Author: Matt Kelley

A Massachusetts court this week ordered a local sheriff to repay more than $750,000 he had collected from prisoners by charging them for their stays in county jail — along with their haircuts, medical exams and eyeglasses. Nothing like a captive customer base. Too bad it was against the law.

Starting in 2002, the sheriff of Bristol County started charging fees to prisoners in the county jail, calling it a “fiscal responsibility program.” In the eight years since, he has faced criticism for the program — and collected three-quarters of a million dollars.

A group of prisoners sued the sheriff, and the court ruled Monday that he didn’t have the power under state law to adopt a fee structure, and ordered him to return the money.

Court fees have been imposed on convicted defendants for years, and though they’re sometimes controversial they seem pretty well ingrained in legal practice. The new territory of jail fees, however, cross the line. They charge prisoners to live in a place where they’re being held against their will. The state already forces prisoners to work, but charging them to pay for their own cages is adding a de facto layer of punishment that wasn’t ordered by the judge and jury.

This might be an issue that plays out in cases nationwide in the years ahead, because this one Massachusetts county wasn’t alone in imposing feees on prisoners.

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Two wrongfully convicted men have settled a lawsuit with the Iowa prosecutors who framed them.

Terry Harrington and Curtis McGhee spent 26 years in Iowa prisons for a murder they didn’t commit before their convictions were overturned in 2003. The men have shown on appeal that prosecutors knowingly presented false evidence to secure their convictions, and in 2005 they sued the prosecutors in civil court for their role in the injustice.

On November 4, the US Supreme Court heard oral arguments in the case, where prosecutors argued that the men didn’t have the right to sue them, that prosecutors are immune, and that there is no freestanding constitutional “right not to be framed.”

Following the recent announcement that the lawsuit had been settled out of court for $12 million, the Supreme Court announced that it would dismiss the case, since there would no longer be a case to decide. Knowing the current makeup of the Supreme Court and its hostility to criminal defendants, there’s a real chance that these men dodged a bullet by settling the case.

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Long-term solitary confinement is torture. More than 50,000 American prisoners are currently held in some form of longterm isolation, most of them leaving their cell for an hour, or less, each day.

Dr. Atul Gawande, who got the world talking about solitary back in March with his excellent New Yorker story on the topic, spoke about the issue on Democracy Now! yesterday, and he didn’t mince words. (Skip to 51:30 in the video to watch the piece on solitary, but his stuff on health care earlier the episode is worth watching, too)

“We have found ourselves crowding prisons larger and larger,” Gawande said. “Of course that breeds more violence. And then that leads us to say, well, we should then put folks in solitary confinement. And we’ve caught ourselves in a vicious circle, to the point that prison commissioners I talked to would only speak to me anonymously about this, because they would get fired for saying it. But they thought solitary confinement should end.”

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The death penalty has lost its last intellectual underpinning.

This fall, the American Law Institute voted to abandon its long-held support for the death penalty, sending yet another signal that the death penalty in the United States is dying. The ALI’s work provides a critical framework for all kinds of state laws and its support for the death penalty has long been central to the maintenance of capital punishment in the states.

The organization, compromised of 4,000 judges, lawyers and law professors, voted back in October to transform its death penalty policy. I completely missed the story at the time, but Adam Liptak spread the word in a column in today’s New York Times that quickly circled the web yesterday.

“The ALI is important on a lot of topics,” Berkeley law professor Franklin Zimring told Liptak. “They were absolutely singular on (capital punishment) because they were the only intellectually respectable support for the death penalty system in the United States.”

In explaining its decision, the ALI cited many arguments from the movement to abolish the death penalty — racial disparities, uncontrollable costs, inadequate defense and the chance of executing innocent people. When the group first approved standards for death penalty statutes in 1962, the practice was untested in the modern legal framework of the United States. Three decades of cases have revealed structual unfairness and attempts to address the imbalances have failed. A preliminary report from the organization said the recommended death penalty statutes have “not withstood the test of time and experience.”

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The names of low-level sex offenders in Nebraska were posted online today under a new law, which took effect despite a lawsuit trying to stop it.

A class-action lawsuit filed by convicted sex offenders has been seeking to prevent the state from publishing their names, saying the new rule punishes them retroactively and will do more harm than good. The plaintiffs had won a temporary stay, but that was lifted today and the names went up.

The previous law notified communities of high-risk offenders only. The new rule forces every sex offender in Nebraska to register for a minimum of 15 years. An attorney for the plaintiffs argued that some of his clients pled guilty to less-serious offenses and would have made different choices if they had known these ramifications would come later.

“Now they’re going to be all lumped together with a broad brush and I think that’s going to dilute the registry and drive them underground,” Attorney Stu Dornan said.

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A startling new county-by-county review of capital murder charges in Alabama provides rock solid evidence of the arbitrariness of the death penalty. The location of the crime, these numbers show, is far more important than the crime itself in determining whether the perpetrator is eligible for a death sentence.

The report, from the Mobile Press-Register, finds that one county charges 95% of murders as capital cases (making the defendant eligible for a death sentence if convicted) while six counties bring capital charges in less than 10% of murders. Factors involved in the crime — such as sexual assault or child victims — can make it eligible for a capital charge, but there’s a great deal of prosecutorial discretion in determining exactly what charges should apply.

The arbitrary application of the death penalty is perhaps the most compelling cause for its repeal. There is simply no way to ensure fairness across race, socioeconomic status and — as these numbers show — geography.

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Theodore Braden (left) is scheduled be released from a Florida prison in October, and he’s working hard to prepare himself. He writes the blog Teen In Jail, and he wrote this morning that the path to a positive life won’t be easy.

He wrote:

I know I said that when I get out, I want to go to school, but then I ask myself:  What school will accept me? Can I afford it? Can I get a job to pay for school? How will I get to and from school?

… It’s way easier to not work and sell drugs – but I can’t do it. For some reason, I feel like I’m meant for greater things.

These statements are refreshing and impressive for  their honesty and commitment. But they aren’t unique. Hundreds of thousands of other prisoners are making the same resolutions this year — we will release 700,000 people from prison in the US in 2010 and many of them set out committed to improving their lives.

Are we helping them succeed?

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A New York lawmaker’s plan to introduce legislation this month legitimizing racial profiling in an attempt to prevent terrorist attacks is more than just offensive. It’s counter-productive and dangerous, too.

NY Assemblyman Dov Hikind says law enforcement officers and other government agents should consider race when considering who to stop in security checks, just like they evaluate luggage, demeanor and itinerary.

“Since September 11, if you look at those who have been convicted of acts of terrorism, if you look at all the individuals that are facing trial, the reality is that they are of Middle Eastern or Southeast Asian background, Muslim young men. That is the reality,” he says. “I’m against the concept of profiling, but we’re in a war on terror…We need to use the kind of tools we ordinarily won’t use.”

The arrest of Umar Farouk Abdulmutallab on Christmas Day in a failed attempt to detonate a bomb aboard a Northwest Airlines flight has renewed calls for the use of racial profiling in security screening, but the suggestions is an overreaction to the threat of terrorism, and it isn’t based on any proof that racial profiling works.

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Since taking office in 2006, Virginia Gov. Tim Kaine has vetoed 15 bills expanding the state’s death penalty. The next governor has another idea.

Republican Gov.-elect Bob McDonnell (left), who takes office January 16, says he will sign into law the expansions that lawmakers have supported in recent years, particularly a provision that would make accomplices eligible for the death penalty.

McDonnell’s commitment to expanding executions won’t lead to many new death sentences, but it’s sad to see a new governor bucking a trend and expanding the death penalty. Aside from this news, there have been signs that even Virginia, usually a death penalty diehard,  would see a slowdown of executions. Although four people were executed in Virginia in 2009 (second only to Texas, which executed 18 people), Virginian juries handed down just one new death sentence this year. That’s a start.

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As 2009 draws to a close, we can look back over a decade of good and bad for American the criminal justice system and our prison policy. But one thing is clear: we’re at a moment of great opportunity for reform.

There is more awareness among the American public now than ever before about our failed years of criminal justice policy and the lives and money we’ve wasted on the drug war, the death penalty and the explosion of the prison state. The system could see change real change in 2010, and a good start would be a stronger Second Chance Act.

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A great post today by Alan Bean at Friends of Justice examines the human instinct for vengeance and draws the apt connection to the increased chances of wrongful conviction in heinous, bloody crimes.

“If a terrible crime has been committed,” Bean writes, “a clever prosecutor can have a jury screaming for vengeance simply by laying out the grizzly facts and declaring that somebody (the defendant, for instance) must pay.”

Bean’s inspiration for this post comes from New York Times columnist (and Florida International University law professor) Stanley Fish, who pointed this week to the popularity of vengeance as theme in cinema. Fish offers a top-ten list of vengeance films and explores the relationship between violence and morality.

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The year ahead is likely to see continued momentum toward the abolition of capital punishment in the United States. Two states — New Jersey and New Mexico — have repealed the death penalty in the last two years. We have handed down fewer death sentences in 2009 than any year since the death penalty was reinstated in 1976.

Here are six states that could move toward abolition in the year ahead:

Kansas has perhaps the best chance of repealing the death penalty in 2010 of any state in the nation. Surprised? A repeal bill passed committee in 2009, and an advisory committee of lawmakers, judges, prosecutors and defense lawyers has helped rewrite it to reintroduce in 2010. Four days of hearings on the issue start January 19. Kansas has 10 people on death row but hasn’t executed anyone since 1965.

New Hampshire hasn’t executed anyone since 1939 but handed down its first death sentence in decades this year. The state’s House of Representatives passed a repeal bill in 2009, but eventually settled for the creation of a commission to study capital punishment in the state. The panel will issue its report by December 2010, and there will be a strong chance for repeal of the death penalty in New Hampshire in 2011.

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The San Jose, California, police department has been under fire recently for several incidents involving the use of excessive force by officers on unarmed individuals. Perhaps the best-known incident in recent months was the beating and tasering of an unarmed student caught on video in September.

An exhaustive report published by the San Jose Mercury News on Sunday examined resisting-arrest cases over a one year period ending in October 2008, and found some disturbing patterns. Resisting arrest charges are notoriously used by police to cover up excessive, unnecessary force. The Mercury News investigation found 321 resisting arrest cases during the one-year study period, and discovered ten officers who reported using force in four or more incidents. This report lends some validity to a “bad apples” theory, that a few officers are responsible for most instances of excessive force.

The San Jose Police Department has been reeling from these accusations in recent months, but officials are taking action. Following on the heels of in-car cameras, which have provided critical evidence in cases across the country, San Jose is now experimenting with cameras worn by officers on their heads. It’s the first major department in the country to try wearable cameras.

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As we approach a new decade, it’s business as usual in China.

A Chinese court on Friday sentenced one of the country’s most prominent prisoners to 11 years in prison for “inciting subversion of state power.”

Liu Xiaobo has publicly pushed for sweeping reforms in China since the 1980s and participated in the 1989 Tiananmen Square protests. He was arrested a year ago for his involvement in the pro-democracy manifesto Charter 08 and held at a secret prison for six months before he formally faced the charges.

Liu’s work is groundbreaking and critically important to the evolution of human rights inside China, but this long sentence is a sign that China will still stop at nothing to stifle dissent. The Obama administration has repeatedly called for an expansion of human rights in China — and specificially for Liu’s release — but nothing will come of this pleading until our requests have teeth.

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Arrests are public information, but exactly how public should they be? Twitter is testing the limits.

Every arrest in Denton, Texas, is chronicled on an unofficial twitter feed, built by an art student seeking to explore the possibilities opened by social platforms like twitter to share public information.

The mugshot  at left shows a woman arrested yesterday for assault causing bodily injury. She hasn’t been tried or convicted. Should her photo be on twitter (or on change.org)?

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Marijuana arrests have spiked in New York City under Mayor Michael Bloomberg, according to new research from a Queens College professor, and the people arrested for pot are almost exclusively minorities.

Bloomberg, who once told New York magazine that he smoked pot “and enjoyed it,” has quietly continued the ‘broken-windows’ practices of former Mayor Rudy Giuliani, and has seriously stepped up marijuana arrests. In 2008 alone, more than 40,000 people were arrested in New York for low-level marijuana offenses — and 87 percent of them were black of Latino. When you consider that white people are more likely to use pot than African Americans, the problem here becomes even clearer.

New York Times columnist Jim Dwyer wrote about these numbers this week, drawing from the research of Queens College sociology professor Harry Levine. Dwyer finds that the city explains the discrepancy away through a reliance on the broken windows theory, which is alive and well in NYC.

“Marijuana arrests — which rarely lead to jail — are concentrated in neighborhoods with the highest concentrations of violent crime because that’s where the police focus their attention in order to reduce victimization,” Bloomberg’s criminal justice aide John Feinblatt told Dwyer.

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I recently saw the film “Forgiven,” Paul Fitzgerald’s moving and thoughtful directorial debut, which ponders the injustice of a wrongful conviction, the healing and redemption possible in the aftermath, and the politics that can get in the way. It became available (streaming and DVD) on Netflix this week, and it’s well worth moving to the top of your queue.

The well-crafted (though sometimes meandering) indie flick explores the fallout of a wrongful death sentence and the inherent dangers in society’s thirst for tough-on-crime policy. Fitzgerald plays a conservative young district attorney making a bid for the U.S. Senate. His commitment to conviction may have been too strong, however, and an exoneration threatens to overwhelm his political ambitions. The movie has plenty of twists and turns and I won’t spoil it here.

The trailer is after the jump.

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The Death Penalty Information Center released its annual report on the state of capital punishment  in the United States today, and while it finds that the number of executions was slightly higher in 2009 than 2008, new death sentences were at their lowest level since the death penalty was reinstated in 1976.

This is big news. The uptick in executions is less important, partly because there was a de facto moratorium on executions nationwide for four months in 2008.

Even Texas and Virginia are cooling to the cruel practice of capital punishment. According to the report, Texas averaged 34 death sentences per year during the 1990s and Virginia averaged six. This year, Texas had nine and Virginia just one. It’s a new day.

View the full report at DPIC’s website.

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A North Carolina judge ruled yesterday that it is unconstitutional for a state law to deny people the right to go to church because they are convicted of a sex offense.

In October, I wrote about the case of James Nichols, a 31-year-old man who had been arrested moments after arriving home following a service at a Baptist church outside Raleigh. Nichols was a registered sex offender, and although he had been invited by the pastor, state officials argued that he had violated his sex offender restrictions because the church also housed a day care center.

Superior Court Judge Allen Baddour said yesterday that not only is it unconstitutional to restrict a person’s right to worship, but that the state’s law banning sex offenders from “any place where minors gather for regularly scheduled events” was too vague.

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Three years into government control of California’s prison health care system, prisoner deaths are dropping, but preventable deaths are still too high. And one report pins some of the blame for the crisis on uncontrolled overtime for prison nurses, who were more likely to earn overtime than any other state employees in 2008.

The Sacramento Bee reports that California spent $60 million on overtime for nurses in 2008, and another $111 million for the guards that protect medical workers during procedures. All of this in a year when 66 prisoners died of afflictions that could have been prevented or treated had they been diagnosed.

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