Criminal Justice

  • December 7, 2015
    Guest Post

    by David Steingraber, Senior Policy Adviser at the National Criminal Justice Association, former Executive Director of the Wisconsin Office of Justice Assistance, former Administrator of the Wisconsin Department of Justice, Division of Law Enforcement Services, and former Chief of the Menomonee Falls, Wis. and Middleton, Wis. Police Departments   

    The “perfect storm” has come to mean the convergence of two or more forces to create a larger force which is greater than the sum of its parts. Such is the case with criminal justice reform. The politics of criminal justice reform has always been an impediment to true reform. The forces of law and order have always collided with well-meaning “do-gooders” to cancel any real momentum for reform. Dramatic headline grabbing crimes and a statistical increase in crime rates have prompted knee-jerk get tough on crime responses at both local precincts and state houses across the country.

    What has changed today is that our criminal justice system has come under scrutiny from both the left and the right. Not only have the deplorable conditions in many of our prisons with overcrowding being a major contributing factor been cause for concern, but concern has also been prompted by the extremely high cost of maintaining prisons to say nothing of the cost of new prison construction anticipated to house a growing number of inmates.

    Progressive and social reformers continue to rail against the ineffectiveness and inhumanity of our over-reliance on incarceration. Conservatives have awakened to the impact of the high cost of the prison system. This impact is particularly harsh at the state level which is the primary locus of our criminal justice system. There is also concern at the federal level where the federal justice system has intervened to attempt to quash the national drug abuse epidemic.

    For the first time in memory, these two forces are willing to sit down and discuss a pathway to criminal justice reform that is less reliant on what is now seen as a costly and often ineffective response to crime. The reward for both sides is compelling. Each side sees the clear benefit of spending less on prisons and achieving a more effective response to criminal behavior.

  • December 3, 2015
    Guest Post

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

    Chicago Mayor Rahm Emanuel has fired Police Superintendent Garry McCarthy in the aftermath of the release of graphic and disturbing dash cam video footage showing Chicago police officer Jason Van Dyke shooting 17-year-old Laquan McDonald 16 times on October 20, 2014, 14 of those shots being fired into McDonald's body as he lay dying on the ground. The teenager was allegedly armed with a three-inch folding knife, with the blade reportedly folded into the knife. A "bad shoot" is what cops call it, and this was a particularly bad shoot.  The mayor’s abrupt about face in his backing of McCarthy’s handling of the investigation of the shooting and the decision to stonewall the public release of the publicly owned video footage of the shooting death of McDonald surprised few. McCarthy’s hold on the superintendent’s position grew more tenuous by the hour as public disgust and outrage over the callous and gruesome execution of the teenager went viral.

    The decision to fire McCarthy cited a lack of confidence in the leadership of the Chicago Police Department (CPD), confidence that had waned and then fell like a stone once protesters took to the streets of Chicago. Emanuel had praised McCarthy as “an excellent leader” throughout his tenure, but saw him as a “distraction” who had to go. Queue the usual suspects: McCarthy’s deputy will lead the department until a permanent replacement can be found and the “Task Force for Police Accountability” has been assembled, with former Massachusetts Governor Deval Patrick on board as a “senior advisor.” Don’t hold your breath waiting for results that implicate any official in wrongdoing (other than Jason Van Dyke).   

    This is an all too predictable outcome to a series of extremely ill-advised decisions that were made by some very high-ranking officials of the administration of Mayor Rahm Emanuel and the Chicago Police Department that began on October 20, 2014 and that could arguably rise to the level of criminal culpability. Questions arise as to who was making what decisions regarding the release of the dash cam video footage. Who directed Chicago police officers to go to the nearby Burger King and delete 86 minutes of likely relevant video footage from the restaurant’s surveillance cameras? 

    What we are not seeing in this unfolding scandal, following a series of unquestionably stupid blunders on the part of senior law enforcement and city officials, is anything remotely resembling accountability in a situation that demands nothing if not responsibility and accountability from those public officials who thought that it was a justifiable and prudent idea to withhold relevant information from the public, especially the particularly damning video footage, a public rightfully suspicious and skeptical of the police narrative regarding the “hyper killing” of an arguably unarmed teenager by a Chicago police officer.

  • December 1, 2015
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law. His first book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, was published by Harvard University Press in 2009, and his most recent book, Too Big to Jail: How Prosecutors Compromise with Corporations, was published in 2014.

    Can lawyers stop their own client from challenging his death sentence? Apparently, in Texas, they can. A lawyer’s most fundamental professional obligation is to “zealously” advocate for the client and uphold “justice.” Lawyers cannot give up working on a case, or put their own interests above their client’s. And yet that is what two Texas lawyers appear to have done to death row clients they were appointed to represent.

    Raphael Holiday was just executed in Texas. His two court-appointed lawyers told him that they would no longer contest his execution. “This marks the end of work for your appeals,” they said. They then told Holiday they would not seek clemency from the governor, despite a federal law requiring them to honor the client’s desire to do just that. Facing imminent execution, Holiday told the court, “They have refused to help me and it is a disheartening conundrum I am not fit to comprehend.”

    Holiday, who lacked money to hire his own lawyer, asked for the court to appoint a new one. The lawyers who said they were “not going to file further appeals” for him opposed his request, essentially telling the court that their client had nothing but frivolous claims left. The court-appointed lawyers simply gave up on Holiday’s case, even though half of 2015 Texas executions have been stayed or withdrawn, often because lawyers discovered compelling issues as the execution date approached. Based on the appointed lawyers’ representations, the court refused to assign a new lawyer to the case. Stephen Bright, president of the Southern Center for Human Rights, commented that it was “unconscionable” to prevent Holiday from getting new lawyers and that death penalty lawyers representing clients facing imminent executions “have a duty to make every legal argument they can.”

  • November 16, 2015
    Guest Post

    by Noah Zatz, Professor of Law, UCLA School of Law

    *This post is part of ACSblog’s Symposium on Labor and Economic Inequality.

    Three vibrant movements of our time are Black Lives Matter, theDREAMers, and Fight for $15. For many progressives, only the last may seem directed at our topic of work and inequality. That intuition is wrong. Legalized state violence – incarceration, deportation, even killing – can and does depress labor standards and enable workplace exploitation (and vice versa).

    We too often separate struggles against racialized state violence from those challenging economic inequality. The former seem to be about the public exercises of government power, while the latter seem to be about private exercises of corporate power. This is both an analytical error and a missed political opportunity.

    Think of criminal justice, immigration, and labor as three points of a triangle. Activists and academics increasingly link mass incarceration and mass deportation, especially as immigration enforcement is criminalized. Likewise, the government’s threat to detain and deport has been linked to employer power. Guest workers face deportation if they exercise the most basic labor right, the right to quit, and undocumented workers labor under employer threats to call in immigration enforcement. Employers use this power to disrupt organizing, degrade working conditions, and depress wages.

    An incarceration-labor connection parallels this immigration-labor connection. This connection mirrors the thoroughly racialized ways that immigration policy produces workplace disadvantage. That historical pattern continues today as Latina/os and others treated as presumptively “foreign” face profiling by employers and government authorities. Similarly, racism has long structured criminal justice in the U.S. From defining what is a crime to the notorious cocaine sentencing disparities, from the frequency of police stops to searches to uses of force, the criminal justice system casts an especially dark shadow over communities of color, and not by coincidence.

  • November 9, 2015
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law. Last fall, Harvard University Press published his new book, Too Big to Jail: How Prosecutors Compromise with Corporations.

    The American death penalty is an outlier phenomenon. Fewer states are sentencing fewer people to death. Fewer counties are sentencing people to death within those states. But as outliers go, in the American death penalty world, Florida is in a class of its own. Florida allows, unlike any other state, a jury to be split, unexplained, and non-unanimous in its mere recommendation that the death penalty be imposed. Unlike any other state, Florida allows the judge then to make the actual factual determination that death should be imposed, not the jury. Now the Supreme Court is poised to decide whether this is constitutional.

    The Court heard arguments last month in Hurst v. Florida, one of several death penalty cases on its docket this term. Timothy Hurst was charged with the murder of his co-worker at a Popeye's chicken restaurant. His conviction had already been reversed once because of the ineffective assistance his lawyer provided at his first trial. And the Court is apparently not entertaining the question whether he is intellectually disabled and, as a result, categorically ineligible for the death penalty, another important issue in the case.

    Instead, there is a fundamental question whether the jury in his case really sentenced him to death. Formally, the judge did it. As former Solicitor General Seth Waxman put it at the oral arguments, “Under Florida law, Timothy Lee Hurst will go to his death despite the fact that a judge, not a jury, made the factual finding that rendered him eligible for death.” In Ring v. Arizona, in 2002, the Supreme Court overturned its earlier ruling in the 1990 case Walton v. Arizona, holding that the Sixth Amendment right to a jury trial entitles a defendant facing the death penalty to have the key aggravating factors making the case eligible for the death penalty found by a jury and not a trial judge. Just about every death penalty state readily complied with that ruling—except Florida.