Criminal Justice

  • May 1, 2015
    Guest Post

    by Rena Steinzor and Thomas McGarity, past presidents and founders of the Center for Progressive Reform. Steinzor is a professor at the University of Maryland Carey Law School, and McGarity is a professor at the University of Texas Law School. Steinzor is author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction. McGarity is author of Freedom to Harm: The Lasting Legacy of the Laissez Faire Revival.

    With the announcement that GM Chief Executive Officer Mary Barra received the outsized compensation of $16.2 million in 2014, what should have been a year of humiliation and soul-searching for that feckless automaker instead ended on a disturbingly self-satisfied note.  Purely from a public relations perspective, Barra worked hard for her money.  Appearing repentant, sincere, and downcast, she persuaded star-struck members of Congress that the company was committed to overhauling a culture characterized by what she called the “GM shrug,” loosely translated as avoiding individual accountability at all costs.  Even as she blinked in the television lights, GM fought bitter battles behind the scenes to block consumer damage cases and exploit corporate tax loopholes.

    Largely on the basis of her political adeptness, Barra has been taking victory laps in the business press, hailed as the rare (female) CEO who has led her corporation out of a morass that could happen to anyone.  This performance and the accolades it inspired provide a troubling coda to what was a destructive year for American drivers.  Dubbed “the year of the recall,” automakers recalled an unprecedented 64 million vehicles ‒ about one in five cars on the road; GM led with 26 million of this total.

    To restore justice to GM’s beleaguered customers – and the scores of families who lost loved ones in crashes caused by the defective switch – we can only hope that the Justice Department’s criminal investigation of the company and its senior executives results in prosecutions that could offset the unjust favors the legal system is already prepared to bestow.

  • April 30, 2015
    Guest Post

    by Jessica Eaglin, Counsel, Justice Program, Brennan Center for Justice

    Protests in Ferguson, Mo. led to investigations that uncovered a deeply problematic justice system that pulled thousands of people into a web of criminal justice debt and aggressive debt collection practices. Among those harsh enforcement practices: Driver’s license suspension for failure to pay court-imposed debts.  Using driver’s license suspension to enforce debt payment is not unique to Ferguson. Today, driver’s license suspensions are a frequently used tool to enforce collection of criminal justice debt.

    Criminal justice debt” refers to the accumulation of fees and fines that a defendant acquires while being processed through the justice system. Fees and fines may be imposed for anything from restitution to make the victim whole to punitive fines designed to deter future wrongdoings. Most commonly, courts impose user fees to recover operating costs. These fees are imposed at various stages throughout the process; including charges for bookings, jail stays, prosecution, public defense and probation services.

    Fees and fines do not disappear once a person has been convicted and incarcerated. Rather, those costs linger. When combined with other debts most people face – credit card debt, child support and insurance payments, for example – the additional costs of criminal justice debt can be difficult or impossible to pay. In California alone, there is more than $10 billion in uncollected, court-ordered debt.

    Enter collection enforcement, such as suspension of a driver’s license. It is growing in popularity. In 2010, the Brennan Center reported that at least eight of the 15 states with the largest prison populations suspended licenses based on missed debt payments: California, Florida, Louisiana, Michigan, North Carolina, Pennsylvania, Texas and Virginia. At least four states suspended licenses for failure to appear in court for an arrest warrant, the underlying cause being failure to pay debts.  In the Lone Star state, individuals convicted of a drug offense have their licenses suspended for 180 days. In Florida, a drug conviction leads to license suspension for one year. Nationally, 40 percent of license suspensions are for unpaid traffic tickets, unpaid child support and drug offenses.

  • 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.