Criminal Justice

  • August 27, 2015
    Guest Post

    by Jennifer Taylor, staff attorney, Equal Justice Initiative

    Racial discrimination in jury selection is a feature of American criminal justice with a deep-rooted history and persistent life span. Last week, The New York Times explored the practice’s contemporary legacies and the law’s apparent inability to eradicate it once and for all.

    Before ratification of the Reconstruction Amendments that followed the end of the Civil War in 1865, black Americans were not legally considered American citizens and were routinely barred from serving on juries or testifying in court in many communities throughout the country – including in the South where the vast majority of them had been enslaved. After the grant of emancipation, citizenship, and legal rights, outright prohibitions on jury service evolved into thinly veiled qualification requirements that left selection up to the discretion of white officials or so-called random selection processes that enabled race-based exclusion. In practice, the result was the same: no black jurors allowed.

    More than a century later, after legal victories and social movements, the problem remains most prominent today where it was most prominent then: the American South. Adam Liptak’s article highlights a recent report finding that in Caddo Parish, Louisiana, prosecutors are three times as likely to strike a black person from jury service as a white juror. The Equal Justice Initiative reported similarly disturbing results in its own study of prosecutors’ strikes in Houston County, Alabama, in 2011 and filed suit on behalf of those jurors. The problem is not getting better.

    Importantly, discriminatory jury selection implicates not just the rights of the defendant facing trial, but also those of the excluded juror – black Americans who have the constitutional right to participate in the trial process but little recourse when that right is infringed upon. Recalling the experience of walking past a towering Confederate memorial to enter the Caddo Parish courthouse, 63-year-old Carl Stokes, a black man excluded from service on a death penalty case there in 2009, expressed dismay. “It dashes your hopes,” he told The New York Times. “It has its roots in the ideology of white supremacy.”

  • August 12, 2015
    Guest Post

    by Tom Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of Boston Police Department

    When I was a rookie police officer in the late 1970s, it was the subcultural norm to misrepresent the truth in official recordings and reporting of factual incidents involving the police and those whom they encountered in the performance of their duties.  It was commonly accepted, even expected, that in preparing official police reports for presentation to superiors that the "truth" would be rendered in such a fashion as to extricate line officers from any hint of wrongdoing and portraying the incident in a manner most flattering to the police position. In fact, later in my police career, as a lieutenant, it was part of my responsibility (unwritten of course) to assist subordinate officers and colleagues in preparing such fictitious renditions of events. Although unaware at the time, we were establishing and perpetuating the police narrative.             

    As a young police officer testifying on the witness stand, I could have told the court that I pursued and apprehended the suspect/defendant on the planet Mars and have been believed. Although never having received formal instruction in the art of deception, and although the word “lie” would never be fully articulated or encouraged by any of the actors in the criminal justice system, prosecutors, judges, colleagues and other court officials were all keenly aware that sworn testimony often involved versions of the truth that bore little resemblance to actual events as they occurred on the street.  

    For the police had full “command and control” of the law enforcement narrative and this narrative has, certainly beginning with events in Ferguson, Mo., last August, shifted from the firm grasp that law enforcement has held on it for generations, to one that is openly interrogated, challenged and seen with widespread skepticism on the part of those concerned with social justice and police violence, oppression and the pervasive disregard of the provisions of the Constitution.

  • July 14, 2015
    Guest Post

    by Nkechi Taifa, Senior Policy Analyst, Open Society Foundations, Washington Office

    *This post originally appeared on Open Society Voices

    President Obama changed 46 lives on Monday, commuting the prison terms of individuals who had been locked away serving long sentences for low-level, nonviolent offenses. “These men and women were not hardened criminals. But the overwhelming majority of them had been sentenced to at least 20 years—14 of them had been sentenced to life—for nonviolent drug offenses,” the president said in making the announcement. “Their punishments didn’t fit the crime. And if they’d been sentenced under today’s laws, nearly all of them would have already served their time.”

    I enthusiastically applaud the president’s announcement, as I did with his two prior batches of releases. For more than 20 years now, I have been pushing, along with many other champions of criminal justice change, for reform of the egregiously lengthy sentences for crack cocaine offenses—sentences which were unjust, inconsistently applied, and racially discriminatory.

    I was aware of the use of the executive clemency power to close painful chapters in history, which presidents of both parties have courageously used. John F. Kennedy quietly issued commutations to people given mandatory minimum sentences under the 1956 Narcotics Control Act, widely seen as unnecessarily harsh during his administration. Gerald Ford used his authority to create an executive clemency board to oversee the petitions of 21,000 people convicted of draft-related offenses during the Vietnam War, 90 percent of which were granted.

    President Obama’s commutations this week allow dozens more worthy candidates, many of whom thought they would never again see the light of day, the opportunity to have a second chance. This is phenomenal. But we as a country need to go further, and release the broadest spectrum of prisoners possible without compromising public safety.

  • July 13, 2015
    Guest Post

    by Theo Shaw, a William H. Gates Public Service Law Scholar, University of Washington School of Law; and one of the young students charged in the “Jena 6” case. Follow him on Twitter @theorshaw

    Glenn Ford, imprisoned nearly half his life for a murder he didn’t commit, died earlier this month after a battle with lung cancer. Socially, though, he died 30 years ago – in part because of our nation’s underfunded public defender systems and prosecutorial misconduct, and lack of accountability.

    As an intern for the Innocence Project New Orleans (IPNO) in 2010, I worked on multiple cases where prosecutorial misconduct and lawyers’ ineffectiveness resulted in wrongful convictions. Some of our clients received ineffective legal representation because our nation’s public defender systems are so terribly underfunded lawyers are compelled to represent more people than is ethically possible, which increases the likelihood of wrongful convictions.

    Compounding those injustices are government abuses of power. During Ford’s initial trial, prosecutors withheld evidence favorable to his defense. Disturbingly, Ford’s nightmare isn’t unique. During my summer with the IPNO, I befriended John Thompson. He spent 18 years in prison—14 of those years on death row—for a crime he didn’t commit. In his case, prosecutors also withheld evidence favorable to his defense; and the gross injustice of government abuse is a reality for many more defendants.

    After his release, Ford filed a petition seeking compensation for his wrongful imprisonment. Ford's request was denied because, according to District Judge Katherine Dorroh, he failed to prove by clear and convincing evidence that he was factually innocent. This is clear for me: a criminal justice system built on the principle of Equal Justice Under Law should require more – for justice and fairness.

    For our society to banish these injustices it must face reality and take action. 

    In our juvenile and criminal justice systems, race and poverty significantly determines outcome. In fact, there are important cause and effect relations between race and poverty. It’s undeniable and ethically inexcusable that for indigent and racial minorities in our justice systems, both historically and within our contemporary society, the right to counsel is violated almost daily.

    As a prospective public interest lawyer, I am strongly committed and passionate about the right to competent legal representation and equal justice for indigent people, racial minorities, juvenile offenders, condemned prisoners, and those wrongly convicted in our legal system. This means I am just as committed to fighting systemic poverty, challenging racial discrimination in our criminal justice system, and ending human rights abuses in our juvenile and adult detention facilities, practices such as solitary confinement, guard abuse, and degrading conditions of confinement.

    My vision and hope for a just society is also fueled by a deeply held universal concern (across race) for all persons who have had or will have their constitutional rights violated. Hence, I am committed to using my knowledge (legal and otherwise) to be a powerful and compassionate voice for every person accused of a crime. In this way I hope to help this country realize the promise of Gideon v. Wainwright

     

     

  • July 1, 2015
    Guest Post

    by Brandon L. Garrett, Professor of Law at the University of Virginia, and Lee KovarskyProfessor of Law at the University of Maryland Carey School of Law.

    *This post originally appeared at The Huffington Post.

    Monday, the Supreme Court Justices delivered their oral opinion summaries in the Term's high-profile death penalty decision, Glossip v. Gross. Rather than reading from his concurring opinion or from a prepared statement, Justice Antonin Scalia -- still frazzled from release of the same-sex marriage cases -- appeared to be improvising. He accused Justice Stephen Breyer and Justice Ruth Bader Ginsburg of expressing personal "policy preferences," and added that the "two justices are willing to kill the death penalty outright rather than just pecking it to death." Why the defensiveness and outrage?

    Glossip was a 5-4 victory for death penalty states, which retained leeway to use new and untested lethal-injection "cocktails." Scalia was part of the majority but he sounded strangely like he was uttering last words. Justice Samuel Alito's presentation of the majority opinion was also unusually defensive and hostile to the dissenters. Justice Alito insists it is "settled that the death penalty is constitutional." In a career-defining dissent, Justice Breyer showed just how unsettled the American death penalty remains.

    The precise legal question in Glossip was whether states could use midazolam as the anesthetic in a three-drug legal-injection cocktail. For years, states used sodium thiopental, until suppliers stopped selling it for use in executions. Many states turned to pentobarbital, which also became difficult to obtain. Oklahoma turned to midazolam, considered more of an anti-anxiety medication than an anesthetic. After several "botched" executions, the Supreme Court agreed to hear whether improvements to Oklahoma's cocktail -- including a 400 percent increase the midazolam dosage -- satisfied the Eighth Amendment. Holding that it did, the Court seemed to announce a rule that an execution could not be Cruel and Unusual under the Eighth Amendment unless there is a "known and available alternative method of execution that entails a lesser risk of pain." Justice Sotomayor dissented, calling this a "surreal" endorsement of inhumane "human experimentation."

    Justice Breyer did more. Joined by Justice Ginsburg, he wrote a dissent arguing that the death penalty is flat out unconstitutional, and he characteristically loaded his opinion with empirical data. In doing so, Breyer and Ginsburg joined the ranks of predecessors such as John Paul Stevens and Harry Blackmun who, in their later years on the Court, declared they no longer believed that there exists a constitutional way to administer capital sentences. In 1994, an 85 year-old Blackmun penned a memorable single-Justice dissent swearing off his participation in capital process: "From this day forward, I no longer shall tinker with the machinery of death." For Justices Breyer and Ginsburg, the death penalty cannot escape a dilemma's horns -- the procedural protections necessary to make the penalty reliable mean that the process takes so long that it no longer serves its retributive or deterrent purposes.