Wednesday, May 12, 2021
By Anna Arons, Guest Contributor, NYU School of Law
This year, my 1L students began law school the same week that police shot and paralyzed Jacob Blake. As they learned criminal law in the Fall, they also learned that a grand jury had failed to indict the police officers who killed Breonna Taylor. And this Spring, they began studying for their final exams just as Derek Chauvin was found guilty of murdering George Floyd and as police shot and killed 15-year-old Ma’Khia Bryant. They entered the legal profession the same year that millions took to the streets, demanding a reckoning with the racist hierarchies underpinning this country’s legal system – a reckoning that, for many, requires the abolition of the police and the criminal legal system as it exists now.
My students, like students around the country, grappled with what abolition might look like and what it might mean to be a lawyer working within a legal system reflects and entrenches existing racial, class, and gender hierarchies. Yet even as students struggled with these weighty questions, they remained largely unaddressed in the standard 1L curriculum.
This Spring, I attempted to address that gap by introducing a class on abolition into my Lawyering class. Lawyering is a required 1L course that teaches students the essentials of law practice through a series of simulations. Throughout the year, students learn professional skills, and they learn, too, to consider contextual dynamics and to be critical and reflective advocates. In our final unit, students must argue a motion to dismiss in a misdemeanor case where the charges stem from a verbal argument between two residents of a suburban town. This simulation opened the door to have a vibrant discussion of the meaning of abolition and how the same fact pattern might play out in the absence of the criminal legal system.
I aimed to design a 90-minute class that achieved several goals: first, to demystify the word “abolition” and allow students to work through possible versions of it; second, to provide factual and historical context to our current criminal legal system so that students could better understand arguments for or against abolitionist movements; and third, to validate and legitimize the discussions about abolition that students were already having outside the classroom. Above all, I aimed to present abolition as an exciting and accessible concept. Mindful of the perception of abolition as nebulous and overwhelming, I wanted to ground our discussions in specifics, rather than abstract principles. And, my personal views aside, I wanted to present abolition as but one possible approach and to acknowledge the tensions and complications of an abolitionist approach.
To prepare for class, I assigned my students materials that offered possible definitions of abolition and gave concrete examples of abolitionist projects. I asked them to read excerpts of Amna Akbar’s An Abolitionist Horizon for (Police) Reform, which lays out an abolitionist critique of policing, then describes community-based abolitionist projects. For more examples, students could listen to one of several podcast episodes centering on abolitionist movements around the country. Finally, I assigned an excerpt from Issa Kohler-Haussman’s Misdemeanorland, describing how misdemeanors are prosecuted and processed through New York courts. From this, I hoped students would gain a more thorough understanding of our starting point, and see that our misdemeanor-centered simulation was both realistic and higher stakes than it might appear.
In class, I used the familiar disorderly conduct fact pattern from our simulation as a pathway into a broader discussion. Before we began, I reminded my students of class expectations, encouraging them to extend grace to one another and to learn from one another. I reminded them, too, that I did not expect for us to land on any easy answers; rather, I expected that we might find ourselves in tension with our classmates and in tension internally and that sitting with and processing that discomfort is key to thoughtful and reflective lawyering.
With these expectations in place, we moved into a discussion, first in small groups and then as a whole class, in which I asked students to “re-imagine” what the interaction between the defendant and the complainant in our case might look like in a world in which police were not the tool of first resort. My students participated enthusiastically, brainstorming and working through alternate scenarios ranging from a restorative justice-oriented mediation to hand-to-hand combat. From there, we zoomed out: through a brief lecture, I traced the growth of policing and prosecution in New York, starting with the racist roots of modern policing and moving into the Broken Windows and stop-and-frisk era, before we transitioned to a class discussion centering on the goals of our current criminal legal system and how the current system achieves or does not achieve those goals. As class drew to a close, I offered several possible definitions of abolition, and students returned to small groups to reflect on how the alternatives they had brainstormed earlier fit with those definitions, as well as how their alternatives would achieve the goals of the criminal legal system.
My students participated openly and enthusiastically in this class, more so than any other class of the year. Though we devoted just one class to abolition, out of the hundreds of hours 1Ls spend in class, students expressed gratitude for the space to consider abolition within an academic setting. Some reported that it eased the cognitive dissonance they felt throughout the year between their discussions about the legal system outside the classroom and their discussions within it; others found it meaningful to discuss abolition rigorously and as a legitimate topic of study; and others, with less background in the area, appreciated building a more thorough understanding of what abolition might mean, beyond headlines and social media posts.
Our discussion also rippled through the remainder of our misdemeanor simulation, as students arguing for the defense raised policy arguments regarding the wisdom of using court resources on such a case, while students on the prosecution side not only prepared for those arguments but also considered whether this was a case they should be pursuing. Whether students identified as abolitionists or expressed more faith in our current criminal legal system, they told me that the class led them to take their misdemeanor case more seriously and to reflect on how it felt to be a lawyer –a prosecutor or a public defender – in the criminal legal system. All year, I’ve told my students that lawyering does not take place in the abstract: laws have real, concrete consequences that affect millions of people’s lives every day. Thus, to be effective, ethical lawyers, they must learn not just the rote mechanics of practice; they must learn, too, to sit with and process the political and social context and the consequences of their work. This class created an opening for students to practice those skills.
I do not claim that this single class resolved the question of abolition for any of my students, nor do I expect for it to resolve my students’ concerns about their roles as lawyers, but I offer up this experience in hopes that it helps other instructors bridge the divide between the oft-staid 1L curriculum and students’ – and this country’s – most pressing concerns.
Sunday, April 25, 2021
Truth-telling is an indispensable part—but only one part—of the moral universe’s arc bending towards justice. To achieve critical impact, truth-telling must be seen, received, and acted upon.
Truth-telling has often come through the camera lens. Mike Wallace used it effectively in 60 Minutes back in the day. Its documentation of war or famine has been useful to tell the world of these tragedies.
A new day, a new camera lens—the lens of the cellphone camera. This lens has documented truths to us all. The truth of the beating and killing of black and brown persons by the police. A truth already known to many but disbelieved or ignored by others. Because of this camera lens, white people cannot no longer credibly deny this truth.
Derick Chauvin is convicted by the truth told through Darnella Frazier’s cellphone camera. Darnella Frazier, thank you for showing us the truth.
There have been multiple killings by police in the week since Derick Chauvin’s conviction. In two cases, the truth-telling lenses are police body cameras. The videos were released quickly in one case and are still being withheld in the other. The videos must be released so that the camera lens may continue to serve its truth telling function, which can, if allowed, lead to accountability.
Say their names:
Ma’Khia Bryant 16
Andrew Brown, Jr. 42
Wednesday, April 21, 2021
Statement by UN High Commissioner for Human Rights Michelle Bachelet on guilty verdict in George Floyd case
Geneva, 21 April 2021
“This is a momentous verdict. It is also a testament to the courage and perseverance of George Floyd’s family and many others in calling for justice. As the jury recognised, the evidence in this case was crystal clear. Any other result would have been a travesty of justice.
But for countless other victims of African descent and their families, in the United States and throughout the world, the fight for justice goes on. The battle to get cases of excessive force or killings by police before the courts, let alone win them, is far from over.
Impunity for crimes and human rights violations by law enforcement officers must end, and we need to see robust measures to prevent further arbitrary killings. As we have painfully witnessed in recent days and weeks, reforms to policing departments across the US continue to be insufficient to stop people of African descent from being killed. It is time to move on from talk of reform to truly rethinking policing as currently practised in the US and elsewhere.
This case has also helped reveal, perhaps more clearly than ever before, how much remains to be done to reverse the tide of systemic racism that permeates the lives of people of African descent. We need to move to whole-of-government and whole-of-society approaches that dismantle systemic racism.
I recognize that in the US important steps are being put in place with that end in mind. These efforts must accelerate and expand, and must not be diluted when the public focus moves elsewhere.
Now is also the time to critically examine the context in which George Floyd’s killing took place by revisiting the past, and examining its toxic traces in today’s society. The redesign of our future can only be through the full and equal participation of people of African descent, and in ways which transform their interactions with law enforcement, and, more broadly, in all aspects of their lives.
The entrenched legacy of discriminatory policies and systems, including the legacies of enslavement and transatlantic trade and the impact of colonialism, must be decisively uprooted in order to achieve racial justice and equality. If they are not, the verdict in this case will just be a passing moment when the stars aligned for justice, rather than a true turning point.”
Link to statement here.
Tuesday, April 6, 2021
On April 8th and 9th, 2021, the American University Washington College of Law International Human Rights Law Clinic will hold live Zoom panels discussing advocacy and litigation efforts against solitary confinement in the United States. This event will feature stories from solitary confinement survivors and provide a platform for attorneys and human rights advocates to present their work fighting against solitary confinement. Attendance is free, but registration is required. Registration is available:
April 8, 2021, 12-1:30pm ET - Day 1 Strategies to Combat U.S. Solitary Confinement: Domestic Legal Approaches https://bit.ly/31EhGrd
April 9, 2021, 12-1:30pm ET - Day 2 Strategies to Combat U.S. Solitary Confinement: International Legal Approaches https://bit.ly/3wmiglc
Tuesday, March 16, 2021
The US response to the UPR Recommendations issued by the UN Human Rights Council was posted by the OHCHR last week. The US response makes reference to some of the positive actions that the Biden administration has taken regarding human rights since the new president's inauguration in January, including depositing the instrument to rejoin the Paris Agreement on climate change, efforts to reengage with the UN Human Rights Council, and more.
It is wonderful to see that the new administration supports recommendations to ratify the Convention on the Rights of the Child (CRC), especially given that the US is the only UN Member nation that has not ratified the CRC. However, it's disheartening to see the US refuse to support recommendations to end sentencing juvenile offenders to life without parole. The US response notes that "[j]uveniles may receive only non-mandatory life sentences and only for particularly severe homicide offenses when warranted in a particular case. These sentences are intended to be rare and are subject to review on appeal."
Whereas the US couched its response to the recommendations to abolish the death penalty with statements such as "President Biden supports legislatively ending the death penalty at the federal level and incentivizing states to follow the federal government’s example," there was no indication of any support for ending the practice of sentencing juveniles to life without parole. This is very disappointing for those of us working with clients sentenced to life without parole as juveniles.
For the past year, my clinic students and I have been representing offenders in Missouri who were sentenced to life without parole as juveniles for the purposes of parole hearings. After legislation was enacted and a lawsuit filed by the Macarthur Justice Center, juveniles sentenced to life without parole in Missouri have been given a chance at release for the first time ever. Under the new legislation and court orders obtained by the Macarthur Justice Center, the Missouri Board of Probation and Parole has to consider mitigation factors in its decision whether or not to grant parole, including the client’s: age, maturity, intellectual capacity, and mental and emotional health and development at the time of the offense; family, home and community environment; familial or peer pressure; characteristics attributable to youth on judgment; and more. The first juvenile life without parole hearings under the new legislation and court orders began last summer and continue today. Under the new process, the juvenile parole hearings have gone from an 86% denial rate to a 100% grant rate. While this is good news, children in the US deserve so much better than spending more than thirty years in a cage without hope.
Article 37 of the Convention on the Rights of the Child requires that the arrest, detention or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time. Moreover, Article 40 of the convention states that every child alleged as, accused of or recognized as having infringed criminal law should always be treated in a manner consistent with the promotion of the child’s sense of dignity and worth. Science supports this approach. Research shows that more than 90% of all juvenile offenders desist from crime by their mid-20s and predicting future violence from adolescent criminal behavior, even serious criminal behavior, is unreliable and prone to error. Even the U.S. Supreme Court has noted that personality traits of adolescents are less fixed than in adults, and this makes it difficult to infer that even heinous criminal behavior during adolescence is evidence of an “irretrievably depraved” character. Moreover, the Court has also noted that adolescents are better candidates for rehabilitation because of their ability to grow and mature.
Our juvenile life without parole clients are amazing. They are working on college degrees, volunteering thousands of hours to restorative justice programs and puppies for parole, helping friends through crises, and holding the hands of friends as they pass away from COVID in prison. One of our clients was released last month after 30 years in prison and he is thriving. Others are still waiting for release. In the meantime, they dream of driving a car, owning a food truck, flying on an airplane, having children, seeing the new ferris wheel in St. Louis, eating Kentucky Fried Chicken, and more.
In 2019, the UN Committee on the Rights of the Child released General Comment 24 on children's rights in the justice system. The Committee recognized the need for a new comment as a "result of the promulgation of international and regional standards, the Committee’s jurisprudence, new knowledge about child and adolescent development, and evidence of effective practices, including those relating to restorative justice." In General Comment 24, the Committee recommended strictly limiting the deprivation of liberty for children only as a last resort. The US is far, far from that wonderful vision for juvenile justice. But, at least the Biden administration could move the US in the right direction by supporting recommendations to end juvenile life without parole sentences.
Monday, August 10, 2020
The Violence Against Women's Act was pursued by well-intentioned advocates. Much good has come from the funding that accompanied the act's passage. Funded domestic violence shelters and other services for those experiencing intimate partner abuse has provided options to survivors and their children. From the beginning, however, there were serious flaws in the act. But those were not significant enough for advocates to abandon their advocacy.
Women of color were mostly excluded from the VAWA drafting process. If they had been, they would have raised objections to the stream of funding being primarily to and through the police. Advocates quickly assessed the error of the overwhelming role that law enforcement was assigned under VAWA. The act presumes that the criminal system - law enforcement and prosecutors - is entitled to lead anti intimate partner abuse efforts. How wrong that presumption is.
Had women of color, particularly Native and African American women, been guiding VAWA's development, they would have cautioned about the risks of criminal law involvement. Certainly there are times when victims are safe only when the abusive partner is confined. But many downsides can result from survivors' participation in the criminal system. Survivors complain of not having control over the criminal process. When survivors do not wish to pursue charges, they can be subpoenaed or held in contempt. In one case, the survivor was arrested for contempt for failing to appear at a scheduled hearing. Ultimately the prosecution decided that even with the survivor's testimony they did not have sufficient evidence to prosecute. The survivor ended up with an arrest record for a case the prosecution never pursued.
Further detrimental consequences from the criminal system abound. Cooperation with police can be dangerous to survivors who fear and suffer worse abuse because of their cooperation. Survivors suffering from PTSD or other mental health disorders may not have capacity to testify without suffering further health consequences. Mothers, particularly women of color, may lose custody of their children to the state or to the abuser for "failing to protect" them from an abuser over whom the mother has no control. The arrested abusive partner may not be able to find work, even after an acquittal. With a conviction, employment may be even more difficult to obtain, leaving the the survivor and children financially desperate.
Drastically reducing funding to the criminal system and shifting those funds to civil services can provide what victims decide they need. This could include permanent, safe housing and financial support until survivors can be self-sufficient; mental health resources for survivors and their children. With a shift in funding, survivors could design their own restorative plans for them, their children and even their abusers if they desire.
For critical thinking on the criminal legal system and it's sideways direction in domestic violence cases, I suggest reading Leigh Goodmark's book "decriminalizing Domestic Violence".
Sunday, May 19, 2019
By Guest Blogger Prof. Courtney Cross
In 2018, the Alabama legislature reduced the maximum sentence for drug trafficking from life without parole to life with the possibility of parole. While this amendment represents a welcome shift away from imposing life without parole sentences on non-violent defendants, it falls short of enacting large-scale reform for several reasons. First, the new law is not retroactive and there are more than 20 individuals serving life without parole sentences in Alabama for manufacturing or trafficking illegal drugs. Second, defendants may still be sentenced to life without parole if their criminal histories trigger harsher sentencing under the state’s mandatory habitual felony offender sentencing enhancement. Several of the above individuals are serving life without parole because their criminal records mandated this sentence. Lee Carroll Booker, for example, is a 76-year-old army veteran serving life without parole for growing marijuana plants in his backyard: his over 30-year-old robbery convictions mandated this outcome despite recognition from then-Alabama Supreme Court Chief Justice Roy Moore that the sentence was excessive. Mr. Booker and others with similar sentences will end up dying in prison for non-violent drug crimes.
Geneva Cooley faced a similar fate after being arrested in 2002 with a gym sock containing heroin and hydromorphone pills. 72-year-old now, she was 55 at the time of her arrest. After a brief trial, she was found guilty of trafficking the heroin and the pills. She was also found guilty of two counts of failing to obtain a tax stamp for the drugs. She was sentenced to life without parole on the heroin charge which, at the time of her sentencing in 2006, was a mandatory sentence. Pursuant to the habitual offender law and the trial court’s finding that Ms. Cooley had two prior felony convictions, her other trafficking charge and the tax stamp charges resulted in concurrent life sentences. Ms. Cooley’s direct appeals and post-conviction petitions had all been denied until 2019 when she and her team of attorneys from the clinical program at the Culverhouse School of Law at the University of Alabama decided to file another post-conviction petition.
This time, the attorneys alleged that Ms. Cooley’s sentence violated the 8th Amendment of the U.S. Constitution and pointed to the recent removal of life without parole from the drug trafficking scheme as well as efforts in other states and at the federal level to limit the use of life without parole for non-violent crimes. Ms. Cooley sought to be resentenced to life with the possibility of parole—the sentence she would receive if convicted today. The newly-elected district attorney in Jefferson County did not oppose the resentencing and filed a response that echoed Ms. Cooley’s arguments. After an evidentiary hearing in which both Ms. Cooley and the executive director of Alabama’s Sentencing Commission testified, Judge Stephen Wallace—who did not preside over Ms. Cooley’s original trial—ordered that she be resentenced to life with the possibility of parole pursuant to his own analysis of the 8th Amendment.
Ms. Cooley, who is currently awaiting her parole hearing, was fortunate in obtaining this outcome: not only had a reform-minded district attorney recently been elected, her sentencing judge had been replaced by a former criminal and civil rights attorney. Moreover, her life without parole sentence had stemmed from the outdated drug trafficking sentencing scheme and not from the habitual offender statute, which has proven nearly impossible to challenge.
While Ms. Cooley’s resentencing will have no direct impact on other prisoners’ sentences, it is another example of the admittedly slow shift away from inflicting the harshest of punishments on nonviolent drug offenders. While the case sets no legal precedents, DA Carr has stated that he hopes other prosecutors and judges will be exercise similar discretion and compassion. Until they do—or the
legislature takes action—nonviolent drug offenders sentenced to life without parole will continue to live out their days and take their last breaths in Alabama’s unforgiving prisons.
Thursday, March 28, 2019
The Inter-American Commission on Human Rights recently issued its report on police violence against African Americans in the United States. Approved in November 2018, the report assesses structural discrimination against African-Americans with a particular focus on "deepseated racial disparities in policing and the criminal justice system". The IACHR notes that concerns that the long-standing violence against African Americans raises a larger concern with US failure to enforce international human rights norms.
The report goes beyond assessment of violation of individual civil and human rights. The report includes a history of the race discrimination in the US as well as examining "modern structural discrimination" and over-policing.
The IACHR press release notes that the report's "conclusions are perhaps most succinctly expressed in a note on the cover art, which reads, “the United States has systematically failed to adopt preventive measures and to train its police forces to perform their duties in an appropriate fashion. This has led to the frequent use of force based on racial bias and prejudice and tends to result in unjustified killings of African Americans.”
Wednesday, December 19, 2018
Much rejoicing is happening following the Senate passage of The First Step Act, which is likely to be passed by the House as well this week. The bill is being touted as a criminal justice reform act. Not only is there bi-partisan support for the bill, there is also support from diverse individuals and groups outside of Congress. The Koch Brothers and the ACLU. Wait - The Kochs and the ACLU? OK- the ACLU is predictable in that the organization is likely to support any bill that provides relief for a class of those incarcerated no matter how limited the group. But why would the Koch brothers support the bill? Simple answers: money for one. Also, the proposed relief will be applied primarily to whites. And passage of the bill will give the president favorable coverage of the new "policies" at a time when favorable headlines for the president are rare.
In a New Yorker article, counsel for Koch Brothers claimed that Koch Industries is much more sensitive to over-reaching prosecutors since the company was prosecuted in 2000 for hiding emissions of toxins at a Texas facility. That matter settled and there is a long time between 2000 and 2018 for a shift in their attitude on criminal justice "reform". A more likely draw for Koch support is the money to be made from the bill. Those same individuals who administer "private" prisons are looking for a slice of the pie for re-entry programs to be established under the bill. Private prisons are known for their poor quality food, the harsh policies toward prisoners and failure to administer necessary medicines, among other criticisms. These are not actors who entertain a human rights approach to "reform". In addition, some legislators attempted to include a term that would require prosecutors to prove intent for corporate crimes. To date those efforts have been resisted.
And who else benefits from the bill? Roughly 4,000 mostly white individuals. And they will be chosen by algorithm. The bill applies "reforms" to those inmates considered to be minimum security risks and those convicted of "non-violent" crimes. Roughly, only 20% of those who will benefit are of color. African Americans are far more likely to be considered higher security risks. African Americans are far more likely to be designated violent.
As noted in Intercept article, Natasha Leonard comments that The First Step Act functions as a compromise because it is not a challenge to the carceral state. Ms. Leonard notes that the only thing notable is its compromise. She notes that this compromise in effect was relinquishment of true change in how criminal justice is administered.
While the bill contains some positive terms, such as more judicial flexibility in sentencing, the bill is far from reformative. If only the commitment to more steps was from Congress. That is unlikely. Proponents are already touting the bill as "sweeping" when in fact the bill benefits only those who are low risk, typically white and a very small fraction of the total inmate population nationally. Congress' revisiting criminal justice "reform" anytime soon is unlikely.
Monday, July 23, 2018
This past May, the Vera Institute released a report on the treatment of black Americans in the criminal justice system. The report, written by primary author Prof. Elizabeth Hinton of Harvard University, is entitled An Unjust Burden: The Disparate Treatment of Black Americans in the Criminal Justice System. No one is surprised at the over representation of black Americans in our criminal systems.
The report "presents an overview of the ways in which America’s history of racism and oppression continues to manifest in the criminal justice system, and a summary of research demonstrating how the system perpetuates the disparate treatment of black people. The evidence presented here helps account for the hugely disproportionate impact of mass incarceration on millions of black people, their families, and their communities."
The report traces the history of laws targeting black Americans as well as systemic bias that results in the disproportionate arrest of black men, in particular. While only ten pages long, the report is packed with information that would serve as an excellent introduction to the effect of bias and deliberate discrimination. A brief bibliography is included.
Sunday, February 25, 2018
The National Institute of Justice funded a study of the experiences of sex workers in New York City. New York City created a Human Trafficking Court and the participants had involvement with the court system, and the Human Trafficking Court in particular. Navigating Force and Choice: Experiences in the New York City Sex Trade and the Criminal Justice System Response was recently published and contains the research findings.
The population of interviewed sex workers was varied and impressive, including cis men and women, trans women and those identifying as other. The study explored four aspects of the sex workers' lives: personal histories, involvement in the sex trade, involvement with trafficking and criminal justice involvement. The sex workers revealed important and difficult information, including difficult child hood trauma and police violence. Defense attorneys and others involved with the court system were also interviewed and contributed toward assessment and recommendations. The report may be found here.
Thursday, October 26, 2017
Produced by the Marshall Project, We Are Witnesses is a collection of short videos describing the impact that the criminal justice system has on those who encounter it. The videos record judges, police, family members of those who have died in the system, ex-prisoners and others whose lives are changed through contact with the massive and often cruel process.
Erica Garner is one of those who speaks to the camera describing how she arrived at the scene of her father's death. As Jennifer Gonnerman reports: "These testimonials inevitably prompt questions of culpability-as well as the uncomfortable realization that the "we" in "We Are Witnesses" may apply not only to the individuals speaking here but to us all."
Thursday, August 31, 2017
Bail in the US court system has resulted in human rights violations for thousands of defendants. Anyone who watched 60 Minutes this past week would have seen the impact of bail requirements on the hundreds of detainees at the Cook County Jail and the efforts of its warden to remedy a broken system. Nearly all of the detainees were men of color and at least half of whom were being held on non-violent offenses such as driving without a license, stealing small amounts of goods. The warehousing of men of color was evident.
Bail has been used as a mechanism to ensure that those too poor to pay bail are further locked into poverty. US courts have historically required bond (bail) for misdemeanor charges. Even the lowest of bail, sometimes $100.00, is beyond the financial ability of many defendants.
Civil and human rights violations result. The Universal Declaration of Human Rights demands that each individual enjoy the right to work. Yet for the poorest among us, minor infractions can result in loss of work because of incarceration pending trial. Poor defendants' further decline into poverty is accelerated due to the resulting unemployment. Among other human rights violations, is the right to fair trial. Defendants forced to remain in custody are denied access to counsel. Even if counsel is appointed, which is not assumed at misdemeanor arraignments, those in custody are dependent upon the unpredictable visits of counsel. They are deprived of the ability to collect exculpatory evidence.
Not least among the violations is the lack of respect and dignity endured by some of our most vulnerable residents. Mothers accept plea deals so they can be reunited with their children. Fathers plea so they can return to their families, hoping to be able to continue supporting them through work and parenting.
Bail reform projects have been increasing across the country. In Texas, a civil rights lawsuit was filed challenging misdemeanor bail practices as due process violations. Federal District Court Judge Lee Rosenthal ordered Harris County to stop the practice of permitting defendants in misdemeanor cases to languish in jail pending trial because they cannot afford bail. Harris County encompasses Houston and should be a warning to other cities. The ruling on the temporary injunction is 193 pages long and details myriad constitutional violations. Given the extent f the court's deliberations and examination strongly portends Plaintiff's success on the merits. In Massachusetts, donations to bail organizations have resulted in hundreds of the incarcerated being released as the organizations post bail on behalf of the poor.
This sort of large-scale disruption has been a long time coming in the criminal justice system. Out of the chaos will come fiscal benefits to municipalities who no longer will incur the expense of housing indigent misdemeanor defendants. More locations are voluntarily reforming bail schemes. Colorado is reviewing its bail system while New Jersey eliminated most monetary bails.
At its annual meeting in August, the American Bar Association recommended major bail reforms.
Our bail system is one of our national human rights shames. Kudos to those creating change.
Friday, June 3, 2016
Among this term’s cases that were not deadlocked due to a missing 9th justice, is Foster v. Chatman.
Mr. Foster is a cognitively challenged black man who has been imprisoned nearly thirty years waiting execution following a murder conviction. The issue before the court was whether Mr. Foster's right to trial before a jury of his peers was defeated through the prosecution’s manipulation of the juror selection process. Mr. Foster, who is African American, argued that the prosecutor impermissibly eliminated black jurors thus creating a biased jury pool. The court, in a seven to one opinion, determined that the prosecution demonstrated racial bias in jury selection and remanded the case to the lower court.
The legal impact of the decision will be limited. Mr. Foster’s lawyers gained access to the thirty-year-old prosecutor’s file which showed, among other discriminatory evidence, a “b” written next to the names of the black prospective jurors. Such blatant evidence is rarely available. With progressively more focus on criminal justice practices that limit or deny civil rights protection to people of color, it is likely that written documentation of exclusionary jury practices no longer appear in prosecutor’s notes. The case is unlikely to influence future discrimination cases except in one regard: it is possible that some judges will scrutinize more closely the Batson claims of prosecutors that there were “ legitimate reasons” for eliminating black jurors. But under the current status of case law favoring prosecutors even enhanced scrutiny is not likely to change discriminatory practices.
In addition, two justices noted, there may be procedural barriers beyond the bias issue that prevent Mr. Foster from receiving a new trial.
But will the prosecutor in question benefit from the passage of time thereby avoiding disciplinary action?
ABA Model Rule 3.8 emphasizes the special duty of prosecutors to assure justice, in addition to their duties to be competent lawyers on behalf of the state. Under the rule, prosecutors have a duty to seek and preserve justice as well as to prosecute individuals deemed a threat to the public. Commentary to the rule reads in part: "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate." This includes an obligation to ensure that the defendant receives "procedural justice".
Unlike other model rules, as adopted by the various states, there are relatively few disciplinary decisions sanctioning prosecutors for behavior that frustrates or thwarts justice. The apparent lack of discipline for prosecutors (think of the lack of discipline for the now notorious prosecutor in Making of A Murderer) ignites vigorous law classroom debate. Many disciplinary complaints allege conduct as concerning as that found in the documentary. But even when the facts of the complaint are acknowledged, often no or mild discipline follows.
The ethics discussion typically progresses from one concerning individual cases to the larger problem of whether or not the lack of discipline results from a bias to protect the state. What is the fear behind disciplining wayward prosecutors? Are ethics boards concerned about a flood of complaints that might result in a mirroring of the justice systems overcrowded dockets? If so, that fear must be insufficient to prevent disciplinary boards from applying their independent judgment. Adverse collateral consequences to legal systems must not be a factor in determining whether justice has been manipulated by a key state actor.
My prediction is that among the consequences of holding prosecutors to their dual obligations will be the cheering of those many prosecutors who take their larger responsibilities of ensuring justice to heart.
Wednesday, May 25, 2016
Justice Stephen Breyer may be the only current member of the Supreme Court to have argued that the inevitably long delays death row prisoners suffer before execution is a significant factor leading to the unconstitutionality of the death penalty but his persistence in arguing for this position has provoked passionate rejoinders. Just recently Breyer dissented from the Court’s decision not to review the case of a California man who was sentenced to death 32 years ago.
According to the authoritative Death Penalty Information Service “inmates in the U.S. typically spend over a decade awaiting execution.” Some prisoners have been on death row for well over 20 years and others have been executed after 30 years. No surprise then that many, often confined 23 hours a day in solitary confinement, die in prison, or attempt or successfully commit suicide.
Breyer (and Justice John Paul Stevens before him) argue that delay “subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement,” as well as undermining the supposed function of the death penalty.
In a scathing post, Harvard Law professor Noah Feldman, writing in his regular Bloomberg View column, takes Breyer to task for claiming that “death delayed is worse than death itself.” According to Feldman, taking a line similar to that of the late justice Antonin Scalia, Breyer is really asserting that execution should “be administered quickly... to avoid the convicted person living on many years in prison.” Alas, Feldman has totally misconstrued the argument about long confinement on death row which is not that executions should take place shortly after sentence but that legitimate due process concerns over reliability, procedural fairness and the irrevocability of death have led judges as well as other actors in the criminal justice system to create a legal process which produces disproportionate human suffering, pain so great that it contributes to an unconstitutional result.
The core of Feldman’s indictment of the Breyer position is his claim that “In every case where an inmate has been in death row for many years, it’s by choice...the result of numerous appeals by his lawyers, and numerous delays in hearing those appeals by state and federal courts.”
This is a distorted concept of choice. Feldman believes it is freely present in “In every case” because a defendant can simply “skip the appeals” and ask to die. Many would think that a choice in name but not in reality. And he attributes postponement of decision by the courts, not in any way to the judges who delay and their justifiable concerns about reliability or doubts about capital punishment, but only to the prisoner’s hunger for days more of life.
What Feldman fundamentally misses is that the Supreme Court has created a system that does not work because it has not and probably cannot resolve a clash of inconsistent constitutional values. The Court has approved laws in those states (mostly in the South) that actively execute but it has also decided that in the service of proportionality the Constitution requires steps supposed to ensure individualized but not arbitrary or discriminatory selection of the condemned. The result of this required judicial scrutiny of death cases is that those statistically few individuals who are actually executed only die after the deterrent and retributive aims of the criminal law are no longer served by their death. After decades of delay, even a victim’s family members are hardly likely to feel great satisfaction that justice has been done. The point is one can just as easily argue that a dysfunctional death penalty should be totally eliminated as what Feldman advocates, “The remedy for death delayed, after all, can only be death itself.”
One last proposition Feldman asserts seems to come from a place remote from direct experience. He rejects Justice Breyer’s concern that living in prison under the threat of execution for years and years is a kind of torture. “ Many of us will die in the next 32 years,” he writes, “And none of us knows as exactly on what day that will occur.”
To be sure death is never pretty and we are never sure of its arrival. Still to equate the prospect of how a cell-confined man expects to die—years of last minute reprieves granted or denied, isolation from others, knowing that prison guards will come with a hood and strap him on a gurney, drugs of unknown capacity forced into your body—with the death most of us expect or hope for—surrounded by loved ones, supported by medical personnel—is sheer illusion.
The real choice now with capital punishment is not the inmate’s but ours. It is whether we have had enough of what the late Justice Harry Blackmun called “tinkering” with a system of costly, brutal, unnecessary and, yes, long delayed mostly symbolic executions. Breyer’s lone dissent notwithstanding, this is a constitutional question that the Supreme Court will have to confront. Perhaps soon after this year’s election, but if not, then shortly thereafter.
Editors' Note: Prof. Meltsner is Matthews Distinguished Professor of Law at Northeastern Law School and was one of the lawyers in Furman v Georgia, the 1972 Supreme Court ruling against the death penalty. This piece originally appeared in Huffington Post.
Wednesday, January 27, 2016
If I had to name a single U.S. Supreme Court case that effectively highlights the entrenched problems of the American criminal justice system, it would be Montgomery v. Louisiana: from the 1963 murder of Charles Hurt Jr., a white deputy sheriff in East Baton Rouge, to the conviction of Henry Montgomery, a developmentally disabled African-American teenager, to the ensuing half-century during which Montgomery has been warehoused at the Louisiana State Penitentiary in Angola.
In other words, when Montgomery v. Louisiana is viewed through almost any critical lens, the deep fissures in our broken system are clearly apparent: the legacy of Jim Crow as reflected in the disproportionate representation of people of color in today’s courtrooms, jails, and prisons; the nation’s continued reliance on mass incarceration to solve intractable societal ills; and the refusal of many prosecutors, judges, and juries to consider criminal offenders — even those who are children or are intellectually compromised — as worth more than the worst thing they have ever done.
In November 1963, Deputy Hurt was shot and killed in a park in Scotlandville, a town in the segregated South that has since been annexed by Baton Rouge but which at the time was the largest majority African-American town in Louisiana.
At the time of his death, Deputy Hurt was on patrol, looking for kids who were truant from school. One of his daughters has described her late father as someone who “saw beyond race at a time when such vision was uncommon at best” and even initiated a “Junior Deputy” program for boys from Scotlandville.
Immediately after the shooting, there was a wide-ranging search for Hurt’s killer, with hundreds of deputies and police from neighboring parishes setting up roadblocks and making mass arrests in Scotlandville. Dozens, if not scores, of African-American men from 12 to 59 years old were arrested, held and questioned about the murder.
Among those arrested was Henry Montgomery, a mild-mannered 10th-grader with intellectual limitations who had turned 17 only two weeks earlier. Unfortunately nicknamed the Wolf Man due to his oversized teeth (an “alias” that was publicized prior to the trial), Henry lived with his grandparents, as his mother was autistic and had her own challenges.
Detectives brought Henry to his grandparents’ house, where he pointed out a .22 caliber pistol in the rafters and then accompanied them to the park where he re-enacted the crime. The detectives audiotaped Henry’s confession, during which he stated that he had left school to take a nap in the park and had run into Deputy Hurt behind the recreation center. When Hunt was patting him down, Henry panicked and shot him with the pistol he had placed in his jacket pocket.
In February 1964, a jury of 12 white men deliberated for a day and half before returning a guilty verdict and a death sentence for Henry Montgomery. The Louisiana Supreme Court reversed his conviction two years later and ordered a new trial due to the trial court’s denial of both a motion to continue and a motion for a change in venue, which had been based on threats of cross burnings by the Ku Klux Klan before the trial and East Baton Rouge Parish’s adoption of a resolution proclaiming the first day of the trial to be “Charles Hurt Day.”
Five years later, although the mood of the community was calmer, it took another all white and male jury a mere 90 minutes to convict Henry of first degree murder, after which he was sentenced for an offense committed as a juvenile to mandatory life without parole (JLWOP) and sent to Angola.Fast-forward 50 years. Henry Montgomery is 69 years old and the U.S. Supreme Court has held in a 6-3 vote, written by Justice Anthony Kennedy and including Chief Justice John Roberts along with the liberal contingent of the court, that its June 25, 2012 decision in Miller v. Alabama declaring that life without parole should be reserved for only the “rarest of children” whose crimes reflect “irreparable corruption” applies retroactively.
This means that Montgomery, along with the approximately 1,000 or more inmates whose sentences were imposed before Miller (in states that had subsequently found Miller not to apply retroactively or had not yet addressed the question), will now have an opportunity for release.
In fact, the court in Montgomery has gone a step further than many anticipated by suggesting that, rather than conduct resentencing hearings in which the parties must opine whether the inmate was “permanently incorrigible” at the time of the original sentence, states may instead consider whether the inmate should be considered for parole, i.e., release from prison under specified conditions.
The court even referenced (although it did not confirm) Henry Montgomery’s good behavior at Angola, including the fact that he established an inmate boxing team and served as a role model to other inmates, as “relevant” examples of “one kind of evidence that prisoners might use to demonstrate rehabilitation.”
The process by which the court decides that a decision is retroactive was established in its 1989 ruling in Teague v. Lane, which requires retroactive application when the court declares a new rule of “substantive” law but not one of “procedural” law.
With Montgomery, the court ruled that Miller’s prohibition of mandatory life without parole for juvenile offenders was more than a procedural rule merely requiring the judge or jury to consider the defendant’s “youth” before the sentence. Instead, the court ruled that Miller more profoundly “rendered life without parole an unconstitutional penalty” for juveniles whose crimes “reflect the transient immaturity of youth,” and, thus, was the announcement of a new substantive rule.
In classic form, Justice Antonin Scalia’s dissent, joined by Justices Clarence Thomas and Samuel Alito, contends not only that the court lacks jurisdiction to decide the case (meaning that the rule of Miller was procedural and not substantive), but that “the decision it arrives at is wrong.” He asserts that the court’s resolution of the jurisdictional issue is ends-oriented, driven by the majority’s desire to reach the merits rather than a commitment to follow precedent, which he calls “nothing short of astonishing.” He argues that rather than apply Miller to the facts at hand, the majority rewrites it: “This whole exercise, this whole distortion of Miller, is just a devious way of eliminating life without parole for juvenile offenders.”
It remains to be seen whether Montgomery v. Louisiana will be the death knell for JLWOP. As it stands, judges maintain the discretion to conclude that particular juvenile offenders convicted of homicide are, in fact, intrinsically incapable of redemption and will never be fit to re-enter society. There may be resentencing hearings and reviews by parole boards, but there are no guarantees of release, as we have already seen in states that have found Miller to be retroactive.
Yet, it cannot be denied that Justice Kennedy has continued to chip away at what he considers to be “disproportionate” and thus unconstitutional punishment for juveniles: with Roper v. Simmons, it was the death penalty; with Graham v. Florida, it was JLWOP for nonhomicide offenses; and with Miller v. Alabama, it was mandatory JLWOP for homicides.
With Montgomery, the court’s most consistent swing voter has authored an opinion that leaves little room for the state to justify sentencing a juvenile to die in prison. As Justice Kennedy wrote over a decade ago in Roper, “When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity.”
Editor's Note: This post first appeared on the Juvenile Justice Information Exchange
Monday, November 30, 2015
Advocates, service providers, attorneys, and people working in membership-based organizations were invited to share stories and recommendations regarding policing and domestic violence and sexual assault in response to a nationwide survey that was open for a one-month period in April to May 2015. More than 900 people responded.
Our report, Responses from the Field: Sexual Assault, Domestic Violence, and Policing, captures their responses. While respondents told us about promising practices, most of which included significant collaborations between law enforcement and advocates, overall, we heard very discouraging stories. Respondents reported significant police racial and ethnic bias, as well as bias on the basis of sexual orientation and sexual identity, poverty, immigration status, language, and against victims who have a criminal history including sex workers. They described how contact with the police has negative collateral consequences for victims including in immigration, child protective services involvement, and economic consequences. Respondents also reported that a significant number of victims have goals that do not align with those of the criminal justice system including the desire to seek a non-punitive intervention, the need to “move on” coupled with the expectation that criminal justice involvement will be lengthy and (re)traumatizing, and the fear that they would lose control of the process.
For additional information, see the report, at the link above, and the blogpost at Move to End Violence, written by co-authors Sandra Park, ACLU, Donna Coker, University of Miami School of Law, and me. We welcome your feedback, comments, and suggestions for re-thinking the role of the criminal justice system within efforts to end gender-based violence.
Thursday, August 27, 2015
Last week, the Inter-American Commission on Human Rights (IACHR) found that the United States violated Bernardo Aban Tercero's rights to due process and a fair trial that are enshrined in the American Declaration of the Rights and Duties of Man. Tercero, a Nicaraguan national who has been on death row since 2000, is scheduled for execution in Texas on Wednesday. Tercero had deficient capital counsel at trial, sentencing, and at every stage of his post-conviction proceedings. His trial attorneys never conducted a comprehensive investigation into his social history, as required by the American Bar Association (“ABA”) Guidelines on minimum standards of representation in a capital case. There is also no evidence that Tercero himself was ever evaluated for mental illness or intellectual disability which could make him ineligible for the death penalty, despite significant evidence of risk factors. Human Rights First, which filed a petition in the case, is urging Governor Greg Abbott and the Texas Board of Pardons and Paroles to adhere to the IACHR’s recommendations to stay the execution pending review of the trial and sentencing.
Dallas News reports that on August 25th, the Texas Court of Criminal Appeals halted yesterday's scheduled execution. The Appeals Court returned the case to the trial court for review.
Monday, March 30, 2015
While students at Columbia University hold demonstrations encouraging the school to divest ownership shares in private prisons, an order of nuns has devised a different solution for ensuring prisoner human rights. The Sisters of Mercy of the Americas, through their Mercy Investment Services, Inc., have be purchasing shares in those prisons.
Fund manager Sr. Valerie Heinonen has been purchasing shares in private prison companies since 2000. The fund strategy is to purchase a sufficient amount of shares to influence change in the way that private prisons are run. Heinonen told CNN Money: "What we want is the establishment of a human rights policy at these companies".
The two largest owners of private prisons are Geo Group and Corrections Corporations of America. The companies have been hugely successful. According to CNN Money, the stock of Geo Group has risen 130% over the past three years. But, many argue, those profits are made on the backs of prisoners whose human rights are disregarded.
With the decline in incarceration rates, empty private prisons have been used to house detained immigrant children and adults. As reported by CNN, Mercy has raised concerns around food, housing and education for detained children and adults. Sr. Heinonen said: We've also been concerned about legal access for people." The Mercy Fund and prison ownership companies are in communication, addressing the human rights concerns. The Mercy Fund has also used corporate process successfully. After its initial success with a corporate environmental ballot, prison waste is being recycled. The nuns then moved on to typing executive compensation to social, as well as financial, success. Said Sr. Heinonen: "By the time we got started with the human rights policy, we had had had some success with other shareholder initiatives." Now the prisons have official human rights policies.
Prison reform by shareholders and others is a long term venture. But the investor strategy gives the shareholders clout that is no longer available to those who sell their stocks in protest.
Friday, March 27, 2015
The current issue of the Canadian Journal of Human Rights is a special volume focused on solitary confinement and human rights. Articles in the interdisciplinary journal include prisoner writing and philosophy as well as comparative analyses from Europe and the United States.
In the U.S., though its use has decreased since a peak in the 1990s, solitary confinement remains pervasive and concerning; an estimated 80,000 prisoners are currently detained in solitary confinement in the U.S. Indeed, even the mainstream media has picked up the issue, with no less than Vanity Fair publishing an essay on "the horrors of solitary confinement" in its January 2015 issue and the New York Times running Emily Bazelon's essay on "the shame of solitary confinement" the following month.
Activists are determined to bring an end to the practice, and have called for a complete ban on prolonged solitary confinement of more than 15 days. Lawsuits have been one vehicle. A suit in New York City led to favorable reforms. Pelican Bay prisoners mounting a pending suit in California recently won a motion to maintain past prisoners as members of the class, increasing the pressure on the state. Also in California, Statewide Coordinated Actions To End Solitary Confinement (SCATESC), began March 23, 2015, with actions in Arcata, Oakland, San Diego, San Jose, Santa Cruz and in Philadelphia, PA. More locations will join on April 23rd and then 23rd of each month following.
The upcoming University Periodic Review of the U.S. by the Human Rights Council will provide another occasion for scrutiny of U.S. prison practices. A consortium of groups, led by the Center for Constitutional Rights, submitted a succinct document to the Council addressing solitary confinement. The final paragraph of the submission aptly sums up the current struggle for reform:
"The US warehouses tens of thousands of prisoners in prolonged solitary confinement, a practice
that is well-known cause to devastating psychological and physical effects. These harms are disproportionately visited upon people of color, politically-active prisoners, and those whose
gender or sexual identity is perceived to make them vulnerable to sexual assault. The US Government must take concrete steps to end the use of prolonged solitary confinement; to ensure
meaningful process prior to such confinement; to develop standards that prevent the
discriminatory use of solitary confinement; and to compile data on the use of solitary
confinement across the country."