Criminal Justice

  • November 9, 2015
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law. Last fall, Harvard University Press published his new book, Too Big to Jail: How Prosecutors Compromise with Corporations.

    The American death penalty is an outlier phenomenon. Fewer states are sentencing fewer people to death. Fewer counties are sentencing people to death within those states. But as outliers go, in the American death penalty world, Florida is in a class of its own. Florida allows, unlike any other state, a jury to be split, unexplained, and non-unanimous in its mere recommendation that the death penalty be imposed. Unlike any other state, Florida allows the judge then to make the actual factual determination that death should be imposed, not the jury. Now the Supreme Court is poised to decide whether this is constitutional.

    The Court heard arguments last month in Hurst v. Florida, one of several death penalty cases on its docket this term. Timothy Hurst was charged with the murder of his co-worker at a Popeye's chicken restaurant. His conviction had already been reversed once because of the ineffective assistance his lawyer provided at his first trial. And the Court is apparently not entertaining the question whether he is intellectually disabled and, as a result, categorically ineligible for the death penalty, another important issue in the case.

    Instead, there is a fundamental question whether the jury in his case really sentenced him to death. Formally, the judge did it. As former Solicitor General Seth Waxman put it at the oral arguments, “Under Florida law, Timothy Lee Hurst will go to his death despite the fact that a judge, not a jury, made the factual finding that rendered him eligible for death.” In Ring v. Arizona, in 2002, the Supreme Court overturned its earlier ruling in the 1990 case Walton v. Arizona, holding that the Sixth Amendment right to a jury trial entitles a defendant facing the death penalty to have the key aggravating factors making the case eligible for the death penalty found by a jury and not a trial judge. Just about every death penalty state readily complied with that ruling—except Florida.

  • November 6, 2015
    Guest Post

    by Christina Swarns, Director of Litigation, NAACP Legal Defense and Educational Fund, Inc.

    In 1879, the United States Supreme Court declared that the singling out of qualified African Americans for removal from jury service “is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing individuals of the race that equal justice which the law aims to secure all others.” Although, in the subsequent 136 years, the Supreme Court has repeatedly condemned the practice of racial discrimination in jury selection, today, African Americans are excluded from jury service in ways that “seem[] better organized and more systematized than ever before.” Case in point: Foster v. Chatman, the jury discrimination challenge that was argued to the Supreme Court on Monday, November 2, 2015.

    Foster challenges Georgia prosecutors’ use of peremptory challenges to exclude African-American prospective jurors from the 1987 trial of Timothy Foster, an African-American man with intellectual disabilities who was charged with the murder of a White woman. Peremptory challenges are lawful opportunities for both prosecutors and defense attorneys to excuse prospective jurors from service in a particular trial. But there are limits to their use: In 1986, the Supreme Court held that these challenges cannot be based on race. Nonetheless, in Mr. Foster’s case, the prosecutors struck every single African-American prospective juror. As a result, an all-White jury convicted Mr. Foster of murder and sentenced him to death.

    When challenged, the Foster prosecutors offered a literal laundry list of supposedly race-neutral reasons for each of the strikes they exercised against the African-American prospective jurors. But the prosecutors’ notes, which were uncovered by the defense team some 20 years after Mr. Foster’s conviction, tell a completely different story. A note indicated that green highlighting “represent[s] blacks,” and the names of all the African-American jurors, but none of the White jurors, were highlighted in green. In their notes, the prosecutors referred to the African-American prospective jurors as “B#1, B#2, B#3,” while none of the White jurors were referred to solely by reference to race. In the prosecutors’ list of prospective jurors to strike, the name of every single prospective African-American juror was at the very top. The prosecutors ranked the African-American potential jurors in case they might “have to” seat one of them, but there was no similar ranking of all of the White prospective jurors. And last but not least, the supposedly race-neutral reasons offered by the prosecutors simply do not hold up: For example, the prosecutors said they struck one 34-year-old African-American juror because she was too close to the defendant’s age of 18, even though they accepted multiple White jurors who were actually closer in age to 18.

  • November 3, 2015
    Guest Post

    by Patrick J. Solar, Assistant Professor of Criminal Justice at the University of Wisconsin-Platteville and 30-year police veteran, serving as a patrol officer, detective, sergeant, lieutenant and chief of police.

    The ranks of policing are full of dedicated and well-meaning men and women armed with a minimum of a high school diploma and perhaps some college. Given the increasingly complex nature of the policing function it is no longer reasonable to expect the modern police officer to meet the challenges of this job armed only with these minimum qualifications and the academy. The answer is not adding more hours on to the academy as they have done in my home state of Wisconsin. We need police officers to be armed with a level of maturity and wisdom that comes from a liberal arts college degree.  This is not a new idea, it was made perfectly clear as a result of the last Presidential commission report back in 1967. 

    There is no doubt that obtaining a college degree costs both time and money but education is an investment with a high return; wise, quality policing. Educated police officers are much more likely to have the wisdom to know when to use force, as well as how and when to de-escalate. They would be better able to appreciate differences in others, and would deeply understand the social inequalities that lead some people to commit a crime and break the law. Police officer education can bring top-caliber officers into the ranks by encouraging thoughtful discussion and lengthy contemplation about the use of force as well as other pressing issues they confront. Thoughtful contemplation will resonate throughout the careers of educated officers who, as a result, possess the confidence to question and even challenge the status quo. 

    I believe that what we need most are men and women of "good will," armed with education and experience backed-up with a level of emotional maturity that is recognized, promoted and rewarded by enlightened police supervisors and leaders.

  • October 28, 2015
    Guest Post

    by Ashley Nellis, Ph.D., Senior Research Analyst, The Sentencing Project

    It may have been presumptuous to consider Montgomery v. Louisiana a done deal in advance of the Supreme Court oral arguments on the case earlier this month, which concerns the retroactive application of a 2012 ruling that juveniles can’t be mandatorily sentenced to life without parole (LWOP). After all, the Court has invited arguments on four separate cases pertaining to the importance of adolescent development in justice matters in the past five years and ruled favorably in all of them, pointing to science-driven evidence that young people are different when it comes to temptation, ability to foresee consequences, and engagement in risky behaviors.

    The justices focused on two points of discussion, neither of which casts any doubt on the established science that concludes that adolescents are less culpable for their role in crimes—even serious crime—and more capable of reform than older defendants. The majority of the 75 minutes of oral arguments was devoted to the issue of jurisdiction, or whether the justices even had the authority to rule on the case, as Montgomery did not make it to the Supreme Court through the usual channels. Instead of working up through lower federal courts, the case emerged directly from Louisiana’s state supreme court which ruled that Miller v. Alabama did not apply to Louisiana’s more than 250 prisoners serving such sentences.

    The second topic, to which considerably less time was devoted, was whether either of the two criteria demanding retroactivity of a ruling set forth in Teague v. Lane were met in Miller. On this matter, The Sentencing Project joined with dozens of other groups in submitting an amicus brief in support of the petitioner, arguing that Teague does apply since Miller represents a transformation in law, practice and jurisprudence which corrects for the now-discredited presumption that certain children cannot be reformed. In particular, the amici wrote:

    Miller cemented a seismic shift in Eighth Amendment jurisprudence relating to children. Given its significance, its categorical nature, and the precedents from which it descends, Miller is rightly viewed as both substantive and a watershed procedural rule and thus cannot be subjected to the Teague v. Lane bar on retroactivity.

  • 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.