Civil Rights Law & Policy Blog

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.

Our Nation has a Secret: Felony Disenfranchisement in America

Yesterday, on HuffPost, the NAACP's Jokata L. Eaddy reminded us that many Americans remain disenfranchised. The title of ths post comes from Eaddy's post, in which she writes:

Laws preventing returning prisoners from voting originated prior to the Reconstruction era in an attempt to stem the growth of the black voting bloc and black electorate. Today, the effects are the same. The latest data reveals that nearly six million people cannot vote because of felony disenfranchisement laws practiced in across 48 states and the District of Columbia. More than two million of those disenfranchised are black.

 

Florida, Kentucky, and Iowa practice permanent disenfranchisement, erecting impenetrable barriers for people who are no longer incarcerated. Virginia made some strides after an executive order this summer granted automatic restoration of rights to people with non-violent felony convictions; however, that order's future will rely on the Governor-elect's agenda beginning in 2014. Kentucky and Iowa are slowly embracing change, but until those laws are amended in their state Constitutions, like this year's history-making legislation in Delaware, each state is still behind the curve. 

For decades, the United Nations has recognized that the right to vote and the right to be free from discrimination as integral components of our international system. This is why groups like the NAACP, The Sentencing Project, and the ACLU have made continuous efforts to highlight how felony disenfranchisement laws violate these principles and our country's international obligations. This year the United Nations Human Rights Committee signaled that felony disenfranchisement practices would be a priority during a March 2014 review of the United States' obligations to the International Covenant on Civil and Political Rights.

 

Additionally, a growing number of nations have supported UN resolutions inclusive of language calling on countries to ensure that all citizens are granted the right and opportunity to vote regardless of incarceration status.

While felon disenfranchisement gets comparatively little coverage, I'm not convinced that it's a secret. As I've noted, several potential Republican presidential candidates have stated their support for extending the right to vote to ex-felons. Sen. Rand Paul said so much earlier this year; and, Sen. Rich Santorum and then presidential candidate Mitt Romney exchanged attacks over Santorum's support for such an extension in a 2012 presidential primary in South Carolina. In October, The Atlantic covered felon disenfranchisement and the ways in which it shifts political power away from minority communities; and, The American Prospect recently ran this cover story on the history of felon disenfranchisement. Indeed, because of the commitment of advocates like Eaddy, felon disenfranchisement seems to be of increased interest.

However, Eaddy is certainly correct in suggesting that political progress on the issue has been frustratingly slow. The problem, it seems to me, is that felon disenfranchisement is easily separable from other voting rights issues because of the subjects of the disenfranchisement. Politicians and the media largely ignore issues affecting felons and ex-felons for those that produce political advantages and higher ratings. That is, we know about felon disenfranchisement, but politicians and the media can convince us that the issue is less pressing than others.

For this reason, advocates ought to consider how to align extension of the franchise to felons and ex-felons with ongoing debates over the right to vote more generally. I have made my pitch here. 

Some helpful law review articles:

• Janai S. Nelson, The First Amendment, Equal Protection, and Felon Disenfranchisement: A New Viewpoint, 65 Fla. L. Rev. 111 (2013).
• Gabriel J. Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment?, 92 Geo. L. Rev. 259 (2004).
• Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, and the Debate Over Felon Disenfranchisement, 56 Stan. L. R. 1147 (2004). 
• George Brooks, Felon Disenfranchisement: Law, History, Policy and Politics, 32 Fordham Urb. L.J. 101 (2004).
• Afi S. Johnson-Parris, Felon Disenfranchisement: The Unconscionable Social Contract Breach, 89 Va. L. R. 109 (2003).

CRL&P related reads:

• Felon disenfranchisement, political power, and the First Amendment right to vote
• Could 2016 GOP presidential primary give life to debate over ex-felon disenfranchisement?
• Facebook "like" and First Amendment protection for the right to vote
• A surprising story about unsurprising circumstances: political partisanship burdening the right to vote
• Remembering Tinker: The right to vote as expressive conduct

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. 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.

 

CRL&P Daily Reads: Dec. 5, 2013

Massachussetts legislative committee on election laws considers voter ID bill; Mississippi's Secretary of State claims that 90 percent of the state's citizens already have ID required by new voting law; and, voting rights group to advocate for laws that expand voting and access to the polls in all 50 states.

Civil rights lawsuit filed against a police officer who allegedly broke an elderly man's arm in a roadside incident while off-duty; taxpayers in a Rhode Island town will cover $7 million settlement agreed to after a confrontation in which the police shot a teen 9 times leaving him paralyzed; and, wrongful death claim against California police for the shooting of a suicidal man is allowed to proceed.

Support for stricter-gun laws is dropping.

Federal judge hears oral arguments on Utah's same-sex marriage ban.

Tennessee asks state Supreme Court to provide dates of execution for 10 inmates.

NSA tracks cell locations worldwide.

 

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.

 

Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty

The title of this post comes from this intriguing article challenging the current lack of safeguards against discrimination in death penalty proceedings. Here's the abstract:

Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional. 

Death is different as a punishment. But does discrimination change from context to context? That is the message courts send when discrimination is judged differently based on the context, despite the United States Supreme Court’s “insistence that capital punishment be imposed fairly, and with reasonable consistency, or not at all.” No equivalent safeguards exist in criminal law outside of jury venire to protect against discrimination as there are in civil law. Congress and state legislatures have tried to pass legislation often called “Racial Justice Acts” to provide additional safeguards with little to no success. With the legislature’s lack of success in addressing the problem, the only opportunity to address discrimination claims may be judicially.

 

CRL&P Daily Reads: Nov. 17, 2013

Support stalled for Sen. Gillibrand's bill providing sexual assault victims in the military reporting alternatives outside the chain of command; she will seek a floor vote on the bill.

Churches join the NAACP's lawsuit challenging North Carolina's new election laws limiting early voting and same-day registration; and Wisconsin Republicans seek to end weekend voting, while the Wisconsin Assembly passes a new voter ID bill.

United Methodist Church prosecutes Pennsylvania pastor under church law for performing same-sex marriage for his son and his son's partner; and, Wyoming Senate candidate Liz Chaney explains her opposition to same-sex marriage.

Obama issues memo haulting deportation of undocumented military families.

NYC Mayor-elect de Blasio meets with NYPD commissioner Kelly, who recently criticized Democrats for opposition NYPD's stop-and-frisk policy.

Protester files civil rights lawsuit against City of Newark, California for false arrest and alleges First Amendment violations.

In Spain, topless women interrupt anti-abortion rally with chants of 'Abortion is sacred.'

 

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. 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.

 

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.

 

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.