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, May 3, 2020
Despite advocacy asking states to release incarcerated individuals early, the US has released relatively few people in comparison with other countries. Prisons and jails are not safe for the incarcerated or for staff. Only a few days ago Governor Cuomo announced that pregnant women women would be released. But the group of women to be released is narrow. Only women with convictions for non-violent crimes will be released and only then if their remaining sentence is under six months.
Release wouldn't be as critical if jails and prisons were otherwise safe spaces. But those inside report horrid conditions. There is not effective or even enhanced sanitation. Women who are suspected of having symptoms are often isolated in deplorable conditions. At one prison, women were moved to a prion wing that had been closed in years. The cells are filthy with walls filled with mold. Others report a shortage of food, and and disinfecting supplies. No efforts are made at physical differences.
Human Rights Watch issued a report. While it is NY specific, the report is worth a read. The frightening conditions described are prevalent in most jails and prisons across the country.
Tuesday, April 14, 2020
The Department of Justice began investigating the Edna Mahan Correctional Facility for Women in 2018. The Justice Department report was released this week. The primary finding was of rampant sexual abuse of incarcerated women by correctional officers and other staff. Since the investigation began DOJ reports:
In May 2018, an Edna Mahan correction officer was found guilty of five counts of sexually abusing prisoners. According to the sentencing judge, the “pervasive culture” at Edna Mahan allowed this correction officer to abuse his “position of authority to indulge in [his] own sexual stimulation.”
In July 2018, another Edna Mahan correction officer pled guilty to three counts of official misconduct after he admitted sexually abusing three separate prisoners.
In January 2019, another correction officer pled guilty to official misconduct charges after admitting that he repeatedly sexually abused two Edna Mahan prisoners over a period of several years. In sentencing him, the New Jersey court concluded that the officer had “sexually assaulted a vulnerable population.”
Others have been indicted.
As reported by the NY Times, “Sexual abuse should not be a part of any prisoner’s punishment,” Eric S. Dreiband, the head of the Justice Department’s Civil Rights Division, said in a statement accompanying the report, the result of an investigation by the division and the U.S. attorney’s office in New Jersey. “Women prisoners at Edna Mahan are at substantial risk of sexual abuse by staff because systemic deficiencies discourage prisoners from reporting sexual abuse and allow sexual abuse to occur undetected and undeterred.”
Incarcerated women have complained for decades of the sexual and other abuse they are subjected to while confined. Edna Mahan's women were no different. The women endured years of abuse, which included being forced to have sex with other women while staff observed. The report went on to say that “Our society requires prisoners to give up their liberty, but that surrender does not encompass the basic right to be free from severe unwanted sexual contact.” The question has to be asked - why did it take years of reporting for any significant investigation to be done? Other incarcerated women report similar abuses at a wide number of facilities but life is often more difficult for them if they report the abuse. The women of Edna Mahan were courageous in their reporting but not after years of being threatened into silence.
Most incarcerated women lost their liberty for non-violent crimes. Most incarcerated women were abused during their pre-incarceration years. These women do need prison. They need services. Whether the needed help is for substance abuse, mental health, education or reunification with children, prisons to not provided supportive environments that will assist women to have healthy lives. The abolition of prisons for women and girls is a national movement, led by the National Council of Incarcerated Women and Girls.
Those interested in joining the abolitionist movement will readily find local organizations leading the efforts locally. Prisons for women have a sordid history of physical and sexual abuse of women and failure to provide services even at the level male provided to incarcerated men. Time indeed is up on the incarcerated of women and girls.
Tuesday, March 3, 2020
A UN expert has warned that the excessive use of solitary confinement in US prisons is tantamount to torture. The warning was issued after a review of the Connecticut prison system. "For years, my mandate has raised concerns about the worldwide overuse of solitary confinement which is subject to widespread arbitrariness." These words came from Nils Melzer, UN Rapporteur on torture. Mr. Melzer went on to say that the Connecticut Department of Corrections "has appeared to routinely repress inmates through prolonged or indefinite isolation, excessive use of in-cell restraints and needlessly intrusive strip searches."
These dehumanising conditions of detention, sometimes euphemistically referred to as "segregation," "secure housing," the "hole" or "lockdown," are routinely used by US correctional facilities, particularly against inmates designated as "high risk" due to previous gang affiliations, behaviour abnormalities or mental conditions.
"These practices trigger and exacerbate psychological suffering, in particular in inmates who may have experienced previous trauma or have mental health conditions or psychosocial disabilities," Melzer noted.
"The severe and often irreparable psychological and physical consequences of solitary confinement and social exclusion are well documented and can range from progressively severe forms of anxiety, stress, and depression to cognitive impairment and suicidal tendencies.
"This deliberate infliction of severe mental pain or suffering may well amount to psychological torture," the Special Rapporteur said.
Inflicting solitary confinement on those with mental or physical disabilities is prohibited under international law. Even if permitted by domestic law, prolonged or indefinite solitary confinement cannot be regarded as a "lawful sanction" under the Mandela Rules which guides the appropriate treatment of prisoners.
The full UN statement may be read here.
Thursday, February 27, 2020
There is a new report on women in prison. The report was released by the US Commission on Civil Rights. The below excerpt is taken from the press release.
Among the various topics addressed are gender differences in personal histories as well as types of crimes committed. Importantly the report addresses the significant trauma histories women bring to prison when compared with men and the resulting mental health issues trauma can bring.
"In comparison to men in prison, women in prison are more likely to report having experienced
physical and/or sexual abuse as children and adults. Research and expert testimony suggest that
at least 50 percent of women entering prison report experiencing physical and/or sexual abuse prior
to their incarceration. Other studies suggest that as many as percent of women in prison
experienced traumatic events prior to their incarceration and the most common forms of traumatic
experiences report included interpersonal or sexual violence. In contrast, data reflect that men are
reportedly less likely to have been direct victims of violence. Another important difference
between the reported abuse histories of men and women is the length of time in which they
experience abuse. While the risk of abuse for men declines after childhood, the risk of abuse for
women endures throughout their juvenile and adult lives. For some women and men in prison,
abuse can persist while they are incarcerated either at the hands of fellow inmates or prison staff."
Monday, February 10, 2020
The Federal government is investigating Mississippi prison conditions. Parchman and four other facilities are being investigated for their inhume living conditions. According to NBC News, among the complaints are food containing insects, rodent feces and hair. Lack of running water and showers for weeks as a form of group punishment. Prison staff would promise steak dinners and DVDs if inmates cleaned up the filth and mold before an outside agency came in to inspect. The investigation was prompted after a series of violent deaths as well as protests to shut down Parchman. "Since Dec. 29, at least 15 inmates have died across Mississippi's prisons, with several resulting from gang-related riots, according to officials. At least two of the deaths were suicide-related."
On February 19th, Columbia University School of Law will host a teach-in and fundraiser supporting Mississippi efforts to close the offending prisons and other coalitions looking to reform or abolish prisons. For more information and to register click here.
Monday, September 16, 2019
Wednesday, August 21, 2019
Following up on yesterday's post, one of the many concerns with the US prison system, is the use of private prisons. The profit driven systems have added additional burdens for the incarcerated and their incentive is to incarcerate as many as possible. The latter burden falls mostly on minorities. The first thing that the incarcerated lose is their dignity. Private prisons promote that result with their focus on profits, rather than providing decent living and medical conditions for the men and women (and now children at the border) they house.
According to the Sentencing Project "Since 2000, the number of people in private prisons has increased 47%, compared to an overall rise in the prison population of 9%. In six states, the private prison population has more than doubled during this period. The federal prison system experienced a 120% increase in use of private prisons since 2000, reaching 34,159 people in private facilities in 2016. Among the immigrant detention population, 26,249 people – 73% of the detained population – were confined in privately run facilities in 2017. The private immigrant population grew 442% since 2002."
Change is coming.
New York has been one of the leaders in removing private prisons from state systems. In addition to banning private prisons, New York has divested state pension funds from private prison holdings in CoreCivic and GEO Group and prohibits NY State-chartered banks from financing and investing in private prison corporations.
In June. Nevada banned the use of private prisons for core services, including custody and housing. The bill's primary sponsor said "Outlawing for-profit prisons once and for all will better help us achieve a criminal justice system of equity, integrity, and fairness — a system that views prisoners as people instead of profit margins.” Also in June, Nevada enacted a law prohibiting private prisons from housing detained immigrants.
For those living in states that use private prison systems, this might be a good time to contact legislators to encourage a bill that will prohibit their us.
Monday, July 15, 2019
Religious Freedom has had significant victories over the past few years as Supreme Court cases go. But those cases (beginning with Hobby Lobby v. Burwell), have protected religious freedom arguments from a conservative Christian perspective.
Unsuccessful with SCOTUS this term was a religious freedom issue brought by a Muslim prisoner who requested that an imam be present at his execution. Justice Kagan wrote in dissent "'The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another." But that is not what happened here. In this case, the 11th Circuit had already stayed the execution in order to hear Mr. Ray's religious freedom argument. But in an unusual measure, SCOTUS removed the case from the 11th Circuit and denied the prisoner's request with, as the dissent says, little briefing and no argument "just so the State can meet its preferred execution date".
The trend to watch in the upcoming term is whether non-Christian religious rights are protected. In addition, those cases that have favored religious freedom have ignored the religious freedom rights of those most impacted by the court's decision. Left unaddressed was whether in protecting the religious rights of the proprietors in Hobby Lobby a religious tyranny was created that oppressed workers who hold quite different religious beliefs?
A case involving competing religious beliefs would be welcome in order to clarify whether non-Christians or atheists will have protection from our highest court.
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.
Sunday, April 7, 2019
The New York Times headline read Alabama's Gruesome Prisons: Report Finds Rape and Murder at All Hours. The investigation into Alabama's male prison system began under the Obama administration with the bulk of the investigation continuing under the present administration. As the Times article notes, Alabama is not alone in deplorable conditions, but Alabama incarcerates in numbers greater than other jurisdictions and its conditions are "severe" with antiquated prisons housing nearly twice the number of individuals they were built to house. Photographs of the deplorable conditions may be found here. Reportedly, the Southern Poverty Law Center received a thumb drive containing over 2,000 photographs of gruesome prison conditions.
Most of Alabama's prisoners are not housed in safe conditions. Sleeping dorms contain no protections from violence and solitary confinement is used to house the most vulnerable prisoners.
Alabama Governor Kay Ivey said that her administration will work to address "mutual concerns" and to make certain that the Alabama problem has an "Alabama solution". Interpretation - the concerns were never mutual. The need for an Alabama solution tells her constituents that once again, Alabama will resist acknowledging the authority and will resent the interference of the federal government.
Example: according to one report, a proposed Alabama solution would have the state build much larger prisons. This is not exactly a solution that prisoner's lawyers are seeking. One representative of Southern Poverty Law Center responded: “You don’t need to build mega prisons, you need to increase the number of correctional officers that are working in your prison. You need to deal with issues of violence and sexual assault. You need to engage in more sentencing reform to further drive down the population, so that you’re not at 160 percent capacity. But, instead, the answer that we got was: build, build, build.”
Administrative self-reflection appears to be the missing link.
Thursday, March 14, 2019
The newly elected governor of California suspended use of the death penalty in that state. By executive action the Governor will look to end the death penalty in its entirety. Having executed 13 people since the death penalty was approved by voters in 1978, no one has been executed since 2006 while over 900 were sentenced to death. One judge ruled that forcing prisoners to live on death row for such an extended period is cruel and abusive treatment. Currently 24 inmates reside on California's death row.
Currently there are 937 people on death row. The Governor, Gavin Newsome, said that he could not morally allow executions to proceed in the state. The electrocution equipment is already being dismantled and the Governor is withdrawing the state's lethal objection protocols.
Not all agree with the decision. Some are preparing a referendum for 2020 while others have quite vocally condemned the move.
Sunday, March 10, 2019
Rev. Fred Shuttlesworth was a civil rights hero. Born in Birmingham, Alabama, he was one of the early activists in the civil rights movement and shared jail cells with Dr. Martin Luther King. Rev. Shuttlesworth was widely respected as a civil rights leader in a city and state where activism could have severe consequences. Indeed Rev. Shuttlesworth was the recipient of many beatings and the target of bombings. His 2011 funeral brought admirers from across the state of Alabama and the nation. Representative John Lewis was among the eulogizers and Peter Yarrow, who sang along with Paul and Mary at the 1963 civil rights March on Washington, sang "Blowing in the Wind".
The Institute, along with the City of Birmingham, has done a good job of owning its past. The Institute does not shy away from the civil rights history and the city's response. Among its many exhibits is one replicating the jail cell where Dr. King wrote "Letter from a Birmingham Jail". The setting provides a powerful place to read the letter, which is part of the exhibit. Across from the Institute is Kelly Park, where demonstrators were hosed by firemen and attacked by police dogs. Again, the city does not shy from its history. Bronze exhibits in the park replicate attacking dogs and firemen with hoses.
So it was not surprising when the Birmingham Civil Rights Institute announced that Dr. Angela Davis would be the recipient of the Fred Shuttlesworth Human Rights Award.
Angela Davis hails from Birmingham. The civil and human rights leader is remembered for her activism against racist practices during the 1970s. During that era, she was a member of an African American chapter of the Communist Party and supported the Black Panthers and a target of the FBI. She spent 18 months in prison on accomplice to murder charges involving the death of a judge, a charge from which she was acquitted. A Ph.D. whose activism has sometimes made her academic life difficult, she teaches at the University of California at Santa Clara where she continues to write and work on human rights issues. One of her recent works is Freedom is a Constant Struggle: Ferguson, Palestine and the Foundations of a Movement. She is known as a respected human rights activist who carried on her activism to ensure fundamental human rights.
Then the Institute rescinded the award, stating that Dr. Davis did not meet the criteria. The Institute had received a letter from the Birmingham Holocaust Education Center asking for reconsideration of the award based upon Dr. Davis' support of Palestinians. Jewish Voice for Peace published an open letter to the Institute, signed by over 350 academics, calling on them to cancel the rescission.
The counter-pressure was intense. Three Institute board members resigned. The Mayor joined in criticizing the recission decision and the City Council swiftly passed a resolution supporting Dr. Davis. The Institute acknowledged receiving criticism from several community groups. In the meantime, community leaders, including clergy and business people, arranged an alternative Birmingham event at which Dr. Davis spoke to an overflowing crowd.
The Institute re-extended the award to Dr. Davis and published a letter stating that no decision should have been made regarding rescission before a discussion with diverse groups. Also, it said that it was keeping with its commitment to learning from its mistakes. Unknown is whether Dr. Davis accepted or will accept the Shuttlesworth Award.
Tuesday, January 15, 2019
As always, the most vulnerable among us bear the brunt of unreasonable and insensitive government policy. The government shutdown is no different. No surprise that when the President decided to shutdown government agencies as political leverage, he gave no thought to the impact on America's working class and those even more vulnerable economically.
The Indian Health Service has stopped receiving federal funds. Indigenous women have the highest rate of uninsured in this country and over 1 million Indian women and Alaska native women rely upon IHS for care. While not having an immediate fiscal impact, the Violence Against Women Act was left unauthorized and unfunded due to the shutdown. Those who provide services to those who have experienced abuse may have sufficient funds from prior grants to operate in the near future, funding in the long term is not likely if the government continues to be closed. SNAP (special nutritional assistance program) and WIC (the supplemental nutritional program for women, infants and children) programs are currently providing benefits through state and local sources, but those funding sources cannot be relied upon in the long term.
Those who are federally incarcerated have seen immediate impacts on their well-being. In total, half of the 36,000 Bureau of Prison employees have been furloughed. The Marshall Project reports that in at least one prison family visits have been canceled. Those providing therapeutic services have been furloughed as "non-essential". Those awaiting compassionate release must wait longer because there is no one to review their applications. Prisoner commissaries are running low and not being re-stocked. And parts of the recently passed First Step Act will likely be postponed because those charged with implementing it are furloughed. Some prisoners may begin missing release dates.
Families of employees will suffer from the impact of sudden loss of income. Eviction and creditor lawsuits are likely to follow rapidly.
No doubt this shutdown will have long-term adverse economic impacts not only on unpaid workers, but systemically as well as those who turn to other employment take their skills and expertise with them.
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.
Sunday, December 2, 2018
In what is a practice suspected to be widespread, men incarcerated at a Kansas prison were secretly recorded when speaking with their attorneys. The prison was the Leavenworth Detention Center, which is privately run. Defense attorneys uncovered the scheme and a court-appointed investigator was assigned.
The public defenders requested the release of 67 inmates whose attorney-client conversations are known to have been recorded and they plan to ask for the release of approximately 150 more.
As early as 2008, attorneys complained of recordings o their calls to incarcerated clients. Complaints were lodged in two counties in California where eavesdropping on calls between the incarcerated and their lawyers, as well as psychiatrists, clergy and doctors is a felony. Other states where recording complaints have been made include Florida, Michigan and Texas. This year an inmate of a Wisconsin prison filed suit because his calls with his attorney were recorded, to his detriment.
The jailers' defenses include the inability to terminate digital recordings. Some say that phone numbers from the lawyers directory are keyed into the system so that calls will not be recorded. But that system ignores cell phone and other numbers not found into the directory. Yet one company was found to record attorney-prisoner phone calls even when the lawyers' telephone numbers were in the system.
Prosecutors routinely listen to prisoner recordings searching for any illegal activity. But when listening to prisoner/lawyer conversations learn trial strategy and other privileged information that make a fair trial unlikely.
Thursday, September 27, 2018
A new report issued by the ACLU and Human Rights Watch addresses the harm done to families when mothers are jailed pretrial. While the research and report focuses on Oklahoma (the state with the highest number of incarcerated women) but is applicable wherever mothers are incarcerated.
The press release reports that " ailing mothers, even for short periods oaf time can result in overwhelming debt and loss of child custody." Among the findings are:
- Mothers often plead guilty in exchange for probation in order to return to their children. Then the mothers find that the local child protective service has taken custody of the children without any input from the mother.
-Jail visitation policies often prohibit in person visits replacing visitation with phone or video visits which are often cost prohibitive.
-Bail is excessive for most mothers virtually eliminating their chance for release pre-trial. Even if they raise needed bail the financial cost often impoverishes the family.
Because of Oklahoma's record of incarcerating women at high rates, the National Council for Incarcerated and Formerly Incarcerated Women is holding its conference "Free Her" in Tulsa this weekend.
Sunday, September 9, 2018
Between August 21 and today, a nationwide prison strike has been in progress. Incarcerated individuals across the nation have protested in various ways. Some stopped working their often grueling jobs that pay two to three dollars a day, sometimes less. Others have engaged in hunger strikes while many refused to purchase items from the prison commissaries. Commissaries charge hugely inflated prices. Strikers are particularly courageous as prison retaliation can be fierce, including solitary confinement.
One of the major issues that prompted the protests is the poor quality and often dangerous food served to the prisons. A Center for Disease Control study found that incarcerated people are more than six times more likely to get a food borne illness than other individuals. Many states' prison food does not meet the state's own minimal nutritional standards. The privatization of prisons, and prison food delivery has made conditions even worse as the quality of food deteriorates to make prisons and private corporations more profitable.
Other concerns include ending forced labor, creating humane prison living conditions and developing prison policies that prioritize the humanity of the incarcerated.
Thursday, August 23, 2018
Florida's Lowell Correctional Institution for Women is infamous for human rights abuses. Recently a convening was held in Florida giving formerly incarcerated women and their families an opportunity to tell Justice Department investigators of the brutalities they experienced at the prison at the hands of the guards. They described rape, assault and drug smuggling by officer as routine.
The investigation into possible constitutional violations began in July . Lowell has the second largest women's population in the country. One family reports that their daughter is verbally and physically attacked by corrections officers. The Miami Herald helped expose the human rights violations in a report Beyond Punishment. The paper followed up reporting on the meeting that occurred with Federal Investigators.
"DOJ representatives said they are focusing on whether the Florida Department of Corrections has ignored, covered up or dismissed widespread complaints of sexual misconduct by officers, administrators and staff." One woman reported being in isolation for 65 days following a report of sexual assault by a corrections officer. This punishment for reporting assault is common in many women's prisons.
Laura Cowell, an attorney with the Justice Department, said that the inquiry was not a criminal one. She said that should violations be found DOJ would work with prison officials to address "deficiencies". Leaving unanswered why the investigation is not criminal and what power will DOJ have in stopping the abuses without the power of arrest. Attorney Cowell tried to assure the audience "that retaliation would not be tolerated by the Department of Justice, pointing out that it is against the law for anyone to impede a federal investigation." So is sexual assault, drug distribution and other horrors going on inside Lowell.
Wednesday, August 1, 2018
"Sexual abuse is one of the primary predictors of girls’ entry into the juvenile justice system...Once inside, girls encounter a system that is often ill-equipped to identify and treat the violence and trauma that lie at the root of victimized girls’ arrests. More harmful still is the significant risk that the punitive environment will re-trigger girls’ trauma and even subject them to new incidents of sexual victimization, which can exponentially compound the profound harms inflicted by the original abuse."
So informs the introduction to a new report highlighting the victimization of young girls who are ferried through the maze of the juvenile justice system when the crime was not theirs but that of the predators who sexually abused them. The report is a collaboration between Human Rights Project for Girls, Georgetown's Center on Poverty and Inequality, and The Ms. Foundation for Women,
"Once inside, girls encounter a system that is often ill-equipped to identify and treat the violence and trauma that lie at the root of victimized girls’ arrests.
The report exposes various ways in which various systems criminalize girls, particularly girls of color. Trauma based treatment, which is the needed response is typically overlooked. The report addresses the over representation of sexually non-conforming juveniles and is generally a good source of statistics supporting the research that is the basis of the report.