Sunday, February 11, 2018
The Public Welfare Foundation will hold a day-long forum: A Conversation on Race, Redemption and Restoration. The forum will be held on March 9, 2018 in Washington, D.C.
The invitation states "We will dive into candid conversations about: advancing racial justice, particularly within the youth and criminal justice field, the steep barriers to opportunities facing individuals who transition back to communities from the justice system; and necessary strategies to restore communities experiencing crime, violence, and lingering impacts of the criminal justice system. "
While the conference is by invitation only, it may possible to secure admission by contacting the Foundation directly to explore availability.
Thursday, January 25, 2018
A study done by the Vera Institute found that women in jails are one of the fastest growing segments of the prison population. And nearly 80% of women are mothers. Women are an afterthought in the discussion of mass incarceration. Little attention is given to the impact on families when a mother goes to jail. And little is done to help families stay connected when mothers are incarcerated. In a nationwide move, sheriffs and other jailers are replacing live child-mother visits with Skype visits. Nothing replaces touch between parents and children. Particularly young children are less likely to bond with a virtual parent. And the incarcerated women are expected to pay for the Skype visits, making even virtual contact out of reach for many.
There are a myriad of discriminatory problems faced by women and girls in prison. One other is the failure to provide menstrual products to them. Some states charge for the products, and those who do not often distribute an average of 2.5 pads per month.
The National Council for Incarcerated and Formerly Incarcerated Women and Girls works to address the particular barriers that females face during and after incarceration. From disparities in sentencing, to assisting with re-entry and healing, the National Council provides tremendous community based resources for the recently incarcerated and those currently incarcerated. I recommend a visit to the Council's website for an introduction to the wide variety of work the Council does, as well as their sister organizations.
Thursday, July 14, 2016
No doubt many of you read Just Mercy: A Story of Justice and Redemption by Bryan Stevenson. Today I completed this powerful book authored by a remarkable man. Mr. Stevenson is the founder of the Equal Justice Initiative located in Montgomery, Alabama. Mr. Stevenson and his colleagues at EJI represent incarcerated men and women who have been mistreated by the justice system in horrific ways. Many of the Initiative's clients live on death row. The stories of the incarcerated men and women were sad, outrageous and inspiring. But the lawyering work is painful and heartbreaking.
I will not be a spoiler and give details, but in one instance Mr. Stevenson describes a personal and professional crisis moment that followed a conversation with one of his death row clients. A reflective man, Mr. Stevenson wondered if he could continue the work. He describes the moment when he realizes that not only are his clients, the legal system and its players broken, but he is as well. How does one continue the work after realizing that "We've submitted to the harsh instinct to crush those among us whose brokenness is most visible." Mr. Stevenson realizes that we are all broken. Maybe we were broken in different ways, but we are all broken.
Not only did these passages bring me to tears, but they made me feel for all of us who engage in human rights work. I admire all of you. While we celebrate our victories and support each other's work, rarely do we stop to discuss the pain that accompanies our work.
Bryan Stevenson ultimately, and rather quickly, found strength in recognizing this shared vulnerability. He recognized that "When you experience mercy, you learn things that are hard to learn otherwise. You begin to recognize the humanity that resides in all of us." He imagines what the world would be like if we all acknowledged our fear, our weaknesses and our brokenness.
Dr. Brian Williams, who treated the shot Dallas police officers has begun that conversation by acknowledging his fear. In one interview Dr. Williams, who is black, said that when he sees a police officer he often thanks them for their work so that his daughter will learn not to be afraid of police. Because, he said, "I am afraid". Former Seattle Police Chief Norm Stamper addressed the way in which police officers are trained to be afraid and to view their community members as enemy.
What is missing are police officers willing to discuss their vulnerabilities that are at the heart of their biases and overreactions to perceived threats.
I think of how vital this acknowledgment is to resolving our race crisis. Both sides are filled with fear, but one side cannot engage that conversation. Until that happens, change will remain out of reach.
Thursday, May 26, 2016
In 2009, several companies that provided drugs used in executions began refusing delivery of those drugs to US prisons. One by one, primarily European drug companies have refused to market drugs used in executions to penal institutions. On May 7th, Pfizer announced that it would no longer make drugs used in executions available for that purpose. Pfizer was the last company manufacturing the drugs that made them available to prisons. Pfizer also announced that when selling the drugs for other purposes, buyers will be obligated to agree that the drugs will not be resold for purposes of lethal injection. According to the NY Times, Pfizer was the last remaining open source of the drugs, leading executioners to revert to other means of obtaining them.
States employing the death penalty refuse to disclose the source of the drugs and in at least one case, an investigation is underway to determine how prison officials obtained drugs to be used for an execution, only to discover they had purchased the wrong drug. In other cases, states ordering the drugs from India saw the drugs seized by the FDA.
Pfizer explained that its prohibition on prison sales of the lethal injection drugs was motivated by business and medical factors and not political ones. The company explained that their drugs are intended to save lives. The Heritage Foundation, however, accused the company of conceding to political pressure.
No matter what the motivation, US executions have dropped from 98 in 1999 to 28 in 2015. For more information, the Death Penalty Information Center details efforts to curtail executions as well as state efforts to obtain lethal injection drugs and other efforts to revive previously defunct methods of execution, including firing squads. The Center's website contains information on the ACLU's efforts to force states to disclose their source of lethal injection drugs now that the major corporations are refusing sale of their drugs for that purpose. In addition, the Center is a resource on other concerns surrounding the use of capital punishment.
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.
Tuesday, April 26, 2016
by By JoAnn Kamuf Ward, Lecturer-in-Law, Columbia Law School & Associate
Director of the Human Rights in the U.S. Project at the Law School's Human Rights Institute
Approximately one in every three U.S. adults has a criminal record – roughly the same number of people that hold a four year college degree. The impacts are staggering. The ongoing punitive effects of a criminal record permeate almost every aspect of life, and severely hinder the efforts of individuals who have “served their time” to make a fresh start.
Upwards of 600,000 individuals will be released from prison this year, only to face a complex web of restrictions on their ability to access housing. Under federal law registered sex offenders and individuals convicted of manufacturing methamphetamine are prohibited from living in federally funded housing. In addition to these two categorical bans, federal law leaves broad discretion to property owners and managers to screen potential tenants. An array of state and local laws and policies also govern access to municipal housing, and can include both vague and broad standards for reviewing applicants. The net result is that individuals with criminal records are often excluded from consideration for reasons untethered to legitimate safety concerns or their ability to pay the rent. Depending on where you live, there may be categorical bans related to misdemeanors, bans on accepting tenants until they have been out of incarceration for over a year, and prohibitions on accepting tenants who engaged in “immoral conduct.” Additionally, in many jurisdictions, arrest records have served as the basis for denying housing to individuals and as grounds for evictions, despite the fact that an arrest is not a reliable indicator of criminal conduct. The practice was so widespread that HUD released guidance last year to underscore that reliance on arrest records is out of step with the Fair Housing Act.
A criminal record, and even an arrest record, can serve as a kind of scarlet letter, and has consequences well beyond housing. Felon disenfranchisement is one example from the political sphere. Criminal records can also impede access to education. Barriers to employment, too, are well-documented. Taken together existing obstacles make re-entry and reintegration an uphill battle.
Yet, there are signs that change is on the horizon as Michelle Alexander, the author of The New Jim Crow, stated in a great interview this weekend. This hope emanates from the work of the communities who have faced barriers to achievement and inclusion for decades and are fighting to remove them. As Alexander reported:
Formerly incarcerated people are organizing for their basic human rights — the right to work, the right to shelter, the right to health care and drug treatment — basic human rights that we should be able to take for granted in a nation as wealthy as ours, and a nation that advertises ourselves to the rest of the world as the land of the free and a place of opportunity, equality, and inclusion.
This organizing has had tangible results. Just last week, Virginia Governor Terry McAuliffe took executive action to restore voting rights for convicted felons in the state, reflecting a broader trend to ease restrictions on political participation for people with criminal records. The national movement to “ban the box” has led public and private sector employers to limit the use of criminal records in hiring, as detailed in a past blog. As a result of the momentum around these efforts, “ban the box” has become synonymous with the employment context, but the housing arena has seen progress as well.
A number of cities are on the forefront of banning the box in housing. Newark, New Jersey was a first mover. The city’s 2012 ordinance places limits on when a landlord can inquire about criminal record, and lays out the factors that should govern the individualized assessment of potential tenants, including evidence of rehabilitation. In 2014, San Francisco followed suit, with a law that applies to city-subsidized affordable housing. Legislation has been introduced in Los Angeles, and Washington, D.C.
The federal government has also taken intentional steps to improve access to housing for formerly incarcerated individuals and their families. In November of last year, the President announced a series of measures to ease the burden of re-entry. Key components on the housing front are new funding to support permanent housing, and the guidance on arrest records noted above.
This month, HUD went a step further and issued new guidance on the ways that the Fair Housing Act (FHA) protects individuals with criminal records from discrimination:
While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another (i.e., discriminatory effects liability. Additionally, intentional discrimination in violation of the Act occurs if a housing provider treats individuals with comparable criminal history differently because of their race, national origin or other protected characteristic (i.e., disparate treatment liability).
The guidance makes clear that blanket bans on tenants with a criminal background violates the FHA, and reiterates that arrest records alone are not proper basis for rejecting a housing applicant. This 2016 guidance also lays out the type of balancing test that landlords should apply to assess whether an applicant with a criminal record can be justifiably excluded from tenancy. It calls on landlords to evaluate a range of factors on a case-by-case basis: the nature and severity of the underlying crime, the time lapsed since the crime, and what the applicant has done since the conviction. It also places the onus on landlords to prove that a decision to exclude an applicant is justified under the circumstances (i.e. “necessary to achieve its substantial, legitimate, nondiscriminatory interest”) if the decision is challenged.
It is well documented that adequate and affordable housing is integral to economic viability for individuals and communities. It is time to remove legal impediments to basic economic, social and political rights. Developing policies that foster inclusion for those that have already “done their time” is a step in the right direction. Impacted communities are leading the charge for reform. Policymakers need to take action.
Sunday, March 20, 2016
Sometimes it takes a tragic and heartrending story of a single human being to move broad public policy. In the instance of the solitary confinement of youth, the catalyst was the case of Kalief Browder. An African-American 16-year-old, Browder was wrongly charged with theft of a backpack in May 2010 and held for three years at Rikers Island after a judge set his bail at $3,000, an amount the teenager’s family could not post.
Browder was then confined with hundreds of other 16- to 18-year-olds in a section of Rikers where brutal attacks by guards and fights among inmates were common. He was targeted by gangs, beaten by officers and told that if he reported the incidents to medical staff he would be sent to solitary confinement.
Meanwhile, Browder’s criminal charges were caught up in the extreme backlog of the Bronx court system. Because he repeatedly refused to plead guilty, his case was set for trial. Yet, delays caused by court congestion kept pushing back the trial date.
Not long after arriving at Rikers, Browder was placed in solitary for two weeks following a scuffle with an inmate. Six months later, another fight led to his second trip to solitary, where he remained for about 10 months. Even in isolation the threat of violence is a reality, however, and a tense exchange of words triggered an attack on Browder by a guard.
As the months turned into years, Browder became depressed and lost weight. After he tried to hang himself with a bed sheet, he was returned to solitary.
Browder’s case was ultimately dismissed in May 2013 after 31 court dates and three years at Rikers, the majority of which he spent in isolation. The alleged victim had left the U.S. and the prosecutor acknowledged that they were “unable to meet our burden of proof at trial.”
Although Browder made some strides after his release, including earning his GED, finding a part-time job and starting classes at Bronx Community College, the damage of incarceration and isolation had already been done. His mental health rapidly deteriorated, and on June 6, 2015, he committed suicide at his parents’ home in the Bronx. He was 22 years old.
In January, President Barack Obama invoked Kalief Browder, his time in isolation and his suicide in an op-ed in the Washington Post announcing a ban on the solitary confinement of juveniles in the federal prison system, among other critical reforms that would affect the 10,000 adult inmates serving time in isolation.
After relating the facts of Browder’s life, the president wrote, “How can we subject prisoners to unnecessary solitary confinement, knowing its effects, and then expect them to return to our communities as whole people? It doesn’t make us safer. It’s an affront to our common humanity.”
Although the Federal Bureau of Prisons is responsible for fewer than 100 juvenile inmates, with only a handful placed in “restrictive housing,” the president’s executive action reflects a broader recognition of the need to treat adolescents and young adults differently than adults based on their cognitive and psychological capacities. It also is likely to trigger reforms on the state level of solitary confinement policies for both youth and adult inmates, including those with mental illnesses. The U.S. Department of Justice has estimated that more than 57,000 juvenile offenders are incarcerated in jails and prisons across the U.S., with many held in solitary confinement.
At the vast majority of juvenile detention centers, often the only hope for young people held in prolonged isolation lies with lawyers or youth workers willing to expose the practice, report it to the appropriate parties and advocate for its ban.
Advocates working with incarcerated young people should regularly ask them about the conditions of confinement and specifically question them about isolation practices: whether solitary confinement is used, under what circumstances, its duration, whether there is any debriefing following its use and whether alternative strategies are ever utilized.
Unfortunately, Kalief Browder, like many low-income youth, did not receive rigorous legal representation. He was appointed a lawyer who never made the trip to Rikers to visit him and rarely, if ever, spoke with him between court dates.
Advocates working with incarcerated youth who suspect the excessive use of isolation should immediately bring the situation to a judge’s attention at a hearing reviewing the conditions of confinement. If these types of hearing are not mandated in the client’s jurisdiction, they should speak to a lawyer about filing a motion for review of the conditions of confinement. They should also speak with the administrator or the licensing or regulatory agency for the facility holding the juvenile.
Unfortunately, prisoners’ legal services have become increasingly limited as legal aid budgets are cut and offices are forced to discontinue these programs. Because of this gap, every correctional facility should have an inmate-grievance system with counselors who address both routine and emergency complaints. Every facility should also have the equivalent of an institutional ombudsperson available for adolescent inmates to raise claims or express concerns related to their conditions of confinement.
Kalief Browder’s short life continues to have meaning. As President Obama wrote in his Washington Post op-ed, “Today, [solitary confinement] is increasingly overused on people such as Kalief, with heartbreaking results — which is why my administration is taking steps to address this problem.”
Editors' Note: This essay was originally published by Youth Today.
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, September 24, 2015
By JoAnn Kamuf Ward, Associate Director, Human Rights in the U.S. Project, Columbia Law School Human Rights Institute; Lecturer-in-Law, Columbia Law School
Nelson Mandela is known in South Africa as “Madiba”, a clan name that evokes intimacy, despite his status as a larger than life activist and national leader. As a statesman, he was soft-spoken yet firm. Photographs often showed him donning his signature smile. These portrayals of Mandela belie the personal suffering and strife he experienced as a young leader of the ANC. Mandela spent 27 years in prison for leading efforts to dismantle apartheid, 18 of them in a single cell on Robben Island, measuring a 7 feet by 9 feet. Like many deprived of their liberty, Mandela did forced labor, lived in squalor, suffered through demeaning slurs, and was denied the most basic human dignities. Being forced to work in intense heat caused Mandela’s “snow blindness,” damaging his vision irreparably.
But it was the final years of incarceration that most challenged Mandela’s resolve. In 1982, he was transferred to a prison on mainland South Africa, where he was subjected to prolonged isolation. As he later recalled it was solitary confinement that was “the most forbidding aspect of prison life. There is no end and no beginning….One begins to question everything.” So, perhaps it is not surprising that Mandela’s legacy includes the potential for reform of solitary conditions prisons around the world, including in the U.S.
Since 2012 there has been an ongoing international effort to develop practical guidance on how governments can improve prison conditions, known as the Mandela Rules. In May, in an important step forward, the Vienna Crime Commission approved the rules. The Mandela Rules offer a much needed update to The Standard Minimum Rules for the Treatment of Prisoners, developed in Geneva in 1955 – long before our current epidemic of mass incarceration and the general proliferation of solitary confinement across the United States.
The 2015 Mandela Rules have been heralded as “one of the most significant human rights advances in recent years.” This is strong praise to be sure, as the Mandela Rules were the result of years of intergovernmental negotiation. Yet, there is much to commend the new standards. For starters, the Rules operate from the premise that prisoners should be treated with basic dignity, a fundamental paradigm shift for most US prisons. The rules also reflect the fact that torture and cruel, inhuman or degrading treatment and punishment are realities in prisons. The Rules call for staff to be trained on how to treat prisoners humanely AND state that allegations of torture and CIDT should result in an investigation by an independent national authority.
The Mandela Rules also delve into specifics of how to treat prisoners with dignity, including strict limitations on the use of solitary confinement. According to the Rules, solitary should be used “only in exceptional cases as a last resort for as short a time as possible and subject to independent review.” There is also a blanket prohibition on the use of solitary for more than 15 consecutive days. Further, solitary is prohibited where it would exacerbate the condition of a prisoner with mental or physical disability or where women and children are involved.
A number of the 122 rules echo calls by US rights advocates, including in the arena of education and rights of women. Rule 104 calls for education and training in prison, and for education of youth to be compulsory. Rule 48 expressly prohibits the shackling of pregnant women during labor (which the NY Times reported on this week). The Mandela Rules also reflect recommendations from UN experts, including members of the Committee Against Torture, and the U.N. Special Rapporteur on Torture, Juan Mendez. During the 2010 UPR, the United States also received a recommendation to ensure human rights protections in US prisons, including maximum security prisons (Rec 177, which the US accepted).
While the Mandela Rules resulted from years of government negotiation, US groups, especially the ACLU, were deeply involved in the revision of the Rules, alongside international groups coordinated by Penal Reform International, and Juan Mendez, the UN Special Rapporteur on Torture. By engaging with the reform process, civil society groups and human rights experts were able to inform the outcomes. One last hurdle remains before the Rules are final: formal adoption by the UN General Assembly later this year.
Of course, even when adopted, the Mandela Rules will be soft law. As a non-binding framework for prison reform, the challenge in the U.S., and around the world, will be implementation. But there is already evidence that the Rules won’t just remain on the shelf. The United States has supported adoption of the rules, and included corrections officials from Washington and Colorado on its delegation to negotiate the Rules. Both states have worked to reduce the use of solitary and have discussed their own efforts to improve prison conditions, including reducing solitary, throughout the development of the Rules.
The Mandela Rules offer specific, practical standards to bolster reform of U.S. federal, state, and local prisons. In the context of a renewed focus on solitary by the Obama Administration and the September settlement putting an end to the use of indefinite solitary at Pelican Bay, the Mandela Rules offer another tool in the struggle to eradicate solitary confinement. Human rights advocates will play a key role in publicizing the Rules and underscoring their relevance to prison administrators.
Friday, August 28, 2015
Last week, Secretary of Defense Ash Carter reiterated his and the administration’s commitment to closing the U.S. detention facility at Guantanamo Bay, Cuba, by the end of the president’s second term in office. Carter stressed that he intends to work within the law to transfer those detainees who have already been cleared by relevant agencies. He also said that that the administration will soon send to Congress a plan for the remaining detainees who are not eligible for transfer. Carter indicated the plan will include bringing a number of detainees to the United States for continued detention and that assessment teams are currently visiting potential detention sites across the United States. Both the military and the Bureau of Prisons have safely detained very dangerous criminals, including terrorists and mass murderers, and are well-equipped to continue to do so. Human Rights First has said that any plan to shutter the Guantanamo facility should include: expedited transfers of cleared detainees; an increased pace of Periodic Review Board hearings, which determine whether a detainee still poses a threat to the United States or is cleared for transfer; and stronger engagement with Congress, including vetoing any legislation that prevents Guantanamo from being closed.
Wednesday, August 26, 2015
In my last post, I discussed the phenomenon that I call “the new peonage,” in which criminal justice debt creates a two-tiered system of justice in our juvenile and criminal courtrooms. One of my proposals for reform is to establish the right to counsel in nonpayment hearings. It is long-settled law that the Sixth Amendment requires that counsel be appointed to indigent criminal defendants who face the risk of the loss of liberty. Most states hold that this right, which derives from the Due Process Clause of the Fourteenth Amendment, also applies to civil proceedings. Most states also agree with Supreme Court dicta in Lassiter v. Department of Social Services (1981) that relying on the “civil” or “criminal” label placed on a proceeding when determining whether there is a right to counsel is not particularly helpful in this subset of cases, as the possibility of incarceration is an equally serious restraint on one’s liberty interests whether it results from a civil or criminal matter. State courts are split, however, on how best to determine whether the right exists when applied to a given set of facts, with some courts holding that a balancing test should be used on a case-by-case basis, and others holding that the right to counsel should be presumptively guaranteed in all matters that could potentially result in incarceration. Several states have even held that there is no right to counsel in civil fee collection proceedings regardless of whether the defendant could be incarcerated, invoking the civil/criminal distinction to support their holdings, thereby rejecting Lassiter.
An argument that is gaining traction is that there should presumptively be a right to counsel for indigent litigants in nonpayment hearings whenever those hearings can result in incarceration or an extension of probation or parole. In the recent case of Washington v. Stone (2012), James Stone pleaded guilty in 2001 to unlawful possession of a controlled substance (methamphetamine) and second degree theft, and the trial court sentenced him to 105 days in jail and twelve months of community custody with a fine of $2860. Two years later his supervision was transferred from the Washington Department of Corrections to the superior court clerk’s office, as he now owed (adding the interest) $3179. Two months later, without being told of the right to counsel, he signed an order agreeing to minimum monthly payments of twenty-five dollars, and agreeing that if he failed to pay, an arrest warrant would be issued. For the next twenty-nine months, Stone made the monthly payments, but when he missed a payment and a court appearance, an arrest warrant was issued, and he was sentenced to ten days in jail. This was followed by a period when he once again made payments. This scenario continually repeated itself; yet for three years the court did not inquire as to whether Stone wished to have counsel appointed. After the court finally inquired of him and counsel was appointed, a fact-finding hearing was held one week later, which the appellate court described as follows:
Stone testified that he was homeless; that he was left handed and limited to twenty-five percent use of that hand; that the Department of Social and Health Services (DSHS) paid his medical bills; that his only source of income was monthly net payments of $339 from a…”program…due to [his] disability with [his] shoulder”; and that he spent this money on shelter, cigarettes, and “a few other necessities” like food. He also testified that it cost him approximately $100 to travel to Jefferson County for court appearances.
At the hearing’s conclusion, the judge sentenced Stone to forty-five days in jail, with no inquiry as to his income or ability to pay, and without granting a deduction in his LFO debt for either of his two previous periods of incarceration. On review, the Court of Appeals of Washington held that a person has an absolute right to counsel at “ability-to-pay” hearings where incarceration may result, and that Stone’s due process rights were violated when he was incarcerated without findings regarding his ability to pay:
Stone’s lack of counsel during these proceedings created an “asymmetry of representation” because a prosecuting attorney represented the State in this adversarial proceeding. As the United States Supreme Court has observed, “The average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.”
The federal appellate court clearly recognized that if counsel had represented James Stone at the first enforcement proceeding, it would have made the difference between his maintaining and losing his liberty down the road. Counsel is needed to gather and present evidence regarding the defendant’s ability to pay, to assist her in navigating the often-complex procedures for requesting a reduction or waiver of fees, and to ensure that she understands the ramifications of payment orders or commitments. For these reasons, it is likely that early appointment of counsel will ultimately save the jurisdiction monies spent in repeated attempts at collection, issuing and serving arrest warrants, and the costs of incarceration.
Of course it is critical to keep in mind that when counsel is appointed, at least forty-three states and the District of Columbia can require defendants to contribute to its cost. This fee is often a significant component of the total debt burden imposed by LFOs, and given the disproportionate representation of low-income defendants and civil litigants struggling under the new peonage, it rests squarely on the backs of those least able to afford it. In Florida and Ohio, individuals must pay defender fees even if they are acquitted or the charges are dismissed. In states that offer hardship waivers of these fees by statute, some fail to provide them in practice. And, defender fees often serve to discourage low-income people, including children in juvenile court, from exercising their constitutional right to counsel, resulting in systematic waivers of counsel.
Yet, if the right to counsel at nonpayment hearings is implemented in combination with several other legislative proposals, such as the exemption of attorney fees for indigence, these costs should cease to be a significant hardship for low-income defendants.
Editor's note: Tamar Birckhead’s research on “The New Peonage” will be published by the Washington & Lee Law Review in December 2015.
Wednesday, August 19, 2015
by Deborah Popowski, Lecturer on Law and Clinical Instructor, Harvard Law School, guest contributor
On August 5th, the Inter-American Commission on Human Rights released a report denouncing the United States government for unlawfully detaining men in Guantánamo in violation of their human rights and offering recommendations for how the Obama administration should hasten the prison’s closure. It calls for the immediate release of all detainees who will not be charged or tried, and for the use of federal courts instead of military commissions to prosecute those not released.
Personal Integrity and Access to Justice
The 136-page report, “Towards the Closure of Guantánamo,” provides the most recent holistic and independent account of conditions in the prison. The Commission expresses particular concerns about indefinite detention; the use of torture and other cruel, inhuman, or degrading treatment; a discriminatory detention regime; limited or no access to judicial protection; lack of due process; and lack of an adequate defense.
The Commission calls on the US to end the inhumane practice of force-feeding detainees and to ensure that all men receive “adequate medical, psychiatric and psychological care” that respects principles of confidentiality, patient autonomy, and informed consent.
The report also takes on the conditions that contribute to these grave health problems, including to prolonged isolation, incommunicado detention, and indefinite detention. On the latter, it notes having “received specialized information on the severe and lasting physiological and psychological damage caused by the detainees’ high degree of uncertainty over whether they will be released and when; or whether they will see their family members again.” It adds that the “continuing state of suffering and uncertainty creates grave consequences such as stress, fear, depression, and anxiety, and affects the central nervous system as well as the cardiovascular and immunological systems” and concludes that the continued, indefinite detention of men in Guantánamo violates their right to humane treatment.
The Commission’s analysis of personal integrity violations underscores that the fulfillment of this right requires providing detainees with meaningful avenues to monitor, challenge, and remedy their treatment and conditions. To this end, it asks the US government to declassify evidence of torture and ill-treatment, disclose conditions in Camp 7, ensure accessible and effective judicial review, and grant access to an independent monitoring body to investigate detention conditions. Additionally, it urges compliance with the UN Committee Against Torture’s recommendations to investigate all abuse allegations, prosecute those responsible, and ensure effective redress for victims of torture and ill-treatment.
An entire chapter is devoted to detailed analysis of the judicial remedies available to detainees post-Boumediene, which the Commission concludes are neither adequate nor effective, citing concerns with the operation of presumptions and burdens of proof. While the report credits the US with positive changes made via the Military Commissions Act of 2009, it ultimately finds that the military commissions system fails to meet the government’s human rights obligations. Its main areas of concern include their “independence and impartiality …, the uncertainty regarding the application of the US Constitution; respect for the right of equality before the law, to confrontation and to a speedy trial; respect for the principle of legality, and the retroactive prosecution of crimes.”
“A Prison for Foreign Muslim Men”
The Commission notes that Guantánamo’s exceptional regime is rendered even more problematic because of its exclusive application to Muslim men of non-U.S. nationalities, “which creates the appearance that it is targeting individuals based on their nationality, ethnicity, and religion.” Reports of religious-related abuse also played a role in the Commission’s personal integrity analysis. The report’s conclusions and recommendations remind the US government of its obligations to respect detainees’ rights to freedom of conscience and religion, and specify that these include guaranteeing access both to communal prayer and a Muslim chaplain.
The Commission calls on the US to allow transfers for trial, emergency medical treatment, and also release and settlement in the cases of cleared men who cannot return to their home countries and are unwilling or unable to settle elsewhere. To that end, it asks Congress to repeal the National Defense Authorization Act provisions that restrict transfers of Guantánamo detainees to the United States, and urges the executive to interpret the NDAA requirements “in a flexible manner” so as to meet its rights obligations. The report also highlights other necessary measures within the executive’s power, such as expediting the Periodic Review process, stepping up diplomatic negotiations, accelerating transfers to countries of origin or third countries, and ensuring that Yemeni detainees cases receive individualized reviews.
Finally, it calls upon other member states to accept detainees for resettlement. Given the Commission’s influence in the region, advocates are hopeful that this report, with its detailed and unequivocal critique of the regime’s unlawfulness, will significantly help efforts to resettle some of the cleared men in Latin America.
Thursday, July 9, 2015
A recent interview with Rutgers' cultural historian Professor Bruce Franklin not only emphasized the need for prison transformation but made the explicit connection between anti-black and brown policies and voting manipulation.
Dr. Franklin pointed to voter disenfranchisement of those with felony convictions as benefiting George W. Bush's second presidential election. "This felony disenfranchisement was used to elect George W. Bush in 2000. In Florida alone, more than 400,000 citizens, mainly African-American were stripped of their vote, thus allowing Bush to win that state by 527 votes, thereby granting him the White House. The so-called “War on Drugs” is actually a War on the Poor, especially black and brown people."
Dr. Franklin goes on to address what he calls the "normalization of torture" in addressing U.S. prison policies. "To understand the depth of the both racial inequalities in the American prison system and how it has been used to normalize torture, it is necessary to recognize the roots of the prison system in African-American slavery." Dr. Franklin traces the history of torture, particularly how torture was a necessary tool for maintaining slavery. The culture of torture is evidenced in the modern day prison system.
"Sexual humiliation is the norm, and rape is endemic. A 1999 Amnesty International report documented the commonplace rape of prisoners by guards in women’s prisons. Prisoners are forced to walk around naked in front of guards of either sex. " Dr. Franklin then traces the direct line between sexual humiliation in prison practices and similar torture at Abu Ghraib.
To read the entire interview with Dr. Franklin, click here.
Monday, June 1, 2015
United States Falls Far Behind New Standard Minimum Rules for the Treatment of Prisoners
On May 22, 2015, the UN Crime Commission approved the revised Standard Minimum Rules for the Treatment of Prisoners, known as the Mandela Rules. The new rules are long overdue, the original set having been drafted in 1955. In the ensuing 60 years, how people in prison fare has improved in some areas, such as the use of corporal punishment. But many areas have not. The world over, pretrial detainees and convicted prisoners suffer from overcrowding, as well as the attendant lack of adequate medical care, shelter and food, not to mention violence at the hands of some officials and prisoners.
The United States is notoriously the world leader in incarceration rates; we have also broken ground in draconian practices, most notably institutionalized solitary confinement. The new Standard Minimum Rules regarding indefinite isolation highlight just how out of step the United States has fallen.
So-called supermax prisons proliferated across the United States, largely unchecked, following the hardening of the federal USP Marion in the early 1970s. States such as California—site of the longstanding controversy regarding the use of solitary at Pelican Bay—were quick to follow. The 1990s prison boom saw the widespread construction of supermax facilities even in relatively small prisons systems (such as my home state of Connecticut), a development driven principally by “tough on crime” politics and federal funding.
In 2004, the U.S. Supreme Court offered a tentative step forward in Austin v. Wilkinson. The decision formally recognized prisoners’ procedural due process rights with respect to placement into and exit from isolation. Yet the decision was conspicuously silent as to the substantive rights of people in long-term solitary.
As a recent study of state policies documented, the post-Wilkinson world has done little to place genuine stopgaps on the overuse and misuse of long-term isolation. The initial placement usually bears the trappings of due process, but the criteria are so open-ended as to undermine the legitimacy of the proceedings. Worse, the processes and standards by which an individual may be returned to the general population are typically opaque and vague. Thus, a prisoner deemed to be a threat may be plummeted into near-total social and sensory deprivation, often punctuated by mental breakdowns and bursts of conflict with staff. The ensuing isolation may last months, years, or, in some cases, decades.
The deleterious effects of solitary on prisoners are well-documented; also troubling are reports of high suicide rates and other ill-effects on staff members, who must endure the same inhumane and conflict-ridden environment as the prisoners under their watch.
For individuals facing the death penalty, isolation is automatic and permanent. As the ACLU documented in a 2013 report, prisons systems across the country elect to segregate death-sentenced individuals in supermax-type conditions. (There are a few notable exceptions, such as Missouri, that underscore that the current system is a choice not a necessity.) People facing execution by the state must wait out their last years in isolation, regardless of whether they pose any threat to staff or other prisoners, for no reason other than the nature of the conviction. Anthony Graves, who spent 18 years on death row before his exoneration in 2010, testified before the U.S. Senate that “solitary confinement does one thing, it breaks a man's will to live and he ends up deteriorating. He's never the same person again.”
By contrast, the revised Rules reflect a growing consensus that solitary confinement may only be used sparingly, for the shortest term possible (a matter of days, not years), and never against vulnerable people or solely by virtue of the nature of the conviction. Solitary confinement “shall only be used in exceptional cases as a last resort, for as short a time as possible.” The Rules draw clear lines for juveniles and the mentally ill, who may not be isolated for any period. The Rules also upend the commonplace isolation of death row prisoners, as isolation “shall not be imposed by virtue of a prisoner’s sentence. These revisions echo the recent work by the UN Special Rapporteur on Torture, who has repeatedly criticized the widespread and extended use of solitary confinement.
For the thousands of prisoners cast into “the hole,” the Rules might seem little more than wishful thinking.
But there are signs of hope. A movement to “stop solitary” has emerged from diverse parts of U.S. civil society and across the political spectrum. A cohort of state corrections leaders have pushed quietly for change amid their own professional associations and have pioneered alternatives to solitary. Ten years ago, the current discourse would have been unfathomable. There is still the real risk that the political winds will shift or that reforms will prove superficial. But, as the new Mandela Rules remind us, the time to put an end to the United States’ failed experiment is now.
Tuesday, May 26, 2015
Many years ago I read Miller and Swift's Words and Women (1976). The book demonstrated how language has been used to separate women from men in ways that assign women to lesser status. The authors brought to my consciousness the power routine language has in creating bias in how we view other human beings.
Recently Reality Check published a piece by Victoria Law and Rachel Roth: Names Do Hurt: The Case Against Using Derogatory Language To Describe People in Prison. Law and Roth remind us on the power of language to de-humanize one segment of our population.
The authors write, "The term 'inmate' is the most pervasive of these words; it is widely used by judges, prison and jail officials and staff, and the media. Far from being neutral, this word objectifies and disparages people who are imprisoned."
Desensitization is a tool for those who administer cruelty. In its extreme, administering the death penalty is difficult to manage if the man or woman killed is appreciated for their humanity. Less dramatic, but equally chilling, referring to those who are incarcerated as "inmates" disguises the mission of prisons. Traditionally we understand incarceration to serve two purposes, the first being punishment and the second rehabilitation. Most would agree that rehabilitation is at best a limited goal of most states. De-humanizing those in prison assists those who advocate punishment only and view rehabilitation efforts as luxuries to which those who are in prison are not entitled.
Once we de-humanize the population we have no reason to consider what could be done to respect the humanity of men and women in prison. Our use of culturally accepted prison language, whether unintentional or not, ties us to the conspiracy of those whose goals are punishment, no matter how cruel or counterproductive.
Friday, April 10, 2015
Orange Is The New Black's Sophia (played by LaVerne Cox) has access to hormone therapy and is assigned to a woman's prison. Reality for most transgender prisoners is quite different. For prisoners who have not had male to female surgery, chances are that they will be assigned to a male prison where their risk of violent attacks is heightened. The National Center for Transgender Equality reports that women in male prisons are thirteen times more likely to be sexually assaulted. A frequently cited California study reports that 59% of transgender incarcerated women report at least one assault. The federal Bureau of Justice Statistics reports that 40% of transgender prisoners have been sexually assaulted.
Ashley Diamond is one such prisoner. She had taken hormones for 17 years prior to entering prison in Georgia. She was nonetheless assigned to a male prison where she was promptly denied all hormone therapy because the admitting prison officials failed to note her transgender status on her intake forms. Many prisons follow a "freeze frame" policy. That is, whatever treatment the transgender prisoner was receiving at the time of incarceration would determine the level of treatment to be provided during the term of incarceration. Ashley Diamond, represented by the Southern Poverty Law Center, is suing the Georgia Prison system seeking appropriate treatment for herself as well as a change in prison policy. The Justice Department supports her lawsuit and has intervened. The Obama administration, in settlement of a lawsuit, ended the freeze frame policy in federal prisons. According to the New York Times article, the administration announced that "hormone therapy to be necessary medical care, saying Georgia, and other states, must treat “gender dysphoria” like any other health condition and provide 'individual assessment and care'."
Ms. Diamond has suffered sexual assaults and sexual harassment since her incarceration. May her bravery in filing suit result in the restoration of proper treatment.
Monday, May 12, 2014
Co-editor David Singleton updates his post chronicling recent developments on transgendered, incarcerated women:
Last month I posted about the Ohio Justice & Policy Center’s victory on behalf of Antione “Whitney” Lee, a transgender inmate who brought suit against the Ohio Department of Rehabilitation (“ODRC”) to obtain estrogen hormone therapy. At the time of my last post, OJPC had just won a TRO hearing at which a federal court judge ordered ODRC to place Ms. Lee on hormone therapy pending a preliminary injunction hearing. On May 2, 2014, after a two-day hearing, the judge granted a preliminary injunction requiring ODRC to continue to provide Ms. Lee with hormone therapy pending trial. Ruling from the bench, the court stated that the defendant, Dr. Andrew Eddy, had acted with deliberate indifference – the standard for Eighth Amendment medical claims – in denying estrogen to Ms. Lee. Click here to read the Associated Press’ coverage of the preliminary injunction ruling. At this time it is unclear whether ODRC will appeal, or whether the case will settle or go to trial.
Meanwhile in Massachusetts, Michelle Kosilek’s effort to get the Massachusetts Department of Corrections (“MDOC”) to pay for gender reassignment surgery was back in court last week. Ms. Kosilek, given the birth name Robert, is presently serving a life prison term for killing spouse Cheryl Kosilek in 1990. Earlier this year, a three-judge panel of the federal First Circuit Court of Appeals affirmed a federal district judge’s order requiring the MDOC had to perform and pay for the surgery. However, the full appeals court voted to reconsider the case and heard arguments on May 8, 2014, as reported by the Associated Press. Stay tuned