Criminal Justice

  • May 7, 2014
    Guest Post

    by Vincent Southerland, Criminal Justice Practice, NAACP Legal Defense and Education Fund

    America is finally starting to take its first small steps on the path to curing its decades-long addiction to mass incarceration. Recently, the nation’s top law enforcement officer, Attorney General Eric Holder, testified before the United States Sentencing Commission and called for reductions to federal sentences for certain drug offenses. In doing so, Attorney General Holder declared that “over-reliance on incarceration is not just financially unsustainable, it comes with human and moral costs that are impossible to calculate,” a statement many of us—who for years have been raising the alarm bell about America’s mass incarceration problem—have long known to be true.

    Attorney General Holder’s comments strike at the heart of the problem: mass incarceration has devastated African-American communities, families, and lives all around the country. Sustained changes to the policies and attitudes that created this epidemic, however, are the real key. In order for that change to happen, our nation’s moral orientation with mass incarceration and criminal justice will have to adjust accordingly.

    At bottom, criminal justice reforms need to be driven by the moral imperative of repairing all that is wrong with the current system. As advocates for change, we must make sure that the reform narrative includes the human costs of mass incarceration and a broken criminal justice system, not just the concern over dollars and cents. The Moral Monday movement—a multi-issue, grassroots, multiracial campaign active in the courtroom, streets, and the ballot box—offers a salient example of how ethics and the lived experiences of real people can drive change and incite action. The movement shifted North Carolina’s political discourse toward morality while focusing on individual stories and the damage done to real people by real, and unjust, policies.

  • May 6, 2014

    by Jeremy Leaming

    Oklahoma lawmakers sparked debate over the death penalty and provoked a much-needed discussion about the importance of impartial courts last week when one of two planned executions went horribly awry.

    State officials, including Gov. Mary Fallin, pushed for the execution of two death row inmates even though the Oklahoma Supreme Court had stayed the executions arguing that more information was needed to determine whether the state’s new combination of drugs for killing death row inmates passed constitutional muster. That pressure led to the state supreme court lifting its stay and resulting in the bungled execution of Clayton D. Lockett. (Lockett died of a massive heart attack more han 40 minutes after state executioners attempted to kill him.) The second execution was temporarily put on hold.

    In a piece for the Tulsa World, Joseph Thai, the Presidential Professor of Law  and Watson Centennial Chair in Law at the University of Oklahoma College of Law, blasted lawmakers for working to keep the methods of execution secret.

    “Though I am both a law professor and a lawyer, I write as an Oklahoma citizen and taxpayer. Our state executes more of its citizens per capita than any other state. Because Oklahoma imposes capital punishment on behalf of its citizens, and because its taxpayers bear the costs, the state must not shroud its executions from public scrutiny.”

    Thai added that as “Oklahomans, we may disagree with each other – and with the rest of the country – on the morality, efficacy and fairness of the death penalty. But in a civilized society, hopefully we can all agree that, as long as our state puts human beings to death, it should do so without unnecessary pain and suffering.”

    Read Thai’s entire piece here and register for an ACS May 7 call featuring Slate’s Dahlia Lithwick and death penalty expert Megan McCracken on how impartial courts can help ensure that state lawmakers carry out executions without trampling constitutional rights and principles.

  • April 30, 2014
    Guest Post
    by Alex Kreit, Associate Professor of Law and ACS Co-Faculty Advisor, Thomas Jefferson School of Law; Chair, ACS San Diego Lawyer Chapter
     
    Yesterday, the Supreme Court considered what the Fourth Amendment requires when the police want to search an arrestee’s cell phone. The outcome will depend on how the Court applies an old rule to new technology—a challenge that is likely to recur in the years to come as smartphones, cloud computing and tools like license plate readers change both the way we store information and the government’s ability to collect and analyze it.
     
    Before the police can search your home or property, they need a warrant or an exception to the warrant requirement. One well-established exception is the so-called “search incident to lawful arrest” doctrine. This rule says that the police can search an arrestee without a warrant, simply on the basis of the arrest. The rationale for this exception is that an arrestee might have a weapon on them or try to destroy evidence after they’re arrested. Plus, because an arrestee is being taken into custody, she has a reduced expectation of privacy.
     
    Until recently, this exception was relatively uncontroversial. It meant that the police could look through an arrestee’s pockets, wallet or purse for weapons, drugs or other evidence—something they would be very likely to do anyway while booking the person back at the station.
     
    But how should this rule apply now that we carry our “entire lives on cell phones,” as Justice Kagan put it during oral argument? Should the government be able to rummage through the cell phone of every single person they arrest for hours or days without a warrant? Or, should a different rule apply to phones?
     
  • April 30, 2014

    by David Lyle

    A week after the Oklahoma Supreme Court buckled under political pressure, state officials pushed ahead with a controversial execution method to be used on two death row inmates; one of those inmates suffered a grisly death by heart attack after the lethal injection failed to work effectively. After the botched execution of Clayton D. Lockett, detailed in this piece by The Atlantic’s Andrew Cohen, state officials temporarily halted the second planned execution.

    ACS President Caroline Fredrickson blasted Oklahoma state lawmakers for interfering with the judicial process. Fredrickson said:

    One of the fundamental tenets of our democracy, an independent court system that provides checks and balances on the other branches of government, was the victim of a politically motivated execution leading directly to this tragedy tonight. Had the Oklahoma Supreme Court been allowed to render an impartial ruling absent the governor's coercion and political pressure, the state would not have botched today's execution because it never would have taken place. This is sad commentary on the state of fair courts in Oklahoma.

    A week ago, the Oklahoma Supreme Court stayed the execution of two convicts so that the justices could evaluate the legality of the state's injection secrecy law. Just two days later, after Oklahoma Governor Mary Fallin claimed she would not recognize an issue ordered by the state Supreme Court and members of the legislature threatened to recall the justices supporting a stay of execution, the Oklahoma high court bowed to pressure and said the executions could proceed.

    Cohen, also a Brennan Center fellow, stated in The Week, "It was a bad week in Oklahoma - at least for anyone who values a strong and fearless judiciary."

    The nationwide trend of politicizing state courts has accelerated in recent months, as large-spending outside groups have poured huge sums into previously apolitical state Supreme Court races. Now that politicization has cost a life. 

    Fair court reform advocates have warned of the consequences of politically controlled state courts for years, as seen in the “Justice Isn’t Blind – The Influence of Special Interests on State Court” memo published by Justice at Stake, the Brennan Center for Justice, and the National Institute on Money in State Politics

  • April 28, 2014

    by Jeremy Leaming

    Missouri recently executed its fourth inmate this year, providing a federal appellate court judge to once again raise disconcerting aspects about the state’s process of carrying out those executions. Earlier this year, The Atlantic’s Andrew Cohen noted that on more than one occasion Missouri had carried out executions of inmates before the appeals process had run its course. State officials have also come under criticism for continually shrouding its means of executing inmates in secrecy.

    The latest inmate to be executed, William Rousan, also raised constitutional concerns about Missouri’s execution process before the U.S. Court of Appeals for Eight Circuit. The entire Eighth Circuit declined Rousan’s appeal. But Circuit Judge Kermit E. Bye lodged a dissent blasting the Court for not hearing the appeal, noting the “viable constitutional claims” raised by Rousan. Circuit Judges Diana Murphy and Jane Kelly joined Bye’s dissent.

    This was not the first time that Judge Bye raised concerns about Missouri’s procedure for executing inmates. In a fall 2013 case, Bye said Missouri has a “well-documented history of attempting to execute death row inmates before the federal courts can determine the constitutionality of the executions." In another death row appeals case, Bye noted the opaque nature of the state’s drugs used to kill the inmates was not helpful in deciding constitutional challenges.

    In his April 23 dissent in the most recent case, Judge Bye again noted the state’s ongoing work to “frustrate the efforts of inmates such as Rousan to investigate the method of execution the State plans to use to end their lives. Missouri shields these shadow pharmacies – and itself – behind the hangman’s cloak by refusing to disclose pertinent information to the inmates.”

    He continued, “So long as Missouri insists on carrying out executions, it is fundamentally important the State is sufficiently transparent about its protocol to allow adequate review of the constitutionality of its chosen method.”