Criminal Justice

  • April 22, 2015
    Guest Post

    by Ellen M. Unterwald, Ph.D., Professor of Pharmacology, and Director, Center for Substance Abuse Research, Temple University School of Medicine

    Imagine a hospital administering a drug protocol devised without consideration of its scientific properties, selected by individuals without medical training. It’s unthinkable, but in the state of Oklahoma, prison officials without any pharmaceutical or medical training selected a combination of drugs to cause death. They elected to use midazolam as the first drug in the state’s three-drug lethal injection protocol despite the fact that there is overwhelming scientific consensus, including among pharmacologists like myself, that midazolam is incapable of inducing a deep, coma-like unconsciousness characteristic of general anesthesia and required for a humane and constitutional execution.

    The upcoming U.S. Supreme Court case, Glossip v. Gross, addresses the use of midazolam in lethal injection executions. As a pharmacologist who studies drugs, I strongly believe the Supreme Court should prevent Oklahoma from using midazolam in lethal injection executions, and encourage states to base lethal injection protocols on all available scientific knowledge and research.

    The function of the first drug in Oklahoma’s three-drug lethal injection protocol is to ensure a prisoner is in a deep, coma-like unconsciousness prior to the injection of a paralytic agent to stop respiration and a third drug to induce cardiac arrest. Yet Oklahoma’s choice to use midazolam runs counter to the way that pharmacologists recognize that the drug works and counter to the way midazolam is used in the clinical setting by doctors. Glossip v. Gross will examine the constitutionality of this practice.

  • April 16, 2015
    Guest Post

    by Kanya Bennett and Nkechi Taifa. Bennett is the Legislative Counsel at American Civil Liberties Union, and Taifa is the Senior Policy Analyst at Open Society Foundations.

    “The FOP does not disagree that there is a need for civil asset forfeiture revision.” That is what the Fraternal Order of Police said at yesterday’s Senate Judiciary hearing on civil asset forfeiture. And when Chairman Chuck Grassley (R-Iowa) asked if FOP stood by those words, the response was “absolutely” – even though FOP’s testimony suggested otherwise.

    Grassley even offered him some advice, saying that, now is “not the time to oppose needed reforms,” in light of national headlines on police violence

    This should make it clear to everyone that the time is ripe for federal reform. Though work remains to convince some that community policing instead of “slush funds” must be law enforcement’s number one priority, we should be optimistic.

    Grassley said “legislation is necessary” and Ranking Member Patrick Leahy (D-Vt.) believes that “we can come together on a bipartisan basis to fix what is broken.”  

    For months there has been national discourse around civil asset forfeiture and all that is uncivil about it. Members on both sides of the aisle – and organizations across the spectrum – are demanding reform. And rightfully so. 

    Civil asset forfeiture gives law enforcement the power to take property away from someone who has not been convicted of a crime. And this property can be cash, cars, homes, and anything else – like a “simple gold cross” – that law enforcement believes is connected to a crime. Yes, a woman had her gold cross necklace seized when she was pulled over for a minor traffic violation!

    And just how does one go about getting a necklace … or money, or car, or house back? Well, often they don’t. Due process requirements don’t require judicial hearings. More than 60 percent of federal forfeitures were uncontested over the past few years.  

    When property owners do get notice and muster the courage to go up against the government, they find the deck is stacked against them. Property owners bear the cost of going to court and the burden of proving their property’s “innocence.” And in almost all instances, property owners are not entitled to counsel.

    So, what is driving this practice that sounds unfair, unjust, and un-American? How is it that we still have this “thorn in the side of civil liberties?” Civil asset forfeiture is big business for law enforcement at all levels – federal, state, and local. The practice generates billions of dollars annually and law enforcement is permitted to keep the assets it seizes. 

  • April 16, 2015
    Guest Post

    by Jed S. Rakoff, U.S. District Judge for the Southern District of New York; Adjunct Professor, Columbia Law School

    *The following is a speech given by the author at the Harvard Law School Conference on Lawyers as Professionals and Citizens on April 10, 2015.

    I have read with great interest the brilliant essay on Lawyers as Professionals and Citizens by Ben Heineman, Bill Lee, and David Wilkins that is the subject of the conference, and I want to build my little talk around the fourth ethical responsibility they enunciate in that essay, namely, the responsibility of lawyers to help create a safe, fair, and just society even when legal issues, in the narrow sense, are not directly at stake.  I want to discuss that responsibility – which I will refer to here simply as the “Fourth Principle” – as it applies to lawyers and as it applies to judges; and while I recognize that the essay that is the subject of this conference focuses particularly on corporate and economic issues, I want to address this Fourth Principle in terms of other issues, such as war and such as imprisonment.

    I was introduced to this Fourth Principle, in effect, as a very junior associate at the New York City firm now known as Debevoise & Plimpton.  When I arrived at the firm in 1970, the leader of the firm, Francis T.P. Plimpton, was just completing his two year stint as President of the New York City Bar Association, then known as the Association of the Bar of the City of New York.  Although that organization was founded in 1870 for the specific purpose of seeking the removal of corrupt judges beholden to the man called “Boss” Tweed, by the middle of the twentieth century the Association had become a somewhat stuffy “Establishment” enclave, widely perceived (though perhaps unfairly) as subservient to the narrow interests of big-firm corporate lawyers.  On paper, Plimpton was more of the same.  Educated at Exeter, Amherst, and Harvard Law School, Plimpton could literally trace his Massachusetts forebears back to 1630.  And his chief fame as a lawyer consisted of being a highly skilled draftsman of corporate debentures – whatever the heck that is.

    But once Plimpton became President of the New York City Bar Association, the real Francis Plimpton emerged: a man of principle and courage, who, more than any other single person, opened that Bar Association to racial and gender diversity, to concern with pro bono representation and public service, and to a focus on broad societal issues.  As Sheldon Oliensis, another prominent lawyer of that time, stated, “He [Plimpton] thought that there was no issue on which the Association could not be heard.”  In a period when much of the legal establishment was reacting negatively to what it perceived as the lawless excesses of the ‘60s, Plimpton not only embraced a very broad view of the role of the lawyer in society, but also saw that role as one of promoting change and progress.

  • April 9, 2015

    by Nanya Springer

    On “mommy blogs” across the Internet, pregnant women lament that perfect strangers feel entitled to pat their bellies, offer unsolicited diet and parenting advice, and ask intrusive questions about their personal health.  For most women, such invasions are at most a temporary social annoyance.  But it should come as no surprise that in this culture of entitlement to pregnant women’s bodies, legislation that effectively strips pregnant women of their privacy and autonomy is widespread and, in many instances, has resulted in incarceration and forced intervention by the state.

    The ceaseless barrage of measures restricting the liberty of pregnant women takes many forms.  First, there are laws that place medically unnecessary (and sometimes irrational) mandates on abortion procedures: waiting periods, crisis pregnancy center counseling, ultrasounds, physician scripts, ambulatory surgical center requirements, hospital admitting privileges, hospital transfer agreements, procedure-specific bans, parental consent laws, restrictions on private insurance coverage, and the list goes on.

    In Texas – a state where judges are elected – a bill is being considered that would publicize the names of judges who give minors permission to obtain an abortion.  The Ohio House last week passed a bill that would ban abortion once a fetal heartbeat is detected – possibly before a woman even knows she is pregnant – and provide for doctors who violate the ban to be imprisoned.  A new Arizona law requires doctors to tell patients, contrary to medical evidence, that drug-induced abortions can be reversed.  And on Tuesday, Kansas became the first state to ban dilation and evacuation as an abortion method.

    Such restrictions and state-sanctioned intrusions into the doctor-patient relationship are alarming, but they are not the end of the story.  At least 38 states have enacted “fetal homicide” laws, the majority of which apply to even the earliest stages of gestation.  These laws, which were originally sold to the public as tools to prosecute abusive boyfriends and others who may harm pregnant women, are increasingly being used to prosecute pregnant women themselves.

  • April 8, 2015
    Guest Post

    by Nashwa Gewaily, Fellow at the ACLU of Massachusetts.

    On the evening of March 27, an apparent shootout left a police officer critically wounded and a man dead on the streets of Boston’s Roxbury neighborhood. As word of the incident spread, divergent narratives emerged and questions abounded across social media and news sites. In the aftermath, the Boston Police Department and its commissioner were widely praised in traditional media outlets for quickly sharing with select community figures an unbiased account of what had transpired: video footage from a nearby business that captured critical moments of the encounter.

    In the wake of a number of high-profile fatal police encounters, followed by community outrage and mass demonstrations, one could easily anticipate the heavy cloud of tension over Boston had nothing been produced to clear the air.  This incident is one of tragic many that reveal the benefits of capturing police encounters on video.

    Yet, it comes at a time when states are scrambling to make it much more difficult for police incident footage – specifically, police encounters recorded by body-worn cameras – to see the light of day. Citing privacy concerns, legislators in at least 15 states have introduced bills that would exempt from public records law or otherwise limit the disclosure of police-civilian encounter footage obtained from body cameras.  While there is certainly an obvious need to protect the privacy of anyone videotaped by police, the over breadth of many of the proposed rules only serve to undermine the transparency that is sorely needed to bring accountability to police departments.