Criminal Justice

  • May 14, 2015
    Guest Post

    by Nicole Fortier, counsel, Brennan Center for Justice

    It’s well known today that the United States is the biggest incarcerator in the world. With five percent of the world’s population, we house nearly a quarter of its prisoners. That’s over two million Americans behind bars. The number of people we imprison has increased over 400 percent since 1980. But in that time the federal prison population grew over 700 percent. Today, it has 208,609 inmates housed within its walls – more than any individual state.  The country now spends $80 billion per year on state and federal corrections.

    This dramatic growth was no accident. It was the direct result of laws passed in the 1980s and 1990s by policymakers hoping to combat rising crime rates. Their solution: over-criminalize and over-punish behavior – particularly at the national level. They expanded federal criminal laws, increased penalties, removed sentencing discretion from judges, and encouraged states to do the same.

    It’s clear that together, these laws cast too wide of a net. But it is important to dig further to understand whom they caught in that net. Exploring the demographics of those in federal prison can help us understand the real consequences of these policy decisions.

  • May 13, 2015

    by Christopher Durocher

    In August 2014, Ferguson, Missouri police officer Darren Wilson killed Michael Brown. Partially as the result of conflicting accounts of what happened, a grand jury declined to indict Wilson, sparking a national debate about police brutality, particularly against people of color, and the limits of police accountability. Through numerous incidents of police abuse that have followed, culminating most recently in protests and civil unrest in Baltimore after the death of Freddie Gray, one proposed reform has gained much attention – the adoption of police body-worn cameras.

    As the nation wrestles with the possibility that police brutality may reflect structural, implicit bias against people of color, supporters of police body-worn cameras argue that they would provide an objective record of what transpired when an interaction between a police officer and a civilian leads to the civilian’s injury or death. As evidence of video’s power, they point to North Charleston, South Carolina police officer Michael Slager, who was charged with first degree murder three days after shooting Walter Scott.  Slager’s indictment was due in large part to a video recording of the shooting that contradicted his report of events. Supporters also point to the benefit of body-worn cameras in disproving false claims of abuse against police and in encouraging both police and civilians to “be on their best behavior,” since they know a camera is recording their words and actions.

    Skeptics, however, point to the death of Eric Garner in Staten Island as evidence that cameras, at least absent fundamental changes in policing, will have little impact on police behavior or accountability. Garner’s tragic death occurred when one of the five New York City police officers attempting to arrest him for a minor infraction put him in what appeared to be a banned chokehold. Despite shocking video of Garner’s arrest – in which he can be heard pleading that he is unable to breathe – prosecutors refused to indict the officer. Video failed to bring justice for Garner or his family.

    In the ACS Issue Brief “Police Body-Worn Cameras: Evidentiary Benefits and Privacy Threats” Professor Marc Jonathan Blitz of Oklahoma City University School of Law examines the costs and benefits of body-worn cameras programs and, while acknowledging that cameras will not serve as a panacea, outlines policies that police departments should adopt to ensure the maximum effectiveness of such programs.  As Blitz observes, “Even when camera evidence is flawed, it is often far better than eyewitness accounts, especially when such eyewitness accounts are given long after the events.”

  • May 11, 2015

    by Nanya Springer

    Say the words “judicial selection” to average Americans, and their eyes may very well glaze over.  But tell them the story of Wendy Baggett ‒ a woman whose three-day-old baby died because her doctor neglected to take her off of blood pressure medication during her pregnancy ‒ and a spark of concern may appear in those dull pupils.  Then explain that a jury sided with Baggett in her medical malpractice claim against the doctor, only to be overturned by business-backed judges on the Alabama Supreme Court, and that concern may transform into shock, curiosity and perhaps, eventually, action.

    It’s well understood that telling human stories is more effective than talking about political, economic or societal problems in the abstract.  That’s why Life of the Law, a bi-weekly podcast series, focuses on compelling, human-driven stories instead of merely analyzing legal arguments and dissecting Supreme Court rulings. 

    The story of Baggett is a true one, used to exemplify how the practice of electing judges affects people from all walks of life.  As explained in the podcast, in states where judges are forced to campaign for the bench, courts are becoming increasingly hostile to tort plaintiffs and to criminal defendants.  This makes sense; campaigns cost money, business interests have plentiful funds from which to donate, and judges, whether consciously or unconsciously, tend to side with the interests of those who helped them win their increasingly expensive elections.  (In criminal cases, judges are often attacked by their business-backed opponents for being “soft on crime” when they side with defendants, merely because it’s an easy attack.)

  • May 4, 2015
    Guest Post

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

    I applaud Marilyn Mosby's swift and decisive move in charging the six Baltimore police officers on Friday, May 1 with crimes ranging from second-degree murder to manslaughter, assault and false imprisonment, and I'm hopeful that she'll get the result that she's seeking, if that’s what the interests of justice determine is warranted.  However, I don't believe that the Baltimore officers will be convicted of any murder or manslaughter charges and that this likely result will lead to more civil unrest.  According to The Washington Post, in order to secure a guilty finding in Maryland for second degree murder in the death of Freddie Gray, (the “depraved heart” murder), the judge or jury must agree that there is proof beyond a reasonable doubt of three necessary elements for conviction: (1) that the defendant (here the police transport van driver, Officer Caesar Goodson), actually caused Freddie Gray’s death; (2) that Officer Goodson’s conduct itself posed a very high risk to endangering Gray’s life; and (3) that Goodson, aware of the risk he was causing to Gray’s life, acted with extreme disregard of the life endangering consequences of his actions.

    To secure a manslaughter conviction, even for involuntary manslaughter, prosecutors must convince a judge or a jury (and these will likely be jury trials), that the officers in Baltimore knew or should have known that their actions were a direct threat to Gray’s life and that what the police did in arresting, subduing and transporting Gray was something they knew was inherently dangerous or that it was done with a reckless disregard for human life.

    Prosecutors will face an uphill and arduous battle in securing convictions against these six police officers, even given the current climate of public skepticism, mistrust, and suspicion (and even disdain) of the police that began in earnest in Ferguson last August.  For what the police engaged in on April 12 in Baltimore, even in its violence, brutality and senselessness, was nothing if not the routine and mundane activities of the police, particularly in communities of color in cities across the United States. What happened to Gray, we may very well learn from defense counsel in the upcoming trials of the officers, was standard operating procedure (with an unintended, accidental and tragic result), perhaps even in compliance with police policy, as well as tactics and strategies that the officers were trained in, and all in a day’s work in the perilous, violent and dangerous world that the police believe that they toil in selflessly, thanklessly and courageously every day.  This is the police narrative, always and already, and one that prosecutors will need to challenge vigorously in order to secure any convictions against the “Baltimore Six.” 

  • May 1, 2015
    Guest Post

    by Atiba R. Ellis, Professor of Law, West Virginia University College of Law. Follow him on Twitter @atibaellis.

    The New York Times recently published a story entitled, “1.5 Million Missing Black Men.” The graphic portrayed how the war on drugs, American policies of mass incarceration and other structural forces, have left these African American men and their communities oppressed in the United States because these men are incarcerated, disabled from full citizenry or deceased.

    A purely academic discussion of this data and its meaning was what this blog post was supposed to be about.  But over the past weekend, we saw the city of Baltimore, Md. react to the fact that Freddie Gray is now missing forever.  Gray’s fatal injuries, inflicted during his custody of the Baltimore Police Department, provide us a specific case of an African American man going missing. Mr. Gray’s death puts into relief how one person loses his life due to the policies and structures of inequality, and the Baltimore police officers involved have now been charged in Mr. Gray’s death.

    Yet it isn’t simply Gray’s death that teaches us something about structural racism. The uprising that occurred in reaction to Gray’s funeral, the reaction to opinion leaders and the Internet opinion-sphere all teach us something about how our language regarding racism falls prey to a gap of misunderstanding and misperception. This is a multilayered problem reflective of the complicated tableau of race in America.

    On one level, Gray’s death is one more tragedy that we can add to the long list of tragedies that seem to target African American men. Gray is forever missing, along with Eric Garner, Tamir Rice, Michael Brown and many more. And, as Professor Elwood Watson points out, black women like Dr. Ersula Ore or Kathryn Johnston similarly suffer violence, abuse and death due to this same system of oppression.

    Though the factual circumstances vary, it appears that all these people I’ve named are the casualties of either the war on drugs, the effects of declaring poor minority neighborhoods “high crime neighborhoods,” police bias against people of color or all of the above.  This results in their individual and communal struggles against siege policing and its short and long-term effects. Because of these factors, these men and women lose their lives or their livelihoods in a manner not subject to due process.