“When we return to the search for a more humane and rational response to crime, we must keep in mind that the prison is tied to other social and political arrangements that limit what changes are possible. The criminal justice system in general is at least partially involved, directly and indirectly, advertently and inadvertently, in repressing groups and classes of people and in maintaining unfair social, political, and economic relationships. Fundamental changes in its operation are impossible unless some higher degree of social justice has been achieved and the criminal justice system is relieved of these tasks. [….]
One of the important obstacles that must be removed is the public conception of the prisoner. Presently, this conception is formed from the rare, but celebrated and horrendous crimes, such as mass murders by the Manson cult, Juan Carona, or the ‘Hillside Strangler.’ Whereas prisoners like George Jackson, viewed as a heroic revolutionary fighting back from years of excessive punishment for a minor crime (an eighty-dollar robbery), shaped the conception of the prisoner in the early 1970s, persons like ‘Son of Sam’ do so today. These extraordinary cases distort the reality. Most prisoners are still in prison for relatively petty crimes, and even those convicted of the more serious crimes must be understood in the context of society in the United States. What we need is a new theory of crime and penology, one that is quite simple. It is based on the assumption that prisoners are human beings and not a different species from free citizens. Prisoners are special only because they have been convicted of a serious crime. But they did so in a society that produces a lot of crime, a society, in fact, in which a high percentage of the population commits serious crime. Those convicted of serious crimes must be punished and imprisoned, because it is the only option that satisfies the retributive need and is sufficiently humane. Knowing that imprisonment itself if very punitive, we need not punish above and beyond imprisonment. This means that we need not and must not degrade, provoke, nor excessively deprive the human beings we have placed in prison. It also means that we must not operate discriminatory systems that select which individuals should be sent to prison and, once incarcerated, who should be given different levels of punishment.
Since we assume that convicts are humans like us and are capable of myriad courses of action, honorable and dishonorable, we also assume that they will act honorably, given a real choice. This means that we provide them with the resources to achieve self-determination, dignity, and self-respect. This theory continues to be rejected not because it is invalid, but because it challenges beliefs and values to which large segments of the population comfortably cling. [….] In pushing this theory, I admit that many prisoners, like many free citizens, act like monsters. But they are not monsters and often choose to act like monsters when their only other real option is to be totally disrespected or completely ignored, while being deprived, degraded, abused, or harassed.” [emphasis added]
—John Irwin, Prisons in Turmoil (1980)
The following proposal strikes me as worthy of wide attention and careful consideration:
Sharon Dolovich, “Teaching Prison Law,” 62 Journal of Legal Education 218 (2012), UCLA School of Law Research Paper No. 12-26. Available: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2171884
“To judge from the curriculum at most American law schools, the criminal justice process starts with the investigation of a crime and ends with a determination of guilt. But for many if not most defendants, the period from arrest to verdict (or plea) is only a preamble to an extended period under state control. It is during the administration of punishment that the state’s criminal justice power is at its zenith, and at this point that the laws constraining the exercise of that power become most crucial. Yet it is precisely at this point that the curriculum in most law schools falls silent. This essay argues that that silence is a problem, and that American law schools should expand their curricular offerings to include some class or classes covering the post-conviction period. There are innumerable arguments supporting this reform. These include the sheer number of people in custody, the extreme vulnerability of this population and its enormous unmet legal need, and the fact that any law student who is planning a career in criminal justice — and thus involved in the process by which people are sent to prison — should be exposed to the realities of the American penal system and its governing legal framework. This essay canvasses these and other reasons for the proposed reform, suggests what a course in Prison Law might cover, sketches the possible contents of a broader post-conviction curriculum, and argues that the current gap in the course offerings of most law schools only reinforces the invisibility of vast carceral system currently operating in the United States and the millions of Americans caught up in it.”
See too Giovanna Shay’s post at PrawfsBlawg from last year: “Why Do Law Schools Overlook the Incarcerated?”
Some relevant websites and blogs:
A timely summary of the state of affairs in my home state: “Crime and Punishment in California”
In the spirit of the proposal, here is a basic bibliography on “Punishment & Prison:”
Two weeks ago, a man allegedly attempted to steal a Snickers™ bar from a 7-Eleven store in Brooklyn, New York. In response, three clerks accosted the man, tackled him, bit him, slammed his hand in the store’s doors, and stripped away his clothing, leaving him injured and nearly naked. The incident was captured by cameraphone video (warning: nudity, offensive language, and violence). The video shows the three store workers pushing, pulling, biting, and kicking the accused. (One can also see their faces when they realize that the incident is being recorded.) This incident has prompted a spirited discussion (at least among some New Yorkers) over whether the store clerks went “too far.” But what is “too far” in this context? Where does legitimate property security end and (illegitimate) violence begin?
Shoplifting is, admittedly, a major issue for the retail industry; theft accounts for billions of dollars in losses. And despite the economic effects of shoplifting, few shoplifters are ever caught. When shoplifters are apprehended, police intervention is not always available: Earlier this year, Dallas police announced that officers would not be dispatched for thefts totaling less than $50. Yet, while few people debate a retailer’s right to loss prevention, there is a line (in fact, a gulf) between loss prevention and brutality.
The 7-Eleven fracas has also prompted a conversation over whether the actions of the clerks were racially motivated. In recent years, New York City retailers have made news over their disparate treatment of suspected shoplifters of color. In 2006, Macy’s paid $600,000 to settle a case brought by former AG Eliot Spitzer over the retailer’s discriminatory treatment of black and Latino shoppers. In the Macy’s case, Latinos were five times more likely and blacks were three times more likely to be handcuffed than whites detained on allegations of shoplifting.
Troublingly, the 7-Eleven incident bears an eerie resemblance to another with which I have some familiarity. Imagine the scene: A girl visiting a chain grocery store allegedly puts a piece of candy into her pocket; before she leaves the store, the store manager detains her, binds her hands, and physically restrains her in view of passersby. The differences between this story and the 7-Eleven stripping are few: both involve national chains; both involve a single item of candy; both involve a retail employee responding to a suspected petty loss with disproportionate violence against a person of color. The primary difference between these incidents is that the 7-Eleven fracas occurred two weeks ago, while the situation involving the girl happened in 1930 in Jim Crow Georgia.
Charlie Mae Dowling, a twelve-year-old black girl, entered a Georgia A&P store, and picked up a single piece of candy from the floor. The store manager observed Dowling as she put the candy in her pocket; in response, he accosted her, forced her to pay for the candy, detained her, tied her hands together, physically forced her hands up above her head, and tied her to a rope suspended from the ceiling. The manager kept the girl in this position for two hours – during which time he threatened to kill her – until her mother arrived and paid the store $5 for the girl’s release. A civil jury later awarded Dowling money damages on the grounds that she had been "inhumanely assault[ed]" and "tortured" by the store manager (upheld on appeal at Great Atlantic & Pacific Tea Co. v. Dowling, 43 Ga.App. 549, 159 S.E. 609 (Ct. App. 1931)).
Research suggests that retail property security measures are differentially applied depending upon the race of the suspected shoplifter, with blacks and Latinos subject to physical restraints and criminal prosecutions more often than others. Without speculating over the motivations of these individual store clerks, I’d suggest that wherever violence is employed to protect property, we should be suspicious, as Daniel J. Sharfstein demonstrates in his brilliant article (on ssrn here) on the persuasive connection between property claims and violence against disfavored people. Sure, chasing down a thief may be an “expression of professionalism” (in Sharfstein’s words) for the store clerk, but I wonder how far a retailer should be allowed to go before liability attaches. In other words, are canings over candy ever within the bounds of legitimate property security?
I'm surprised that this LA Times story hasn't received more national press...yet.
Decades of confidential sexual abuse allegations from within the Boy Scouts of America will spill into public view later today when more than 1,200 of the organization’s “perversion files” are released by order of the Oregon Supreme Court. The files will offer the public an unprecedented look at how suspected molestations were handled by one of the nation’s leading youth organizations from the early 1960s through 1985, a time when awareness of sexual abuse was evolving rapidly.
The LA Times will be creating a database of the information.
University of Richmond law professor Mary Kelly Tate, who's director of UR's innocence project, has the latest on the North Carolina state innocence project here.
Danielle Citron wrote about this yesterday over at co-op and Frank Pasquali wrote about it at balkinization. Professor Lee Kovarsky of the University of Maryland has more details on the troubling facts surrounding the impending executation of Marvin Wilson.
Since the Supreme Court lifted the effective moratorium on the death penalty in 1976, Texas has executed more than four times as many people as any other state. On yet another issue, Texas is poised to break new ground in capital sentencing: it is defining the category of offenders with mild mental retardation (MR)—offenders that are supposed to be exempt from execution under the Eighth Amendment—out of existence. Marvin Wilson is scheduled for lethal injection in one week, despite the fact that he received a 61 on the standard Wechsler full-scale I.Q. test, a score placing him below the first percentile of human intelligence and far below the I.Q. threshold for mild MR. His adaptive functioning actually registers at a level consistent with a more severe variant of MR.
In 2002, Atkins v. Virginia categorically barred states from executing offenders with MR. The Court observed that people with MR are less culpable for their crimes and that they are not equipped to defend themselves at the guilt or punishment phases of their capital trials. In defining MR, the Supreme Court relied on the clinical criteria set forth by the leading clinical authorities. Indeed, all variants of clinical MR definitions have shared roughly the same criteria for nearly 100 years.
Under that framework, Mr. Wilson was evaluated by Dr. Donald Trahan, a court-appointed, board certified neuropsychologist with 22 years of clinical experience as an MR specialist. After meeting with Mr. Wilson for eight hours, reviewing his school and medical records, and administering or evaluating a battery of leading neuropsychological testing, Dr. Trahan concluded that Mr. Wilson clearly had mild MR. At Mr. Wilson’s MR hearing, the State presented no evidence whatsoever; it has never offered any expert opinion, in any form, challenging Dr. Trahan’s clinical diagnosis.
Although the Supreme Court barred states from executing offenders with MR, Texas courts have created their own test for the condition— the so-called “Briseño factors” (named after the case that announced them). The Briseño factors are not recognized by clinicians or medical professionals, but Texas uses them to determine which defendants with MR will actually receive the Eighth Amendment exemption that Atkins announced. Texas courts developed the factors because, unlike in most other death-penalty jurisdictions, the Texas legislature has not bothered to define the condition statutorily. The factors constitute wildly under-inclusive criteria for MR. As the AAIDD wrote in their recent brief in Chester v. Thaler, another case involving the Briseño factors that is pending before the Supreme Court: “[The Texas] impressionistic ‘test’ directs fact-finders to use ‘factors’ that are based on false stereotypes about mental retardation that effectively exclude all but the most severely incapacitated.” The Texas Court of Criminal appeals—the state supreme court for the purposes of criminal adjudication—has actually indicated that it formulated the Briseño factors with Steinbeck’s Lennie in mind. On two separate occasions, the state court observed that Mr. Wilson could not have MR because, among other things, he had a wife and a child.
Attorneys for Mr. Wilson have filed a petition for a writ of certiorari with the U.S. Supreme Court, asking it to consider whether the Briseño factors represent an unreasonable application of Atkins. Without judicial or gubernatorial intervention, Texas courts will have successfully hollowed Atkins into a rule that protects virtually no offender capable of going to trial.
David Mackey has this important commentary about the Sandusky matter at Penn State. He notes that Penn State did not have general counsel between 2001 and 2010 - and that this might be why one reason university administrators botched the handling of the 2001 McQueary sexual abuse report. From Mackey:
Because Penn State didn’t have a general counsel, a university senior vice president called outside legal counsel. Outside counsel’s bill reflects a telephone call, some legal research, and then another telephone call: 2.9 hours in all. Outside counsel, based on advice from his own lawyer, has now refused to discuss the legal work that took place that Sunday. But two things seem clear: There was no report to any law enforcement or child protection agency, and no record of any follow-up from outside counsel to Penn State to ensure the matter had been properly reported and that the child had been identified and treated.
It's mind-boggling to think that a school like Penn State didn't have a GC for a decade. Can you imagine any other entity with over 11,000 employees having no GC? And how about one involved in a highly regulated, and high stakes business? (I was thinking here of federal research money, and the danger of violating false claims laws...but you might have been thinking FOOTBALL!) I can hardly think of a better piece of evidence on the NCAA regulatory concern: the lack of institutional control.
We don't know what transpired in those critical 2.9 billable hours from outside counsel but we do know the aftermath: untold damage to human and professional lives - and reputations.
There is no guarantee a GC would have done anything differently. But Mackey is right: institutions and companies must take compliance seriously. I'm baffled that is news to anyone.
There was some initial confusion in the twittersphere asking how James Holmes could face 12 counts of first degree murder when he (allegedly) killed 12 people. The answer is pretty simple: he is charged with both intentional homicide and with the lower intent level of malice, which the Colorado statute describes as follows:
universal malice manifesting extreme indifference to the value of human life generally, he knowingly engages in conduct which creates a grave risk of death to a person, or persons, other than himself, and thereby causes the death of another
I don't imagine that it will be impossible to prove that Holmes intended the murders, but the DA wants a second and easier path to conviction as well. What makes this statute a little different than some other jurisdictions is that the two different mens rea levels - purposefulness and malice manifesting extreme indifference - are both treated as first degree murder. In some jurisdictions, they are split apart and intentional murder is treated as more culpable.
Louis Freeh and his firm delivered a fat package at 9am this morning - 267 pages of stuff all about the Jerry Sandusky sexual abuse scandal at Penn State. Much of the material is not fresh to the report, but he lays it out nicely and makes some important points. I see several different takeaways from the report, some of relevance to this case and others of relevance to all schools with major (and powerful) sports programs.
1. This is a wake-up call for every university with a major sports program. I imagine that every (competent) General Counsel at a school with Big Sports will be reading this closely. Key issues at PSU include: a leadership that keeps the Board at bay around important issues; a school that fails to comply properly with the Clery Act regarding crime reporting; and more generally a university that treats the athletic program as a freestanding, separately managed entity not responsive to university concerns, processes or oversights.
This third matter - Big Sports as a separate entity from the U itself - is basically the same arrangement as you'd find at most schools that have had a Top 25 football or basketball program in the last couple of decades. Such a structure only makes sense in a world where everyone agrees that what's good for the athletic program is always good for the overall brand. We've long known that Big Sports exists in tension with academics. But this tension is allowed to continue because, supposedly, it's good for the university as a whole. But the interests of the sports program - particularly around risk management - may NOT always be aligned with the interests of the larger University (even setting aside academics...which, personally, I don't think we ought to set aside.) And simply from a skill set and values perspective, the individual people running the athletic program may not be the best stewards of the overall brand.
Seems to me that this ought to be good for business for my former colleague Gene Marsh.
2. The four relevant leaders at Penn State - President Graham Spanier, Senior Vice-President Gary Schultz, Athletic Director Tim Curley and Coach Joe Paterno - engaged in magical thinking.. .or put another way, self-delusion. Yes, they wanted to protect the football program. But something more was going on. In 1998, Sandusky was accused of sexual misconduct with a kid on the Penn State campus. Though the DA decided not to bring charges, officials learned more than enough details to put them on high alert. Sandusky would have immediately merited more internal supervision.
Then, in 2001, with the McQueary report, officials should have concluded that their worst fears were coming true. Even viewed through rose-colored glasses, this report should have set off alarms and fears that the institution might be facing a repeat of 1998. (And here, I'm setting aside an issue that should have, but clearly did not, trouble them: the plight of the victims.) Even if officials thought that the new incident was less than a crime, it was enough to make obvious the need for serious action to protect the school's reputation.
Even if it they thought it wasn't a crime, and even if they didn't care one whit about the victims, any rational, risk-averse administrator would have insured that Sandusky never again brought a child to campus. They told Sandusky not to bring children to campus. Yet they never considered banishing Sandusky even though, Curley conceded, they knew they couldn't enforce the ban on children. If your priority was protecting the brand, why wouldn't you just ban Sandusky?
The answer, I think, is that in the face of all the evidenc to the contrary, they didn't actually think that Sandusky was engaging in any improper sexual behavior. Remember, as recently as the Sandusky trial a few weeks ago, a defense witness explained that he showered with young boys all the time. I'm guessing that Penn State administrators figured that was all that had occurred; Sandusky couldn't possibly be molesting boys, notwithstanding a bunch of very discomforting evidence. And that is delusion.
3. The report is a roadmap for lawyers litigating the upcoming civil cases. Freeh has set out all the available statements and documents, and juxtaposed them in ways that strongly suggest - without explicitly asserting - which witnesses might be shading the truth. OK, lying.
4. Graham Spanier needs a lawyer.
I have an op/ed in the Philadelphia Inquirer today arguing that one overlooked takeaway from the Jerry Sandusky - Penn State child sexual abuse scandal is that current sex laws actually may deter victims and others from reporting incidents.
From my conclusion:
There is no question that society needs strong laws prohibiting and punishing sexual abuse. But those laws must be well-reasoned and tailored to be both just and effective. Over the past 20 years, society has approached sex crimes with unbridled passion and anger. This emotional search for justice is entirely appropriate in particular cases; that is one purpose of sentencing. But when the same intense feelings become an engine for policy-making, they may undermine the crafting of effective laws. The goal, after all, is to prevent Jerry Sandusky and others like him from victimizing children, and that won't happen if we deter people from reporting their crimes. When laws become so radical that they work against the protection of victims, they are inherently inhumane.
Thanks to an override of governor Beverly Perdue, the North Carolina death penalty is safe from statistical scrutiny. The state legislature acted right before the holiday to radically reduce the scope of NC's signature Racial Justice Act. The Act, adopted in 2009, allowed the use of extensive statistical evidence to establish that an individual death sentence was imposed as a result of race. The fresh modifications shrink the field of data that can be considered in a case and prohibit use of statistics alone to establish race bias.
To be clear, this simply returns North Carolina to a situation akin to - and slightly better than - other states imposing capital punishment. But it also provides stiff tonic to policy advocates who imagined that states might choose to be thoughtful about race and capital punishment notwithstanding Justice Powell's legendary wimp-out decision in McCleskey v. Kemp.
Yesterday, in Miller v. Alabama, the Supreme Court did offer up a life changing decision for potentially thousands of children. Those juveniles are the ones currently serving, or currently facing, life without parole sentences. These children now have the possibility of a virtual 180 degree turnaround. Since these children were sentenced under a mandatory minimum that no longer exists, judges may - in many cases - re-sentence to any term whatsover. Some might be free fairly soon and many will probably be released at some point in their lives. (As a side note, I think there is a real risk that there will be gross disparities in resentencing based on attorney quality because - much like death-phase trials - effective mitigation requires a talented lawyer with resources.)
Judges won't always have carte blance discretion in these existing cases. They might be constrained by other mandatory sentences embedded in the convictions. Thus , for example, a juvenile offender convicted of both murder and use of a gun in a felony, might still face a mandatory minimum for the lesser crime.
But on balance, those children who have already committed a murder are much better off. They will all get another bite at the sentencing apple.
What of the future? At their core, mandatory minimums are an effort by the legislature to strip judges of discretion. When legislators impose mandatory life without parole, they are saying either that no mitigation could ever lessen the appropriate sentence...or, perhaps, that judges cannot be trusted to use discretion properly. Legislators will be no more sympathetic to juveniles convicted of murder, or to the capacities of judges, than they were before. So I think it's quite likely we'll see new mandatory minimums adopted for children convicted of murder. No one should be surprised when we see bills imposing 50 year minimums for murder by juveniles, for example. This would be an improvement, perhaps. But not nearly as big as the one that existing offenders will experience. And unless the Court moves further than any of us can reasonably expect, such mandatories will likely survive review.
Update: case name corrected.
The spigot is running. In a 5-4 decision, Kagan wrote for the majority striking down a life sentence for two juvenile offenders who received life sentences in homicides. Both were fourteen years old. The Court was ruling in Jackson v. Hobbs and Miller v. Alabama.
The Miller and Jackson decisions are here. The essential point is that mandatory life sentences - where a jury may not consider mitigators - are unacceptable for children of such tender age. It seems fairly clear - and certainly clear from the dissents - that this rule applies to children up through the age of 17.
Even with all the usual caveats about such studies, it remains troubling that a new Urban Institute study shows between 8 and 15 percent of those convicted of serious sexual offenses in Virginia, from the early 1970's until the mid 1980's, were innocent. It suggests, among other things, what we already know from laboratory studies: people don't do a great job identifying perpetrators. Given the stakes in these cases - long prison bids or death, plus a lifetime of community notification for those who complete their sentences - this error rate is quite consequential. Then there is the other matter: in each case where an innocent person was convicted, a guilty person remained free.
Some people will surely argue that this is within the tolerable zone of error for a "beyond a reasonable doubt" paradigm. While I don't share that view, anyone should be troubled by the possible allocation of this error. Nobody would be surprised if erroneous convictions were more frequent in cases involving defendants of color as well as defendants with limited financial resources.
Others may dismiss this study as an artifact of old DNA testing technology. I hope this is true. But this only means that as a society, we may have a duty to double check our old convictions in light of new technology. And it should also sound a cautionary note: when these convictions occurred, we were quite confident of the accuracy of then-modern science. Perhaps new technology is moving us closer and closer to "accuracy" in verdicts. Indeed, this is the promise of our new high-tech surveillance society. For now, however, you'll just have to color me a skeptic.
Featured in today's New York Times is a very disturbing article entitled "The Criminalization of Bad Motherhood,"which reports on a new trend of punishing women who take drugs during their pregnancy, whether or not there is damage to the child once born. Currently, this kind of fetal criminal endangerment law is only found in Alabama, but there is a movement to spread these laws to other states.
As the article points out, these type of laws are not only harsh but sometimes counterproductive:
Critics of Alabama’s chemical-endangerment law argue that drug use by pregnant women is best treated as a health issue, not a criminal one. Addiction, they say, can be treated, but drug users have to be willing to seek help, which they might be less likely to do if they fear arrest. “To simplify a complex medical and psychosocial issue into a criminal issue is really just like using a hammer to play the piano,” says Dr. Deborah Frank, a pediatrician and director of Boston Medical Center’s Grow Clinic for Children. “The whole definition of addiction is compulsive behavior in spite of adverse consequences — like the person who keeps eating doughnuts even though their doctor tells them they’re morbidly obese and going to die of a heart attack.” Deterrents, experts like Frank say, don’t work well when it comes to addicts and may even be counterproductive.
We live in a society that criminalizes more and more behavior each day, with little to show for it but growing prison populations. Adding criminal sanctions for pregnant drug abusers is just the latest example of a foolhardy and costly trend.
So yesterday the Supreme Court decided, in Florence v. Bd. of Freeholders, that every person arrested and held temporarily can be subjected to a routine strip search, so long as it involves only a visual inspection without touching or abusive gestures. A 5-4 decision, opinion by Kennedy, with important concurrences by Roberts and Alito which purportedly limit when these strip-searches can be imposed. Lyle Denniston, of Scotusblog, has a detailed explanation here.
Limitations or no, the decision is troubling on many dimensions. First, as has been noted by others, we tend to arrest and detain people for very minor infractions, such as traffic offenses, regulatory offenses, even unpaid fines. Now these offenders are subject to strip searches if a jail makes this part of its general policy.
Even more troubling, however, is how this latest Supreme Court opinion fits into our general neglect of the conditions in jails. Jails--as distinct from prisons--usually incarcerate pretrial detainees, along with those convicted offenders sentenced to less than one year in prison. And the conditions of our state and local jails are truly horrendous, enough so that imposing them on anyone, let alone those still presumed innocent, can be considered punishment. Unsurprisingly, it is the poor and the disenfranchised who suffer most greatly from the strictures of pretrial detention.
These problems, and many more, are discussed in my latest article, "Justice in the Shadowlands: Pretrial Detention, Punishment, and the Sixth Amendment." Here is the abstract:
In a criminal system that tips heavily to the side of wealth and power, we routinely detain the accused in often horrifying conditions, confined in jails while still maintaining the presumption of innocence. Here, in the rotting jail cells of impoverished defendants, are the Shadowlands of Justice, where the lack of criminal procedure has produced a darkness unrelieved by much scrutiny or concern on the part of the law.
This article contends that our current system of pretrial detention lies in shambles, routinely incarcerating the accused in horrifying conditions often far worse than those convicted offenders existing in prisons. Due to these punitive conditions of incarceration, pretrial detainees appear to have a cognizable claim for the denial of their Sixth Amendment jury trial right, which, at its broadest, forbids punishment for any crime unless a cross-section of the offender’s community adjudicates his crime and finds him guilty. This article argues that the spirit of the Sixth Amendment jury trial right might apply to many pretrial detainees, due to both the punishment-like conditions of their incarceration and the unfair procedures surrounding bail grants, denials and revocations. In so arguing, I expose some of the worst abuses of current procedures surrounding bail and jail in both federal and state systems. Additionally, I also propose some much needed reforms in the pretrial release world, including better oversight of the surety bond system, reducing prison overcrowding by increasing electronic bail surveillance and revising the bail hearing procedure to permit a community “bail jury” to help decide the defendant’s danger to the community.
Jail, bail, detention, strip-searches: all of these procedures take place in the Shadowlands of Justice. It is up to us--as lawyers, academics, private citizens--to eradicate these dark corners of the criminal justice system.
The American Bar Association has just issued its assessment of the death penalty in Missouri. You can find the various parts of the report here. The assessment team was co-chaired by Professor Stephen Thaman from Saint Louis University Law and Professor Paul Litton of the University of Missouri - Columbia Law. The report calls for reform in a number of areas, notwithstanding the fact that committee members diverged in their "views about the weight to be placed on the various ABA recommendations." On balance, it appears that the death penalty system in Missouri has some serious issues in a several respects- which is, unfortunately, the norm rather than the exception, in death penalty states.
My friend and former South Texas colleague, Adam Gershowitz (pictured), who currently teaches at the University of Houston Law Center, has accepted a tenured position at William & Mary. Adam teaches and writes in the area of criminal law and procedure, has an impressive array of scholarly placements, and has received numerous teaching awards in his academic career.
Statement by Caroline Bettinger-Lopez, Donna Coker, Julie Goldscheid, Leigh Goodmark, Valli Kalei Kanuha, James Ptacek, Deborah Weissman
The VAWA reauthorization bill would extend funding for important services; provide additional protections for victims of domestic violence, dating violence, sexual assault, and stalking; and would ensure that tribal courts have jurisdiction over domestic violence that occurs on tribal land. We urge Congress to pass this bill!
But while we applaud much that is in the bill, we are concerned that like its predecessors, the bill focuses a significant amount of funding on criminal justice responses and much less on economic and racial justice initiatives that would support efforts to stop domestic violence. We urge Congress to do more to address economic and racial inequalities that make poor women--particularly poor women of color, undocumented women, and Native American women, more vulnerable to intimate violence. We urge Congress to recognize that economic policies that result in widespread unemployment and downward mobility increase domestic violence. We further urge Congress to recognize that as important as criminal remedies may be for some victims, a focus on criminal justice remedies will never be sufficient to empower women. Many women who experience domestic violence do not want the current limited menu of criminal justice responses. We urge Congress, therefore, to consider and support programs that explore alternatives to the current criminal adjudication models, and that address the underlying causes of abuse.
What VAWA Does Right
The VAWA reauthorization bill provides funding for critical services and includes important law reform that will improve women’s access to justice. The bill expands the public housing protections that were introduced in VAWA 2005, expands protections for immigrant victims and for foreign brides, and makes it clear that tribal courts have jurisdiction over non-Indians who commit acts of domestic violence on tribal land. The bill continues the requirement of setting aside a percentage of funding to assist tribal governments and coalitions. Native women experience significantly higher rates of domestic violence and sexual assault than do other women, much of it perpetrated by non-Native persons. Strengthening the capacity of Indian Nations to protect Native women is a critical step in addressing this gross injustice. The bill authorizes funding to train courts and police in assisting immigrant women who cooperate with law enforcement to receive T- and U-Visas. The bill continues funding for civil legal assistance, training for family court judges and custody evaluators, and efforts to beef up the criminal justice response in tribal jurisdictions and rural areas where it is particularly hard to get police to respond at all. The bill also provides important assistance for anti-domestic violence programs for youth, expands protections for sexual assault victims, and funds efforts to reduce rape kit backlogs. The bill expands non-discrimination provisions and clarifies that funding is available for programs that meet the needs of LGBT victims. The bill provides additional protection against sexual abuse and exploitation for prisoners and probationers by prohibiting someone with criminal justice authority from engaging in sexual activity with a person under his or her authority. The bill also makes national standards for the elimination of prison rape applicable to immigration detention facilities
Congress should do more to stop violence against women by focusing more on the structural inequalities that make women vulnerable to violence. Funding for criminal justice intervention makes up the largest portion of VAWA funding. The primary criminal justice grants are the STOP (Services, Training, Officers, Prosecution) grants – funded at $222 million, and the GTEAP (grants to encourage arrest and enforce protection orders) funded at $73 million, creating a combined total of $295 million focused on the criminal justice response. Compare this with the $57 million dedicated to civil legal assistance, or the $22 million dedicated to training family court judges and court personnel, or the $39 million dedicated to housing for battered women and their children.
Congress Should Focus Efforts on Economic Justice Research shows that downward mobility and economic inequality weakens social controls in neighborhoods, giving rise to increases in domestic violence. Research also demonstrates that unstable male employment in heterosexual couples is linked to significant increases in domestic violence. In response to these threats, federal legislation should encourage jurisdictions to link job training or job placement with batterer treatment programs, incorporate domestic violence awareness and programs within every community-based response to the economic crisis, provide more meaningful and targeted funds to help women achieve economic stability, and amend the Trade Adjustment Assistance and Workforce Investment statutes to include domestic violence screening and services.
Poor women are particularly vulnerable to domestic violence. Congress should increase dramatically the total funding that goes to assisting poor women with material assistance from housing to emergency financial assistance to small business creation to micro-finance. The current VAWA bill provides $39 million for housing assistance (a reduction of $11 million compared to prior funding levels), another $2 million to meet the needs of “underserved” populations (augmented by 2% set-asides from STOP and GTEAP), and $1 million for the National Resource Center on Workplace Responses to Domestic Violence. While these provisions are important, Congress should do more – much more.
For example, Congress should change the focus of TANF – from a program that focuses on placing recipients into low-wage dead-end jobs, to a program that provides a bridge out of poverty. In addition, given the clear link between women’s reproductive rights and their ability to live free from violence, Congress should help alleviate abuse of women by fully funding reproductive health care and by eliminating prohibitions on federal spending for abortion.
Congress Should Expand Criminal Justice Options Beyond Arrest and Prosecution Research demonstrates that the failure of police to respond to domestic violence - as well as the likelihood that police will respond in an over-aggressive manner- is related to racial characteristics of the neighborhood in which the violence occurs. The VAWA bill addresses this concern by incorporating a strong anti-discrimination provision, by providing grants for training law enforcement and victim advocacy in “underserved” communities, and by providing funding for tribal governments and tribal domestic violence coalitions. In addition to these efforts, Congress should expand its current focus to fund law-enforcement strategies that encourage a shift from post hoc responses to preventative initiatives with a focus on community problem-solving as an alternative to crime surveillance and arrests. Many women who experience domestic violence are interested in alternative forms of adjudication than those currently provided by the criminal justice system. Congress should help women to find justice beyond the limited options currently available in the criminal justice system by funding pilot projects that investigate the effectiveness of restorative justice, truth commissions, and other “alternative” programs in cases of domestic violence.
Congress Should Spearhead Efforts to Stop Mass-Incarceration Congress should spearhead efforts to change the trend of over-incarceration of both men and women and should fund more prisoner reentry programs that incorporate anti-domestic violence initiatives. Mass incarceration destabilizes neighborhoods and increases unemployment – effects that are linked with higher rates of domestic violence. Dehumanizing prison conditions further reinforce violent behavior rather than curtail it. Congress should change federal sentencing guidelines that result in unfairly long sentences for low-level drug offending and encourage states to do the same. Congress should lead efforts to do away with “war on drugs” practices that result in the over-surveillance and mass incarceration of poor persons. These policies have had a devastating impact on low income communities of color. The incarceration and criminal justice oversight of significant numbers of adults, many of them parents, leaves neighborhoods unstable and creates the circumstances for more intimate violence. The concentration of disenfranchised ex-felons who face significant obstacles to employment further weakens the social fabric of neighborhoods and increases the likelihood of more domestic violence.
Congress Should Increase Funds for Civil Legal Assistance Congress should increase funds for civil legal representation for poor women. Poor women of color, immigrant women and undocumented women, and Native American women face substantial bias both from service providers and courts, particularly in child abuse and neglect proceedings and in family court. It is critical that victims of domestic violence have zealous advocates who can ensure equal access to justice.
Since 1994, VAWA has broken new ground in federal and state responses to domestic violence, sexual assault and stalking. At this juncture, rather than continuing to prioritize the criminal justice response to domestic violence, Congress should increase the focus on creative and innovative ways to stop domestic violence, and address the structural inequalities that make women vulnerable to violence, and the myriad needs of those subjected to abuse.
Selected Reading (list appears after the fold)