How ‘Underground Justice’ Has Failed Americans

Prosecutors’ zeal for plea bargaining is one reason for the nation’s disturbingly high recidivism rates, says the author of a forthcoming book. The solution: change prosecutorial culture.

In a series of recent interviews, prosecutors were asked what role they believe they play in reducing recidivism.

The most common answers:

“None.”  

“Not my job.”

And the few who said they did have a role indicated that harsher punishment was the way to lower recidivism.

The interviews, conducted for a forthcoming book I co-authored with Robert Pitman, “Confronting Underground Justice, ” make one thing painfully clear:  We need to change the thinking of prosecutors regarding the roles they can and should play if we want to fix our broken justice system.

We have spent upwards of $1 trillion dollars over the past 45 years in direct criminal justice costs and another $1 trillion on the war on drugs—an investment that has resulted in recidivism rates of nearly 85 percent for state offenders and nearly 45 percent for federal inmates.

I don’t see how anyone can spin that into a positive. There’s a clear consensus that the U.S. justice system is a massive failure.

Focusing on changing the culture of prosecutors is one way to turn this thing around.

Here’s why.

The prosecutor is the most influential individual in the justice system. He or she is the key player in plea negotiation—the way that over 95 percent of criminal convictions are achieved.

The combination of broad prosecutorial discretion and plea negotiation effectively makes prosecutors the judge, jury and sentencer in most criminal prosecutions.  Prosecutors determine who to prosecute, what to charge, who is guilty and of what—and they are instrumental in determining the sentence, either directly (through sentence bargaining) or indirectly (through charge bargaining).

While plea negotiation was developed as a way to manage crushing caseloads and dockets, it has become the fast track to criminal conviction and punishment.  Punishment is the currency of the plea deal.  Time in prison, jail or on probation is what is negotiated.  Punishment is what prosecutors know and therefore that is what is delivered.

The problem is that punishment does little to reduce crime and recidivism.

The majority of individuals who enter the justice system have a mental health problem, a substance abuse problem, a neurodevelopmental and/or neurocognitive problem, and often co-morbidities of all three, as well as serious problems with employment, housing, and education, among others.

Punishment does little to alter any of these circumstances and conditions. In many cases, it exacerbates them.

Prosecutors are lawyers.  They are not psychiatrists, psychologists, neurologists or clinical social workers.  However, since they are the pivotal decision makers, it is important to help them make better decisions, in turn, improving short term and longer-term outcomes.

Therefore, true criminal justice reform must encompass providing ways in which prosecutors can make better decisions that have recidivism reduction as a primary consideration.  In a previous book (“From Retribution to Public Safety), we developed the concept of independent panels of experts—psychiatrists, psychologists and neurologists who can clinically screen and assess offenders when they enter the system, and then advise prosecutors regarding the best path forward for recidivism reduction and risk management.

Recidivism reduction involves intervention/treatment; and risk management requires supervision and control.

We tested this concept with the prosecutors we interviewed.  They nearly universally embraced the idea, as did the public defenders and judges whom we interviewed.

Plea negotiation also raises serious concerns about fairness, criminal procedure and due process. Examples include the risk of involuntary confessions (often the result of charge stacking, threats of greater punishment, and pre-trial detention), ambiguous standards of proof for conviction, limited discovery, not litigating the evidence, not considering criminal intent, and many more.

How do we mitigate these concerns and assure fairness?

Having defense counsel present is a very important step, but we need to appreciate that public defenders do not have the luxury of time and reasonable caseloads. We have plea negotiation because it meets the needs of prosecutors, judges and defense counsel to move cases.

We believe that a plea mediator, a neutral, independent third party similar to the mediator role in civil litigation, can serve to level the playing field, bring the process above ground, and assure that plea negotiation meets constitutional standards.

One of the ironies is that our failure to effectively reduce recidivism is the main reason dockets and caseloads are so extraordinarily high, and why we rely so heavily on plea negotiation.

Until prosecutors embrace recidivism reduction as one of their primary responsibilities, and until we provide prosecutors with expert tools to make better, fairer decisions, efforts at meaningful justice reform will fail.

See also: Do the Nation’s Prosecutors Need Help?

Bill Kelly

William R. Kelly

William R. Kelly is professor of sociology at the University of Texas at Austin, and the author of four books on criminal justice reform, including From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice ( Rowman and Littlefield, 2017), and Confronting Underground Justice: Reinventing Plea Bargaining for Effective Criminal Justice Reform (Rowman and Littlefield, forthcoming, October 29, 2018).He welcomes comments from readers.

from https://thecrimereport.org

How ‘Underground Justice’ Has Failed Americans

Prosecutors’ zeal for plea bargaining is one reason for the nation’s disturbingly high recidivism rates, says the author of a forthcoming book. The solution: change prosecutorial culture.

In a series of recent interviews, prosecutors were asked what role they believe they play in reducing recidivism.

The most common answers:

“None.”  

“Not my job.”

And the few who said they did have a role indicated that harsher punishment was the way to lower recidivism.

The interviews, conducted for a forthcoming book I co-authored with Robert Pitman, “Confronting Underground Justice, ” make one thing painfully clear:  We need to change the thinking of prosecutors regarding the roles they can and should play if we want to fix our broken justice system.

We have spent upwards of $1 trillion dollars over the past 45 years in direct criminal justice costs and another $1 trillion on the war on drugs—an investment that has resulted in recidivism rates of nearly 85 percent for state offenders and nearly 45 percent for federal inmates.

I don’t see how anyone can spin that into a positive. There’s a clear consensus that the U.S. justice system is a massive failure.

Focusing on changing the culture of prosecutors is one way to turn this thing around.

Here’s why.

The prosecutor is the most influential individual in the justice system. He or she is the key player in plea negotiation—the way that over 95 percent of criminal convictions are achieved.

The combination of broad prosecutorial discretion and plea negotiation effectively makes prosecutors the judge, jury and sentencer in most criminal prosecutions.  Prosecutors determine who to prosecute, what to charge, who is guilty and of what—and they are instrumental in determining the sentence, either directly (through sentence bargaining) or indirectly (through charge bargaining).

While plea negotiation was developed as a way to manage crushing caseloads and dockets, it has become the fast track to criminal conviction and punishment.  Punishment is the currency of the plea deal.  Time in prison, jail or on probation is what is negotiated.  Punishment is what prosecutors know and therefore that is what is delivered.

The problem is that punishment does little to reduce crime and recidivism.

The majority of individuals who enter the justice system have a mental health problem, a substance abuse problem, a neurodevelopmental and/or neurocognitive problem, and often co-morbidities of all three, as well as serious problems with employment, housing, and education, among others.

Punishment does little to alter any of these circumstances and conditions. In many cases, it exacerbates them.

Prosecutors are lawyers.  They are not psychiatrists, psychologists, neurologists or clinical social workers.  However, since they are the pivotal decision makers, it is important to help them make better decisions, in turn, improving short term and longer-term outcomes.

Therefore, true criminal justice reform must encompass providing ways in which prosecutors can make better decisions that have recidivism reduction as a primary consideration.  In a previous book (“From Retribution to Public Safety), we developed the concept of independent panels of experts—psychiatrists, psychologists and neurologists who can clinically screen and assess offenders when they enter the system, and then advise prosecutors regarding the best path forward for recidivism reduction and risk management.

Recidivism reduction involves intervention/treatment; and risk management requires supervision and control.

We tested this concept with the prosecutors we interviewed.  They nearly universally embraced the idea, as did the public defenders and judges whom we interviewed.

Plea negotiation also raises serious concerns about fairness, criminal procedure and due process. Examples include the risk of involuntary confessions (often the result of charge stacking, threats of greater punishment, and pre-trial detention), ambiguous standards of proof for conviction, limited discovery, not litigating the evidence, not considering criminal intent, and many more.

How do we mitigate these concerns and assure fairness?

Having defense counsel present is a very important step, but we need to appreciate that public defenders do not have the luxury of time and reasonable caseloads. We have plea negotiation because it meets the needs of prosecutors, judges and defense counsel to move cases.

We believe that a plea mediator, a neutral, independent third party similar to the mediator role in civil litigation, can serve to level the playing field, bring the process above ground, and assure that plea negotiation meets constitutional standards.

One of the ironies is that our failure to effectively reduce recidivism is the main reason dockets and caseloads are so extraordinarily high, and why we rely so heavily on plea negotiation.

Until prosecutors embrace recidivism reduction as one of their primary responsibilities, and until we provide prosecutors with expert tools to make better, fairer decisions, efforts at meaningful justice reform will fail.

See also: Do the Nation’s Prosecutors Need Help?

Bill Kelly

William R. Kelly

William R. Kelly is professor of sociology at the University of Texas at Austin, and the author of four books on criminal justice reform, including From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice ( Rowman and Littlefield, 2017), and Confronting Underground Justice: Reinventing Plea Bargaining for Effective Criminal Justice Reform (Rowman and Littlefield, forthcoming, October 29, 2018).He welcomes comments from readers.

from https://thecrimereport.org

Five Ex-NYC Commissioners Call for End to Pot Testing of Probationers

Marijuana testing for individuals on probation and parole serves “little public safety purpose” and should be stopped—even in states where pot has still not been legalized, five former New York City probation commissioners said Tuesday in testimony to the New York State Assembly.

Marijuana testing for individuals on probation and parole serves “little public safety purpose” and should be stopped even in states where pot has still not been legalized, five former New York City probation commissioners said Tuesday.

The five former commissioners—Martin F. Horn, Michael Jacobson, James Payne, Raul Russi and Vincent N. Schiraldi—said research showed that revocations of parole as a result of failed marijuana tests were a major driver of high incarceration rates and disproportionately affected African-American and Hispanic individuals.

“What we want is that people under supervision lead law-abiding lives and meet their obligations as citizens,” the ex-commissioners said in a written statement presented to the New York State Assembly’s Standing Committees on Codes, Health, Governmental Operations, and Alcoholism and Drug Abuse.

“As long as they do, we should be no more concerned about them using marijuana than we are of them having a glass of wine.”

Vincent Schiraldi

Former NYC Probation Chief Vincent Schiraldi

The statement, read by Schiraldi, called specifically for New York legislators to “codify” the ban on marijuana testing as New York prepares to draft a bill to legalize all forms of marijuana use, including recreational.

If the bill passes, New York would be the 10th state—and the second most populous state after California—to legalize recreational pot.

Marijuana for medical use is already legal in New York State.

The commissioners said the possibility of full marijuana legalization in New York only makes it more imperative to end a practice that has effectively undermined the state’s success in reducing prison populations.

Despite the closure of 13 New York prisons and a 39 per cent reduction in the inmate population between 1999 and 2017, prison admissions for parole violations increased by 21 percent between 2015 and 2016 alone, the commissioners said.

They noted that the vast majority of those sent back to prison were found guilty of technical violations, and in many cases, those violations were related to either failures in drug tests or absconding from probation and parole because of fear they would fail a drug test.

“Anecdotally, we know that our clients would skip appointments when they knew they couldn’t pass a pot test,” the statement said. “Thus fear of testing inhibits our staff’s ability to provide support to people under supervision for housing, employment, family support, medical care, or mental health care without adding public safety value.”

Below is an edited version of the written statement, presented by Vincent Schiraldi.

Good morning:

Today we hope to provide evidence about how those on probation and parole should be treated if marijuana is taxed, regulated and legally consumed. Our professional lives have helped us reach the conclusion that testing for marijuana as a blanket condition of supervision serves little public safety purpose, even absent legalization. If marijuana consumption ceases to be a criminal act, we urge you to codify protections for those under supervision to prevent needless incarceration for actions that would be legal for anyone else.

We begin with a quote from New York Federal Judge Jack Weinstein from July. Rather than revoking community supervision for marijuana use for an otherwise compliant defendant, Judge Weinstein decided to end his supervision, explaining that he would no longer revoke people for marijuana consumption, writing:

Like many federal trial judges, I have been terminating supervision for “violations” by individuals with long-term marijuana habits who are otherwise rehabilitated. No useful purpose is served through the continuation of supervised release for many defendants whose only illegal conduct is following the now largely socially acceptable habit of marijuana use.

We argue that the same reasoning Judge Weinstein used in Brooklyn Federal Court should apply to those on probation and parole in New York.

The Growth in Scope and Burden of Community Supervision

First, [here is some] background on the growth of probation and parole in the United States, and on the burden that conditions of community supervision can pose to those required to abide by them.

Both probation and parole were created in the 1800s as an up-front diversion from incarceration in the case of probation, or as a back-end reward for good behavior in the case of parole. Both have since mushroomed right alongside prisons and jails, suggesting that they have become add-ons, rather than alternatives to, incarceration.

There are over four and a half million adults under supervision in America—more than double the number incarcerated. This is more than a three-fold expansion since 1980 and is more people than live in half of all U.S. states.

Former NYC Probation Commissioner Martin Horn

The nature of community corrections has changed, as well. Like the entire criminal justice system, probation and parole have become more focused on punishment, deterrence, and surveillance, than rehabilitation. The number of rules that individuals under community supervision must abide by have ballooned.

Recent reviews of supervision conditions have found that most jurisdictions have around 15 “standard” conditions, with the possibility of additional “special” conditions; thus creating a rule structure that can be nearly impossible to abide by, 100 percent of the time.

This has led the leading probation and parole organizations and 35 leading probation officials to sign on to a Statement on the Future of Community Corrections stating “community corrections has become a significant contributor to mass incarceration… [and] we recommend that the number of people on probation and parole supervision in America be significantly reduced.”

Thus, community supervision has become not only a deprivation of liberty in its own right, but also a substantial contributor to mass incarceration. Setting conditions, which in many cases cannot be met, contributes to a revolving door in which individuals who cannot meet those obligations cycle back and forth between community supervision and incarceration without improving public safety.

Trends of Mass Incarceration and Mass Supervision in New York State

Turning to New York, over the past two decades, our state has been a leader in reducing incarceration and closing prisons, driven by a reduction in prison commitments from New York City. There was a 31 percent reduction in the number of people in New York’s prisons between 1999 and 2017, allowing us to close 13 prisons and save over $160 million annually.

However, while the prison and community supervision populations have been shrinking, the number of people incarcerated on parole violations in state prisons and in city and county jails has been growing. Between 2015 and 2016 alone, our prison admissions for parole violations increased by 21 percent .

Michael Jacobson

Former NYC Probation Commissioner Michael Jacobson. photo by dan@danzphoto.net

In fact, for every ten people who successfully completed their parole in New York in 2016, nine ended parole by being incarcerated, ranking us seventh nationally in parole failure. That year, nearly half of all New York parole exits were to incarceration, compared to only 27 percent nationally.

New Yorkers released on parole are five times more likely to return to incarceration not for new convictions, but for violating parole. Within three years of their release, more than half of those released from our state’s prisons in 2012 had been reincarcerated. Of those, an overwhelming 84 percent were reincarcerated for a technical violation, while only 16 percent had returned because of a new crime.

This also impacts the city’s jail. State and city leaders generally agree that Rikers Island should be closed, and all other pretrial and sentenced populations have declined by double-digits at Rikers over the past four years. During that time, only one population in the jail has increased, also by double digits: people held for state parole violations.

These sanctions fall more heavily on African-Americans than whites. African-Americans on parole are more than 12 times as likely to be detained for a parole violation than a white person on parole in New York City.

The Disconnect between Marijuana, Testing, Violations and Public Safety

So, probation and parole have become much larger than originally intended, with burdensome conditions that serve as tripwires to incarceration rather than as alternatives. In New York, parole revocations are still exerting upward pressure on incarceration especially for people of color.

 Now, let’s look specifically at revocations for marijuana use.

In short, there is no compelling evidence to suggest that marijuana use threatens public safety. As NYPD Commissioner James O’Neill wrote in a New York Daily News op ed recently “[t]he NYPD sees zero value in arresting people for marijuana offenses when those arrests have no direct impact on public safety.”

Likewise, there is no public safety justification for routine testing for marijuana as a condition of probation or parole. What research does exist suggests that drug testing as a component of community supervision increases the likelihood of incarceration for violations, but does not reduce criminal behavior.

However, there is an established link between drug testing and absconding from probation or parole. This is confirmed by our experience as Commissioners – anecdotally, we know that our clients would skip appointments when they knew they couldn’t pass a pot test. Thus, fear of testing inhibits our staff’s ability to provide support to people under supervision for housing, employment, family support, medical care, or mental health care without adding public safety value.

Furthermore, as the New York State Health Department’s report on marijuana legalization indicates, studies of some states that have legalized medical or recreational marijuana use have seen reductions in both opioid deaths and opioid prescribing. Heroin use ameliorates some of the same pain as marijuana, but also disappears from the bloodstream more quickly.

Testing for marijuana thus creates a perverse incentive – the riskier drug, heroin, is the one less likely to be detected. Once marijuana use is legal, we should make sure that those under community supervision don’t feel compelled to make this risky gamble.

Apart from these pragmatic reasons to avoid testing for a legalized substance, there are also legitimate fairness and racial justice concerns at hand. African Americans and Latinos are arrested for marijuana at eight and five times the rate of white people in New York City despite equal marijuana usage rates.

Since African Americans are eight times more likely to be arrested for marijuana use, and twelve times more likely to be detained for a parole violation, their chances of a violation for marijuana are much greater than for a white person.

As the (New York City) Health Department’s report stated, “Subject matter experts noted one of the biggest drivers of racial disparities in criminalization and incarceration rates is marijuana, and the best way to address it is to legalize marijuana.”

Recommendations

For all of these reasons, we recommend that, once marijuana is taxed, regulated and legally consumed, prohibition of marijuana use should not be imposed as a condition of probation or parole except in rare and specific circumstances. It follows then that people on probation and parole shouldn’t be routinely tested for it. We recommend that you codify these protections, but we also encourage state and local parole and probation to implement them now, prior to legalization.

In limited cases, we suggest that prohibition of marijuana use might be added as a special condition. However, in the interest of due process and to limit potential abuse, that condition should only be added by a judge, if an adversarial hearing finds that marijuana was connected to an individual’s criminal behavior, and in which the defendant has had a right to be heard.

Raul Russi

Former NYC Probation Commissioner Raul Russi

If a supervising officer suspects that a client’s marijuana use is hurting their ability to meet the other conditions of supervision, we suggest that, with supervisor approval, a single test for marijuana could be conducted. Data on testing for marijuana use, whether it be by supervisor approval or court order, should be reported to the Department of Criminal Justice Services so it can be monitored by this body and state officials.

In either of these special circumstances, we feel strongly that the outcome of testing for marijuana should never be used as the basis to revoke a person’s probation or parole. Instead, a positive test can be used for intervention, such as targeted treatment to aid successful completion. If these interventions fail, then only other problematic behavior, not marijuana use, should be the basis for revocation.

What we want is that people under supervision lead law abiding lives and meet their obligations as citizens. As long as they do, we should be no more concerned about them using marijuana than we are of them having a glass of wine. This is similar to the practice in Oregon and Washington, where marijuana is legally consumed.

This has been done successfully in New York City.

When I was Probation Commissioner, we administratively stopped testing for marijuana. Revocations fell by 45 percent, our relationships between staff and clients improved, and only 4 percent of our clients were re-convicted for a felony in the year following their completion of probation.

If that’s already possible, why not leave it to the discretion of community corrections administrators?

Well, (former) Commissioner Horn was my immediate predecessor, and had also ceased testing for marijuana, experiencing the biggest drop in probationer arrests in the state. Yet, in just the few months that separated us, testing for marijuana crept back into the daily practice of the department. Protections of this sort need to be codified so they’re not left to the vicissitudes of changing bureaucracies.

There is little evidence that blanket policies of testing for marijuana serve any public safety purpose. [These policies] can actually work against a department’s efforts to rehabilitate its clients, and threaten to exacerbate already-stark racial disparities in our criminal justice system.

As Judge Weinstein wrote, “Many people from all walks of life now use marijuana without fear of adverse legal consequences…[But the criminal-justice system] can trap some defendants, particularly substance abusers, in a cycle where they oscillate between supervised release and prison.”

We urge you to codify protections against routine testing for marijuana and to prohibit revocations to incarceration for marijuana use. These protections do not endanger public safety, but do serve the liberty and rehabilitative interests of the individuals on probation and parole. Revocations for marijuana use made little sense before, and will make no sense once marijuana use is legal for the adult population.

The full statement, with all citations, is available here.

The five ex-commissioners who signed the Oct. 16 statement, and their current positions, are:

  •  Martin F. Horn, Distinguished Lecturer in Corrections at the John Jay College of Criminal Justice, City University of New York; former Commissioner the New York City Departments of Correction and Probation; former executive director of the New York State Division of Parole; and former Pennsylvania Secretary of Corrections.
  • Michael Jacobson, Director, Institute for State and Local Government, City University of New York (CUNY), Professor, Sociology Department CUNY Graduate Center; and former Commissioner of New York City Departments of Correction and Probation.
  • James Payne, criminal/juvenile justice consultant; former Commissioner of New York City Probation; former Manhattan Assistant District Attorney; and former Chief of the Juvenile Division of New York City Corporation Counsel.
  • Raul Russi, Chief Executive Officer, Acacia Network; former Commissioner of New York City Probation; former chairman of the New State Parole Board; and former Chief Executive Officer of the New York State Division of Parole.
  • Vincent N. Schiraldi, Co-Director, Columbia University Justice Lab; Senior Research Scientist, Columbia School of Social Work; former Commissioner, New York City Department of Probation; former Senior Advisor, New York City Mayor’s Office of Criminal Justice; former Director, Washington, DC’s Department of Youth Rehabilitation Services. 

Readers’ comments are welcome.

from https://thecrimereport.org

The Uphill Road to Prisoners’ Rights

Extralegal violence against inmates has diminished as prisoners gained standing under U.S. law, but courts, lawmakers and prison administrators have carefully limited civil rights of the incarcerated⸺ushering in what some advocates call the modern era of hygienic, systematized and lawful cruelty.

In the fall of 2010, a 12-year-old was in a fight at her middle school in northern Mississippi.

The police officer assigned to the school as a School Resource Officer arrested her for simple assault and brought her to the local juvenile jail. A guard there patted her down by hand, and then went over her with a metal detector wand.

Because she was booked for a “violent” offense, the jail’s rules also required a cavity search. The girl had to take off all her clothes, bend over, spread her butt apart, and cough, so the guard could check if she had contraband hidden in her rectum. The guard didn’t find anything.

In 2013, the girl’s mother sued the county over the cavity search, alleging it violated her daughter’s civil rights. She had a straightforward case: Cavity-searching children harms them psychologically—the girl had never even been naked in front of her doctor without her mother present, their lawyer said.

Considering the girl’s jailers admitted they didn’t suspect that she was hiding anything in her rectum, that harm seemed unjustifiable.

The notion that prisoners have rights is a relatively new development in the U.S. Until the 1960s, incarcerated individuals had effectively no constitutional protections. But over the ensuing two decades, extralegal violence against inmates began to diminish as prisoners gained standing under the law.

But courts, lawmakers and prison administrators have carefully limited inmates’ civil rights in the years since, ushering in the modern era of hygienic, systematized and lawful cruelty, as some see it.

The Mississippi county authorities argued they had the right to make and enforce the rules at their jail. After all, the cavity search wasn’t arbitrary or malicious. It was protocol for anyone detained on charges of violence, drug possession or theft. The jail dealt with dangerous people. The administrators had a responsibility to protect their inmates from themselves and each other.

“A razor blade is a razor blade is a razor blade, whether it’s concealed in the anus of an adult or whether it’s concealed in the anus of a child,” said the county’s lawyer. “That razor blade can still slash somebody’s jugular vein.”

Courts have a long tradition of hostility to prisoners’ rights.

In 1871, a court ruled that a citizen was a “slave of the state” for the duration of his or her prison sentence. Later rulings softened in tone, though not substance.

As a rule, judges refused to intervene in the affairs of prisons, and their various legal rationales were collectively known as the Hands-Off Doctrine. A judgment from 1951, for example, conceded that there was a good chance the old coal stove in the inmates’ dormitory of an Alaskan jail would set the building on fire and burn them alive. But it went on to dismiss the claim that the conditions amounted to cruel and unusual punishment.

The judge justified his ruling, in part, by comparing the inmates’ circumstances to the suffering of American soldiers who were then serving in combat in Korea.

The broader civil rights movement spurred change, together with the activism, riots and lawsuits of people in prison. A seminal case in Texas, for instance, exposed heinous overcrowding and the torture of prisoners. Other cases rounded out prisoners’ rights to free speech, to practice their religion, and to access the courts, among other things.

But the progressiveness of those rulings was inextricable from the barbarity they were overturning, Lisa Kerr, an expert in prison law at Queen’s University in Kingston, Ont. explained in an interview.

Almost as soon as medieval abuses, such as the dark, disease-ridden cells and the use of prisoners as guards, were uncovered, courts, lawmakers and prison administrators began building new ways to deny rights to people in prison.

In the Mississippi girl’s case, the county’s lawyer had a powerful argument grounded in decades of precedent: Courts owe prison administrators “wide-ranging deference.” People in cages may have rights, the principle goes, but only if they don’t interfere with administrators’ “herculean” work of maintaining order and encouraging rehabilitation.

Judges regularly imply that prison officials deal with monstrous people (read: jugular-slashing children with razors in their rectums). As a result, they give the officials special latitude to do their work—so long as they stay within a constitutional, rules-based “penal philosophy.”

But that check on administrators, the requirement that they run their prisons constitutionally, is often meaningless. The courts weigh restrictions on prisoners’ rights against the need to run the prison effectively. But the deck is stacked: courts also justify those same restrictions based on the need to run the prison effectively.

It’s circular logic under which rights almost always lose out to restrictions.

Administrators also take matters into their own hands. In one notorious case, a California prison facing a lawsuit staged a riot during the judge’s tour of the facility, to encourage him to see it in a more terrifying light.

On a subtler level, prison officials often make it hard to assess whether their rights-restricting rules actually work, because they don’t keep records that would serve up measurable evidence. For example, it’s not an accident that there’s so little data on the effect solitary confinement has on safety in U.S. prisons.

When there’s no hard evidence, prison officials’ “expertise” reliably wins by default. Sometimes, even facing evidence that a prison’s rules aren’t justified, they still win.

F.T. Greem

F.T. Green

The cavity searches at that Mississippi jail had literally never turned up anything that a wand and a pat-down didn’t find, according to court records, which seemed to undermine the argument that they served a legitimate purpose.

But the court still ruled last year for the jailers, who now have a constitutional blessing to force 12-year-olds to strip, bend over, spread their butts, and cough.

American penal policies make sense if prisoners are monsters. If not, they’re just making monsters out of their jailers. History suggests it’s the latter.

Editor’s Note: Identifying details of the Mississippi school case have been omitted from the story to protect the girl’s identity.

F.T. Green is a reporter in Toronto. His website is ftgreen.xyz. He welcomes comments from readers.

from https://thecrimereport.org

It’s Time to End the Supreme Court’s ‘Wizard of Oz’ Mystique

Brett Kavanaugh began his Supreme Court tenure by announcing the hiring of four female law clerks. But that doesn’t address the elitism that undermines how we pick the people who staff the nation’s highest court. TCR’s columnist offers a different solution.

The consensus says that the Brett Kavanaugh confirmation process and its narrow outcome pose a crisis of legitimacy for the Supreme Court.

And, within 24 hours of his swearing in, the newly minted justice acknowledged the clamor, and stepped forward to address the situation. He had hired his four law clerks, he announced, and all four are women.

In this way, he seemed to argue, he had expressed his devotion to gender equity. The whole controversy around that issue must have been a mistake.

Putting aside for now the riddle of why anyone might think that hiring female law clerks is a response to the industrialized trashing of a woman who accused you of sexual assault, we still face the question of how the hiring of junior federal employees became a vehicle for judicial self-expression.

And what exactly do these hires express?

Groucho Marx legendarily resigned from the Friars’ Club by writing to the membership committee, “I don’t care to belong to a club that would have someone like me as a member.”

Justice Kavanaugh embodies the polar opposite point of view—or way of life. We can’t ignore the fact that, in the end, membership is what this present moment is all about.

Kavanaugh’s career is a model of its kind—that is, of the kind associated with the distribution of ecclesiastical patronage in the more corrupt days of the Renaissance Church of Rome. Membership is its key.

Justice Kavanaugh wants, has always wanted, sought early, and apparently will pay almost any cost to retain, membership. Now, he is in a position to bestow its gaudy prizes.

He joined the Federalist Society and climbed on the escalator early.  He held the handrail, and the process carried him smoothly through legacy admission to feeder school, where he cultivated “feeder professors” who fed him to “feeder judges,”until he had ripened into a “feeder judge” himself.

The prestige of the Supreme Court has always had a certain manufactured Wizard of Oz quality to it.

All that the Court’s work really requires is office space and a library for nine judges and their staffs. Instead the building where this work now occurs is a grandiose marble temple, a venue suitable for the ceremonial opening of beasts and fowl and the priestly reading of their entrails—a setting intended to awe.

It is not only the Republican versus Democrat partisan divide that threatens the Supreme Court’s legitimacy in the aftermath of the Kavanaugh hearings; it is also the glaring contrast between the Court’s pretensions to Olympian detachment and the reality of its for-the-members, by-the-members, majority that the Kavanaugh confirmation process has stripped bare.

What matters—if membership is to be achieved—is dedication to the simple position that it is essential that “our” team wins.

Membership means inclusion, but it also means that someone has to be excluded. For “our” members to win in any satisfying way, someone has to lose.

Our legacy admissions must survive; their affirmative action must disappear. Our sexual activities must be immune; women’s reproductive rights must be curtailed.

Membership requires maintenance: secret handshakes, tokens of arrival.

Justice Kavanaugh’s life is an unbroken series of these gestures.

When Kavanaugh invoked the appointment of his law clerks for a second time (during his speech at his ceremonial swearing in) it was to defend himself against charges of misogyny.

But that speech crystallized the fact that the confirmation was not a victory for him alone; it was a victory for the membership—for the idea of membership—that was being celebrated. Yes, these clerks were women, but they had been fed to him, and by the authorized feeders, in a process that makes the Freemasons look transparent.

It is worth remembering that while this episode has a right-wing cast of characters, the mechanism was painstakingly constructed over decades in reaction to (even emulation of) what the right saw as a prevailing liberal version of the procedure, with the ACLU and ADA pulling the levers and throwing the switches.

Consider this modest proposal.

Supreme Court and Court of Appeals clerks will be chosen from a diverse pool of qualified applicants, many with clerkship experience, by an eclectic, experienced, rotating committee (or committees) maintained by the Administrative Office of the United States Courts. The best young lawyers will be chosen as a class, and randomly assigned to individual justices and judges.

No “feeder” professors (such as Yale’s egregious “Tiger Mother,” Amy Chua, whose “look a certain way” advice to women aimed to make them delectable to Kavanaugh in his Circuit Court incarnation).

No “feeder” judges (such as the sex-addled Alex Kozinski, whose clerks were induced to accept without complaint his little porn seminars) or are involved in the process. No winks, no nods (for or against) from former clerks. No backs are scratched. No tactical silent acceptance of harassment to maintain one’s place is incentivized.

Throw out the whole corrupt, incestuous process, along with the sale of indulgences.

We might then get a diverse group: maybe, now and then, even someone from a state university! Maybe someone who didn’t know anyone they are supposed to know or exactly what suit to wear will get a clerkship.

I realize that this modest proposal of mine will be greeted as if it were Jonathan’s Swift’s modest proposal to use Irish babies as a food source during the Famine, but the howling will just show you how far things have gone. The protagonists no longer see anything odd about this process.

The professors will scream. Tough. There are law professors with bright students across the country. Distinguish yourself by your scholarship, not by your status as eminence gris.

Won’t the “magical” relationship of justice and clerk be undermined? Good. All of these people have actual families of their own, and the ersatz “family” of the judicial chambers is really a little icky, especially when financed by public funds, and it is saturated with power. These are public employers and public employees.

The clerk and the justice may not be ideological soulmates on their first date? Fine. A little friction might be a good thing. The justice is still the boss, the clerk still has to do the research, and maybe the two will learn from their dialogue. They can form their relationship while doing the work well, not through a grooming and matchmakers’ process preceding the hiring.

The justices will certainly be unhappy too: the incense-infused process of nominating and choosing clerks has become one of the expected perks of their job. An annual parade of interviews with fawning applicants provides a nice break.

They’ll live. There are other perks. Yes, it’s pleasurable. Why do we indulge them?

What I am proposing is not the end of the world. It is one very small step toward reclaiming the Supreme Court’s legitimacy by making it clear that it is a constitutional court that decides cases, not a royal or papal court that manages careers and distributes preferments.

The Court’s best strategy now (as Jennifer Rubin suggested in a recent column) is not to shout more loudly about its sacrosanct status but to take small—really very, very small—steps like this to strip away practices that have become normalized. (Giving up speeches to the members’ “feeder” organizations is another.)

Behave like a court in a democracy. Act as scholars and judges, not as courtiers.

James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.

from https://thecrimereport.org

Why I Helped Bail Someone Out This Week

This week, the Robert F. Kennedy Foundation began a month-long “mass bailout” project in New York aimed at highlighting the inequalities of a system that forces the poor to remain behind bars before trial simply because they cannot afford money bail. Local DAs fumed, but a former NYC probation commissioner explains why he decided to participate.

This week, my wife Grace and I participated with a group of volunteers in the Robert F. Kennedy Human Rights “mass bailout” project. Several colleagues have asked me why I, a former probation commissioner once responsible for supervising some 30,000 New Yorkers, joined the controversial project.

Public safety is obviously a concern of mine, along with equity and fairness. So I believe an even-handed explanation is in order.

Vincent Schiraldi

Vincent Schiraldi

The widespread use of money bail is a subject of growing debate. Should people accused but presumed innocent of crimes be jailed, released on their own recognizance, released under supervision, or required to post bail?

And what role should personal wealth have in who is jailed and who goes free?

In New York State, courts can only consider an individual’s likelihood of appearance in determining whether to set bail and at what amount. This is where it gets tricky. A million dollars’ bail is prohibitive for most defendants—as even $1,000 or $2,000 can be.

Not so for a wealthy defendant accused of serious sex crimes like Harvey Weinstein who was immediately able to post $1 million bail and be released.

The Eighth Amendment of the Constitution states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Presumably, the bail set on the defendants that RFK is bailing out is to assure their appearance, not to detain.

If judges want to detain someone accused of a serious crime, they can remand them.

As such, understanding how often defendants released before trial appear in court is crucial in assessing the viability of the RFK bailout.

Even though New York City has a very high rate of pretrial release compared to other jurisdictions, three-quarters of those incarcerated in our city’s jails are held pretrial.

Yet, when defendants are released, they almost always faithfully appear. Ninety-six percent of people accused of felonies who are released pretrial appear either at their assigned court date or within 30 days of it. Their four percent failure to appear rate is half the eight percent failure rate of persons accused of misdemeanors.

To aid decision-makers, persons accused of crimes in New York City are scored on a risk assessment instrument that recommends release or detainment. Yet, even those not recommended for release appear eight out of ten times at their scheduled court dates, and nine out of ten times within a month.

Skin in the Game

Some have raised concerns that high appearance rates only happen because defendants or family members have “skin in the game” via bail. Several non-profit bail funds in New York City bail out people accused of misdemeanors with whom they have no relationship. By forming a personal bond and accessing social services for those they bail out, these organizations achieve court appearance rates of around 90 percent.

So the vast majority of people released from jail pretrial appear initially or soon thereafter; people accused of felonies appear more frequently than those accused of misdemeanors; and people bailed out by strangers at a bail fund have high appearance rates.

Even though public safety is not a legally authorized consideration in setting bail in New York, it is obviously on people’s minds. Queens District Attorney Richard Brown deemed the bailout “clearly a threat to public safety.” Critics also included Manhattan DA Cyrus Vance and New York Police Commissioner James O’Neill.

While people are unable to commit crimes in the community during their incarceration, this must be weighed against the impact jail has on their likelihood to offend upon release.

The Arnold Foundation reports that as little as 48 hours in pretrial detention increases post-release rearrests. The Center for Court Innovation found that individuals sentenced to New York City jails have a greater likelihood of rearrest in every risk category when compared to a similar population of defendants not jailed.

As we consider the public safety impact of bailing out youth, several factors are important to take into account. Youth are particularly susceptible to abuse in adult correctional facilities.

Rikers Island

Rikers jail complex, New York City. Photo by Formulanone via Flickr

Rikers Island has a long and troubled history of violence and abuse in its adolescent units. As far back as 1972, the city’s jail oversight body, the Board of Correction, wrote that, “the [adolescent] facility is the worst prison in the city.” Four decades later, when the U.S. Department of Justice investigated Rikers Island, their 2014 report decried a “deep-seated culture of violence” in the adolescent unit.

This has a profound impact on young people who are incarcerated. National research reveals that youth under age 18 are 400 percent more likely to be sexually assaulted in adult jails and 36 times more likely to commit suicide than youth in juvenile facilities. Even in juvenile facilities, one out of eight youth reported being sexually assaulted in the previous year.

Even though 16- and 17-year-olds were recently moved out of Rikers Island into facilities run jointly by the Department of Correction and Administration for Children’s Services, youth are particularly vulnerable to the negative influences of other peers in correctional settings and are especially damaged psychologically by incarceration.

This heightens the importance of using community-based supervision and treatment approaches in lieu of incarceration.

The city, judges, prosecutors, defense attorneys and non-profit organizations have already enacted a raft of reforms to safely reduce the number of youths and adults confined pretrial, ranging from reducing court delays, to assessing risk, to online credit card bail payment, to expanded supervised pretrial release. That is partly why, in a city of 8.6 million residents, there were only 86 16- and 17-year-olds in our jails on July 9, 2018.

Of those detained, it is important to note that the vast majority of youth do not end up being sentenced to state prison, either because their cases are dismissed, they are acquitted or they receive relatively short local jail sentences or probation. According to NYC data, 55 percent of 16-18-year-olds were released within 10 days, and only 4 percent were transferred to state prison.

So most of those bailed out by RFK would be released soon anyway, generally within a few months. The more serious cases are often remanded and therefore are unable to be bailed out by RFK.

So, to summarize, jail makes most people more, not less likely to reoffend; youth who are being bailed out are especially vulnerable during incarceration; and most of those being bailed would be out soon anyway.

Rapper Common

Rapper Common is one of the high-profile supporters of the mass bailout project. Photo by Luigi Novi courtesy Wikipedia

RFK is working with several of New York’s most highly-respected non-profit organizations to assist in the safe reentry of those they bail out. The Fortune Society, Friends of Island Academy and the Osborne Association regularly provide reentry planning for people returning from city jails and have been collaborating with RFK to help those being bailed out.

RFK has also established a “welcome center”—for now at the Fortune Society but soon to be relocated near the entrance to Rikers Island—where those released can be reoriented to the community and receive items like a Metro card and a cell phone so they can be reminded of their court dates.

New York Pushes the Reform Envelope

Since the mid-1990s, New York City has emerged as a national criminal justice reform leader, cutting its incarceration rate by more than half, while crime has continued to plummet. That has allowed Mayor Bill de Blasio to announce the planned closure of Rikers Island, something unthinkable even a few years ago.

We did not get here by being cavalier with jail releases, but by experimenting with a range of reforms in one of the most vibrant and thoughtful justice communities in the country. That work positions us now as both the safest and least-incarcerated big city in America, something in which we should take great pride.

The RFK mass bailout is pushing that envelope.

Like experiments before it, it is not without risk or imperfections, but it has been done thoughtfully and with a strong data and theoretical backing. The bailout will soon provide additional data on how effective and fair bail is as a public policy, if we have the wisdom to assess it fairly.

I chose to join rather than criticize from the sidelines because I truly believe that in America, we need to separate wealth from liberty. Our system of money bail badly fails to do so, contributing to an environment in which 96.6 percent of the adolescents we confined on July 9, 2018 were youth of color and more than half are diagnosed as mentally ill.

That is an appalling reality that demands bold but reasoned action, not equivocation.

And that is why I helped bail someone out this week.

Vincent Schiraldi, co-director of the Columbia University Justice Lab and a Senior Research Scientist at the Columbia University School of Social Work, served as NYC Commissioner of Probation between 2010-2014. He welcomes comments from readers.

from https://thecrimereport.org

Will Cosby’s Prison Term Be a Wake-Up Call to Prosecutors?

The entertainer’s 3-10 year sentence may empower more women to report assaults, but there’s still a long way to go before sexual predators are deterred by the threat of serious prosecution, says a former sex crimes prosecutor. One place to start: an annual “Report Card” from local DA’s about how they dealt with cases of rape and sexual abuse.

The sight of Bill Cosby being escorted from court in handcuffs to begin serving a three-to-ten year prison sentence didn’t make me smile, but it did give me a sense of hope that justice is possible for women in America.

Cosby spent decades brutally violating women’s bodies, and ruining their careers if they dared complain about his sexual demands. Now he looked downtrodden, and dejected, though not ashamed. His feelings about going to prison probably match the feelings his victims had when they woke up from a drugged stupor, in pain from neck to knee, coming face to face with a smirking Cosby, who sent them away like yesterday’s trash.

Cosby, like Judge Brett Kavanaugh during last week’s hearings, seemed incredulous that the word of a credible woman, without corroboration, should be enough to hold a man accountable.

Here’s a newsflash: the requirement of corroboration was abolished decades ago on the grounds that it was sexist, and unjustly prevented prosecution of rape cases. Nonetheless, prosecutors retain discretion to refuse to file charges for any reason, and they often do, especially if the offender is a man of influence.

Thus, if Andrea Constand had been Cosby’s only victim, he would not be in prison because, despite abolition of the corroboration rule, prosecutors, police and, more importantly, jurors, are permitted to discriminate against women. Simply put, the culture of our legal system makes clear to victims that if the only evidence they have against a man is their word, they should stay silent.

Colleges contribute to this sick mindset by treating women as second-class campus citizens when they report sexual assault.

Most schools have policies that subject sex discrimination, including sexual assault, to arduous investigations and unfair hearings that drag on for months and favor offenders, while harms based on race and national origin are resolved in a matter of days, without protracted investigations, and without anyone complaining that the offender needs more “due process.”

Title IX and Title IV of the Civil Rights Act mandate that sex-based harms be subjected to exactly the same gold standard treatment as harms based on race and national origin, but most schools mistreat women anyway, and point to Education Secretary Betsy DeVos as giving them authority to do so. A landmark lawsuit against DeVos was filed a year ago in federal court in Boston, asking the court to rule that schools must treat sex-based harms exactly the same as race-based harms, and that DeVos has no authority to discriminate against women, or permit schools to subject women to second-class treatment.

College women don’t complain about second-class treatment because they don’t see it. Like women in the “real” world, they accept second-class treatment as normal, often because groups claiming to be “advocates” for victims and proponents of Title IX tell them, falsely, that schools and prosecutors are following the law when they treat women poorly.

Is it any wonder most women never report sexual violence, on campus or in larger society, and that only two percent of rapists spend even one day behind bars; a number that hasn’t changed in decades?

According to the majority staff report of the Senate Judiciary Committee, The Response to Rape: Detours on the Road to Equal Justice, 28 (1993), only two percent of rapists see even one day behind bars. Additional confirmation of this figure comes from Reporting Rates, produced by the Rape, Abuse & Incest National Network, which also points out that the majority of reported rapes are never prosecuted.

Despite the fact that schools and law enforcement officials too normalize male supremacy by refusing to take action against an offender, Stanford’s Brock Turner and Bill Cosby have been held to account, to some extent. Three months was a woefully inadequate punishment for Brock Turner, and three years (minimum) in prison is not nearly enough for Bill Cosby, but both punishments are much longer than the sentences typically handed out in similar cases against men of similar social status.

Indeed, privileged males at elite universities rarely suffer any campus-based sanctions, much less criminal charges and incarceration. Brock Turner went to jail only because he was caught in the act by two eyewitnesses who were not his buddies, and thus not willing to lie for him. And Bill Cosby went to prison because, although he is a man of significant privilege, he had so many victims.

Both men also got in trouble because their victims were drugged, a factor that helped make it politically impossible for public officials to do nothing.

Most victims don’t realize they were drugged; they think they had too much to drink because they don’t know what being drugged feels like. And they don’t call police because the drugs cause amnesia, so they often cannot recall the details of what happened. Moreover, rape laws and campus rules are vague about what constitutes an offense when a victim is incapacitated.

In Pennsylvania for example, where Cosby was prosecuted, “incapacitation” means the victim must be completely unconscious. Another law requires proof that the perpetrator secretly caused the victim to consume the drugs. In other words, in Pennsylvania, offenders have legal permission to rape incapacitated persons, so long as there’s no proof the offender secretly drugged the victim, and she isn’t totally unconscious.

Bill Cosby’s trial helped teach the public about the prevalence and effect of rape drugs, while the Brock Turner case managed to hide the fact that the victim was so heavily drugged, she remained unconscious for hours after police brought her to the hospital.

Drugging victims is a convenient tactic that often enables an offender to avoid accountability simply because the victim cannot recall what happened. By the time she realizes she was drugged, the substances have dissipated from blood and urine. Few victims are informed by school or by law enforcement officials that drugging can still be proved by behavioral evidence, and by testing the victim’s hair. Rape drugs never dissipate from hair, and the latest technology can reveal with a high degree of certainty when the drugs entered the victim’s body.

While Cosby and Turner were sentenced to incarceration, other men of influence, such as Les Moonves, Charlie Rose, and Matt Lauer, merely lost their jobs, or faced civil suits. Justice for most women in the form of criminal prosecution has been elusive, with Harvey Weinstein being a notable exception.

Weinstein has been charged, and may well face incarceration when his case goes to trial, but as with Cosby, the pile of victims had to grow very high before the District Attorney paid attention.

This is unacceptable, blatant sex discrimination. One victim is enough.

The criminal courtroom is the people’s courtroom, and when violence against women does not receive its fair share of criminal justice resources, the violence gets worse and the public is denied access to truthful information about the extent of the problem, and the suffering women endure.

Notwithstanding the insidious mistreatment of victimized women in our criminal justice system, Bill Cosby’s incarceration is a cultural turning point, and a byproduct of many factors, including the #MeToo movement. #MeToo has provided a space for women to be heard when responsible officials and school administrators aren’t listening.

Led by an organic groundswell of anger, women have come together like never before around the issue of gender-based violence, and the public is finally starting to understand that a sexual assault against one woman is a sexual assault against all women.

Women have also begun to understand the importance of becoming politically active around the election of District Attorneys. Kevin Steele, the Montgomery County (Pa.,) prosecutor who filed charges against Cosby, ran his campaign on a promise to prosecute Cosby if elected. His incumbent/opponent refused.

Women need to elect prosecutors who value their lives, voices, and autonomous authority over their bodies. Too often prosecutors refuse to file charges out of fear that jurors will find reasonable doubt based on discriminatory ideas about a victim’s behavior or credibility. District Attorney Steele boldly confronted these systemic biases, rather than indulging them, and prosecuted Cosby without fear that jurors might judge Andrea Constand unfairly.

This is how all prosecutors should conduct themselves, but women need to hold them accountable.

For example, women can demand that candidates for District Attorney agree to release annual “Violence Against Women Report Cards,” showing how many rape and domestic abuse cases were reported to police and prosecutors; how many were declined for prosecution, and what happened to the cases that were filed, in terms of charges, convictions, and punishments.

Too often prosecutors reveal only the percentage of cases they won, rather than how many cases they accepted and rejected for prosecution. So a District Attorney who says he won 90 percent of his rape cases is actually hurting women if he prosecuted only ten cases, and refused to file charges in 800 more. And what does he mean when he says he “won” a case? If a prosecutor agrees to a plea-bargain and allows a rapist to plead guilty to simple assault and battery, that is a loss, not a win. Unless all the data on violence against women is revealed in an annual Report Card, women have no way of holding prosecutors (and judges) accountable for unequal justice.

Women have been oppressed for a very — long — time, and although Bill Cosby’s conviction will inspire more women to report rape, their reports will fall on deaf ears unless they demand equal access to justice, and equal treatment under the law. Prosecutors must no longer get away with citing tired excuses about the case not being “strong enough” to prove the charges beyond a reasonable doubt.

Victims are entitled to their day in court. Let a jury determine the evidence. Among other benefits, this will help “teach” jurors, hence the public, that all violence against women matters, and all women will be heard.

With prosecutors focused on justice rather than winning, more offenders will start to worry about being held accountable. That men do not expect to be held accountable is derived from male supremacy in the U.S. Constitution, which long ago declared women second-class citizens. The resulting sense of male entitlement is correlated with high rates of sexual assault.

Simply put, the space between equality and inequality is where violence happens with impunity under the law.

When he sentenced Cosby, Judge Steven O’Neill said, “No one is above the law, and no one should be treated differently.”

He was talking about Cosby, but he should have talked about women, and the violence they suffer because they are female. Judge O’Neill should have pointed out that women endure very high rates of abuse because the 14th Amendment’s equal protection clause does not equally protect them, on par with men. To the contrary, women’s constitutionally mandated inferiority allows federal and state officials to discriminate on the basis of sex when they enact laws, enforce (or not) laws, and interpret laws in the courts.

The Equal Rights Amendment (ERA), which aims to repair the problem by establishing women’s equality in the Constitution, was passed by Congress in 1972, but was never ratified by the necessary 38 states. Nevada ratified ERA in 2017, and Illinois ratified earlier this year, making it the 37th state.

This means America is only one state away from full equality for women for the first time in history.

Wendy Murphy

Wendy Murphy

With unprecedented energy now driving the national conversation about violence against women, all people who care about the issue should mobilize and focus on ratification of the ERA because equality, not hashtags, will stop the violence.

And, not for nothing, karma would have a whole new meaning if the ERA made its way into the Constitution before Bill Cosby made his way out of prison.

Further Reading: Amid Kavanaugh Furor, Devos Ponders College Sex Rules

Wendy Murphy is a former sex crimes prosecutor and professor of sexual violence law at New England Law|Boston, where she also directs the Women’s and Children’s Advocacy Project. Follow her at @WMurphyLaw. Readers’ comments are welcome.

from https://thecrimereport.org

Why Sending Bill Cosby to Jail is a ‘Cultural Turning Point’ for Women

The entertainer’s 3-10 year sentence may empower more women to report assaults, but there’s still a long way to go before sexual predators are deterred by the threat of serious prosecution, says a former sex crimes prosecutor. One place to start: an annual “Report Card” from local DA’s about how they dealt with cases of rape and sexual abuse.

The sight of Bill Cosby being escorted from court in handcuffs to begin serving a three-to-ten year prison sentence didn’t make me smile, but it did give me a sense of hope that justice is possible for women in America.

Cosby spent decades brutally violating women’s bodies, and ruining their careers if they dared complain about his sexual demands. Now he looked downtrodden, and dejected, though not ashamed. His feelings about going to prison probably match the feelings his victims had when they woke up from a drugged stupor, in pain from neck to knee, coming face to face with a smirking Cosby, who sent them away like yesterday’s trash.

Cosby, like Judge Brett Kavanaugh during last week’s hearings, seemed incredulous that the word of a credible woman, without corroboration, should be enough to hold a man accountable.

Here’s a newsflash: the requirement of corroboration was abolished decades ago on the grounds that it was sexist, and unjustly prevented prosecution of rape cases. Nonetheless, prosecutors retain discretion to refuse to file charges for any reason, and they often do, especially if the offender is a man of influence.

Thus, if Andrea Constand had been Cosby’s only victim, he would not be in prison because, despite abolition of the corroboration rule, prosecutors, police and, more importantly, jurors, are permitted to discriminate against women. Simply put, the culture of our legal system makes clear to victims that if the only evidence they have against a man is their word, they should stay silent.

Colleges contribute to this sick mindset by treating women as second-class campus citizens when they report sexual assault.

Most schools have policies that subject sex discrimination, including sexual assault, to arduous investigations and unfair hearings that drag on for months and favor offenders, while harms based on race and national origin are resolved in a matter of days, without protracted investigations, and without anyone complaining that the offender needs more “due process.”

Title IX and Title IV of the Civil Rights Act mandate that sex-based harms be subjected to exactly the same gold standard treatment as harms based on race and national origin, but most schools mistreatment women anyway, and point to Education Secretary Betsy DeVos as giving them authority to do so. A landmark lawsuit against DeVos was filed a year ago in federal court in Boston, asking the court to rule that schools must treat sex-based harms exactly the same as race-based harms, and that DeVos has no authority to discriminate against women, or permit schools to subject women to second-class treatment.

College women don’t complain about second-class treatment because they don’t see it. Like women in the “real” world, they accept second-class treatment as normal, often because groups claiming to be “advocates” for victims and proponents of Title IX tell them, falsely, that schools and prosecutors are following the law when they treat women poorly.

Is it any wonder most women never report sexual violence, on campus or in larger society, and that only two percent of rapists spend even one day behind bars; a number that hasn’t changed in decades?

According to the majority staff report of the Senate Judiciary Committee, The Response to Rape: Detours on the Road to Equal Justice, 28 (1993) (only two percent of rapists see even one day behind bars). Additional confirmation of this figure comes from Reporting Rates, produced by the Rape, Abuse & Incest National Network, which also points out that the majority of reported rapes are never prosecuted.

Despite the fact that schools and law enforcement officials too normalize male supremacy by refusing to take action against an offender, Stanford’s Brock Turner and Bill Cosby have been held to account, to some extent. Three months was a woefully inadequate punishment for Brock Turner, and three years (minimum) in prison is not nearly enough for Bill Cosby, but both punishments are much longer than the sentences typically handed out in similar cases against men of similar social status.

Indeed, privileged males at elite universities rarely suffer any campus-based sanctions, much less criminal charges and incarceration. Brock Turner went to jail only because he was caught in the act by two eyewitnesses who were not his buddies, and thus not willing to lie for him. And Bill Cosby went to prison because, although he is a man of significant privilege, he had so many victims.

Both men also got in trouble because their victims were drugged, a factor that helped make it politically impossible for public officials to do nothing.

Most victims don’t realize they were drugged; they think they had too much to drink because they don’t know what being drugged feels like. And they don’t call police because the drugs cause amnesia, so they often cannot recall the details of what happened. Moreover, rape laws and campus rules are vague about what constitutes an offense when a victim is incapacitated.

In Pennsylvania for example, where Cosby was prosecuted, “incapacitation” must result in the woman being completely unconscious, or if the perpetrator secretly caused the victim to consume the drugs, in order for a rape charge to be brought.

Bill Cosby’s trial helped teach the public about the prevalence and effect of rape drugs, while the Brock Turner case managed to hide the fact that the victim was so heavily drugged, she remained unconscious for hours after police brought her to the hospital.

Drugging victims is a convenient tactic that often enables an offender to avoid accountability simply because the victim cannot recall what happened. By the time she realizes she was drugged, the substances have dissipated from blood and urine. Few victims are informed by school or by law enforcement officials that drugging can still be proved by behavioral evidence, and by testing the victim’s hair. Rape drugs never dissipate from hair, and the latest technology can reveal with a high degree of certainty when the drugs entered the victim’s body.

While Cosby and Turner were sentenced to incarceration, other men of influence, such as Les Moonves, Charlie Rose, and Matt Lauer, merely lost their jobs, or faced civil suits. Justice for most women in the form of criminal prosecution has been elusive, with Harvey Weinstein being a notable exception.

Weinstein has been charged, and may well face incarceration when his case goes to trial, but as with Cosby, the pile of victims had to grow very high before the District Attorney paid attention.

This is unacceptable, blatant sex discrimination. One victim is enough.

The criminal courtroom is the people’s courtroom, and when violence against women does not receive its fair share of criminal justice resources, the violence gets worse and the public is denied access to truthful information about the extent of the problem, and the suffering women endure.

Notwithstanding the insidious mistreatment of victimized women in our criminal justice system, Bill Cosby’s incarceration is a cultural turning point, and a byproduct of many factors, including the #MeToo movement. #MeToo has provided a space for women to be heard when responsible officials and school administrators aren’t listening.

Led by an organic groundswell of anger, women have come together like never before around the issue of gender-based violence, and the public is finally starting to understand that a sexual assault against one woman is a sexual assault against all women.

Women have also begun to understand the importance of becoming politically active around the election of District Attorneys. Kevin Steele, the Montgomery County (Pa.,) prosecutor who filed charges against Cosby, ran his campaign on a promise to prosecute Cosby if elected. His incumbent/opponent refused.

Women need to elect prosecutors who value their lives, voices, and autonomous authority over their bodies. Too often prosecutors refuse to file charges out of fear that jurors will find reasonable doubt based on discriminatory ideas about a victim’s behavior or credibility. District Attorney Steele boldly confronted these systemic biases, rather than indulging them, and prosecuted Cosby without fear that jurors might judge Andrea Constand unfairly.

This is how all prosecutors should conduct themselves, but women need to hold them accountable.

For example, women can demand that candidates for District Attorney agree to release annual “Violence Against Women Report Cards,” showing how many rape and domestic abuse cases were reported to police and prosecutors; how many were declined for prosecution, and what happened to the cases that were filed in terms of charges, convictions, and punishments.

Too often prosecutors reveal only the percentage of cases they won, rather than how many cases they accepted and rejected for prosecution. So a District Attorney who says he won 90 percent of his rape cases is actually hurting women if he prosecuted only ten cases, and refused to file charges in 800 more. And what does he mean when he says he “won” a case? If a prosecutor agrees to a plea-bargain and allows a rapist to plead guilty to simple assault and battery, that is a loss, not a win. Unless all the data on violence against women is revealed in an annual Report Card, women have no way of holding prosecutors (and judges) accountable for unequal justice.

Women have been oppressed for a very — long — time, and although Bill Cosby’s conviction will inspire more women to report rape, their reports will fall on deaf ears unless they demand equal access to justice, and equal treatment under the law. Prosecutors must no longer get away with citing tired excuses about the case not being “strong enough” to prove the charges beyond a reasonable doubt.

Victims are entitled to their day in court. Let a jury determine the evidence. Among other benefits, this will help “teach” jurors, hence the public, that all violence against women matters, and all women will be heard.

With prosecutors focused on justice rather than winning, more offenders will start to worry about being held accountable. That men do not expect to be held accountable is derived from male supremacy in the U.S. Constitution, which long ago declared women second-class citizens. The resulting sense of male entitlement is correlated with high rates of sexual assault.

Simply put, the space between equality and inequality is where violence happens with impunity under the law.

When he sentenced Cosby, Judge Steven O’Neill said, “No one is above the law, and no one should be treated differently.”

He was talking about Cosby, but he should have talked about women, and the violence they suffer because they are female. Judge O’Neill should have pointed out that women endure very high rates of abuse because the 14th Amendment’s equal protection clause does not equally protect them, on par with men. To the contrary, women’s constitutionally mandated inferiority allows federal and state officials to discriminate on the basis of sex when they enact laws, enforce (or not) laws, and interpret laws in the courts.

The Equal Rights Amendment (ERA), which aims to repair the problem by establishing women’s equality in the Constitution, was passed by Congress in 1972, but was never ratified by the necessary 38 states. Nevada ratified ERA in 2017, and Illinois ratified earlier this year, making it the 37th state.

This means America is only one state away from full equality for women for the first time in history.

Wendy Murphy

Wendy Murphy

With unprecedented energy now driving the national conversation about violence against women, all people who care about the issue should mobilize and focus on ratification of the ERA because equality, not hashtags, will stop the violence.

And, not for nothing, karma would have a whole new meaning if the ERA made its way into the Constitution before Bill Cosby made his way out of prison.

Further Reading: Amid Kavanaugh Furor, Devos Ponders College Sex Rules

Wendy Murphy is a former sex crimes prosecutor and professor of sexual violence law at New England Law|Boston, where she also directs the Women’s and Children’s Advocacy Project. Follow her at @WMurphyLaw. Readers’ comments are welcome.

from https://thecrimereport.org

Why Black Lives Still Don’t Matter

A Washington State inmate casts a skeptical eye on efforts to eliminate the racial bias that often fuels police treatment of African Americans. Based on his experience of the charged race relations within prison walls, he argues that fear will continue to drive prejudice, despite activists’ efforts to change institutional behavior.

In 1956, Harrison Finley, a black man, was shot dead in front of his parents’ home in Washington, DC by police officers for purportedly resisting arrest— “a catch-all charge that covers practically everything from loud talking to necking”—according to a leading African-American newspaper at the time.

He was a World War II veteran and father of two young children.

That same year, also in DC, Nelson Marshall, a Safeway truck driver, also black, was killed by a police officer during a traffic stop. The officer was indicted for homicide but later found not guilty by an all-white jury.

These accounts are highlighted in Locking Up Our Own: Crime and Punishment in Black America. The author, James Forman Jr., also notes that throughout this period, “black citizens were consistently subjected to verbal disrespect from the very people whose job it was to serve them.”

While we have come a long way since the days of endemic racial prejudice within police departments, some things seem impervious to change.

I lack the imagination to depict what it was like to have an encounter with the police—as a black male—in 1956. Yet, despite the melanin in my skin, I cannot tell you what this experience is like for a black man in contemporary America either.

My status as a convict has shaped me far more than my experiences in society, given that I have been confined since the age of 14.

As a consequence, my world view is far different than many of those who share my complexion but have been fortunate enough not to have had their existence defined by mass incarceration. Whether this background has made my opinions enlightened or naive probably depends on whether the reader agrees with my commentaries.

With this prelude, I will admit that I am often perplexed by African Americans who came of age in an era when video cameras are utilized by police officers while performing their duties, and when anyone can unleash his or her cellphone to capture encounters between the police and the citizenry.

Through the lens of my television screen, I regularly see young black men and women displaying dismay, frustration and fury when their fellows suffer injustices at the hands of the police. Such encounters and their aftermath are replayed on CNN and MSNBC for the world to see.

A black man is shot to death by a police officer under circumstances that appear suspicious and, sure enough, there on the screen, I will see black folks giving a press conference featuring the requisite man in a bowtie looking like he’s itching for a fight with “Whitey.” There’s the local preacher man in his Sunday best acting as if he’s the voice of the black community; and the family of the deceased (if he happened to be a crook) acting as if he were a college student whose death by violence was unimaginable, and as if he never hurt anybody.

As if such injustices are a new thing.

Frequently, it galvanizes people to march and chant in front of television cameras.

It is a show that I have seen time and again. The faces of those leading the chorus of outrage have changed, from old-school luminaries like Jesse Jackson, Al Sharpton and Louis Farrakhan to a new generation of activists, but as far as I can tell, watching from my prison cell, the message hasn’t changed.

The new activists, like their predecessors, apparently believe that protesting, tougher prosecutions, and mandates compelling police departments to implement new practices and policies will ultimately make black lives matter to the powers that be. While I have a personal interest in seeing a reduction in the probability that an unarmed black man will be shot down by the police (especially since I may be paroled, and the victim could be me), I doubt that such a result will ever be achieved in the 21st Century.

There are three reasons why I am skeptical.

First, black people continue to be seen as dangerous. As the authors of the recently updated The Black Image in the White Mind show, the media has a long history of portraying black men as violent, and white people have been a receptive audience.

Fear-of-the black-man is not “taught” in police academies. The book’s authors, Robert M. Entman and Andrew Rojecki, make clear that such fear is the byproduct of a cultural meme that was implanted in police officers’ subconscious during their formative years—long before they chose a career in law enforcement.

It is as American as apple pie—and lynchings.

This is the grim reality through which efforts to deter officers from using deadly force without justification, ranging from de-escalation training to the threat of prosecution, must be seen. They will make little difference to the black man who gets stopped and frisked, because such efforts won’t change hearts and minds.

To expect otherwise is to believe black men can be made to no longer feel anxiety when confronted by the police.

As a parallel, I have watched the Washington Department of Corrections make futile attempts to change the mindset of correctional officers in order to make imprisonment less dehumanizing to those who have lost their liberty. Administrators wanted them to refer to us as “individuals” but pushback from officers resulted in the quick reimposition of “offender.”

They have been instructed to log positive interactions with prisoners as opposed to only negative encounters. Yet try as they might, they cannot help but focus on the latter.

The ugly truth is that most correctional staff cannot perceive us as anything other than convicts who are unworthy; just as police officers are primed to see that black man as a potentially dangerous criminal.

The second reason that makes me skeptical about black lives mattering is this: police officers are not robots; they are emotional human beings.

When their authority is challenged, some become angry. When a suspect flees like a cheetah down an alley, leaps over several fences, and barrels through sticker bushes and poison ivy, the pursuing officer can become enraged at the very man that he has come to fear subconsciously.

Anger and firearms can be a deadly combination. I know that from personal experience.

While it is true that police officers are trained on the proper use of deadly force, every now and then anger will get the best of one of them. You only need to view one graphic police bodycam video of a 2018 police chase to see the ugly results.

In fact, were you to review video footage inside of prisons, you would see the same phenomenon at play. Prisoners know full well that challenging correctional officers’ authority often leads to arbitrary and sometimes violent reactions. The training that these officers received—to be measured and consistent when dealing with “offenders”—often goes out the window in the face of defiance.

It comes as no surprise, then, when I see people on my television screen experience this backlash during encounters with law enforcement. Prison is just a microcosm of society.

Finally, police officers exist within a subculture that fuels negative perceptions about (primarily young) black males (and black police officers are not immune when it comes to brothas that fit a “profile”).

I too live in a subculture that fuels a heightened level of prejudice. My prison experience has led me to believe that Chicanos feel animus towards black men. More than any other group around me, I feel unsafe when in their midst. Were I in the wrong place at the wrong time, I am convinced that I could be assaulted.

I deal with them cautiously as a consequence.

I rarely seem friendly due to my mindset.

It is noteworthy that I have yet to suffer an attack. But plenty of those who look like me have fallen victim at other facilities. I therefore perceive the threat to be real and conduct myself accordingly. As Al Gore notes, in The Assault on Reason, “When an emotional reaction like fear is especially strong, it can completely overwhelm our reasoning process.”

Fortunately, I have the luxury of avoiding those I believe pose a threat to my safety. Police officers must confront those they perceive as their adversaries.

While he may never have been assaulted in the line of duty, he may know a fellow officer who fell victim during an encounter with a black suspect, as this disturbing video shows. Or, while she may never have been injured while making an arrest, she may have been exposed to a training video like this one, showing a female officer being mercilessly pummeled by a black suspect.

Such incidents rarely fall within the experience of average white Americans. But if you spend your professional life knowing you face such risks, you are likely to be “prejudiced to the extent we feel threatened or fearful,” in the words of social psychologist Michael K. Lovaglia.

That being said, I have yet to meet a black prisoner who is surprised by the fact that police officers are often hostile, abrasive and aggressive. Fear and prejudice apparently make it too difficult for police to serve and protect without bias and to avoid confrontations with African- American citizens.

That such encounters occasionally escalate into violence does not surprise me in the least. That the unarmed man loses in the end is the natural order of things.

Forgive me if I seem to lack empathy. I wish the world was different.

Jeremiah Bourgois

Jeremiah Bourgeois

Yet at the end of the day, protests, prosecutions and changes to policies and practices will not make black men seem peaceful and law abiding to those with guns and badges. Likewise, better training is not going to render police officers incapable of overreaction.

The new generation of African-American activists who believe in justice and equality should be cautious. They should therefore never forget the racial prejudice that can erupt with little warning, if they want to be sure their last moments aren’t captured on video for the world to see.

Jeremiah Bourgeois is a regular contributor to TCR, and an inmate in Washington State, where he has been serving a life sentence since the age of 14. He welcomes comments from readers.

from https://thecrimereport.org

With or Without Kavanaugh, Court Docket is a ‘Law Prof’s Dream’

If and when Brett Kavanaugh is confirmed for a seat on the Supreme Court, he will join the other justices to rule on cases that could have a far-reaching impact on criminal law. For Court handicappers, here’s a list of what’s ahead, starting next month.

Applying a broad definition, 13 of the 38 cases in which the Supreme Court has granted review for the upcoming October 2018 term raise criminal law and related issues. (A few more are likely to be granted in the “long conference” order list scheduled for release Thursday.)

This is about average: Between a quarter to a third of cases decided by the court every year are criminal-law-related. But this term the docket feels a bit special: As I explained to the American Bar Association in my “Annual Review of the Supreme Court’s Term, Criminal Cases, October Term 2018 might be described as a criminal law professor’s dream.

Below is a list of what’s ahead.

What Are the “Elements” of Burglary and Robbery?

In every criminal case, the prosecution is constitutionally required to prove the “elements” of the crime —that is, the “facts necessary to constitute the crime,” as the court put it in 1970 in In re Winship. “What are the elements of Crime X?” is the stuff of first-year final exams, as well as multiple-choice questions found on the Multistate Bar Exam.

On Oct. 9, the court will spend two hours hearing oral arguments in three cases (two are consolidated) that ask what the “generic” elements of the common law crimes of “robbery” and “burglary” are. The answer to that question is needed in order to apply the Armed Career Criminal Act, a federal law that dramatically enhances prison sentences for persons who unlawfully possess a firearm and who also have been previously convicted of three drug crimes or violent felonies.

“Violent felony” is statutorily defined to include the state-law offense of “burglary,” and also any crime that “has as an element the use … or threatened use of physical force,” which normally includes robbery.

The Supreme Court has ruled that because state-law definitions of crimes may differ among the states, federal courts should use the “generic” definition of burglary or robbery. But what that definition is, precisely, has repeatedly split lower federal courts. On Oct. 9, the justices will wrestle with that question, first as it applies to robbery, in Stokeling v. United States, and then, in two consolidated cases, Stitt and Sims v. United States, in the context of burglary.

The common law distinguished robbery from simple theft by requiring an element of force. Over time, a number of jurisdictions have ruled that even minimal force can count, which allows “snatchings” of purses or necklaces to qualify for the enhanced sentences that a robbery conviction often permits.

Other jurisdictions disagree.

Denard Stokeling was previously convicted under Florida’s robbery law, which defines force as “sufficient to overcome a victim’s resistance.” But should that be the “generic” federal definition? Because the ACCA requires a “categorical” approach to deciding what types of felonies permit its enhanced federal sentences, the court is asked to decide whether “minimal force” suffices and how it should be defined for the national federal statute.

Right after Stokeling, the court will consider similar questions regarding burglary.

Although the common law applied the crime of burglary strictly to invasion of homes, most modern statutes have extended the crime to the entry of a “structure” with the intent to commit a crime inside it. (“Intent to commit a felony therein” is the first introduction of many law students to “legalese” that horrifies and amuses their nonlawyer friends.)

In Victor Stitt’s home state of Tennessee, the statutory requirement of “habitation” has been interpreted to include vehicles. In Jason Sims’ home state of Arkansas, the statutory term is “residential occupiable structure,” which has been interpreted to include a car or a boat if a person is even occasionally living in it. As in Stokeling, the court here must decide whether the “categorical” definition of burglary should encompass the broad modern definitions that have extended the crime beyond its common-law borders.

All three of these cases may be further influenced by the fact that the proper interpretation of the ACCA has troubled the court for decades now, so much so that in 2015, in Johnson v. United States, the court declared a nearby definitional subsection of the statute invalid as unconstitutionally vague.

“Double Jeopardy,” “Excessive Fines” and the Death Penalty

After the first year of law school, most law students have to take criminal procedure, affectionately shortened to “Crim Pro.” I like to call that class “Constitutional Law III: The Fun Parts!” At least four cases to be argued this fall suggest that OT 2018 will be a joy for us Crim Pro professors as well.

In Gamble v. U.S., the court will consider whether to overrule the “separate sovereigns” exception to the double jeopardy clause of the Fifth Amendment, which provides that “[n]o person shall … be subject for the same offence to be twice put in jeopardy of life and limb.” The common understanding of this awkwardly written clause is that a person may not be tried twice for the same offense. But despite the absolute-sounding nature of the constitutional text, the Supreme Court has ruled for well over a century that the clause allows “separate sovereigns” to each try a single defendant for what sure sounds like the “same offense.”

For example, two states may prosecute the same person for a kidnapping-murder in two trials, one after the other, one in each state, and upon conviction impose two independent sentences for the same crime. Similarly, a state may prosecute someone for the same crime that the federal government has already tried the person for, and vice versa: Those of us old enough to recall the 1991 Rodney King police assault case remember the federal government prosecuting the offending officers after they had already been tried and acquitted by the state.

Although there is no lower-court split of authorities on this question, scholars have long criticized this “separate sovereigns” atextual exception to the double jeopardy clause. My guess (and it is only a guess) is that last spring, when the pace of certiorari grants was slow, “textualist” and due-process-oriented justices alike were able to agree to revisit the question this term.

Meanwhile, Timbs v. Indiana will address another persistent question that has appeared on bar exams for years: “[W]hat provisions in the Bill of Rights have not yet been ‘incorporated’ against the States?” “Incorporation” is the legal doctrine developed in the mid-20th century that holds that various protections found in the federal Bill of Rights may also be applied to conduct by the states, by “incorporating” those protections into the “[n]o State shall … deny due process” guarantee of the 14th Amendment.

In McDonald v. Chicago, the court in 2010 ruled that the Second Amendment applies against the states, so now only three provisions in the Bill of Rights have not been incorporated. Timbs will address one of these: the “no excessive fines” provision in the Eighth Amendment. (The other two? The grand jury clause, see 1884’s Hurtado v. California, and the Third Amendment’s rule against quartering troops in times of peace, which has never arisen in a Supreme Court case, although lower courts have suggested that it is “incorporated.”)

Timbs now seeks to eliminate that easy Crim Pro exam question. The context is criminal asset forfeiture. When Tyson Timbs was convicted in Indiana of selling four grams of heroin, the state sought forfeiture of his $42,000 Land Rover because it had been used to transport the drugs. The state trial court ruled that “[w]hile the negative impact of [drug] trafficking … is substantial, … a forfeiture of approximately four times the maximum monetary fine is disproportional” under the Eighth Amendment.

The Indiana Court of  Appeals agreed that the excessive fines clause should be applied (incorporated) against the states. But the Indiana Supreme Court reversed, ruling that it would not “impose federal obligations on the State that the federal government itself has not mandated.” A persistent split on the question, involving at least 18 states’ courts and two federal courts of appeals, led to a grant of certiorari here.

Finally, another aspect of the Eighth Amendment, the constitutional administration of capital punishment, finds a spot on the Supreme Court’s docket almost every year. This term the court will hear argument in two cases involving the death penalty. On the second day of the term, Oct. 2, in Madison v. Alabama, the court will consider whether the Eighth Amendment permits the execution of a prisoner whose severe and deteriorating medical condition leaves him mentally disabled such that he is unable to remember his offense.

Brian Stevenson

Brian Stevenson. Photo by Steve Jurvetson via Flickr

Bryan Stevenson, the founder of the Equal Justice Initiative in Alabama, will be arguing for Vernon Madison. The court has previously ruled that the state may not constitutionally execute the mentally insane (Ford v. Wainwright, in 1986) nor the mentally disabled (Atkins v. Virginia, in 2002). But in 2007, in Panetti v. Quarterman, the court declined to set specific standards for evaluating mental competency-to-be-executed claims.

Madison provides an opportunity to further develop this constitutional concept. (The 2007 decision was written by Justice Anthony Kennedy, who left the court in July — whether he will be replaced by October 2 is presently unsettled.)

In a second death penalty case, to be argued on November 6, the court will consider, once again, the appropriate rules for challenging a “method of execution.” In Glossip v. Gross, the court in 2015 issued a lengthy 5-4 decision attempting to set constitutional standards and litigation rules for lower courts to follow when an inmate contends that the method by which the state proposes to execute him is “cruel and unusual.” Glossip also approved “lethal injection” as a generally acceptable method. Russell Bucklew, however, suffers from an unusual medical condition (cavernous hemangioma) that he alleges “makes it very likely that his execution by Missouri’s lethal injection protocol will be gruesome and involve excruciating suffering.”

In Bucklew v. Precythe, Bucklew argues that an execution by lethal gas will be far more humane for him, and that Missouri is constitutionally required to use that method instead. Missouri law allows execution by either method, although it has no written protocols for gas executions. The Eighth Circuit twice affirmed denials of Bucklew’s challenges, but the Supreme Court twice issued last-minute stays before finally granting review.

The Rest of the Criminal Law Docket This Term

Here are brief descriptions of the other six criminal-law-or-related cases on the Supreme Court’s docket (so far) this term:

  1. Gundy v. United States (Oct. 2 argument): Does Congress’ delegation of authority to the attorney general to set sex-offender regulations, including deciding whether to retroactively apply the criminal statute, violate the Constitution’s “nondelegation” principle? (There hasn’t been a successful nondelegation case since 1935, so this case carries special interest for constitutional law professors.)
  2. Nielsen v. Preap (Oct. 10 argument): Is a criminal alien exempt from otherwise mandatory detention if, after the person is released from criminal custody, the Department of Homeland Security does not immediately take the person into custody?
  3. Garza v. Idaho (Oct. 30 argument): Does the “presumption of prejudice” regarding a lawyer’s ineffective assistance apply, when a defense lawyer was instructed by the defendant to file an appeal but the lawyer did not file an appeal because the plea agreement contained an appeal waiver?
  4. Herrera v. Wyoming: Did Wyoming’s admission as a state, or the statutory establishment of the Bighorn National Forest, abrogate the Crow Tribe’s 1868 federal treaty right to hunt on “unoccupied lands of the United States,” thereby permitting the criminal conviction of Clayvin Herrera, a Crow Tribe member, who was allegedly engaged in subsistence hunting for his family?
  5. Lorenzo v. Securities and Exchange Commission.: May the government’s securities-fraud claim that does not meet the elements that 2011’s Janus Capital Group v. Derivative Traders requires for “fraudulent statements” be filed as a “fraudulent scheme” claim and thereby avoid the bar of Janus?
  6. Nieves v. Bartlett: Is a First Amendment claim for retaliatory arrest automatically defeated because there was probable cause for the arrest? (This is a follow-on to the unanswered question in last term’s Lozman v. Riviera Beach.)
Rory Little

Rory Little

Rory Little is a Professor of Law at U.C. Hastings College of the Law in San Francisco, a former clerk to Justices Potter Stewart (ret.) and William Brennan, and author of the American Bar Association’s “Annual Review of the Supreme Court’s Term, Criminal Cases.” He is also “Of Counsel” to the law firm of McDermott Will & Emery on discrete appellate matters. The Crime Report is pleased to reproduce this essay with the permission of SCOTUSblog. The full essay is available here. Readers’ comments are welcome.

from https://thecrimereport.org