criminal justice reform

  • July 13, 2016

    by Jim Thompson

    Partisan Justice, a new ACS study conducted by independent researchers at Emory University School of Law, finds that the upward spiral of big money fundraising and aggressive politics in state judicial elections pressures judges to become partisan actors who favor their own party in deciding election disputes.

    In Huffington Post, Zeba Blay reflects on the year since Sandra Bland’s senseless death, concluding that the #SayHerName campaign, which seeks to bring attention to the black women who have died after police encounters, is as important as ever.

    Kenneth Jost at Jost on Justice says police departments must “make meaningful changes in their policies and practices to protect and serve all, without regard to race.”

    In a huge victory for same-sex couples, the Court of Appeals of Maryland last Thursday ruled “that non-biological and non-adoptive parents who help raise children are eligible for recognition as ‘de facto’ parents with full parental rights,” reports Lou Chibbaro Jr.at Washington Blade

  • July 12, 2016
    Guest Post

    by Katherine A. Macfarlane, Associate Professor of Law, University of Idaho College of Law, @KatAMacfarlane

    *A longer version of this essay is forthcoming in the Yale Law Journal Forum

    Utah v. Strieff declined to apply the exclusionary rule to evidence seized during an arrest that followed an unconstitutional stop. Strieff will impact civil rights plaintiffs’ ability to recover damages pursuant to 42 U.S.C. § 1983 for both unconstitutional stops and the law enforcement conduct that follows such stops. Section 1983 damages for the kind of unconstitutional stop at issue in Strieff will likely be nominal. The Court assumed that Section 1983 actions were suitable replacements for the exclusionary rule’s deterrent effect. But, actions that result in nominal damages are inadequate proxies for the kind of disincentive the exclusionary rule provides.  

    The defendant in Strieff was stopped by narcotics detective Douglas Fackrell after Strieff exited a home Fackrell was surveilling for drug dealing. Following the stop, Fackrell learned that Strieff was subject to an arrest warrant. Strieff was arrested, and meth and drug paraphernalia were found on his person. The Court declined to exclude the evidence seized incident to Strieff’s arrest. Though Fackrell’s original stop was unlawful, it was “sufficiently attenuated” by the arrest warrant. Justice Sotomayor dissented, arguing that the evidence should have been excluded. She emphasized that though Streiff was white, suspicionless stops disproportionately victimize people of color. Justice Kagan’s dissent explained that before Strieff, an officer who lacked reasonable suspicion for a stop might have paused to consider the risk of rendering relevant evidence inadmissible. Now, that same officer has no reason to hesitate. Strieff himself argued that without the exclusionary rule’s ability to prevent suspicionless stops, “police will engage in dragnet searches,” stopping people for no reason to discover outstanding arrest warrants. The Court rejected this argument, concluding that the civil liability imposed by Section 1983 deters any such action. 

    The existence of Section 1983 civil liability does not necessarily deter unconstitutional stops or dragnet searches for arrest warrants. 

    Strieff will limit the damages available to individuals who suffer unconstitutional stops. Before Strieff, an unconstitutional stop would typically lead to exclusion of drugs found incident to the arrest that followed the stop. Without key drug evidence, prosecuting someone like Strieff for drug possession was futile. But following Strieff, defense counsel will not be able to exclude evidence like the drugs found on Strieff. If the incriminating evidence is admitted, a conviction becomes more likely. Strieff himself conditionally pleaded guilty to possession while reserving his right to appeal his suppression motion denial. 

  • June 30, 2016
    Guest Post

    by Robert Smith, Director of the Fair Punishment Project at Harvard Law School

    Last year, in Glossip v. Gross, Justice Stephen Breyer supported his point that the death penalty had become truly unusual in America by noting that “the number of active death penalty counties is small and getting smaller” such that “[o]nly a handful of America’s 3,143 counties use the death penalty with any regularity.” Fast-forward one year. Within the past month, the Court has addressed four death penalty cases stemming from the fifteen active death sentencing counties that Breyer highlighted.

    The Court added two of the cases to its merits docket for next term, Moore v. Texas and Buck v. Texas, both out of Harris County, once called the buckle of the death belt. It reversed the death sentence in Lynch v. Arizona, a case out of Maricopa County, the jurisdiction with the second most death sentences in America since 2010. And, finally, in Tucker v. Louisiana, Justices Breyer and Ginsburg renewed their invitation for the Court to revisit the Constitutionality of the death penalty in a dissent from the denial of certiorari which queried “whether “geography” and not the “comparative egregiousness of the crime” best explained Mr. Tucker’s death sentence.

    What is going on in these counties? Population and homicide rates explain some of the differences in a few of the largest counties. But even in those places there is a lot left to be explained. Here’s a hint:

    A prosecutor named Dale Cox obtained the death sentence against Lamondre Tucker. Cox was responsible for 1/3 of the death sentences in Louisiana between 2010 and 2015. He infamously told a reporter that we “need to kill more people”, told defense lawyers in a capital case that he wanted to “cut their f---ing throats”, and told jurors that Jesus demanded that people like the defendant have a millstone wrapped around their neck and be thrown into the sea. Therefore, Breyer and Ginsburg would have been correct if they had written: it appears as though the personality and predilections of the prosecutor and not the “comparative egregiousness of the crime” best explained Mr. Tucker’s death sentence. The same statement could be said for Lynch, decided the same day as Tucker. Juan Martinez was the trial prosecutor in that case. He is one of a trio of prosecutors that account for 28 percent of Arizona’s death sentences over the past decade. The Arizona Supreme Court has called out Martinez by name, found that he committed misconduct in at least two previous capital cases, and identified at least seventeen instances of Martinez’s inappropriate behavior in the Lynch case alone. And both Bobby Moore (his original sentence) and Duane Buck were sentenced to die during the Johnny Holmes era in Harris County.

  • May 31, 2016

    by Jim Thompson

    At Jost on Justice, Kenneth Jost provides commentary on the Supreme Court’s decision in Foster v. Chatman, celebrating a long overdue victory for racial justice.     

    The Supreme Court on Tuesday refused to hear an appeal challenging the constitutionality of the death penalty, reports Lawrence Hurley at Reuters.

    Large pharmaceutical companies may be able to accomplish what the Supreme Court has not – forcing an end to the death penalty, opines Rose Carmen Goldberg at Harvard Law and Policy Review

  • May 19, 2016
    Guest Post

    by Margo Schlanger, Henry M. Butzel Professor of Law, University of Michigan Law School

    Consensus for criminal justice and prison conditions reform has been building, and one key urgent area of reform is to reduce our current overuse of solitary confinement. In my new ACS Issue Brief, “How the ADA Regulates and Restricts Solitary Confinement for People with Mental Disabilities,” I argue that the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act provide tools to challenge solitary confinement of individuals with mental disabilities.

    American incarceration rates ballooned in the 1980s and 1990s—and so too did our prisons’ and jails’ use of solitary confinement and other forms of restrictive housing. Right now, in federal, state, and local jails and prisons, an estimated 90,000 to 115,000 prisoners are housed in solitary confinement. They are locked into their cells, about the size of a parking space, for 22 or more hours a day. Their access to programming, reading materials, visitation, exercise, and other “privileges” is extremely limited.

    Change may finally be coming. In 2015, Justice Kennedy noted in a concurring opinion that “[t]here are indications of a new and growing awareness in the broader public of the subject of corrections and of solitary confinement in particular.” Research confirms that “Years on end of near-total isolation exact a terrible price.” Shortly after that, President Obama decried the overuse of solitary confinement; he has since required significant federal reform, including many measures to help keep prisoners with mental disabilities out of solitary.

    Nonetheless, people with mental disabilities are vastly overrepresented in solitary. Sometimes this is because of pure discrimination; other times, because failure to appropriately treat or manage prisoners with mental disabilities leads to their prison misconduct. Once in solitary confinement, isolation frequently exacerbates mental disability, causing a feedback loop of difficult behavior and lengthening terms of isolation.