Criminal Justice

  • April 26, 2017

    *This piece is part of the ACSblog symposium: The Department of Injustice.

    by Christopher Wright Durocher

    On Monday morning, the Supreme Court declined to review a Fifth Circuit Court of Appeals ruling that upheld the dismissal of Ricardo Salazar-Limon’s lawsuit against the City of Houston for a police officer’s alleged excessive use of force. Salazar-Limon was partially paralyzed as the result of injuries he sustained when Officer Chris Thompson shot him in the back during a traffic stop, though he was unarmed.

    The Fifth Circuit reasoned that there was no material dispute of fact in the case—the standard that must be met to avoid summary judgment—because Thompson testified during his deposition that he saw Salazar-Limon reach for his waistband, and, as Justice Samuel Alito notes in his concurrence, “Remarkably, Salazar-Limon did not state in his deposition or in an affidavit that he did not reach for his waist.”

    The problem, Justice Sonya Sotomayor explains in her dissent, is that this conclusion “is plainly wrong.”  As she describes it, there is a clear dispute of material fact:

  • January 23, 2017
    Guest Post

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

    I.        Immigration Enforcement 

    Count on the nascent Trump administration to involve law enforcement in the enforcement of federal immigration laws. And too often the law enforcement agencies that can inflict the most damage on the relationships between immigrant communities and their police will be the first to embrace a role in the enforcement of immigration laws, a role that is particularly unsuitable for the police in the twenty-first century United States. 

    In Massachusetts, the bluest of the blue states, a county sheriff recently offered to send inmates at the county jail to the Mexican border to help build the Trumpian “wall.” Thankfully sheriffs in Massachusetts are jailers and civil process servers and not police, but the suggestion, though clearly illegal and unconstitutional, that some law enforcement officials welcome a potential role in the enforcement of federal immigration laws is worrisome. There are over 18,000 law enforcement agencies in the United States: local, county, state, and special jurisdiction, and these departments may present an attractive “force multiplier” in the enforcement of federal immigration laws should the Trump administration seek to broaden the imprint of ICE Enforcement and Removal Operations (ERO). The resurrection of the moribund “287 (g)” program or some similar collaborative model for the joint federal-local-state-county enforcement of immigration laws would be catastrophic for immigrant communities.

    The police are typically unaware that entry into the United States without the appropriate documentation authorizing such entry, while against the law, is a civil infraction and not a criminal violation (unless the individual has been previously deported). Too many of the police are also unaware that they do not have the authority to ask community residents with whom they come into contact for immigration documents (and this is a common practice in immigrant communities). In the eyes of many of the police, undocumented immigrants are criminals who have no rights under the Constitution and who should be arrested and immediately deported.

  • January 19, 2017

    by Christopher Wright Durocher

    Last week saw the U.S. Department of Justice’s Civil Rights Division release what amounts to a valedictory report on policing for the Obama era, detailing findings that Chicago Police Department “officers engage in a pattern or practice of using force, including deadly force, that is unreasonable [and] unnecessarily endanger[s] themselves and others and result[s] in unnecessary and avoidable shootings and other uses of force.” Coupled with the announcement of agreements with Chicago and Baltimore to address the constitutional infirmities in their police departments, the release of this investigation highlights the valuable role the federal government has played in uncovering and addressing abusive policing practices, particularly in marginalized communities.

    Since 2009, the Civil Rights Division has investigated twenty-five law enforcement agencies. The most high-profile of these investigations was in Ferguson, Missouri. That investigation revealed a police department and municipal court system so focused on generating revenue that they routinely and flagrantly violated the First, Fourth and Fourteenth Amendments and exacerbated racial disparities to the point that almost no member of the city’s African-American community was untouched by the criminal justice system. In fact, ninety-two percent of warrants issued by the Ferguson municipal court were issued for African-Americans, though they make up on sixty-seven percent of the population. They also accounted for eighty-five percent of vehicle stops and ninety-three percent of arrests in Ferguson. Ninety percent of all police use of force was against African-Americans and, in a chilling callback to Civil Rights era imagery, every person bitten by a police dog in Ferguson has been black.

  • January 3, 2017
    Guest Post

    by Ethan Frenchman, Appellate Attorney, Maryland Office of the Public Defender and Arpit Gupta, Professor of Finance, NYU Stern School of Business

    Across the United States, judges routinely require criminal defendants, who have not been convicted of any crime and are presumed to be innocent, to buy their freedom in the form of money bail. As any defense attorney can attest, this system jails the poor and allows the rich to free.

    And because many criminal defendants are poor, the key factor in the incarceration of people awaiting trial is poverty, not their risk to society or their risk of failing to appear in court. As a result, on any given day more than 450,000 people are in jail merely awaiting trial. The human and economic costs of this unnecessary detention are staggering.

    In a study of pretrial detention in Maryland, we found that more than 17,000 people were jailed because they were too poor to pay a bail amount of less than $5,000. Those unable to pay the full amount of money bail set by the court must resort to bail bondsmen, who typically demand 10 percent of the total bail amount as a non-refundable fee for securing the defendant’s release. This means that these people could not buy their freedom for $500. Because we looked at only a fraction of Maryland criminal cases, this statistic dramatically underestimates the total.

  • 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.