Thursday, November 3, 2022
New Article: Certain Prosecutors: Geographical Arbitrariness, Unusualness, & the Abolition of Virginia’s Death Penalty
Bernadette M. Donovan, Certain Prosecutors: Geographical Arbitrariness, Unusualness, & the Abolition of Virginia’s Death Penalty, Washington and Lee Journal of Civil Rights and Social Justice, Vol. 29, Issue 1, Fall 2022. Abstract below.
Virginia’s abolition of the death penalty in 2021 was a historic development. As both a southern state and one of the country’s most active death penalty jurisdictions, Virginia’s transition away from capital punishment represented an important shift in the national landscape. This article considers whether that shift has any constitutional significance, focusing on the effect of Virginia’s abolition on the geographical arbitrariness of the country’s death penalty.
As a starting point, the death penalty in America is primarily regulated by the Eighth Amendment, which bars “cruel and unusual punishments.” The United States Supreme Court has held that the death penalty is not per se unconstitutional, but that the Eighth Amendment constrains its application. In particular, modern death penalty law is concerned with the arbitrary or unusual infliction of the death penalty. Since 2015, the concept of “geographical arbitrariness”—that the death penalty’s localization could render it so random or rare as to be unconstitutional—has gained increased attention.
This Article examines whether and how Virginia’s abolition contributes to the geographical arbitrariness of capital punishment in America. The Article finds that Virginia’s experience demonstrates the geographical arbitrariness of the contemporary death penalty in two important ways. First, this Article examines the localization of capital sentencing within Virginia. Capital sentencing and execution data show that as Virginia’s death penalty declined, the practice was kept alive by a small minority of prosecutors who had an unusual passion for death sentencing. In its latter years, Virginia’s death penalty thus increasingly reflected the unfettered discretion of local decisionmakers. Second, this Article considers how Virginia’s abolition affected the national landscape of the death penalty. The Article concludes that both quantitively and qualitatively, the end of Virginia’s death penalty supports a conclusion that capital punishment has become too arbitrary to be constitutional.
Tuesday, October 11, 2022
Adnan Syed was seventeen years old when he was charged with an adult crime, tried in adult court, and given an adult sentence (life imprisonment plus 30 years). When he walked out of court on September 19, 2022, he was forty one. Adnan had served twenty three years in prison for a crime he committed when he was a kid.
There has been so much written and recorded about Adnan’s case since the “Serial” podcast debuted in 2014. There’s no need to summarize it all here. In fact, I am going to ignore a lot of what is being currently discussed–DNA evidence, Brady violations, the prosecutor under investigation, appeals of the decision to release Adnan and put him on home detention. I am also not going to discuss Adnan’s innocence or guilt. Instead, what I am going to focus on is the life plus 30 years sentence that was imposed upon him and, more broadly, the human rights violations that are juvenile sentencing in the United States.
I have to admit that I come at this case from unpopular or even seemingly contradictory stances. When I first listened to the Serial podcast in 2014, I was convinced that Adnan was not innocent. Second, regardless of or despite what he did, I don’t believe that he should have been in prison for as long as he was and I’m glad he’s out of prison.
My Human Rights at Home Litigation Clinic students and I have been representing individuals for the purposes of juvenile life without parole hearings here in Missouri for the last two years. We have represented eight individuals, so far, who were sentenced to life without parole for crimes they allegedly committed when they were kids–Ages fifteen to seventeen years old. Seven of our eight clients have had parole hearings. Of those seven, all received out dates, and five individuals have already been released on parole after more than thirty years inside. These cases have been lifechanging for my clients, for my students, and for me.
One of the minor ways this work has changed my life, is that I now can’t stand true crime podcasts, or true crime tv shows, or any of it. I have no desire to figure out who dunnit or to listen to the hosts call for a witch hunt for a supposed murderer. With my post-conviction work, none of that matters to me. My clients are all human beings who have been in prison since they were kids. They have faced some of the worst things that any human has to face–lack of adequate healthcare, constant fear, fights, endless solitary confinement, hopelessness, lack of adequate food and water, tortuous security tactics, being cut off from friends and family and even religious services during the pandemic, and no real opportunities for rehabilitation. I will fight for my detained clients’ release forever.
Here in Missouri, our legislature enacted bill SB 590, reforming sentencing for juveniles convicted of murder in the first degree. Now instead of being sentenced to life without parole or the death penalty, judges may also sentence juveniles to life with parole or to between 30 and 40 years in prison. To be clear, this change did not ban juvenile life without parole in Missouri, instead just made the sentence non-mandatory. In 2021, the legislature enacted SB 26, allowing offenders sentenced to fifteen or more years as a minor for nonviolent crimes to apply for parole after fifteen years of imprisonment. Next Missouri needs an overhaul of the parole hearing process, but I’ll leave that discussion for another date.
Unlike Missouri, Maryland, where Adnan Syed was convicted, has prohibited sentencing a minor to a life imprisonment without the possibility or parole or release. In addition, Maryland law now states that individuals, like Adnan, who were sentenced to juvenile life without parole may petition a judge after serving at least twenty years, to reduce their sentence. Maryland has gone further than Missouri in both of these respects. Missouri is not resentencing and has not banned juvenile life without parole.
Moreover, the United States is the only country in the world that allows for the sentencing children to life in prison without the possibility of parole. In fact, human rights law requires that children under the age of eighteen years old be detained for the shortest period of time possible, and their sentences must be proportionate to the circumstances and gravity of their offenses, as well as their own individual circumstances and needs. In some countries juveniles are not sentenced to prison at all.
Sarah Koenig in Serial Episode of 11: Rumors asked “can you tell, really? Can you tell if someone has a crime like this in him? I think most of us think if we know someone well, we can tell.?” Essentially she is asking: How can you know a person’s character? How can you tell what a person is capable of? What if you change those words to ‘How can you know a child’s character?’ I believe a child’s character, even the character of a child who is 17 years old, is not fixed. Instead, I assume a child’s character is going to change, mold and grow, over time, depending on life circumstances and more. To me, knowing a child’s character seems an impossible task. I think that’s what the U.S. Supreme Court was getting at in dramatically curtailing juvenile sentencing over the last couple of decades. Children sometimes do really bad things, but they can still grow up to be beautiful, wonderful human beings, all of the time, if given the opportunity and support. The law and legal system needs reflect that, at the international, federal, state and local level.
Tuesday, September 27, 2022
Join Robert F. Kennedy Human Rights (RFKHR) online Thursday, September 29, 2022, from 4-5 pm ET / 1-2 pm PT for the RFKHR Board and Leadership Council Book Club featuring 2022 RFK Book Awards Laureate Elizabeth Hinton, her latest work - America on Fire and RFKHR Board Member Elisa Massimino, former long-time executive director of Human Rights First.
America on Fire presents a new framework for understanding our nation’s broken criminal legal system, tracing the untold history of police violence and Black rebellion since the 1960s. It also warns readers that rebellions—defined as explosions of collective resistance to an unequal and violent order—are most likely to continue if the systems of inequality and injustice that have remained since the era of Jim Crow are not restructured.
- Elizabeth K. Hinton, Associate Professor, Department of History and Department of African American Studies, Yale University; Professor of Law, Yale Law School
- Elisa Massimino, Visiting Professor of Law and Executive Director, Human Rights Institute, Georgetown University; Senior Fellow, Center for American Progress
The discussion is open to everyone and can be viewed across our social media platforms. This event is open to everyone and can be accessed via our Facebook, LinkedIn, Twitter and YouTube accounts and our website. You can learn more and register for the event here.
Tuesday, September 13, 2022
United Nations Condemns U.S. for Misuse of Chemical Agents, Solitary Confinement in Jails and Prisons in Response to Reports of St. Louis City Justice Center Jail Conditions
By Lauren E. Bartlett, HRAH Blog Editor, and Anezka Krobot, 2L at St. Louis University School of Law
On Tuesday, August 30, 2022, the UN Committee on the Elimination of Racial Discrimination published its Concluding Observations and Recommendations from its August 10-12 review of the United States. The Committee, which is made up of 18 independent human rights experts drawn from around the world, expressed concerns and gave recommendations for how the United States could better implement the International Convention on the Elimination of All Forms of Racial Discrimination.
In its findings, the Committee condemned the misuse of chemical agents, like pepper spray, in U.S. jails and prisons, in addition to the use of solitary confinement. The Committee also recommended that the U.S impose “strict restrictions on the use of solitary confinement and the use of chemical agents as pepper spray and ensuring that its use does not have a disproportionate impact on racial and ethnic minorities.”
These statements follow submissions of reports of inhumane conditions at the St. Louis City Justice Center jail (CJC), including statements from people who were currently and formerly incarcerated at CJC, advocacy organizations and a shadow report submitted in July 2022 by the MacArthur Justice Center, Saint Louis University School of Law Human Rights at Home Litigation Clinic, ArchCity Defenders and Rights Behind Bars. The shadow report highlights the tortuous punishment and inhumane confinement conditions that are used on a daily basis against those detained in the City of St. Louis, 95% of whom are Black.
A full press statement regarding the Committee’s findings can be found here.
Thursday, April 28, 2022
Student Note: How the Grand Jury Process Diminishes Black Lives by Supporting Police Brutality and Racism
Although the topic of police brutality and the need for police reform has been a popular topic of debate in recent years, the problem of police brutality is nothing new in the U.S. In the U.S, the harsh reality is that the problem of police brutality against Black people goes far beyond the highly publicized incidents. Police officers disproportionately kill Black people in America with impunity because our system of policing encourages such violence, and our legal system protects the use of such violence.
This Note focuses on the problem of Black lives being unjustly taken by police officers and how there are very few instances where the police officers involved are charged for the deaths in these cases, let alone held accountable for their actions. Specifically focusing on the grand jury process and its downfalls, this Note argues that the grand jury process should not be used in cases of police brutality. Lastly, it calls for action from everyone, especially players in the legal system, in which everyone takes a stand against the problem of police brutality against Black people and understand that Black lives matter.
Monday, October 11, 2021
The University of Vienna in cooperation with the Ludwig Boltzmann Institute of Fundamental and Human Rights are hosting an international conference `International Criminal Law before Domestic Courts', which will take place online from Thursday October 14 until Saturday October 16, 2021. From the organizers:
"The conference will be held in a hybrid form at the Law Faculty of the University of Vienna and will be livestreamed. More than 30 academics and practitioners will participate. The conference is particularly relevant to experts, professionals, and students interested in international criminal law, public international law and human rights as it will tackle corresponding current topics from an academic, as well as from a practitioners’ perspective. We would like to especially invite young scholars, lawyers, and practitioners to join the discussion. The talks delivered at the conference will be published in a book next year."
The schedule and registration form can be accessed through the official website of the conference at https://www.iclconference21.com/.
Wednesday, September 8, 2021
Law professor Andrea Armstrong at Loyola University New Orleans College of Law is profiled in the August 23, 2021, issue of the New Yorker. The article centers on her work to collecting and publicizing information about deaths of those incarcerated in detention facilities in Louisiana, but also covers her legal career, scholarship, advocacy, and even her personal life. It is an inspiring portrait of a law professor fighting for the protection of rights of the incarcerated in her home state.
Eyal Press, A Fight to Expose the Hidden Human Costs of Incarceration, The New Yorker, Aug. 23, 2021 Issue.
Monday, June 28, 2021
From July 23-25, 2021, a multi-faceted virtual conference will be held to bring together advocates, community organizers, academics, practicing lawyers, community leaders, and others to discuss the policing and criminalization of neighborhoods. The Conveners of the conference include =the Earl B. Gilliam Bar Association, Pillars of the Community, Community Advocates for Just and Moral Governance (MoGo), The UC Irvine Law School Criminal Justice Clinic, and Detours Mentoring Group, Inc., San Diegans for Justice, and the Peace and Justice Law Center.
Scheduled presenters include:
- Alex S. Vitale, Policing and Social Justice Project, Brooklyn College
- Alex Scott, University of California, Riverside
- Babe Howell, CUNY School of Law
- Blinky Rodriguez, Communities in Schools
- Dave Smith
- David Brotherton, John Jay College of Criminal Justice
- David Pyrooz, University of Colorado Boulder
- Fareed Hayat, CUNY School of Law
- Francisco Romero, CORE
- Gaby Hernandez, Chicanxs Unidxs
- James Nelson, Dignity and Power Now
- James Spady, Soka University of America
- Jose Valle, Silicon Valley De-Bug
- Kevin “Twin” Orange, Advocates for Peace & Urban Unity
- Kimberly Howard
- Lex Stepling, Dignity and Power Now
- Melvyn Hayward, Chicago CRED
- Meredith Manchester Esq.
- Michael Saavedra, Youth Justice Coalition
- MK Kaishian, Brooklyn Defender Services
- Nalya Rodriguez, University of California, Irvine
- Robert Weide, Cal State Univ. Los Angeles
- Sean Garcia-Leys, Peace and Justice Law Center
- Skipp Townsend, 2nd Call
- Taylonn Murphy Sr., Tashana Chicken Murphy Foundation
- Tina Padilla, Breaking Through Barriers to Success
- Urban Peace Institute
For more information and to register for this conference, visit https://decriminalizingneighborhoods.org/
The early bird conference pricing ends July 5th.
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."