Criminal Justice

  • March 26, 2015
    Guest Post

    by Sarah Hunger and Meredith Kincaid, Associates at Jones Day.  Jones Day represents The National Association of Black Veterans, Swords to Plowshares, Veterans Defense Project, and The Constitution Project in an amicus brief that the authors filed in support of Mr. Lockhart.  Mr. Lockhart is represented by Equal Justice Initiative.

    In 2010, an Alabama jury voted unanimously to spare the life of Courtney Lockhart, an Iraq war veteran facing the death penalty for a murder he committed while suffering from combat-related mental health issues.  Several months later, and upon consideration of evidence never shown to the jury, the elected judge overseeing Mr. Lockhart’s case sentenced him to death.

    In Alabama, the jury’s role at capital sentencing is merely advisory, and the imposition of the death penalty hinges upon specific, written findings of fact made by elected judges.  Under this regime, Alabama courts are empowered to make these factual findings “based upon information known only to the trial court and not to the jury.”  Adhering to this doctrine, Mr. Lockhart’s sentencing judge overrode the jury’s unanimous recommendation of life based upon information never presented to the jury, including evidence deemed inadmissible in a suppression hearing.

    In January, Mr. Lockhart filed a petition for certiorari to the Supreme Court arguing that his death sentence, as well as the Alabama regime that authorizes it, violates the Sixth and Eighth Amendments.  The Supreme Court’s review of this important and recurring issue is long overdue.  In the past decade, at least 28% of death row inmates in Alabama were sentenced via judicial override, and more than 100 inmates now sit on death row because of its use.  Nevertheless, the Supreme Court has not reviewed Alabama’s death penalty regime since 1995, well before it announced in Apprendi that the Sixth Amendment precludes judges from making findings that authorize an increase in the maximum punishment.

    Most notably, as Mr. Lockhart and amici assert, judicial override as practiced in Alabama deprives defendants of their Sixth Amendment right to trial by jury by making the heightened punishment of death dependent upon judicially found facts.  This means, in other words, that Alabama defendants are not eligible for the death penalty until the trial judge makes sufficient findings of fact to support it – a remarkably clear-cut Apprendi violation.  Alabama’s death penalty regime, which gives judges the unilateral power to impose death sentences on individuals that juries have voted to spare, should no longer go unchecked.  The Court should grant Mr. Lockhart’s pending petition.

  • March 20, 2015
    Guest Post

    by Christopher R. Poulos, President, ACS University of Maine School of Law Student Chapter; Chair, Law Enforcement Assisted Diversion Program Subcommittee, City of Portland, Maine.

    The United States now has more incarcerated citizens both in raw numbers and per capita than any other nation on Earth.  Over two million people are currently incarcerated in the United States, up from around 200,000 as recently as 1975.  The vast majority of prisoners are economically disadvantaged and lack college degrees, and many did not graduate from high school.  The number of minorities incarcerated, particularly black males, is disproportionately larger than their percentage of the general population.  Liberals – and now conservatives, including the Koch brothers and Newt Gingrich – are finally calling attention to the long ignored issue of mass incarceration.  The current focus on this matter by both ends of the political spectrum makes this a ripe time for positive change.

    One way to immediately begin addressing the daunting issue of criminal justice reform generally – and mass incarceration specifically – is to divert eligible low-level offenders away from the criminal justice process entirely.  The program is called Law Enforcement Assisted Diversion (LEAD), and one of its many objectives is to transform and transcend the relationship between police and the residents they serve into something more positive and less adversarial.  The idea began in Seattle and has also taken root in Santa Fe.  

  • March 13, 2015
    Guest Post

    by Jamie Hoag, Co-President of the ACS Boston Lawyer Chapter

    Almost two years after the Boston Marathon bombings, the trial of the accused bomber, Dzhokhar  Tsarnaev, is underway in a federal courthouse about two miles from the scene of the horrific events of that April day. 

    Tsarnaev was charged with 30 federal crimes, 17 of which carry a possible death sentence.  A lengthy jury selection process delayed the start of the trial, with approximately 1,350 individuals completing juror questionnaires.  The defense filed four motions to change the venue, arguing that the widespread pre-trial media coverage and universal emotional impact of the bombings made a fair – and constitutionally sound – trial impossible.  Each of these motions failed, and rightfully so.  Once it began, the trial took an unexpected turn when Tsarnaev’s attorney admitted her client’s guilt during opening statements, surprising everyone – except, hopefully, her client.  While the prosecution still has to prove its case, this trial is largely now about whether Tsarnaev will live or die.

    The defense’s efforts to move the trial and its recent admission of their client’s guilt raise several questions.  Would the defense lawyers have admitted guilt so quickly if the trial had been held in a different venue?  Likely so.  While, as noted, the defense unsuccessfully tried four times to have the trial relocated, it is highly likely that the focus would still have been on saving their client’s life, rather than arguing his innocence.  The burden is on the prosecution, of course, but the evidence against Tsarnaev is overwhelming, from a video showing him set the backpack containing the bomb near a crowd of marathon spectators to his identification by a victim who lost both of his legs.  Moving the trial from Massachusetts would not have lessened this evidence’s weight.

    In deciding to admit guilt, the defense team also likely had in mind research suggesting that jurors selected for death penalty cases are more prone to find guilt because the attention given to the sentencing phase during the pre-trial voir dire process suggests that there will be one.  If that research is accurate – a topic beyond the focus of this short post – that bias would exist in Baltimore as well as in Boston.  (Interestingly, in 2005 the Massachusetts Governors Council on Capital Punishment – commissioned by then-Governor Mitt Romney to consider ways to make the imposition of a state death penalty “as infallible . . . as humanly possible” – proposed in its report that separate juries be empanelled for the guilt and sentencing phases of a capital trial to address this potential bias.)  Given the evidence against their client, it is likely that the defense strategy to admit guilt and focus on saving their client’s life would have been the same if the trial was held hundreds of miles from the scene of the marathon tragedy.

  • March 9, 2015
    Guest Post

    by Thomas Nolan, Associate Professor of Criminology and Director of Graduate Programs in Criminology at Merrimack College

    The report from the Department of Justice’s Civil Rights Division on the Ferguson, Mo. Police Department is a damning indictment of an out-of-control, lawless, and racist police department gone rogue.  Given the context and history of policing in Ferguson provided in the DOJ investigation, it seemed inevitable that an unarmed African American teenager would be shot dead by a white Ferguson police officer following a confrontation over a “Manner of Walking in Roadway” offense (or theft of cigarillos if that is to be believed).  One is tempted to question how it didn’t happen sooner than August 9, 2014.

    The Ferguson Police Department (FPD) arrested 460 individuals for outstanding warrants between October 2012 and October 2014: 96 percent of those arrested were African American.  According to the DOJ report, from 2011 to 2013, African Americans accounted for 95 percent of Manner of Walking in Roadway charges, 94 percent of Failure to Comply charges, 92 percent of Resisting Arrest charges, 92 percent of Peace Disturbance charges, and 89 percent of Failure to Obey charges.  “Despite making up 67 percent of the population, African Americans accounted for 85 percent of FPD’s traffic stops, 90 percent of FPD’s citations, and 93 percent of FPD’s arrests from 2012 to 2014.”  The race-based enforcement tactics and strategies employed by the FPD have a disparate impact on African Americans that is violative of the Equal Protection Clause of the Fourteenth Amendment.

    The DOJ report also found that the FPD has engaged in a “pattern and practice of constitutional violations (that primarily target African Americans) in stopping people without reasonable suspicion, arresting them without probable cause, and using unreasonable force.”  The FPD’s policies and practices were found to routinely violate the Fourth Amendment in racially profiling African Americans and disproportionally singling them out for “pedestrian checks,” “Failure to Comply,” and illegal “Stop and Identify” offenses.  DOJ found that the FPD consistently uses excessive force in violation of the Fourth Amendment and that African Americans accounted for almost 90 percent of the use of force incidents from 2010 to 2014.  FPD used force involving a canine bite 14 times during this time period and in all incidents the person bitten was African American.   

    The FPD also engages in a standard (and unlawful) practice of arresting individuals for engaging in activities that are protected under the First Amendment to the Constitution: “people are punished for talking back to officers, recording public police activities, and lawfully protesting perceived injustices.” 

  • February 23, 2015
    Guest Post

    by Lauren-Brooke Eisen, Counsel, Justice Program, Brennan Center for Justice

    *This post is part of our two-week symposium on racial inequalities in the criminal justice system.

    For decades, America’s incarceration policies have been questioned both for their result of dwarfing every other nation on the planet in the number of people locked behind bars but also for their vast racial disparities.

    Policies enacted during the height of the War on Drugs in the 1980s and 1990s expanded the use of incarceration as a response to rising crime and fear of crime.  These include mandatory minimums, truth-in-sentencing laws, “three strikes you’re out” laws, federal funding targeted for building more prisons and other sentencing regimes that exponentially expanded America’s prison population.

    The numbers are revealing.  Since the 1970s, incarceration in the U.S. has increased steadily and dramatically.  In fact, since 1990 the U.S. has added about 1.1 million additional people behind bars, almost doubling the nation’s incarcerated population.  These prisoners are disproportionately people of color.

    African-American males are six times more likely to be incarcerated than white males and 2.5 times more likely than Hispanic males.  In 2013, almost 3 percent of black males were imprisoned compared to 0.5 percent of white males.  America’s prisons and jails cost more than $80 billion annually – about equivalent to the budget of the federal Department of Education.  This is the phenomenon of mass incarceration.

    A recent report by the Brennan Center for Justice at NYU School of Law provides additional empirical evidence for incarceration’s ineffectiveness at today’s unprecedented levels.  Crime across the United States has steadily declined over the last two decades.  Currently, the crime rate is about half of what it was at its height in 1991.  Violent crime has fallen by 51 percent since 1991, and property crime by 43 percent.