Criminal Justice

  • October 14, 2015
    Guest Post

    by Sheila Bedi, Clinical Associate Professor of Law, Northwestern University School of Law; attorney, Roderick and Solange MacArthur Justice Center, Northwestern University School of Law’s Bluhm Legal Clinic

    Prisons and jails are a revolving door of brutality where people held behind bars experience horrific abuse funded by taxpayers and meted out at the hands of the state. My practice is dedicated almost exclusively toworking with and for men, women and children who live behind bars, and most of the cases I’ve filed have to do with prison and jail conditions.

    The facts of some of my cases speak for themselves. A juvenile prison in Mississippi was notorious for subjecting the young women there to sexual abuse, and in the wake of a particularly horrific incident during which correctional officers sexually abused girls who were then left shackled together for over a month, the prison was permanently closed. In downstate Illinois, a young man whose only offense was a first-time drug possession endured over 12 hours of brutal rape. He joined the over 200,000 people who survive sexual abuse in our nation’s prisons. Another case involved a private prison company that raked in over $100 million in profits while subjecting men to abusive conditions. There, some prison staff exploited the youth by selling drugs inside the facility, and youths who were handcuffed and defenseless were kicked, punched and beaten. Other youths were stripped naked and held in isolation for weeks at a time. Young men with serious health needs languished without medical care, sometimes risking death or permanent injury. A federal court found that these conditions resulted in “a cesspool of unconstitutional and inhuman acts . . . The sum of these actions and inactions . . . paints a picture of such horror as should be unrealized anywhere in the civilized world.”

    My work is about transforming—and hopefully dismantling—the criminal injustice system and enforcing the constitutional rights of people who live in the shadows. The challenge is to help the courts understand and reckon with the humanity of the 2.2 million men, women and children this country holds behinds bars. One of the ways that happens is when lawyers recognize the agency, courage and resilience of their clients. I am humbled and often awestruck by the courage of my clients, and the fact that they are willing to trust me with the truth of what they endure behind bars is an incredible privilege. Most of my cases are class actions seeking only injunctive relief. That means my clients aren’t getting any money from being involved in this work and instead put themselves at great risk of retaliation by speaking up and telling their stories to the court, all to ensure that others are protected from the abuses they endure.

  • September 11, 2015

    by Paul Guequierre

    Solitary confinement has been described as a living death. Jack Henry Abbot said about the practice: “Time descends in your cell like the lid of a coffin in which you lie and watch it as it slowly closes over you. When you neither move nor think in your cell, you are awash in pure nothingness. . . . Solitary confinement in prison can alter the ontological makeup of a stone.”

    Solitary confinement, the topic of a new Issue Brief by law professor Laura Rovner released today by ACS, is viewed by much of the developed world as torture. The international community has almost universally condemned the use of long-term isolation. In 2011, the U.N. Special Rapporteur on Torture concluded that prolonged solitary confinement is prohibited by the International Covenant on Civil and Political Rights (“ICCPR”) and the Convention Against Torture, and declared that the use of solitary confinement for more than 15 days constitutes torture. So why then, is use of the practice so rampant in the United States? The good news is it’s gaining renewed scrutiny in the court of public opinion. The question is: How will federal courts respond?

    As long ago as 1890, the U.S. Supreme Court criticized the use of solitary confinement. Justice Samuel Miller, who was a physician as well as a lawyer, observed that: “A considerable number of the prisoners [subjected to solitary confinement] fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others, still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.”

    And as recently as this year, U.S. Supreme Court Justice Anthony Kennedy criticized the practice, practically asking for a solitary confinement case, saying: “Research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exacts a terrible price.

  • August 27, 2015
    Guest Post

    by Jennifer Taylor, staff attorney, Equal Justice Initiative

    Racial discrimination in jury selection is a feature of American criminal justice with a deep-rooted history and persistent life span. Last week, The New York Times explored the practice’s contemporary legacies and the law’s apparent inability to eradicate it once and for all.

    Before ratification of the Reconstruction Amendments that followed the end of the Civil War in 1865, black Americans were not legally considered American citizens and were routinely barred from serving on juries or testifying in court in many communities throughout the country – including in the South where the vast majority of them had been enslaved. After the grant of emancipation, citizenship, and legal rights, outright prohibitions on jury service evolved into thinly veiled qualification requirements that left selection up to the discretion of white officials or so-called random selection processes that enabled race-based exclusion. In practice, the result was the same: no black jurors allowed.

    More than a century later, after legal victories and social movements, the problem remains most prominent today where it was most prominent then: the American South. Adam Liptak’s article highlights a recent report finding that in Caddo Parish, Louisiana, prosecutors are three times as likely to strike a black person from jury service as a white juror. The Equal Justice Initiative reported similarly disturbing results in its own study of prosecutors’ strikes in Houston County, Alabama, in 2011 and filed suit on behalf of those jurors. The problem is not getting better.

    Importantly, discriminatory jury selection implicates not just the rights of the defendant facing trial, but also those of the excluded juror – black Americans who have the constitutional right to participate in the trial process but little recourse when that right is infringed upon. Recalling the experience of walking past a towering Confederate memorial to enter the Caddo Parish courthouse, 63-year-old Carl Stokes, a black man excluded from service on a death penalty case there in 2009, expressed dismay. “It dashes your hopes,” he told The New York Times. “It has its roots in the ideology of white supremacy.”

  • August 12, 2015
    Guest Post

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

    When I was a rookie police officer in the late 1970s, it was the subcultural norm to misrepresent the truth in official recordings and reporting of factual incidents involving the police and those whom they encountered in the performance of their duties.  It was commonly accepted, even expected, that in preparing official police reports for presentation to superiors that the "truth" would be rendered in such a fashion as to extricate line officers from any hint of wrongdoing and portraying the incident in a manner most flattering to the police position. In fact, later in my police career, as a lieutenant, it was part of my responsibility (unwritten of course) to assist subordinate officers and colleagues in preparing such fictitious renditions of events. Although unaware at the time, we were establishing and perpetuating the police narrative.             

    As a young police officer testifying on the witness stand, I could have told the court that I pursued and apprehended the suspect/defendant on the planet Mars and have been believed. Although never having received formal instruction in the art of deception, and although the word “lie” would never be fully articulated or encouraged by any of the actors in the criminal justice system, prosecutors, judges, colleagues and other court officials were all keenly aware that sworn testimony often involved versions of the truth that bore little resemblance to actual events as they occurred on the street.  

    For the police had full “command and control” of the law enforcement narrative and this narrative has, certainly beginning with events in Ferguson, Mo., last August, shifted from the firm grasp that law enforcement has held on it for generations, to one that is openly interrogated, challenged and seen with widespread skepticism on the part of those concerned with social justice and police violence, oppression and the pervasive disregard of the provisions of the Constitution.

  • July 14, 2015
    Guest Post

    by Nkechi Taifa, Senior Policy Analyst, Open Society Foundations, Washington Office

    *This post originally appeared on Open Society Voices

    President Obama changed 46 lives on Monday, commuting the prison terms of individuals who had been locked away serving long sentences for low-level, nonviolent offenses. “These men and women were not hardened criminals. But the overwhelming majority of them had been sentenced to at least 20 years—14 of them had been sentenced to life—for nonviolent drug offenses,” the president said in making the announcement. “Their punishments didn’t fit the crime. And if they’d been sentenced under today’s laws, nearly all of them would have already served their time.”

    I enthusiastically applaud the president’s announcement, as I did with his two prior batches of releases. For more than 20 years now, I have been pushing, along with many other champions of criminal justice change, for reform of the egregiously lengthy sentences for crack cocaine offenses—sentences which were unjust, inconsistently applied, and racially discriminatory.

    I was aware of the use of the executive clemency power to close painful chapters in history, which presidents of both parties have courageously used. John F. Kennedy quietly issued commutations to people given mandatory minimum sentences under the 1956 Narcotics Control Act, widely seen as unnecessarily harsh during his administration. Gerald Ford used his authority to create an executive clemency board to oversee the petitions of 21,000 people convicted of draft-related offenses during the Vietnam War, 90 percent of which were granted.

    President Obama’s commutations this week allow dozens more worthy candidates, many of whom thought they would never again see the light of day, the opportunity to have a second chance. This is phenomenal. But we as a country need to go further, and release the broadest spectrum of prisoners possible without compromising public safety.