina, which include a $60 appointment of counsel fee, a $250 community service fee, and a $25 criminal record check fee.
People of color and those with low-income are particularly harmed by these practices. Those who are already living at the margins of society frequently incur criminal-justice debt as a result of minor, nonviolent offenses that in many instances stem from the criminalization of poverty. There is also evidence that implicit racial bias has led to disproportionate fees being imposed on people of color by judges and court administrators.
In 1970, the U.S. Supreme Court concluded in Williams v. Illinois that extending a prison term for an inability to pay criminal-justice debt violated the Fourteenth Amendment’s Equal Protection Clause, and in 1983 in Bearden v. Georgia, it barred a court’s revocation of probation for failure to pay a fine without first inquiring into a defendant’s ability to pay. Yet, jurisdictions continue to ignore or skirt the edges of these requirements and consider almost every failure to pay willful. Some courts even impose a “fines or time” alternative sentence that forces defendants to “choose” between jail and immediate payment in full.
With millions of low-level offenders filling U.S. jails and prisons due (both directly and indirectly) to unpaid LFOs, private probation companies and the state and federal corrections agencies to which they supply goods and services have all thrived while the inmate population has expanded. Likewise, private corporations such as Honda, Microsoft, Starbucks, and Target have increasingly relied on prison labor, as it is cheap and virtually liability-free for the employer. Even the privatization of youth confinement facilities is now widespread in the United States, with almost half of them privately operated, creating a built-in incentive for companies to increase the number of juveniles confined and lengthen the terms of their incarceration. In short, everyone wins—except the impoverished person unable to pay off her criminal justice debt.
The proliferation of court fees, and the costs incurred by the state to collect them, has prompted some judges, politicians, and lawmakers across the U.S. to question whether the practice has gone too far.
For instance, New Jersey initiated a program in 2013 to encourage thousands of people who owe fines to appear at court sessions where judges reviewed files and ordered fee reductions. More than 4,500 people turned themselves in, and hundreds with unpaid court fees and fines were able to gain significant reductions. Other states have implemented similar programs.
In North Carolina, judges can waive many fees, and other criminal statutes allow for lowering or modifying fees prior to payment in full. This does not mean, however, that these fees are regularly waived, and the state legislature has mandated that many fees, such as the application fee for a public defender, are not waivable.
It is encouraging that DOJ is making this issue a priority, although one hopes that they approach the issue aggressively and with purpose. Courts and lawmakers across the U.S. must do more to eliminate this two-tiered system of justice and bring an end to modern day debtors’ prisons.
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, July 27, 2015
On November 24, 2004, a thirteen-year-old boy named Taylor M. and several other boys in Ventura County, California, threw rocks at construction equipment owned by to J&S Excavating [J&S]. After another boy threw a firecracker into a bulldozer, Taylor shut its door, and the bulldozer ignited. Damages were estimated at over $170,000, including repair costs, rental expenses, and lost labor, although the estimate failed to account for the amount that J&S ultimately recovered from its insurance company. The state charged Taylor with arson and felony vandalism in juvenile court, he admitted the allegations, and the judge declared a maximum confinement period of three years, eight months.
At the time of the offense, Taylor was struggling both academically and behaviorally in the sixth grade. He was failing several courses and repeatedly disciplined for misbehavior. He was diagnosed with a learning disability and Attention Deficit Hyperactivity Disorder, and his peers ridiculed him for attending special education classes.
On April 25, 2006, upon the prosecutor’s recommendation, the court placed Taylor in a deferred entry of judgment (DEJ) program with multiple conditions, including monthly restitution payments of $100. Soon after, Taylor’s parents, who were already struggling to pay their bills, experienced a series of health setbacks. His mother was diagnosed with cancer and then suffered two strokes, and his father became disabled. His parents separated, and his father became homeless, as did his older brother. Because of his mother’s illnesses, Taylor had to assist her with basic tasks of cooking and cleaning, while at the same time he made numerous attempts—all ultimately unsuccessful—to find work to pay his restitution.
Despite these hurdles, Taylor made some strides. His grades improved as did his school attendance and behavior, and he managed to complete all eighty hours of court-ordered community service as well as a counseling program. Ultimately, however, Taylor’s family was able to pay a total of only $175 toward restitution between 2006 and 2009, at which time Ventura County Probation Officer Monica Gomez recommended revocation of his DEJ placement because “no effort [was] being made…at all.”
The juvenile court judge agreed with the probation officer’s recommendation and revoked Taylor’s DEJ placement, putting him on formal probation that left him vulnerable to the three years, eight months, term of incarceration. In 2010, the Court of Appeal of California affirmed the judge’s decision, stating that the probation department would not have recommended the revocation of his DEJ placement “if he had met with his probation officer on a regular basis and made small payments ($10, $5, or $1). Appellant failed to establish that he tried to do those things.”
Across the U.S., even minor criminal charges, such as loitering, littering, and unpaid traffic tickets, trigger an array of fees, court costs, and assessments in both juvenile and criminal courts that can create insurmountable debt burdens for already-struggling families. Although the U.S. Supreme Court held in Williams v. Illinois (1970) that extending a prison term for an inability to pay criminal justice debt violates the Fourteenth Amendment’s Equal Protection Clause, and in Bearden v Georgia (1983) barred the revocation of probation for failure to pay a fine without first inquiring into a person’s ability to pay, jurisdictions continue to ignore these requirements and consider almost every failure to be “willful.” Some courts impose a “fines or time” alternative sentence that forces defendants to “choose” between jail and immediate payment in full.
For low-income families, criminal justice debt can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, additional court appearances or warrants related to debt collection and nonpayment, and extra fines and interest for late payment. When parents face such collateral consequences, the very act of meeting the economic and emotional needs of one’s children becomes a formidable challenge. Failure to do so can trigger the intervention of Child Protective Services, potential neglect allegations, and further court hearings and fees. For non-custodial parents, failure to pay child support can also lead to time in jail, and the debt often continues to accrue during incarceration, making it nearly impossible to become current.
For youth in the juvenile court system, mandatory attorney fees, detention fees, restitution fines, and supervision fees impose a burden that increases the risk of recidivism. When these circumstances are exacerbated by aggravating factors such as unemployment, substance abuse, or mental illness, families without an extensive support network have little chance of succeeding. In short, for parents and their children who are caught within the state’s debt-enforcement regime, the threat of punishment is an ever-present specter, and incarceration is never a thing of the past.
One of the inherent ironies is that rather than serving as a valuable revenue source for the state, juvenile and criminal justice system fees require an extensive infrastructure to turn court and correctional officials into collection agents. This burdens the system and actually interferes with the proper administration of justice. Moreover, states frequently divert court fees and assessments to projects that have little connection to the judicial system.
Although the Thirteenth Amendment to the U.S. Constitution formally abolished slavery and involuntary servitude in 1865, the text created an exception for the punishment for crimes “whereof the party shall have been duly convicted.” It also explicitly provided for enactment of supplemental legislation to enforce the amendment’s substantive provisions. Two years later, Congress passed The Peonage Act in an attempt to prohibit the practice of coerced labor for debt, but in the wake of the Civil War, southern states innovated other ways to impose peonage but avoid violations of the federal statute. Among these were criminal surety statutes that allowed employers to pay the court fines for indigent misdemeanants charged with readily manufactured crimes, such as vagrancy, adultery, or use of offensive language, in exchange for a commitment to work. Surplus from these payments padded public coffers (as well as the pockets of court officials), and when workers’ debt records were subsequently “lost” or there was an allegation of breach, surety contracts were extended and workers became further indebted to local planters and merchants. Several decades later, the U.S. Supreme Court inBailey v. Alabama (1911) and U.S. v. Reynolds (1914) finally invalidated laws criminalizing simple contractual breaches, which Southern states had used to skirt the general provisions of the Peonage Act, but these decisions ultimately had little impact on the “ever-turning wheel of servitude,” and the practice persisted under alternative forms until after World War II.
In several instructive ways, the contemporary justice tax faced by Taylor M. and thousands like him ultimately has the same societal impact as the practice of peonage: both function to maintain an economic caste system. There are, however, a number of common sense legislative reforms for what I’ve called “the new peonage” that lawmakers should consider. They include creating and enforcing court fee exemptions for indigence; eliminating unnecessary interest, late fees, and collateral consequences for defendants; and ending incarceration and extended probationary supervision for non-willful failure to pay. For youth like Taylor M. and their families, our states must pass legislation that eases the burden on low-income families and ends the phenomenon of the new peonage.