Guest Post

  • November 29, 2016
    Guest Post

    by Larry Schwartztol, Executive Director of the Criminal Justice Policy Program at Harvard Law School

    An arrest is typically the first step in the criminal process – a process designed to determine whether punishment is warranted. Yet in local jails around the country, people convicted of no crime remain detained as that process unfolds. Very often, that pretrial incarceration comes down to a simple, disheartening fact: the person arrested lacks the wealth to pay bail.

    For many pretrial defendants, the stakes are incredibly high. Even a short period of detention is a serious infringement on liberty, a deprivation that is compounded by exposure to the overcrowding, violence, disease, lack of health care and harshness that characterizes many jails. Beyond these inherent hardships, even short jail stays can upend a person’s life by disrupting employment, housing, child custody and health care. Studies have shown that pretrial detention also impacts the outcomes of a person’s criminal case. Being held before trial, even for short periods, has been shown to increase the chance of conviction (including conviction by guilty pleas for people charged with low-level crimes and desperate to get out of jail), the severity of a sentence and the chances of being arrested again in the future. Unaffordable money bail exposes many people to these consequences by transforming their lack of wealth into jail time. 

    The system of money bail, however, is at a crossroads. It remains a dominant tool for administering the pretrial process around the country – a totally normalized and nearly ubiquitous practice. Yet the tide appears ready to turn. Media outlets from the New York Times to Last Week Tonight with Jon Oliver have shined a bright spotlight on the pathologies of money bail. A wave of civil rights lawsuits has challenged the operation of money bail around the country, from small jurisdictions in Alabama, Georgia and Missouri, to larger systems like Chicago, Houston, San Francisco and the state of Massachusetts. Policymakers are also leading the charge for reform. In Maryland, the state’s attorney general has propelled forward a proposed rule that that would add safeguards to prevent people from being jailed due to inability to afford bail. Voters in New Mexico approved a ballot measure in November designed to decrease wealth-based jailing. And the U.S. Justice Department has become a forceful voice for reform, through court filings emphasizing core constitutional principles and a recent Dear Colleagues letter that went to every state chief justice and state court administrator in the country.

  • November 28, 2016
    Guest Post

    by Thomas Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department

    As law enforcement agencies throughout the United States begin to re-imagine and re-evaluate their role under an administration that purports to be wholly and unquestioningly supportive of the police, those of us who observe and comment on police-related issues should be concerned, very concerned. Four issues are worthy of immediate scrutiny: technology, immigration, “stop and frisk” and militarization.

    Technology

    The story broke, predictably, on a Saturday during the Thanksgiving weekend. The Boston Globe reported that the Boston Police Department planned to spend $1.4 million on software “that will scan social media and the Internet for criminal activity and threats to public safety.” So a local police department, and certainly not the first local police department of the over 18, 000 police departments that exist in the United States, will be monitoring our use of social media and flag keywords that might be indicative of criminal involvement or “threats to public safety” (whatever that means in the eyes of the police).

    Welcome to the bad new days of law enforcement, circa 2017. When last I checked, I had tweeted over 5000 times since 2009, and many of my tweets have been stridently critical of the police use of deadly force and police violence, and these tweets no doubt contained words such as “shooting,” “police,” “violence,” “deadly” and “#BlackLivesMatter.” I will no doubt be flagged as an enemy of the state and a threat to public safety by the police department where I worked for 27 years.

  • November 23, 2016
    Guest Post

    by Lawrence O. Gostin, Founding O'Neill Chair in Global Health Law at Georgetown Law, Faculty Director of the O'Neill Institute for National and Global Health Law, Director of the World Health Organization Collaborating Center on Public Health Law & Human Rights, and University Professor at Georgetown Law

    Since 2002, the Supreme Court has banned the execution of people with intellectual disability. Writing for the Court, Justice John Paul Stevens looked to the clinical understanding of intellectual disability and explained that people with that condition bear diminished culpability “by definition” and are “categorically excluded from execution,” lest cruel and unusual punishment be imposed.

    In spite of this categorical ban, people with intellectual disability still face execution in the U.S. because Texas – the state that carries out far more executions than any other state – has disregarded the Supreme Court’s directive that intellectual disability evaluations in death penalty cases must be informed by the medical community’s diagnostic framework. The Supreme Court will soon have an opportunity to address Texas’s unusual and bizarre approach.

    Texas is a global outlier when it comes to its method for evaluating intellectual disability claims in death penalty cases. Remarkably, Texas prohibits the use of current medical standards. It is difficult, if not, impossible to locate any other jurisdiction in any country where it is forbidden to use current medical standards in evaluating intellectual disability. As with any field, when policy makers or courts not only defy scientific evidence or standards, but also disregard them, the results can be catastrophic—in this case, literally a matter of life or death. And briefs in the Supreme Court show that no other jurisdiction in the U.S. follows that practice.

  • November 22, 2016
    Guest Post

    by Olivia N. Sedwick

    On Nov. 7, 2016, the ACS Student Chapter at Howard University School of Law hosted a “community conversation” aptly titled “Depending on Tomorrow: The Future of the Supreme Court.”  Our discussion featured two notable attorneys from Skadden, Arps, Meagher & Flom, LLP: Greg Craig and ACS Board Member Cliff Sloan. The panelists have a great deal of experience including having served two Presidents and arguing before the Supreme Court. With such experience, the conversation was well informed about the expectations and attendant implications that would possibly accompany the next presidential administration.

    Much of the conversation focused on the realistic expectations and attendant implications that would come with another Clinton presidency. In that vein, we discussed how a Clinton Supreme Court nomination could even out—not necessarily drastically shift—the dynamic of the Court and what important past and upcoming decisions hung in the balance as a result. As Howard Law students, we are always focused on the greater societal implications on equality, justice and fairness. Naturally, we discussed Citizens United, Shelby Cty. v. Holder, the Affordable Care Act and immigration concerns. Likewise, we also discussed the sore-spot that is the 1994 Crime Bill—how and why it was so bad and how another Clinton presidency could possibly remedy it.  Those of us in the room knew that many of these decisions—and with them our very livelihoods—lay in wait until the next day, tomorrow.

    It is for this reason why I believe that the program was so salient and timely because, for the first time in many of our lives, one day meant to live freely or in fear, to live or to die. While such a statement might be hyperbolic for some, for many anything short of a Clinton administration could mean precisely that. It could mean the likelihood of deportation would increase, more than just a little bit. It could means that affordable access to treatments, in many respects, would became slightly unaffordable. Unfortunately, the day after the election became the day that many of us would have to begin to live in fear. It means that hindrances to the ballot box could possibly be resurrected simply because necessary changes that would restore optimal strength to the Voting Rights Act of 1965 would likely be halted even further.   

  • November 22, 2016
    Guest Post

    *This post was originally published on The Huffington Post.

    by Christopher Kang, ACS Board Member and National Director of the National Council of Asian Pacific Americans

    President-elect Trump announced that he plans to nominate Senator Jeff Sessions to be Attorney General, and for those who have concerns—or outright opposition—to this pick, recent headlines have been daunting: “Sessions looks like a lock for confirmation.” “Senate Democrats Can’t Stop Sessions, So How Much Will They Fight?

    To some extent, I understand this analysis: Senate Democrats cannot stop this nomination unless Republicans join them, and based on the public statements of support so far, that doesn’t seem likely.

    Then again, I imagine this was also the analysis in 1986, when a Republican-controlled Senate considered Sessions’ nomination to the district court—before the Senate Judiciary Committee held two sets of hearings. Before Senator Howell Heflin (also of Alabama) withdrew his support, stating “fairness and impartiality go to the very heart of our justice system...as long as I have reasonable doubts, my conscience is not clear, and I must vote no.” Before two Republicans joined every Democrat on the Judiciary Committee in opposing his nomination. Before the Judiciary Committee rejected a lower court nomination for the first time in nearly half a century.

    What happened in 1986 could happen again today: Senators could diligently review the record and vote their conscience.