Criminal Justice

  • January 3, 2017
    Guest Post

    by Ethan Frenchman, Appellate Attorney, Maryland Office of the Public Defender and Arpit Gupta, Professor of Finance, NYU Stern School of Business

    Across the United States, judges routinely require criminal defendants, who have not been convicted of any crime and are presumed to be innocent, to buy their freedom in the form of money bail. As any defense attorney can attest, this system jails the poor and allows the rich to free.

    And because many criminal defendants are poor, the key factor in the incarceration of people awaiting trial is poverty, not their risk to society or their risk of failing to appear in court. As a result, on any given day more than 450,000 people are in jail merely awaiting trial. The human and economic costs of this unnecessary detention are staggering.

    In a study of pretrial detention in Maryland, we found that more than 17,000 people were jailed because they were too poor to pay a bail amount of less than $5,000. Those unable to pay the full amount of money bail set by the court must resort to bail bondsmen, who typically demand 10 percent of the total bail amount as a non-refundable fee for securing the defendant’s release. This means that these people could not buy their freedom for $500. Because we looked at only a fraction of Maryland criminal cases, this statistic dramatically underestimates the total.

  • November 29, 2016
    Guest Post

    by Larry Schwartztol, Executive Director of the Criminal Justice Policy Program at Harvard Law School

    An arrest is typically the first step in the criminal process – a process designed to determine whether punishment is warranted. Yet in local jails around the country, people convicted of no crime remain detained as that process unfolds. Very often, that pretrial incarceration comes down to a simple, disheartening fact: the person arrested lacks the wealth to pay bail.

    For many pretrial defendants, the stakes are incredibly high. Even a short period of detention is a serious infringement on liberty, a deprivation that is compounded by exposure to the overcrowding, violence, disease, lack of health care and harshness that characterizes many jails. Beyond these inherent hardships, even short jail stays can upend a person’s life by disrupting employment, housing, child custody and health care. Studies have shown that pretrial detention also impacts the outcomes of a person’s criminal case. Being held before trial, even for short periods, has been shown to increase the chance of conviction (including conviction by guilty pleas for people charged with low-level crimes and desperate to get out of jail), the severity of a sentence and the chances of being arrested again in the future. Unaffordable money bail exposes many people to these consequences by transforming their lack of wealth into jail time. 

    The system of money bail, however, is at a crossroads. It remains a dominant tool for administering the pretrial process around the country – a totally normalized and nearly ubiquitous practice. Yet the tide appears ready to turn. Media outlets from the New York Times to Last Week Tonight with Jon Oliver have shined a bright spotlight on the pathologies of money bail. A wave of civil rights lawsuits has challenged the operation of money bail around the country, from small jurisdictions in Alabama, Georgia and Missouri, to larger systems like Chicago, Houston, San Francisco and the state of Massachusetts. Policymakers are also leading the charge for reform. In Maryland, the state’s attorney general has propelled forward a proposed rule that that would add safeguards to prevent people from being jailed due to inability to afford bail. Voters in New Mexico approved a ballot measure in November designed to decrease wealth-based jailing. And the U.S. Justice Department has become a forceful voice for reform, through court filings emphasizing core constitutional principles and a recent Dear Colleagues letter that went to every state chief justice and state court administrator in the country.

  • October 19, 2016
    Guest Post

    *This piece was originally posted on the Brennan Center for Justice's blog

    by Andrew Cohen, Fellow, Brennan Center for Justice

    There used to be an old saying about legal education in America: Law school does not prepare you to take the bar exam and the bar exam does not prepare you to be a lawyer. I do not know if that is still true or not, although I suspect it is. It sure was 25 years ago when I graduated from law school, took the bar exam and then began practice as a baby lawyer in Denver.

    Next week I will be in my beloved Boston—what, no World Series game at Fenway?—to speak to law school students, professors and alumni and I cannot help thinking that there is one critical course that is missing from the curriculum at even the most forward-thinking law schools across the country. Too many of those schools teach students about what they wish the law to be rather than what the law really is.

    First-year students take criminal law and criminal procedure and they learn about mens rea and the Model Penal Code. What’s missing from law school curricula, however, is a required course that ought to be titled: “Criminal Injustice.” The course would track the countless ways in which our nation’s justice systems fail to provide justice to countless Americans. Only such a class would adequately prepare new lawyers—whether they end up being prosecutors, defense attorneys, judges or not—for the reality of what is happening in the nation’s courtrooms, prisons, jails and police stations.

    The imaginary syllabus I have conjured almost writes itself. It would begin with a section on police training, recruitment and unions so that students could better understand why police reform is so hard to achieve. We would also address in this section the culture of prisons and how they are so often staffed with overworked and underpaid men and women, to understand why our prisons are a national disgrace. The culture of silence, of a lack of accountability and transparency, helps explain why there are so many excessive force cases and wrongful convictions and documented instances of abuse and neglect in confinement.

  • September 30, 2016
    Guest Post

    by Danielle Lang, Deputy Director of Voting Rights and Anna Bodi, Partner Legal Fellow at The Campaign Legal Center

    Larry Joe Newby is a U.S. citizen living in Huntsville, Alabama. Mr. Newby is married, attends church, is raising his two adopted grandsons and works for the County as an assistant supervisor. However, due to a few minor non-violent offenses from well over a decade ago, Mr. Newby has not been able to vote and will not be able to cast a ballot this November. Mr. Newby is just one of the 5.85 million citizens whose voices have been silenced by felony disenfranchisement laws across the United States. 75 percent of these disenfranchised voters are no longer in prison, but are still unable to vote.

    Unwilling to accept the denial of his fundamental right to vote, Mr. Newby is a named plaintiff in a new lawsuit filed by the Campaign Legal Center, alongside a team of pro bono and civil rights litigators, that could finally turn the page on a dark history of discriminatory felon disenfranchisement in Alabama and nationwide.

    Alabama’s Strict and Discriminatory Felon Disenfranchisement Regime

    Alabama has one of the most severe and discriminatory felon disenfranchisement laws in the nation: it is one of only 12 states that permanently disenfranchise some or all citizens convicted of felony offenses and, as a result, disenfranchises 7% of its total voting age population and 15% of its black voting age population.

  • August 15, 2016

    By Kevin Battersby Witenoff

    The Seventh Circuit Court was unwilling to extend Title VII non-discrimination protection based on sexual orientation, reports George M. Patterson at The National Law Review

    David G. Savage at the Los Angeles Times reports North Carolina and Wisconsin lawyers are attacking gerrymandered electoral maps that ensure suppression of voters of particular races and party affiliation.

    The Editorial Board at The New York Times shares the difficulties of citizens in Sparta, Ga. who experience overt voter suppression reminiscent of Jim Crow.  

    After a report released by the Department of Justice exposed the Federal Bureau of Prisons’ failure to appropriately monitor and control regulations in for-profit prisons, Carl Takei reexamines their necessity in an op-ed for The Marshall Project