Criminal Justice

  • March 27, 2015
    Guest Post

    by Nkechi Taifa, Senior Policy Analyst at Open Society Foundations

    I have spent over 25 years working on criminal justice reform issues and the recent Bipartisan Summit on Criminal Justice Reform, co-hosted by an unlikely alliance of Van Jones, Newt Gingrich, Donna Brazile and Pat Nolan, was absolutely colossal. Who would have imagined that a huge hotel ballroom would be packed as early as 8:00 a.m. with federal and local legislators, high administration officials, policy experts, criminologists, researchers, faith leaders, academicians, formerly incarcerated people and millennials – all from both sides of the aisle? The event was an ambitious undertaking – a full day jam-packed with featured presentations, panel workshops, video presentations, and luncheon keynote conversations, with U.S. Attorney General Eric Holder, Secretary of Labor Tom Perez, and Georgia Governor Nathan Deal all sharing their words of wisdom on criminal justice reform. Democratic Members of Congress spoke at the Summit in person, and Republican Members, along with President Barak Obama, made remarks via video. 

    As I sat in the audience, I reflected that criminal justice was no longer the lightening rod it was two decades ago, thanks to a more recent, huge paradigm shift.  Twenty years ago, Republicans and Democrats alike were horrible on criminal justice issues.  Candidate Bill Clinton left the campaign trail to oversee the execution of a mentally challenged man in Arkansas. Every year or so during the early 90s we fought against unwieldy omnibus crime bills, culminating in the “granddaddy” of all the crime bills – the Violent Crime Control and Safe Streets Act of 1994.  This bill expanded the federal death penalty to a level unprecedented in modern times, gutted habeas corpus reform, eviscerated the exclusionary rule, allowed for the prosecutions of 13-year olds as adults, and refused to address the crack/powder sentencing disparity, while implementing a slew of additional mandatory minimum sentences and offering monetary incentives to states to lock up more and more people for longer periods of time in exchange for loads of money to build more prisons. 

  • 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 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.

    The program we are developing in Portland, Maine, will be the nation’s third. Instead of low-level, often drug-addicted offenders being sent to jail, they are immediately connected with an intensive case manager. The initial meeting, occurring directly following arrest, helps determine why the person is involved in the activities they are involved in and identifies what we can do to help lift the individual out of the situation. Instead of jailing the individual, we ask them how we can help.

    Participants can also enter the program through “social contact,” where an officer and/or case manager approaches someone known to be in need and offers the program’s resources without waiting for an arrest. Available resources for LEAD participants include housing, mental health and substance abuse treatment, vocational training, education, and, when appropriate, direct connection with members of the recovery community who can share their own experiences and solutions.

    LEAD targets the people unable to meet the often stringent requirements of “drug court” programs. Among the differences between LEAD and drug courts is that with LEAD, judicial resources are preserved for more serious offenses. The diversion is immediate and not contingent upon a guilty plea or numerous other conditions. The program is focused on providing low barriers to entry and not only emphasizes harm reduction principles, but also encourages long-term solutions and upward social mobility. Our clients are the people who have fallen through the cracks of society and ended up on the streets or in unsafe housing. The purpose of LEAD is to break the cycle of poverty, addiction, crime and incarceration.

    We have found that an approach to addiction based solely on law enforcement has proven wildly unsuccessful. For example, Bureau of Justice Statistics studies have found remarkably high recidivism rates among individuals released from prison. The idea and resulting policy that simply incarcerating people in “correctional facilities” will rehabilitate them and “correct” their behavior has, to put it simply, failed. The driving factor behind the dramatic increase in incarceration over the last 30 years or so has been the War on Drugs. We propose that for low-level offenders, the criminal justice system and incarceration is not the solution. Instead, creating individual plans to break the cycle of poverty and addiction within a larger program will better serve everyone involved, including individual communities and the nation as a whole. Our project strives to improve both public safety and participants’ lives; the two goals are not mutually exclusive.

    Following a recent visit by White House Director of National Drug Control Policy Michael Botticelli, an article was written outlining some of our current work and goals. When leaders in law enforcement and at the Office of National Drug Control Policy are calling for and supporting progressive change, the time has come to act.

  • 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.