Criminal Justice

  • February 14, 2014

    by Jesse Grauman

    Attorney General Eric Holder this week offered welcome support for ending the practice of felony disenfranchisement. Arguing that “permanent exclusion from the civic community does not advance any objective of our criminal justice system,” Attorney General Holder called for “clear and consistent reforms to restore the voting rights of all who have served their terms in prison or jail, completed their parole or probation, and paid their fines.”

    While the degree of felony disenfranchisement varies by state, eleven states permanently disenfranchise at least some formerly incarcerated persons unless the state’s government approves the restoration of voting rights on an individual basis. Three of those states – Iowa, Florida and Kentucky – permanently disenfranchise all formerly incarcerated persons with felony convictions absent individual rights restoration.  An additional 24 deny the right to vote to those who have been released from prison but remain on parole, and 20 of these states disenfranchise those on probation as well.

    As a result, approximately 5.8 million Americans are prohibited from voting as a result of felony disenfranchisement laws. These laws have a disproportionate impact on African-Americans, with nearly one in 13 African-American adults barred from voting, including one in eight African-American men nationwide and one in five African-Americans in Florida, Kentucky and Virginia. 

    These disparate impacts are not only due to the massive racial disparities that exist in our criminal justice system. Rather, many such laws were passed in the aftermath of Reconstruction as a means of denying the franchise to African-Americans. Eleven states passed felony disenfranchisement laws for the first time, or significantly expanded existing laws, in the decade after the Civil War, and states with larger proportions of nonwhites in their prison populations have been more likely to pass such laws. Indeed, in 1985, the Supreme Court unanimously struck down a felony disenfranchisement provision in Alabama’s state constitution in Hunter v. Underwood, finding that the provision, although neutral on its face, was enacted with discriminatory intent. As the Court noted, “the Alabama Constitutional Convention of 1901 [when the measure was passed] was part of a movement that swept the post-Reconstruction South to disenfranchise blacks” and the president of that convention stated that its goal was “to establish white supremacy in this State.” 

  • February 11, 2014
     
    According due process of the law to death row inmates in Missouri is apparently a difficult constitutional mandate to embrace, at least for some state attorneys charged with carrying out death penalty sentences.
     
    In a piece for The Atlantic, Andrew Cohen detailed the execution of Herbert Smulls earlier this year, where state officials ignored repeated requests by defense attorneys to wait for the appeals process to expire before executing Smulls. The defense attorneys’ efforts were futile. As Cohen reports the state initiated the “lethal injection protocols” before the U.S. Supreme Court took action on Smulls’ final appeal for a stay of execution. “Smulls was pronounced dead four minutes before the Supreme Court finally authorized Missouri to kill him,” Cohen reported.
     
    Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty, told ACSblog, “I am deeply concerned that the State of Missouri executed Herbert Smulls before the Supreme Court could rule on his claims. It gives the impression that justice plays second fiddle to getting it over.”
     
    Rust-Tierney’s concern is well grounded. As Cohen notes, U.S. Court of Appeals for the Eighth Circuit Judge Kermit Bye, as well as other federal court judges, have previously raised concerns about Missouri’s history of carrying out the death penalty.
     
    In late December, Judge Bye lodged a stinging dissent to an amended order in a case involving Missouri’s execution of Allen L. Nicklasson. A petition for the entire Eight Circuit to consider a stay of Nicklasson’s execution was declared moot, since the litigant, Nicklasson, had already been executed.
     
  • February 11, 2014
     
    The American Bar Association Standards Review Committee is considering a recommendation that the ABA no longer prohibit law students from receiving money for internships and externships. Karen Sloan of The National Law Journal has the story.
     
    In their debut article for The Intercept, Jeremy Scahill and Glenn Greenwald examine the National Security Agency’s controversial role in targeting terror suspects for lethal drone strikes and the effectiveness of geolocating technology.
     
    Dallas District Attorney Craig Watkins created the nation's first Conviction Integrity Unit. In an interview with NPR’s Melissa Block, Watkins discusses the 87 overturned convictions in the U.S. in 2013 and what is being done in Dallas County to prevent miscarriages of justice.
     
    With the U.S. Supreme Court returning to session on February 24, the justices could soon rule on whether legislative prayer violates the Establishment Clause. Michael Kirkland at UPI breaks down Town of Greece v. Galloway.
  • February 3, 2014
     
    * Editor’s Note: "LegalEyes," a new daily ACSblog feature highlighting important news in law and public policy, begins with this inaugural post. Visit each weekday at noon for fresh updates.
     
    Writing for the Brennan Center for Justice, Andrew Cohen explains how lawmakers in Alabama and Tennessee have introduced legislation to expedite capital cases in their states. With an already damaged prison system, Cohen explains how these new measures could mean the difference between life and death for today’s inmates.
     
    While section 215 of the Patriot Act is widely known for its controversial surveillance tactics, section 702 of the FISA Amendments Act (FAA) brings to the forefront a whole host of issues regarding the legality of mass surveillance. Section 702 allows for the spying of non-U.S. citizens in an effort to prevent terrorism while collecting security intelligence without a warrant. In the first part of her ongoing discussion at Just Security on reforming Section 702, Jennifer Granick explains why and how the section should be reformed.
     
    It was one issue that had Democrats and Republicans on their feet during the State of the Union address last week: immigration reform. Although House Republicans have answered calls to tackle immigration reform with a newly written plan, their recent efforts have culminated in a controversially opaque blueprint. Alex Altman at TIME Magazine breaks down reactions to the GOP’s ambiguous plan to reconstruct immigration law.
     
    Writing for Balkinization, Jason Mazzone comments on the second murder conviction of Amanda Knox. The infamous case involving Knox and her former boyfriend in the 2007 murder of a British roommate was reestablished after the Italian criminal justice system reinstated its guilty verdict last week. In a revealing comparison between legal systems, Mazzone argues that Knox may be in a far better position today than if the case were originally held in the United States.
  • January 16, 2014
    Guest Post
    by Margaret Colgate Love, former U.S. Pardon Attorney (1990-1997)
     
    * Ms. Love now represents applicants for executive clemency. Her client Clarence Aaron was one of those commuted by President Obama on December 19.
     
    On December 19, President Obama commuted the prison sentences of eight people convicted of trafficking in crack cocaine and sentenced to lengthy prison terms.  Each person had spent at least 15 years behind bars, and all but two were serving a mandatory life term.  The President was generally commended for his acts of mercy, the only reservation being that he had not done more to provide relief to thousands of similarly situated individuals still imprisoned under laws he himself characterized as “unjust.”
     
    One of those whose sentence the President commuted was Clarence Aaron, a college student with no prior record who was sentenced in 1993 to three life terms based on his limited role in two drug transactions for which he was paid $1500.  Another was Stephanie George, described by the sentencing judge as the “bag holder and money holder” for her crack-dealing boyfriend, whose life sentence was based on two prior convictions for selling a total of $160 worth of crack.
     
    Clarence Aaron is now on his way home, as are Stephanie George and the other members of the December 19 Eight, most of whom thought they would never see home again.  So it is time to consider what happens now for the hundreds of similarly situated individuals still behind bars.
     
    The President himself acknowledged, in a statement accompanying the grants, that while he had taken “an important step toward restoring fundamental ideals of justice and fairness,” that step “must not be the last.”  He urged Congress to act on “reform measures already working their way through Congress” to provide relief from “a disparity in the law that is now recognized as unjust.” The specific “reform measure” the President was referring to is the Smarter Sentencing Act, which would make the 2010 Fair Sentencing Act (FSA) fully retroactive.  The impression left by his statement was that passage of this bill, along with policy changes announced by the Attorney General in August 2013, would be sufficient to restore fairness to the legal system, and that the job of doing justice had now passed to Congress.