Civil Rights Law & Policy Blog

'Correctional Officer Excessive Use of Force: Civil Liability Under Section 1983'

The title of this post comes from this intriguing study recently published by the The Prison Journal, the abstract of which states:

Despite recent research demonstrating the impact of inmate perceptions of correctional legitimacy on order maintenance, the extant literature has failed to examine the contextual reality of correctional excessive use of force claims. Utilizing legal cases from the U.S. Court of Appeals and U.S. District Courts, this article examines correctional officer excessive use of non-deadly force and identifies recurring themes in these claims. Findings highlight the common occurrence of retaliatory violence, negative attitudes, failure to listen to inmate concerns, inadequate training, and an inability to decipher reliable threat cues consistently present in correctional officer use of non-deadly force claims. Suggestions for future research and policy implications are offered.

SCOTUS denies review of decision requiring California to monitor compliance with ADA by local jails

The Los Angeles Times reports today that SCOTUS has rejected California's appeal of the lower court decision requiring the state to ensure that prisoners transferred to county jails receive the accommodations required under the Americans With Disabilities Act. Under Gov. Jerry Brown's leadership, California began transferring state prisoners to local jails after the Court found that overcrowding in state prisons so burdened medical staff that they could not provide adequate medical and mental healthcare. As The Times's David Savage writes:

In 2012, the Legislature decreed that these inmates were the "sole legal custody" of county officials.

 

But last year, the 9th Circuit Court of Appeals ruled that the state retained the legal duty to make sure that prisoners who have a disability are given the "reasonable accommodations" required under the Americans With Disabilities Act, even if they are held in a county jail.

 

"These accommodations include the basic necessities of life for disabled prisoners and parolees, such as wheelchairs, sign-language interpreters, accessible beds and toilets and tapping canes for the blind," said Judge Stephen Reinhardt for the 9th Circuit. "The state is not absolved of all of its responsibility for ADA obligations as to the parolees" just because they are now held in county jails, he wrote.

 

The appeals court upheld a 43-page order by U.S. District Judge Claudia Wilken which said state officials must check with each parole violator who is sent to a county jail and has a disability. She said the state must see to it that the inmate receives the accommodations required under the law.

 

Brown and Atty. Gen. Kamala Harris appealed to the Supreme Court in March and asked for a review of the 9th Circuit's decision. It "sets a dangerous and sweeping precedent that effectively nullifies the states' 10th Amendment right to delegate powers to local governments," they said. If left standing, it would leave the state "liable for alleged ADA violations in the county jails," they argued.

 

Late last year, the state said about 26,000 parolees were being held in 200 jails throughout the state, and 1,889 of them had a disability. This number is constantly changing, they said.

 

In reply to the appeal, lawyers for the prisoners who sued the state said Brown and Harris had exaggerated the impact of the judge's order. "At its core, the injunction merely requires the state to provide disability notifications, collect disability data and issue reports to the counties," they told the court.

 

After considering the appeal last week, the court said it had denied review in the case of Brown v. Armstrong.

“It was big enough for me to put my fist in there”

...says an Arizona inmate of her untreated lower abdominal wound.

Regan Clarine had been pregnant, and the prison's medical staff attempted to induce labor. But this failed. So they performed a C-section. However, the sutures that closed the incision made during the procedure came loose hours later while Clarine was back in her cell. She allegedly went untreated for two weeks.

"It was the worst pain I'd ever been through in my life."

Al Jazeera's Abigail Leonard and Adam May report the disturbing details of what happened next: 

When she finally saw medical staff, she said they told her that she was lucky to be alive. They treated her with a wound vacuum. Then, she said, they employed an antiquated medical treatment.

 

“They decided to use sugar… like McDonald’s sugar,” she said. “They would open it and pour it inside [the wound] and put gauze over and tape it up. And I had to do that for like three weeks.”

The article continues:

Clarine’s story is one of dozens. Two years ago, Arizona privatized its prison health care system like many counties and other states have done. In a six-month investigation, America Tonight found disturbing cases of inadequate treatment, and evidence that Wexford Health Sources Inc., the first private company Arizona contracted to provide prison health care, was aware that it was violating prisoners’ constitutional rights.

 

Arizona’s system is currently run by Corizon Health, Inc., the largest private prison health care provider in the country. Now, for the first time ever, one of its former employees is blowing the whistle about its failures.

CRL&P related posts:

• Nothing like the smell of gunpowder in the morning
• Union requests changes to Texas's solitary confinement policy for death row inmates
• "Ohio Settles Federal Lawsuit, Will Cut Youth Isolation In State Prisons"
• Guards May Be Responsible for Half of Prison Sexual Assaults

Nothing like the smell of gunpowder in the morning

The controversial executions in Ohio and Oklahoma give you pause? You're questioning the justness of lethal injection? There must be a better way to kill convicted murders? No problem, says one state legislator in Utah. As the AP reports, the remedy to present injustices might come from a method of the past: 

State representative Paul Ray, a Republican from the northern city of Clearfield, plans to introduce his proposal during Utah's next legislative session in January. Lawmakers in Wyoming and Missouri floated similar ideas this year, but both efforts stalled. Ray, however, may succeed.

 

Utah already has a tradition of execution by firing squad, with five police officers using .30-caliber Winchester rifles to execute Ronnie Lee Gardner in 2010, the last execution by rifle to be held in the state.

 

Ray argues the controversial method may seem more palatable now, especially as states struggle with lawsuits and drug shortages that have complicated lethal injections.

 

"It sounds like the wild west, but it's probably the most humane way to kill somebody," Ray said.

 

Utah eliminated execution by firing squad in 2004, citing the excessive media attention it gave inmates. But those sentenced to death before that date still had the option of choosing it, which is how Gardner ended up standing in front of five armed Utah police officers. Gardner was sentenced to death for fatally shooting a Salt Lake City attorney in 1985 while trying to escape from a courthouse.

 

He was third person to die by firing squad after the US supreme court reinstated the death penalty in 1976. Other death-row inmates have opted to die by gunfire instead of lethal injection in Utah, but they are all several years away from exhausting the appeals of their death sentences, Assistant Utah Attorney General Thomas Brunker said. Ray's proposal would give all inmates the option.

CRL&P related posts:

• Missouri inmate seeks halt to his upcoming execution
• Fifth Circuit stays execution of Texas inmate alleged to be 'intellectually disabled'
• NYTimes calls for end to 'barbaric, racist' death penalty
• When victims' families defend defendants against capital punishment

Prof. Berman calls for re-examination of presumption of finality in sentencing, with implications for federal habeas corpus petitions

In his exciting new essay Re-Balancing Fitness, Fairness, and Finality for Sentences, Professor Douglas Berman considers when a criminal defendant’s final sentence—after exhausting state court appeals—may be reviewed or reconsidered by a federal court on account of “subsequent legal developments” pursuant to a writ of habeas corpus. For a writ of habeas corpus to issue, a criminal defendant must first demonstrate by clear and convincing evidence that the state court’s decision violated the defendant’s constitutionally protected rights. If there has been a constitutional violation, the defendant then must prove by “clear and convincing evidence” that the state court’s decision was contrary to constitutional law, or that its decision was unreasonable under the particular facts of the case.

The consideration of “sentence finality,” argues Professor Berman, ought to account for relevant distinctions between habeas corpus petitions for review or reconsideration of convictions and those for sentencing, a difference currently missing from finality discussions by courts and commentators.* He concludes:

I strongly believe that lawmakers and judges should be inclined to reverse the standard finality presumption [when] a defendant is challenging only his extended on-going prison sentence based on consequential new developments… Put another way, I contend that finality concerns ought to presumptively recede when a defendant challenges an extended prison term, especially if and when the relief sought is not reversal of past punishments already endured, but merely a new assessment of significant scheduled future punishments still in the offing.

To begin with, the historical record does not evidence a commitment to finality in sentencing at the time of the nation’s founding. To the contrary, early sentencing practices coupled with various provisions of the federal constitution suggest a desire that judges and correctional officials retain discretion in the imposition of sentences. In fact, the desire for finality is a relatively new phenomenon. Professor Berman observes that discretion was the norm until the 1960s when support for retributive sentencing policies began gaining popularity.

This historical reality should inform consideration of this period’s debate over the finality of criminal judgments in two critical ways: (1) because it was widely understood (and still well-accepted) that all sentences were indeterminate and subject to review and reconsideration by corrections officials, advocates stressing the importance of treating criminal judgments as final were necessarily focused only on finality of criminal convictions; and, (2) any problems or harms resulting from giving too much weight to the interest of finality for criminal convictions were necessarily mitigated by parole mechanisms which allowed reconsideration of any and all criminal sentences that might later be considered unfit or unfair based on subsequent legal or social developments.

Moreover, the conceptual justifications for finality vary depending on the nature of the defendant’s request—whether it pertains to the conviction or the sentence. As reflected by contemporary standards, whereas criminal trials demand determinations about “historical factual issues to be reflected by” the rote decision as to the defendant’s guilt or non-guilt, sentencing requires an examination of a much broader set of considerations to ensure that the outcome of this more nuanced decision reflects “just and effective punishment” for the wrongdoing. As Professor Berman explains:

Put most simply, sentence finality is a concern different in kind from conviction finality, and thus the finality balance struck for convictions, whatever its merits or flaws, should not, in modern times, be unthinkingly applied when a defendant only seeks review or reconsideration of an on-going sentence.

These historical, conceptual, and practical differences ought to affect the way courts analyze challenges to the standard finality presumption. That is, an inmate’s habeas corpus petition ought to receive less exacting scrutiny than a plea to review a conviction.

I’m no expert, but I find Professor Berman’s thesis persuasive. I’ve long been troubled by laws limiting the discretionary authority of those responsible for sentencing decisions, such as mandatory minimum sentencing, which shifts sentencing decisions from decision-makers to prosecutors.  I also worry about faith in the nonexistence of—or perhaps ambivalence to—future circumstances that might provoke just challenges to today’s sentencing decisions—e.g. the disparity in sentencing for possession of crack and powder cocaine. Professor Berman’s bifurcation of finality in convictions and sentencing seems to go a long way towards the creation of doctrine that is more responsive to the demands of justice than the current standard.

* Professor Berman also is committing a series of posts to several issues raised by his article at his renowned legal blog, Sentencing Law and Policy.

Fifth Circuit stays execution of Texas inmate alleged to be 'intellectually disabled'

Today, the Fifth Circuit stayed Texas's scheduled execution of Robert James Campbell for the 1992 rape and murder of a 20-year-old woman. Campbell's attorneys claim the state can't execute him because he's "intellectually disabled," proof of which state officials allegedly concealed. If true, according to SCOTUS precedent, the Eighth Amendment's prohibition on cruel and unusual punishments prevents Campbell's execution. As WaPo's Mark Berman and Karen Brooks Harper report:

The U.S. Court of Appeals for the 5th Circuit in New Orleans ruled Tuesday afternoon that the execution be stayed, saying that although it was regrettable that it took until “the eleventh hour” for the court to review evidence of the inmate’s intellectual disability, that was not the fault of Campbell or his attorneys.

 

“Because of the unique circumstances of this case, Campbell and his attorneys have not had a fair opportunity to develop Campbell’s claim of ineligibility for the death penalty,” Judge James L. Dennis wrote for the court. “In light of the evidence we have been shown, we believe that Campbell must be given such an opportunity.”

 

It’s unclear how long the execution will be stayed. There is no set time for the stay, said Jason Clark, a spokesman for the Texas Department of Criminal Justice.

Campbell's attorneys also have appealed Texas's secrecy as to pharmacy providing the killing drug, which purportedly presents a substantial risk that it could cause Campbell excruciating physical and mental pain. Last month, state officials halted Clayton Lockett's execution in Oklahoma after he appeared distressed, but he died of a heart attack 43 minutes after the procedure began. Unlike Oklahoma's three-drug cocktail, however, Texas only uses pentobaritral, which state officials claim has killed efficiently since its adoption two years ago.

Missouri inmate seeks halt to his upcoming execution

Death row inmate Russell Bucklew is seeking an emergency injunction to prevent Missouri from killing him. Bucklew claims he has a rare medical condition the will cause "tortuous pain" during his execution, in violation of the Eighth Amendment's prohibition against "cruel and unusual punishments." The Courthouse News Service (CNS) tells his story:

Bucklew was convicted in 1997 of first-degree murder, kidnapping, first-degree burglary, rape and armed criminal action. He shot Michael Sanders to death and then kidnapped his ex-girlfriend and raped her before being wounded in a shootout with police.

 

Later, Bucklew escaped from prison and attacked his ex-girlfriend's mother with a hammer. A prosecutor called Bucklew "a homicidal Energizer bunny" because of his persistence in going after his victims, the Southeast Missourian reported.

 

In his lawsuit, Bucklew claims he has a vascular tumor that will cause extreme pain and suffering, violating his Eighth Amendment rights, if he is executed by lethal injection on May 21.

 

"The size of Mr. Bucklew's tumor and the weakness of his distended vessels create a very substantial risk that he will suffer excruciating, even tortuous pain during an execution," the complaint states.

 

"Because the vascular tumor partially obstructs Mr. Bucklew's airway, he is at high risk of choking during an execution, particularly if distended vessels in his mouth or throat rupture and bleed. This will cause gasping and coughing that Mr. Bucklew will experience as suffocation.

 

"There is also a grave risk that, because of Mr. Bucklew's severe vascular malformations, the lethal drug will not circulate as intended, delaying the suppression of the central nervous system and prolonging the execution - which will likely cause excruciating pain to Mr. Bucklew. These risks are heightened by the use of a compounded drug, pentobarbital, in the absence of any disclosure about the drug's safety, purity and potency. In fact, the Department of Corrections will not even confirm whether the drug is subject to any laboratory testing whatsoever."

 

Bucklew claims the state has no protocol for executing a prisoner with a complex medical condition such as his, and that a qualified physician should be in the chamber for the sole purpose of reviving him if the execution is not successful. 

Lethal injection has become the topic of considerable debate since European producers of sodium thiopental withdrew the drug from the market. As a result, some states have turned to drug cocktails produced by domestic compounding pharmacies. They often keep the identity of these pharmacies anonymous, allegedly out of some concern about retaliation from anti-death penalty activists. These secrecy laws have been repeatedly challenged in court.  

The lethal injection itself has drawn considerable attention after two highly publicized executions in Ohio and Oklahoma. In Ohio, Dennis McGuirre's execution lasted 26 minutes, during which he reportedly writhed in pain and gasped for air. Oklahoma executed Clayton Lockett two weeks ago with similar results. Lockett's execution was halted by the on-site doctor after he showed signs of distress, but he died of a heart attack 43 minutes after the procedure began. Following his death, the state agreed to a six-month stay of execution for the inmate who had been scheduled for killing the same night as Lockett so that an investigation can be completed. The NYTimes recently said the United States has "no business putting people to death by any means." It described the death penalty as "barbaric, racist," and it called states' secrecy as to the providers of lethal injection drugs "cowardly."   

Missouri's lethal injection protocol is much like that of Oklahoma.  

CRL&P related posts:

• "Missouri executes inmate after Supreme Court turns down stay request"
• Oklahoma court stays executions pending challenge to state's secrecy of source of execution drugs
• Judge blocks Missouri's access to execution drug
• Union requests changes to Texas's solitary confinement policy for death row inmates
• When victims' families defend defendants against capital punishment

Oklahoma to hold first double execution in 80 years

Well, that didn't take long. Just days after staying the executions of two death row inmates, the Oklahoma Supreme Court announced on Wednesday that the inmates did not have a right to know the source of the drug cocktails that would be used to kill them. The court dissolved the stays and the inmates soon will be executed.

Today, the governor announced that the state plans to carry out the exections of Clayton Lockett and Charles Warner on the same day. According to the AP:

It's rare for multiple executions to happen in one day, with only Arkansas, Illinois, South Carolina and Texas doing so since the death penalty was reinstated in the U.S. in 1976, according to the Washington, D.C.-based Death Penalty Information Center.

 

"I think it's actually becoming less common because states have deliberately spaced things out," said Richard Dieter, executive director of the center, which opposes capital punishment. "It takes a toll on a prison and its personnel."

 

The most recent occurrence of two inmates being executed on the same day was Aug. 9, 2000, in Texas. The last time Oklahoma did it was June 11, 1937, when convicted murderers Charlie Sands and Leon Siler were electrocuted.

 

Arkansas is the only state that has executed three inmates on the same day since 1976: once in 1994 and again in 1997. In both instances, all three executions were carried out in less than three hours, according to the Arkansas Department of Corrections.

"Missouri executes inmate after Supreme Court turns down stay request"

UPDATE: SCOTUS also has reversed a lower court's decision overturning the death sentence given to a Kentucky man for the kidnap, rape and murder of a teenager in 1997. The AP reports:

Woodall pleaded guilty to kidnapping Hansen on Jan. 25, 1997, from a convenience store in western Kentucky. Woodall acknowledged that he raped the girl and slit her throat twice before taking her body to Luzerne Lake and throwing it in the water. DNA evidence, fingerprints and footprints led to Woodall.

 

A jury imposed a death sentence, but more than a decade later, a federal court found the jury instructions were flawed and overturned that sentence. The 6th U.S. Circuit Court of Appeals upheld that ruling in 2012.

 

Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito, Clarence Thomas and Elena Kagan joined Scalia's opinion reversing the appeals court.

 

To overturn a death sentence, Scalia said, Woodall had to show the decision involved an "unreasonable application" of clearly established federal law. But that standard can be met "only if the error alleged is so obvious that there could be no fairminded disagreement about its existence," Scalia said. In this case, the majority found the trial judge's decision was not unreasonable.

 

Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, said the "normal rule is that Fifth Amendment protections apply during trial and sentencing." Breyer said the high court's precedent was clear in requiring the no-adverse-inference instruction during a sentencing hearing.

---

SCOTUS has denied William Rousan's request for a stay of execution for the 1993 killing of a couple in Missouri by Rousan, his brother, and his son. After rehearsing the gory details of the crime, The Guardian reports:

Brent Rousan pleaded guilty to two counts of first-degree murder and was sentenced to life in prison without the possibility of parole. Robert Rousan co-operated with prosecutors and pleaded
guilty to second-degree murder. He served seven years in prison and was released in 2001.

 

Governor Jay Nixon declined William Rousan's clemency request Tuesday evening, clearing the way for the execution to proceed. In a statement explaining his decision, Nixon said he thought Rousan's sentence was appropriate for his alleged role as the mastermind behind the "cold-blooded plot" that led to the couple's slayings.

 

Earlier Tuesday, the US supreme court turned down Rousan's request to delay his execution.

 

Efforts to spare Rousan's life hinged an argument that has held little sway over the courts — concerns about the secrecy used to obtain the execution drug, and the possibility that a substandard drug could cause pain and suffering in the execution process.

 

Several states, including Missouri, now use compounded execution drugs purchased from unnamed pharmacies. Courts so far have allowed most executions to move forward. However, on Monday, the Oklahoma supreme court stayed the executions of two death row inmates who challenged the secrecy surrounding the process of procuring execution drugs.

 

Missouri has executed one death row inmate each month since November. Another Missouri inmate, Russell Bucklew, is scheduled for execution on May 21. Only Texas, with seven executions, has executed more inmates than Missouri's four so far in 2014. Florida has also executed four inmates this year.

Oklahoma court stays executions pending challenge to state's secrecy of source of execution drugs

The New York Times reports that the Oklahoma Supreme Court has delayed the executions of two inmates challenging the state's law protecting the identity of its source of lethal injection drugs. The inmates' attorney said they were "relieved" that the court has granted them the opportunity "to fully adjudicate the serious constitutional issues about the extreme secrecy surrounding [the state's] lethal injection procedures," while the state's attorney general called the court's decision "a constitutional crisis for our state."

The Times reports:

The case for a delay had seemed airtight to many legal experts. Last month, a state district court declared that a 2011 supplier-secrecy law, which officials said they needed to coax companies to supply scarce execution drugs, was unconstitutional. In effect, the court agreed that the condemned have a right to know how they will be put to death and to question, at least, whether the untested drug combination the state says it will use, from sources it refuses to reveal, could amount to cruel and unusual punishment.

 

The case is part of a growing legal battlenationally over secrecy in methods of execution, as traditional drugs have become scarce and states have engaged in covert scrambles to find new drug combinations and manufacturers. Oklahoma officials say they must offer secrecy because potential manufacturers fear reprisals for involvement with the death penalty.

 

The decision overturning Oklahoma’s supplier-secrecy law, made March 26 by Judge Patricia Parrish, is now under appeal. But in the meantime, Judge Parrish said, it was up to the state’s Court of Criminal Appeals to issue a stay of execution while the issue plays out.

 

The defendants applied to that court, but it asserted that under its governing statute, it had no jurisdiction because the condemned men had no pending case before their court, such as an appeal of their convictions or sentences.

 

So the lawyers appealed to the Oklahoma Supreme Court. Last Thursday, in the latest of several increasingly pointed go-rounds, the Supreme Court said that the Oklahoma Constitution gave it the authority to decide matters of court jurisdiction and that the Court of Criminal Appeals was misreading its own statute and should handle the request for an emergency stay.

 

On Friday, the criminal court responded with the bureaucratic equivalent of “mind your own business,” saying the Oklahoma Supreme Court does not have the power “to manufacture jurisdiction” in the criminal court “by merely transferring it here.”

Because sources for execution drugs have dried up, states have had to turn to compounding pharmacies subject to less government regulation for substitute drug cocktails. However, due to staunch opposition to the death penalty (and for fear that there will be nowhere else to turn for their fix), states have taken steps to ensure that these sources remain anonymous.

In an editorial earlier this year, The Times called such secrecy "cowardly" and condemned the continued use of the death penalty as "barbaric, racist and arbitrary in its application."

CRL&P related posts:

• Judge blocks Missouri's access to execution drug
• NYTimes calls for end to 'barbaric, racist' death penalty
• When victims' families defend defendants against capital punishment
• Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty
• Ohio delays execution as inmate seeks to donate organs
• Attorney: Ohio execution changes not acceptable

"Ohio Settles Federal Lawsuit, Will Cut Youth Isolation In State Prisons"

The Crime Report notes that Ohio will limit the time juvenile prisoners spend in isolation. It reports:

 

The U.S. Justice Department and Ohio officials have reached an agreement that will reduce the amount of time spent in isolation by young people in state juvenile correctional facilities, reports the Sandusky Register. Last month, federal officials filed a lawsuit asserting that youths are being held in seclusion for significant periods of time at four locations. “Numerous national studies have established that seclusion of youth with mental health disorders even for short periods of time can severely harm youth,” said the lawsuit. One youth was in seclusion for 19 days, and another for 21 days.

 

The suit asked a court to end the practice of putting youths in seclusion for long periods of time and to provide better mental health treatment. Erie County Juvenile Court Judge Robert DeLamatre said the number of youth in state juvenile correctional facilities had declined dramatically, from about 2,300 in 2001 to 500 today. Ongoing litigation over the state system probably made some judges more reluctant to send youth into the state system, he said. “Certainly the lawsuit brought a spotlight on conditions, and things in the department that may be a little invisible to [judges.] We don’t know on a day to day business how that youth is being treated,” he said.

Ga. Supreme Court says inmates have right to petition for use of law library

The Georgia Supreme Court today shook its head at a trial court's recent denial of an inmates right to petition for the use of a law library. The AP reports:

A Georgia Supreme Court ruling reinforces inmates' rights to access prison libraries and legal assistance.

 

In an opinion released Monday, the high court says a trial court erred when it barred an inmate from filing a petition to force prison officials to give him access to a law library.

 

Waseem Daker was convicted in 2012 of stabbing and strangling a woman and stabbing her 5-year-old son. He was sentenced to nearly 50 years in jail.

 

He has requested a new trial and said he plans additional legal action. He complained to prison officials about his lack of access to legal materials.

 

The trial judge said his petition was frivolous and wouldn't allow it to be filed. The high court says the trial court must allow the petition to be filed.

Judge blocks Missouri's access to execution drug

Missouri will have to wait to receive the drug cocktail for its upcoming execution until at least next week. Ohio recently employed the same drug--compounded pentobarbital--in the execution of Dennis McGuire on January 16, which lasted 26-minutes. Ohio Gov. John Kasich (R) has since delayed the state's next scheduled execution until the Department of Rehabilitation and Correction completes its review of McGuire's execution.

As The Guardian reports:

A US federal judge has temporarily blocked an Oklahoma compounding pharmacy from selling a drug to the Missouri department of corrections for use in an upcoming execution.

 

The restraining order was issued in a lawsuit filed a day earlier in US district court by the Missouri death row inmate Michael Taylor. His attorneys allege that the department contracts with the Apothecary Shoppe to provide the drug set to be used in Taylor’s 26 February lethal injection.

 

The lawsuit argues that several recent executions involving the drug, compounded pentobarbital, indicate it will likely cause Taylor “severe, unnecessary, lingering and ultimately inhumane pain”.

 

In his order on Wednesday Judge Terence Kern wrote that Taylor’s attorneys submitted “facts demonstrating that immediate and irreparable injury, loss, or damage will result to plaintiff before defendant can be heard in opposition”.

 

The judge set a hearing for Tuesday and ordered the pharmacy to submit a response to the injunction by Friday. He said the order would remain in effect at least until the hearing.

 

It was not immediately clear if the execution would be delayed because of the ruling. The state has not revealed the name of the compounding pharmacy supplying the drug and the Apothecary Shoppe previously declined to confirm or deny that it was the source of a drug used in an earlier Missouri execution.

CRL&P related posts:

• Union requests changes to Texas's solitary confinement policy for death row inmates
• NYTimes calls for end to 'barbaric, racist' death penalty
• When victims' families defend defendants against capital punishment
• Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty
• South Carolina Is Still Defending Its Neglectful Prisons

When victims' families defend defendants against capital punishment

In When Victims Speak Up in Court--in Defense of the Criminals, The Atlantic's Andrew Cohen writes about the difficulties faced by prosecutors and judges when victims--or victims' families--defend defendants against the state's pursuit of certain punishments. In particular, Cohen examines the ongoing Colorado murder case in Colorado v. Montour in which the victim's family opposed the death penalty for the defendant. Cohen explains:

The last time [the defendant] faced trial for [the victim's] death, the victim's family supported the death penalty as an option. Not this time. This time, having educated themselves about capital punishment, and better understanding the nature of [the defendant's] mental illness at the time of [the victim's] death, the [the victim's family] have been vocally, stridently, ceaselessly against the imposition of death in this case. Earlier this month, for example, as potential jurors in the...case were lined up outside the courthouse waiting to learn about the case for which they were summoned, the [victim's family] picketed the line and pleaded with [the prosecutor] to spare their son's killer.

 

Episodes like this -- and the media attention they inevitably generated -- prompted....the prosecutor in the Montour case[] to remove the family  from his preliminary list of witnesses to be called during the sentencing of the case. And that removal, in turn, has prompted [the defense] attorneys to ask the trial judge in the case to allow the [victim's family] to testify during sentencing. That prompted an aggressive response from [the prosecutor], arguing that Colorado's victims' rights laws don't apply to "mitigating" factors during sentencing but only to "aggravating factors." And that is where we stand today.

Capital punishment, of course, likely will subsume much of this controversy (perhaps at the expense of other much needed sentencing reforms), especially as questions as to its propriety have re-emerged  nationally after the shameful Ohio execution that lasted 26 minutes. The executed man's family now is suing the state for its alleged violation of the Eighth Amendment's prohibition on "cruel and unusual punishment." Meanwhile, several state senators have called for the reinstatement of firing squads in executions. Given these developments, Cohen's article is a particularly compelling read. It begins:

One of the most profound changes in criminal justice over the past 40 years has been the rise of the victims' lobby. Essentially shut out of the core of the process until the 1970s, the victims' rights movement today can cite legislation from sea to sea, chapter and verse under both federal and state laws, that broadens the rights of victims to participate in the trials of those accused of harming them or their families. The Department of Justice's 2012 "Attorney General Guidelines for Victim and Witness Assistance," for example, totals 66 pages and barely scratches the surface of what similar state guidelines reveal.

 

The immutable trio that once existed in criminal cases— judge, prosecutor, and defendant—now almost always resembles a quartet. Victims have a voice—and they use it. All 50 states now allow some form of "victim impact statement" at sentencing. Because such statements are often so compelling to jurors, defense attorneys frequently seek ways to blunt their impact. But these efforts almost always fail. Even judges who are sympathetic to the constitutional rights of defendants, who fret about the prejudicial impact of victim testimony, say they are bound by legislative declarations broadening the scope of victim participation in criminal cases.

 

But a pending Colorado case raises a profound question that few judges (or prosecutors or jurors) ever have to confront: What happens when the victims of violent crime seek to speak out on behalf of the defendant and not the state? What happens when the family member of a murder victim seeks leave to beg jurors at sentencing to spare the life of the man who killed their son? What responsibility does the prosecutor have in that case? What obligations do the courts have? Do victims' rights sound only when they favor the government and the harshest sentence, or do they sound as well when they cry out for mercy?

 

So far, the prosecutor in the case, Arapahoe County District Attorney George Brauchler, has answered those questions clearly: He wants to block one couple's efforts to speak out against the death penalty for the man who murdered their child. Brauchler has filed a motion in a pending case seeking to bar Bob and Lola Autobee from participating in the sentencing phase of the trial of Edward Montour, their son's killer. The law only guarantees the rights of victims to "discuss the harm that resulted from the crime," Brauchler argues. But I haven't been able to find a single victims' right advocate who believes that's true.

CRL&P related posts:

• Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty
• South Carolina Is Still Defending Its Neglectful Prisons
• There's an alarming number of deaths in US jails

Guards May Be Responsible for Half of Prison Sexual Assaults

Last week, the Bureau of Justice Statistics (BJS) released this three year survey finding that the number of inmates reporting sexual abuse by prison and jail staff is growing--up more than 10 percent since its last survey. Of course, increased reporting could be the result of other systemic factors unrelated to the actual frequency of such crimes by correctional officers--e.g. improved complaint procedures and education about inmates' rights. But, as ProPublica's Joaquin Sapien reports, the survey's findings cast doubt as to the true efficacy of alerting correctional officers of allegations of sexual abuse--which, in turn, raises questions as to the likelihood that inmates would expose themselves to reporting processes quite possibly operated by those whose abuse caused the need for reporting in the first place. The title of this post comes from that report, which explains:

[E]ven in the rare cases where there is enough evidence to prove that sexual abuse occurred, and that a correctional officer is responsible for it, the perpetrator rarely faces prosecution. While most prison staff shown to be involved in sexual misconduct lost their jobs, fewer than half were referred for prosecution, and only 1 percent ultimately got convicted.  

 

Roughly one-third of staff caught abusing prisoners are allowed to resign before the investigation comes to a close, the report concludes, meaning there’s no public record of what exactly transpired and nothing preventing them from getting a similar job at another facility.

 

“These findings point to a level of impunity in our prisons and jails that is simply unacceptable,” said Lovisa Stannow, Executive Director of Just Detention International, a prisoner advocacy group in California. “When corrections agencies don’t punish or choose to ignore sexual abuse committed by staff members— people who are paid by our tax dollars to keep inmates safe— they support criminal behavior.”

 

The lack of punishment may deter inmates from reporting. When the Justice Department has surveyed inmates directly, as opposed to the administrators that oversee them, the reports of abuse have been far greater. A 2013 survey estimated that more than 80,000 prisoners had been sexually victimized by fellow inmates or staff over a two-year period, roughly five times the rate reported by administrators.   

 

“Inmates don’t report because of the way the institution handles these complaints: they’re afraid if they do report, then the staff will retaliate,” said Kim Shayo Buchanan, a law professor at the University of Southern California who studies the issue. “Even if you report and they believe you, which they probably won’t, the most likely thing to happen is that the person will be suspended or maybe fired.”

 

Calls for comment to the Federal Bureau of Prisons and the Association of State Correctional Administrators weren’t immediately returned.

CRL&P related posts:

• The Normativity of Using Prison to Control Hate Speech: The Hollowness of Waldron's Harm Theory
• Community based-mediation between youth offenders and their victims?
• There's an alarming number of deaths in US jails
• Imprisonment and Disenfranchisement of Disconnected Low-Income Men
• South Carolina Is Still Defending Its Neglectful Prisons

South Carolina Is Still Defending Its Neglectful Prisons

Andrew Cohen's post today at The Atlantic lambastes South Carolina's "immoral appeal" of this recent decision in which the judge found that the state's prison conditions violate the state and federal Constitutions' protection against "cruel and unusual punishment."  Cohen says "the state's motion is
remarkable for the assertions it makes that directly contradict the evidence in this case"; and, he later declares that the state's "assertions [on appeal] turn on their head the entire edifice of American law[.]" The title of this post comes from his piece, which begins:

Over the objections of the state's best editorial writers and some of its leading legislators, South Carolina has chosen to fight a recent court order declaring its prisons to be unconscionable (and unconstitutional) dens of abuse and neglect for mentally ill inmates housed there. Lawyers for the state filed a motion Tuesday with Judge Michael Baxley, the link to which can be found here, asking him to "alter or amend" his January 8th order in which he found that...

 

… inmates have died in the South Carolina Department of Corrections for lack of basic mental health care, an hundreds more remain substantially at risk for serious physical injury, mental decompensation, and profound, permanent mental illness.

 

The motion will be denied, as it should be, and then the legal dispute over the treatment of the inmates will move to the state's appellate courts. The process will take years. It will cost a great deal. And so long as state officials are litigating the matter, and proclaiming themselves aggrieved by the rule of law, there is little reason to think that the wretched lives of the inmates will be rendered any safer. They will instead remain citizens with grand rights but no remedies.

Imprisonment and Disenfranchisement of Disconnected Low-Income Men

The Urban Institute has this issue brief describing the disparate impact mass incarceration has had on African Americans and Hispanics. The title of this post comes from that brief, the abstract of which states: 

Incarceration rates have risen over time and vary by race and ethnicity, reflecting changes in federal and state crime policies over the past few decades. In 2011, African American men were six times more likely and Hispanics nearly two and half times more likely to be imprisoned than white men. This brief summarizes some of the disparate impacts these policies have had on African American and Hispanic men and the consequences for their families and communities.

There's an alarming number of deaths in US jails

The Guardian had this disturbing article early this week about the number of people who have died while in the custody of United States jails. The title of this post comes from the article, which begins:

Kyam Livingston begged for help. After seven hours of lying on the floor of a jail cell, the 38-year-old mother of two died, her calls unheeded by the correction officers providing security for the approximately 15 female inmates at Brooklyn "central booking" jail this past summer, according to witnesses and court documents.

 

Witnesses told the family that she had died in the cell among fetid conditions before she was taken to Brooklyn Hospital Health Center on 21 July 2013 where Livingston was pronounced dead at 6:58am, according to police reports. A witness, registered nurse Aleah Holland, told The Daily News, that police at Central Booking ignored her complaints of stomach pains and diarrhea. She said that when she and other inmates banged on the bars calling for help, officers told them Livingston was an alcoholic.

 

No one knows what happened, and no one wants to say. The NYPD told the family that she died of a seizure, but her family says she never suffered from seizures. This October the family sued the city, the NYPD, and the Department of Corrections in an effort to force systemic change and "responsibility" for her death.

 

Livingston was one of the few hundred jail deaths that happen across the country. In 2011, (the latest available numbers) 885 inmates died(pdf) in the custody of local jails, the Justice Department's Bureau of Justice Statistics reported. Notice I said jails. These are different from prisons. Prisons are for people who have been convicted of a crime and sentenced. There are roughly 3,000 jails nationwide and each facility is set up to process people that have been arrested before they are arraigned or go to trial. Some will serve a misdemeanor sentence (of under a year). The majority will be let go because the charges against them won't stick as they move through the legal system. Others will remain in jails while waiting to go to trial too poor to make bail – yet to be convicted of anything. Regardless, they will be treated as criminals.

Also on CRL&P: How much does a public defender need to know about a client?

CRL&P Daily Reads: Dec. 20, 2013

New Mexico legalizes same-sex marriages; could Indiana be the next state to do so? Ohioans are split on the issue; and, Texas gubernatorial candidate invites gay people to support his campaign even though 'anyone who participates in that activity' should be executed.

But, executions in U.S.  reach the lowest point in 40 years; while heat on death row in Louisiana prison is cruel and unusual.

Pennsylvania woman files a federal lawsuit alleging the county sheriff prevented her from whistleblowing against local ambulance services; Miami Gardens PD face a civil rights lawsuit alleging a pattern of Fourth Amendment violations; and, former Des Moines officer faces civil rights charge for kicking a detainee in the head.

NPR asks whether NSA task force report went far enough; some say it increases the likelihood of reform; and, privacy groups urge immediate changes.

Texas's new voter registration cards riddled with errors.

 

Community based-mediation between youth offenders and their victims?

In Reducing Incarceration for Youthful Offenders with a Developmental Approach to Sentencing, Professor Samantha Buckingham argues that a community-based sentencing scheme would better serve youth offenders--and society at large--than our currently unsophisticated and inefficient one. Here's the abstract:

Current sentencing practices have proven to be an ineffective method of rehabilitating criminal defendants. Such practices are unresponsive to developmental science breakthroughs, fail to promote rehabilitation, and drain society’s limited resources. These deficiencies are most acute when dealing with youthful offenders. Incarcerating youthful offenders, who are amenable to rehabilitative efforts, under current sentencing practices only serves to ensure such individuals will never become productive members of society. Drawing on the author’s experiences as a public defender, studies in developmental psychology and neuroscience, and the Supreme Court’s recent line of cases that acknowledge youthful offenders’ biological differences from adult offenders, the author proposes a restorative-justice approach to replace current sentencing practices. This solution includes tailoring a youthful offender’s sentence to his or her developmental level and offering a community-based mediation between victims and offenders. The proposal counteracts a major deficiency of current sentencing practices — the failure to offer youthful offenders an opportunity to truly understand their crimes. Only by providing an opportunity to learn from an offense will a youthful offender be in a position to rehabilitate. This Article responds to possible critiques of the proposal, including concerns about the ability to accurately measure the success of a restorative-justice sentencing model, the fear of implicating the offender’s Fifth Amendment right against self-incrimination, and the cost of implementing mediation-based efforts. Ultimately, this Article determines that a developmentally appropriate, community-based sentencing scheme — with restorative justice overtones — best addresses the unique situation youthful offenders find themselves in. A sentence for a youthful offender should — indeed, must — present meaningful opportunities for the youthful offender to rehabilitate, and age-appropriate sentences grounded in restorative-justice principles will do this effectively.

CRL&P Daily Reads: Dec. 11, 2013

NSA takes advantage of 'cookies' used for advertising to track surveillance targets.

Federal judge rejects California AG's request for dismissal in case challenging law requiring 10-day waiting period for gun owners.

Cruel and unusual punishment suit after prisoner placed in solitary confinement for one month could cost taxpayers.

American man claims discrimination after the California Department of Corrections denied him a job because he had previously used a false SSN, while in Illinois this guy still has a job.

Amendment aimed at protecting sexual assault victims scrapped as Congress passes the National Defense Authorization Act.

Bill introduced in the Senate to eliminate state laws regulating the sexual activity of people with HIV.

Chinese Law Prof is expelled for criticizing China's one-party government.

Man convicted of a hate crime after attacking a Sikh cab driver to serve more than three years in prison. 

And, a six-year old is suspended after kissing a classmate on the cheek. I wonder if he would have received similar punishment if had hit her.

 

CRL&P Daily Reads: Dec. 10, 2013

Allegedly illegal strip searches in Milwaukee jail could cost the city millions; man acquitted of drug charges files a civil rights suit against FBI alleging malicious prosecution; police face civil rights suit after officer pleads guilty to child porn; jail staff knew diabetic woman in their care needed insulin perhaps days before she died; Miami Gardens police allegedly used excessive force and denied medical treatment to arrestee; and, man was killed by a police officer who had accidently been tased by another officer.

Atlantic says Obama misled MSNBC's Chris Matthews on NSA surveillance; Guardian reflects on how the debate over surveillance has changed since Snowden's leaks; Nobel-winning writers say NSA surveillance is compromising freedom; Bill Clinton worries about the NSA's collection of economic data; and, NSA makes tech companies worry about profits.

Federal judge holds journalists have no constitutional right to be embedded with military; and, ACLU says prison officials violated the First Amendment by denying reporters access to prisoners after a riot.

Gun manufacturers doing better than before Newtown.

Same-sex couples race to challenge Texas's same-sex marriage ban; and, this graph shows geographical online efforts to promote gay-rights.

 

CRL&P Daily Reads: Dec. 9, 2013

Senate likely to extend ban on plastic guns, but nexus of gun-control debate has shifted to the states; and, four of five members of the city council in rural Rhode Island town face recalls after recommending changes to process for issuing concealed weapons permits.

Obama about ready to announce changes to NSA surveillance program; major tech companies submit open letter to Obama and Congress demanding new limits on NSA's freedom-harming surveillance; Snowden might testify before the EU Parliament's committee on civil liberties; local law enforcement is using software in NSA-style monitoring of cellphone data, and here's how it does it; and, Sen. Paul calls for a renewed commitment to the Fourth Amendment.

Rutger's basketball player alleges civil rights violations against former coach for allegedly repeated verbal and physical abuse; and, New Orleans settles civil rights lawsuit alleging man was falsely arrested and held for five months.

Editorial lambasts New Mexico prison for placing 71-year-old in solitary confinement for one month on suspicion of bringing meth into the facility.

Internet companies speak out against former Cincinatti Bengals cheerleader's defamation suit after federal judge allows it to proceed.

Lexington facing protests after booking for its New Years Eve party a DJ who previously ran a revenge porn site.

 

CRL&P Daily Reads: Dec. 8, 2013

Milwaukee to file civil rights complaint against company that lost a flashdrive containing employees' personal information; and, DOE will not file civil rights complaint after a report finds rampant cheating in El Paso schools. 

Virginia officials making preparations for new voter ID law.

Colorado baker must serve same-sex couples, Judge says.

Reason.com highlights three important on-going Second Amendment cases.

RAND Corp. has this cool infograph explaining why prison-based education programs are cost effective.

Virginia Restaurant owner says he can take video of customers using the bathroom.

 

CRL&P Daily Reads: Dec. 7, 2013

Federal court hears case alleging the heat on death row in a Louisiana prison is unsafe; civil rights lawsuit filed alleging that a diabetic inmate died because the prison failed to provide adequate medical care; and, civil rights lawsuit alleges the police in a Miami suburb targeted African-Americans.

Fourth Circuit orders gun found on a convicted felon suppressed because it was obtained during an illegal search.

Americans are more deeply divided on gun policy than before Newtown; Plain Dealer columnist contrasts Newtown parents efforts to keep children safe from guns with those of gun-rights activists; and, Georgia man mistakingly kills a man suffering from Alzheimer's.

Iowa Supreme Court upholds law banning non-residents from hunting on property that they own.

Amish girl refuses chemo.

Panel discusses 'Who's afraid of free speech' at Newseum; and, South Carolina sheriff refuses to lower flag to honor Mandela.

 

Woman sues officer who repeatedly applied mace to her genitals

The title of this post comes from this Raw Story article reporting that a New Mexico corrections officer used cruel and unusual punishment when she allegedly sprayed mace on an arrestee's genitals. Here's the story:

Last week, the American Civil Liberties Union of New Mexico filed a federal lawsuit on behalf of Marlene Tapia against Blanca Zapater, the corrections officer that Tapia alleges subjected her to cruel and unusual punishment while violating her right to due process.

According to the suit, on November 22, 2011, Zapater was arrested on a suspected parole violation. During a routine strip search, Zapater and another corrections officer “observed a plastic baggie protruding from Ms. Tapia’s vagina.”

Instead of asking her to remove the package, Zapater allegedly “sprayed a chemical agent directly on Ms. Tapia’s genitals twice,” despite the fact that “Ms. Tapia was not using or attempting to use any force against the corrections officers.”

The suit claims that this spraying “served no purpose other than to punish” and “would not cause the baggie to become dislodged.” The effects of the application of this chemical agent lasted for several weeks and included “burning, swollen genitals, painful urination, and pain and burning on Ms. Tapia’s face.”

The ACLU is seeking punitive damages, to be determined by a jury, for these alleged violations of Tapia’s Eighth and Fourteenth Amendment rights.

(h/t Jonathan Turley)

CRL&P Daily Reads: Nov. 24, 2013

NSA director doesn't really want to give the FBI and DEA access to surveillance data.

Abortion clinic owner in Mississippi fights to keep her facility open.

Federal appeals court upholds ruling requiring changes to NYC's stop-and-frisk policy.

Decades-long civil rights dispute over Little Rock schools could be nearing its conclusion.

Federal lawsuit over the use of Tasers by prison guards alleges 'callous and sadistic' constitutional violations.

Atlantic City PD face another civil rights suit alleging excessive force.

 

CRL&P Daily Reads: Nov. 23, 2013

NSA actually sought to expand surveillance program.

Montgomery Advertiser calls for more ballot access for minor party candidates; PolitiFact calls North Carolina governor's claim that Democrats 'agree' with voter ID law 'mostly false'; and, Plain Dealer column argues that Ohio election reforms should not include photo ID.

Wisconsin Court of Appeals will not block probe into campaign spending and fundraising during this month's elections.

Inmate charged with double murder files a hand written civil rights lawsuit alleging unduly harsh prison conditions and First Amendment violations.

Seattle PD settle a civil rights suit for an illegal search resulting in arrest of ex-felon for illegally possessing a firearm.

Wilmington PD 'stop-and-frisk' policy challenged.

Philadelphia bans 3-D printed guns.

 

CRL&P Daily Reads: Nov. 18, 2013

SCOTUS will not hear privacy group's challenge to NSA's collection of telephone information from Verizon customers; however, two lower courts will hear challenges to NSA's program; and, The New Republic explains how German support for granting asylum to Snowden could have an impact in NYC.

Federal judge schedules case over Texas's voter ID law for September 2014; another federal judge hears closing arguments in the case over Wisconsin's voter ID law; Alabama's voter ID law will be enforced; and the Atlanta Daily World says black voting rights are at a crossroads.

Muslim woman files a civil rights lawsuit alleging that co-workers at The New School in NYC harassed and discriminated against her.

Iowa Supreme Court decides to allow a man wrongfully convicted of sexual abuse to proceed with his wrongful imprisonment claim.

Texas school district will allow a picture in the school's yearbook of a transgender teen dressed in a tuxedo.

Cheney sisters spar over same-sex marriage on Facebook.

 

Ohio delays execution as inmate seeks to donate organs

The title of this post comes from this fascinating story about a death row inmate whose execution was delayed so that he could donate organs to his mother and sister. The story is particularly interesting because of the tension between the state's interest in administering justice and the benefit to the would-be recipients of inmates' organs. Here are the details:

Ronald Phillips, 40, was set to be executed Thursday for the 1993 murder of Sheila Marie Evans – the three-year-old daughter of his girlfriend.

Ohio Governor John Kasich rescheduled the execution for July 2, 2014 to allow the time needed to determine if Phillips can donate “non-vital” organs such as a kidney prior to his execution.

"I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues then we should allow for that to happen,” Kasich said in a statement.

Phillips had initially requested that his organs be harvested after his death by lethal injection.

His mother has kidney disease and his sister has heart problems, but he said he wanted to donate his organs to “as many people as possible.”

 

CRL&P Daily Reads: Nov. 9, 2013

Authorities in New Mexico face another lawsuit over allegedly illegal body-cavity searches, as do police in Milwaukee.

Medical marijuana distributor files a civil rights lawsuit alleging that authorities targeted him for his "outspoken advocacy" of local taxation of medical marijuana.

Same-sex marriage will be legal in Hawaii when the governor signs legalization bill into law later this week.

Guardian editor will face questioning by British lawmakers for publication of NSA leaks.

3-D printer makes gun, raises production concerns.

Singapore blocks popular adulturey website.

 

CRL&P Morning Reads: Nov. 6, 2013

Supreme Court scheduled to hear arguments over the constitutionality of prayer at public meetings.

Federal judge rules that protesters may occupy state property indefinitely.

Advocates likely to start pushing for adoption rights for LGBT couples.

Does ENDA support demonstrates the evolution of the GOP on LGBT issues?

AG Holder continues advocacy for criminal justice reform at prisoner reentry group's event.

 

CRL&P Daily Reads: Nov. 5, 2013

Illinois House takes up gay marriage bill, and the U.S. Senate prepares to pass ENDA.

California children apparently see nothing wrong with gay marriage.

U.S. Senate takes up bill to provide more protection for sexual assualt victims in the military; The Atlantic says "[silent] epidemic" of domestic abuse in same-sex relationships requires more research; and The Week considers the utility and advisability of wearing anti-rape underwear.

TX Attorney General sues EEOC because the agency's hiring guidelines allegedly prohibit the state from denying certain jobs to former felons.

Excited dispute over TX voter ID law erupts at local county court.

Reuter's columnist laments GOP's continued efforts to block federal judicial appointments.

 

US Supreme Court rejects Killen's appeal for new trial in 1964 'Mississippi Burning' slayings

The Supreme Court has rejected the appeal of a man found guilty of killing three civil rights workers in 1963, a crime for which he was not convicted until 2005. The title of this post comes from this article from the Associated Press, which states:

The U.S. Supreme Court has rejected the appeal of Edgar Ray Killen, convicted in 2005 for the 1964 slayings of three civil rights workers in Mississippi.

The court ruled Monday that it won't review lower-court rulings that found no violations of Killen's constitutional rights during his trial in Mississippi.

Killen, now 88, was convicted of manslaughter 41 years to the day after the slayings of Michael Schwerner, James Chaney and Andrew Goodman. He is serving 60 years.

On June 21, 1964, Schwerner, Chaney and Goodman disappeared in Neshoba County. The FBI found their bodies buried in an earthen dam Aug. 4, 1964, in what became known as the "Mississippi Burning" case.

 

CRL&P Daily Reads: Nov. 2, 2013

Employment Non-Discrimation Act (ENDA) has bipartisan support in the Senate, but It's unlikely to come up for a vote in the House. Since Supreme Court struck down parts of DOMA, gay rights activists have increased efforts in state legislatures and courts.

Snowden claims the U.S. 'seeks to criminalize political speech' and says he wants to testify before Congress.

Alabama inmate alleges that warden ignored assaults and rape.

Texas court strikes down ban on sexually explicit online conversations with minors as unconstitutionally overbroad.

 

CRL&P Daily Reads: Nov. 1, 2013

Pro Publica breaks down the effects of the Supreme Court's decision in Shelby County v. Holder.

ABC breaks down the legal case surrounding Texas's abortion law, while a third of the state's clinics close down.

At University of North Texas, students sign petitions to get rape-kit access.

Gay rights groups protesting the movie adaptation of a book written by author who opposes same-sex marriage, and a Hawaii lawmaker receives a death threat for supporting same-sex marriage.

Iowa governor rejects clemency for eight female prisoners.

NPR asks whether race affects stand your ground laws.

 

Attorney: Ohio execution changes not acceptable

The title of this post comes from this report from the AP about one attorney's challenge to Ohio's new lethal injection cocktail. The article begins:

A death row inmate sentenced to die for raping and killing a 3-year-old girl was expected to testify at a hearing in federal court Friday as his lawyers challenge the state's new, never-tried lethal injection system.

Attorneys for condemned killer Ronald Phillips want a federal judge to delay Phillips' Nov. 14 execution while they gather evidence as part of their lawsuit against the two-drug process.

The Ohio Department of Rehabilitation and Correction announced a new execution policy last month and said Monday that it would use that system's second option: a combination of a sedative and painkiller never tried before in a U.S. execution.

Phillips' attorneys say the department's announcements came too close to the execution date to allow a meaningful challenge. The state says nothing is substantially different about the new system.

 

Charges filed against Skokie officer in videotaped jail cell incident

Earlier this month, CRL&P noted that a woman from Illinois had filed a civil rights lawsuit after a Skokie police officer shoved her face-first into a jailcell bench, causing serious injuries. Today, The Chicago Tribune reports that the police officer has been charged with aggravated battery and official misconduct. The title of this post comes from the article, which begins:

A Skokie police officer caught on video shoving a woman into a cell bench had become irate after she wouldn't look into the camera for her booking photo, according to prosecutors who have charged the officer with aggravated battery and official misconduct.

Officer Michael Hart pushed Cassandra Feuerstein so hard that it broke her eye socket, cut her cheek and loosened her teeth, prosecutors said. She needed reconstructive surgery to place a titanium plate in her cheek and still suffers vision problems and numbness in her face, her attorney said.

The charges came after Feuerstein's attorney, Torri Hamilton, filed a federal lawsuit this month alleging police brutality in the case and released a police video of the incident that attracted widespread attention on the Internet.

Cook County State's Attorney Anita Alvarez announced the charges Wednesday, saying her office takes the case "very seriously."

"It's pretty clear that he stepped over the line," Alvarez said. "Obviously (police officers) are there because of the public trust. ... It's a sad day when we have to announce charges against a police officer."

CRL&P Daily Read: Oct. 29, 2013

Bill before Ohio House would let nursing home patients set up hidden cameras to document poor treatment.

Sen. Portman paid prominent pollster to assess the effects of his new position on gay-marriage after his son announced that he was gay, and former Supreme Court Justice O'Connor performs same-sex wedding ceremony.

Support for the death penalty reaches its lowest point in more than fifty years.

Plain Dealer editorial argues for keeping convicted felons closer to home.

Al Sharpton and Barney's CEO have a productive meeting discussing recent racial profiling allegations, but that might not be enough for NY Attorney General.

Several hundred protesters denounce the killing of 13-year-old by FBI agent

 

A bid to keep youths out of prison

The title of this post come from this article from The New York Times about recent efforts by states to pass legislation aimed at reducing the number of youth defendants charged as adults. The article begins:

James Stewart died alone.

The 17-year-old from Denver had committed a terrible act: while driving drunk, he slammed into another vehicle head on and killed its driver. Initially placed with other juvenile offenders, he was moved to the county lockup after the district attorney charged him as an adult. Left alone in his cell despite his frantic pleas to be with others, he tightened his bedsheets around his neck and killed himself.

His death, in 2008, was one of two suicides by young people in Colorado jails that helped spur a significant change in state law last year by narrowing the authority of prosecutors to charge juveniles as adults and to place them in adult jails, part of a wave of such laws nationwide.

In a reversal of the tough-on-crime legislation that swept the nation in the late 1980s and ’90s, nearly half of the states have now enacted one or more laws that nudge more young offenders into the juvenile justice system, divert them from being automatically tried as adults and keep them from being placed in adult jails and prisons.

 

Lunchtime Links

NPR: Take This State And Shove It: The New Secession Movement

Politico: N.Y. Times rejects Banksy op-ed

USA Today: Putin: No discrimination against gays at Olympics

ABC News: Reports of abuse at South African prisons

Reuters: Cameron says may act against press over spy leaks

 

The Normativity of Using Prison to Control Hate Speech: The Hollowness of Waldron's Harm Theory

The title of this post comes from this recent article arguing that imposing prison sentences for hate speech is disproportionate to the harm stemming from such speech, and as a result is an injustice to the speaker. Here is the abstract:

We question the justice of using prison sentences to control hate speech. It is argued that prison sentences should be used only to deter offensive and hateful speech that harms others. However, the harm requirement cannot be satisfied merely by demonstrating theoretical harm in the abstract, as Jeremy Waldron does in his recent book. Instead, factual harm has to be demonstrated because prison is in fact very harmful for the expresser of the offensive and hateful speech. There is noting wrong with penal measures being used to deter this kind of speech, but harmful prison sentences should not be used to deter harmless speech. Waldron asserts that the United States should follow the British model, among others, of using prison to control and chill free (hate) speech. Waldron wants a model of unfree speech for some. We aim to show that the United States should resist enacting hate speech laws similar to the unjust laws found in Britain, where people have received long prison sentences for uttering offensive and hateful thoughts. To use prison sentences is to use a sledgehammer to crack a walnut: it is a grossly disproportionate and unjust penal response. Particular issue is taken with Waldron’s harm theory. The core element of the paper is the Waldron debate, because the type of vacuous harm theory he puts forward has the potential to be used by lawmakers to justify unjust penal responses such as harmful prison sentences for harmless (even though grossly offensive) speech.

 

CRL&P Morning Reads: Oct. 24, 2013

Opponents of Illinois gay-marriage bill rally at the Capitol to urge lawmakers to vote against it. The Chicago Tribune reports that the bill is unlikely to come up for a vote. 

The Supreme Court will re-examine mental disability standards used to determine eligibility for death penalty.

Gov. Jindal condemns DOJ for denying request of four families to join state as defendants in civil rights case.

Des Moines Register editorial questions interrogations by state troopers during traffic stops.

In Iowa, former state employees allege "culture of discrimination and retaliation" in the workplace.

The Atlantic documents Sen. Wyden's efforts to reform the NSA's surveillance program.

Glenn Greenwald speaks with Newsweek about NSA leaks, governmental abuse of power, and future plans.

Sen.-elect Booker says he looks forward to working with Sen. Paul and others on reforming drug laws.

 

CRL&P Daily Reads: Oct. 23, 2013

Law professor claims he was retaliated against for reporting sexual harassment of students and staff

Ohio S.Ct. rules that governor's pardon does not automatically seal records of the crime

Chicago Tribune editorial calls for state lawmakers to vote on legalizing same-sex marriage

NYPD face civil rights lawsuits in shootings of three emotionally disturbed people

How much does a public defender need to know about a client?

Andrew Cohen asks today at The Atlantic. Cohen reviews the N.J. Supreme Court's recent ruling in State v. Terrence Miller, a decision in which the court ruled that a criminal defendant's right to counsel under the 14th Amendment does not require very competent counsel. Cohen calls the court's decision "one of the most indefensible I have ever read." Here's how it begins:

Earlier this month, the New Jersey Supreme Court issued a ruling in a case that didn't generate much publicity in the Garden State or anywhere else. It was just another opinion, about another indigent criminal defendant whose case was processed through a justice system that was relentlessly more concerned with efficiency than with justice. Sadly, it's not big news today when our nation's judges permit a person's fair trial rights to be violated in a way that both shocks the conscience and violates the Constitution.

In State v. Terrence Miller, four justices of the state supreme court—over a lone dissent—affirmed the conviction of a man indicted on drug charges who met his lawyer for the first time for a few minutes in a stairwell at the courthouse on the morning of trial. The lawyer had not tried a criminal case in seven years and had been appointed to Miller's case only four days before trial. He never spoke to any witnesses, or to Miller's former attorney, or to investigators in the public defender's office. He didn't know what his client would say on the witness stand.

Twice, the defense attorney asked the trial judge for a continuance so that he could adequately prepare for trial. Twice, the trial judge refused the request even though there were other cases he could have tried during that time. He had his docket schedule to worry about, the judge said, and the case was not complex. The judge was frustrated, court records revealed, with the "higher ups" in the public defenders office. He thought they were trying to play him. Lost in the middle of this turf war was Miller. He bore the brunt of the judge's frustration.

To their credit, prosecutors did not oppose the adjournment, but of course they did not complain when it was denied by the judge. The trial proceeded. Miller never had a chance to present his best defense, whatever it was, and was quickly convicted. All of this, the state supreme court declared, satisfied the defendant's constitutional right to counsel first expressed in Gideon v. Wainwright. Miller, the court said, got a fair trial. His trial judge, the justices concluded, should have delayed the trial but did not "abuse his discretion" when he didn't.

Opposition stymies gun legislation that would establish mandatory minimums for illegal gun possession

The Illinois House Judiciary Committee has axed a controversial measure from H.B. 2265 that would have established mandatory minimum sentences for illegal gun possession. According to The Chicago Tribune, "Supporters say the measure is aimed at felons, gang members and people in possession of weapons without a valid firearm owner permit." Opponents, however, worry that the measure will send people to jail for up to three years for a simple mistake. The NRA claims, "This specific provision incorrectly targets otherwise law-abiding citizens, rather than deterring violent criminals with harsher penalties[.]" The measure will be subject to further negotiation.

Both sides argee that Chicago has a gang problem. Gang activity in Chicago is increasing, and gang membership has reached 100,000. Gang-related violence is high and guns play a prominent role in much of that violence. One evening last September, for example, gang-related shootings killed 3 people and put 23 more in the hospital.  

But the question of how to deal with that violence remains a difficult one. Mandatory minimums for illegal gun possession reportedly would have prevented as many as 19 deaths just this year, and one study estimates that the law would prevent nearly 4,000 crimes annually. According to DNAinfo Chicago:

The cost-benefit analysis found that more than 63 percent of those on probation for unlawful use of a weapon are arrested again for the same crime within a year, with 7 percent rearrested for a violent crime.

But, mandatory minimums may not be the answer. As the Chicago Sun Times editorial observed:

In the real world, this is what happens: Mandatory minimums, dictated by law, make it impossible for judges to use common-sense discretion when imposing sentences, so judges must nail some poor sap who simply made a foolish mistake with the same harsh sentence they would impose on a hardened criminal. But those mandatory minimums do nothing to reduce the ability of prosecutors to use discretion when deciding what charges — light or heavy — to file against a defendant. The indirect result is that prosecutors, not judges, set the sentence.

Whether establishing mandatory minimums would achieve desired outcomes is debatable, but one thing is certain: curbing gang-related gun violence requires social programs and community investment. As several Chicago officials have observed, social conditions such as high unemployement and underemployement exacerbate the problem. One group has protested South Chicago's "trauma care desert," noting that gunshot victims must be taken as far as 10 miles to receive care--sometimes with deadly consequences.

Some effots have been taken to ameliorate the situation facing youths in areas of high gang activity. In Chicago, city officials reportedly plan to provide social services such as GED programs and help securing jobs for former gang members. Others have tried to create dialogue between rival gangs. Father Michael Pfleger, for instance, has brought rival gang members together through a weekly basketball league. Reportedly, violence in his community has dropped.

Gun regulation likely would be valuable to curbing Chicago's gang violence, especially in conjuction with other efforts aimed at broader systemic problems. But mandatory minimums may be a short-term fix to long-term problems. Maybe not. 

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For more on manditory minimums see Sentencing Law and Policy.