Need-Blind Justice

FIFTY years ago, in Gideon v. Wainwright, the Supreme Court ruled that poor people accused of serious crimes were entitled to lawyers paid for by the government. But the court did not say how the lawyers should be chosen, how much they should be paid or how to make sure they defended their clients with vigor and care.

This created a simple problem and a complicated one. The simple one is that many appointed lawyers are not paid enough to allow them to do their jobs. The solution to that problem is money. 

The complicated problem is that the Gideon decision created attorney-client relationships barely worthy of the name, between lawyers with conflicting incentives and clients without choices. Now a judge in Washington State and a county in Texas are trying to address that deeper problem in ways that have never been tried in the United States. 

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Rampant Prosecutorial Misconduct

In the justice system, prosecutors have the power to decide what criminal charges to bring, and since 97 percent of cases are resolved without a trial, those decisions are almost always the most important factor in the outcome. That is why it is so important for prosecutors to play fair, not just to win. This obligation is embodied in the Supreme Court’s 1963 holding in Brady v. Maryland, which required prosecutors to provide the defense with any exculpatory evidence that could materially affect a verdict or sentence.

Yet far too often, state and federal prosecutors fail to fulfill that constitutional duty, and far too rarely do courts hold them accountable. Last month, Alex Kozinski, the chief judge of the United States Court of Appeals for the Ninth Circuit, issued the most stinging indictment of this systemic failure in recent memory. “There is an epidemic of Brady violations abroad in the land,” Judge Kozinski wrote in dissent from a ruling against a man who argued that prosecutors had withheld crucial evidence in his case. “Only judges can put a stop to it.” 

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Chief Justice Warns Sequestration Cuts Already Threatening Public Safety

Chief Justice of the United States John Roberts, in his annual Year-End Report on the State of the Federal Judiciary, blasted the 2011 Budget Control Act’s automatic “sequestration” federal spending cuts and warned that the cuts to the federal court system’s budget “pose a genuine threat to public safety.”

Roberts, appointed to the Supreme Court in 2005 by President George W. Bush, listed “adequate funding for the Judiciary” as the “single most important issue facing the courts” and offered a Dickensian look at the federal judiciary past, present, and future.

Conceding that balanced budgets are important, Roberts blasted the Draconian sequester — cuts that came after nearly a decade of belt-tightening by the judicial branch. Because they had previously reduced costs significantly, the $350 million in new across-the-board cuts have already made it difficult for justice to be protected, Roberts argued, noting that “because virtually all of their core functions are constitutionally and statutorily required,” the courts have little discretion over what they spend:

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Ten Travesties Of Justice In 2013

Every year, stories emerge that serve as a reminder that the American system of justice means injustice for too many, with some receiving little or no punishment for egregious offenses, while others receive harsh or faulty punishment for much less. Here are some of the worst injustices of 2013:

1. An Alabama blogger is still sitting in a jail cell for exercising his First Amendment rights

Blogger Roger Shuler drew the ire of the powers that be when he continued to write about the alleged extramarital affair of a prominent lawyer rumored to be running for Congress. The lawyer and son of former Alabama governor Bob Riley, Robert Riley, Jr., won a temporary restraining order that prohibited Shuler from writing anything about Riley’s alleged extramarital affair and other related stories. The order itself was almost certainly a violation of First Amendment law. But Alabama officials took the dispute a step further when they pursued him for a traffic stop and arrested him for contempt. In spite of advocacy from the ACLU and others, Shuler has now been in a jail cell for two months for his journalism.

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Cuts to Federal Funding Jeopardize Criminal Justice Initiatives Nationwide, Survey Finds

Vital federal funding that supports a variety of crime-prevention strategies, treatment programs, and innovative initiatives in our communities has decreased by 43 percent since 2010, according to a recent survey conducted by the Vera Institute of Justice (Vera) and National Criminal Justice Association (NCJA). The survey examines the impact those cuts have on essential programs and staffing levels across the nation.

The second annual survey of state and local criminal justice practitioners was conducted to gain insight into the impact of these budget cuts, both those enacted as well as those still to come. The survey received more than 1,200 responses from all sectors of the criminal justice community, including law enforcement, the judicial system, corrections and community corrections, juvenile justice and prevention programs, victim assistance programs, and social services. It found that more than 75 percent of respondents reported funding cuts that led to workforce reductions, salary freezes, and drastic curtailing of the services they provide. For example, of the 346 law enforcement respondents, 75 percent saw a cut in funding between 1 and 25 percent. Because of these cuts, 64 percent reported reduction in staffing, 63 percent reported a reduction in services provided, and 58 percent reported pay freezes.

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Ten Ways Criminal Justice Is One Of The Great Civil Rights Crises Of Our Time

The last few months have issued several potent reminders that racism still pervades our criminal justice system, as even some prominent and powerful American black leaders publicly professed that they had to warn their young sons about police profiling. Supporting these anecdotes is a U.S. record of racially skewed criminal justice policies that moved academic Michelle Alexander to declare in her seminal 2010 book that mass incarceration is the new Jim Crow. On the 50th anniversary of the March on Washington, here are some of the many reasons criminal justice is in fact one of the great civil rights crises of our time:

1. The United States imprisons a larger percentage of its black population than South Africa did at the height of apartheid. More than 60 percent of people in prison now are racial or ethnic minorities, according to the Sentencing Project. These minorities are part of a total prison population that eclipses that of any other nation in the world. At the federal level, more than half of these individuals are locked up for nonviolent drug or immigration offenses.

2. Black men born in the United States in 2001 have a one in three chance of being incarcerated at some point in their lifetime, according to Department of Justice statistics. An even greater number will have a criminal record, and face the host of collateral consequences that emanate from a criminal record. As Alexander wrote, “An extraordinary percentage of black men in the United States are legally barred from voting today, just as they have been throughout most of American history. They are also subject to legalized discrimination in employment, housing, education, public benefits, and jury service, just as their parents, grandparents, and great-grandparents once were.” One study suggested felon voting restrictions disenfranchise more minorities than voter ID laws.

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Can the Obama Admin Actually Fix Our Broken Criminal Justice System?

  On Monday, August 12, the day Attorney General Eric Holder announced “a fundamentally new approach” to the criminal justice system in his speech before the American Bar Association in San Francisco, US District Court Judge Mark W. Bennett was in his office in Sioux City, Iowa, drafting a sentencing opinion in a drug case. An outspoken critic of mandatory minimums [see “ Imposing Injustice,” November 12, 2012], Bennett is known for writing unusual opinions that criticize the sentences he must often hand down. “It’s about trying to make the system fairer,” he says, “not just for the defendant in front of you, but for others.”

The defendant in this case, a 37-year-old black man named Douglas Young, had caught a rare break. He’d pleaded guilty to two charges involving twenty-eight grams of crack cocaine—an amount sufficient to trigger two five-year mandatory minimum sentences. But he had previously been convicted on another crack charge, in Chicago, when he was just 20 years old. This single offense, seventeen years ago, meant not only that prosecutors could have doubled Young’s mandatory minimum sentence, but also that he could have received a maximum sentence of life without parole.

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Unequal Justice: Aboriginals caught in the justice system trap

Aboriginal men and especially women are overrepresented in Ontario jails, often after minor crimes lead to deeper trouble. A number of programs including special courts are trying to help.

Jill Buckshot, a former Miss Algonquin Nation, stole steaks from an Ottawa grocery store and sold them to support her addictio

As Jill Buckshot describes the addiction that helped put her in prison, her words sometimes slur together over the phone, so that she has to spell out “dope sick” and “Dilaudid.”

“Dope sick” refers to the violent physical reaction that occurs when an addict goes a day without drugs. The second term is the narcotic she would steal for.

Buckshot, who became addicted at 25 after having surgery and taking a prescribed narcotic for the pain, would steal steaks from an Ottawa grocery store by hiding them under large packages of toilet paper. Then she’d sell them for half-price.

The thefts kicked off a cycle of incarceration, a revolving door that spun her in and out of jail every two weeks one summer.

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The Impact of Federal Budget Cuts on State and Local Public Safety

Federal Public Safety Funding at Historically Low Levels

Over the past two years, federal support for the criminal justice assistance grant programs through the Department ofJustice has been decreased by 43 percent.Some programs have been eliminated; others have taken deep cuts. For instance, since FY2012 the Byrne Justice AssistanceGrant (Byrne JAG) program has been cut by 34 percent, the Community Oriented Policing Services (COPS) Hiring grantsby 44 percent, the in-person drug treatment supported by the Residential Substance Abuse Treatment for State Prisoners(RSAT) program by 67 percent, the National Instant Criminal Background Check System (NICS) by 75 percent, the juvenile delinquency prevention initiatives funded by the Juvenile Justice and Delinquency Prevention Act Part A (JJDPA) by more than 50 percent, and reimbursement to state and local governments though the State Criminal Alien Assistance Program (SCAAP) by 27 percent.

These programs are at historically low levels of funding. The additional deep cuts mandated by sequestration could leave the federal-state-local public safety partnership virtually unfunded by FY2021. 

 

Surveying the Field

To better understand the impact of cuts already enacted and cuts anticipated by sequestration, the National Criminal Justice Association (NCJA) and the Vera Institute of Justice conducted a survey of state and local criminal justice stakeholder organizations in the summer of 2012. A total of 714 organizations responded to the survey, the majority representing state and local law enforcement agencies. The survey asked respondents to describe the impact of recent cuts in their communities. 

 

What the Survey Found

More than three-quarters (77 percent) of respondents reported that their grant funding has decreased since FY11. Of those, nearly half (44 percent) reported a decrease in funding of at least one-third. Also, 14 percent reported that their grant funds had been cut by more than half. In addition, 52 percent of respondents reported a reduction in their organization’s workforce by, on average, 3.4 full-time equivalent employees. It is important to note that at the time of the survey, the FY12 grant funding had not yet been released. Therefore, these responses reflect only cuts in FY11 funding

 

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Treatment Alternatives to Incarceration for People with Mental Health Needs in the Criminal Justice System

The disproportionate number of people with behavioral health disorders involved in the criminal justice system puts a tremendous strain on scarce public resources and has a huge impact on health care and criminal justice budgets. This research summary demonstrates that with appropriate treatment and access to community-based services, this population is less likely to be incarcerated and more likely to lead healthy, productive lives—while resulting in substantial costs savings.

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Liberalism’s unfinished agenda

In his column, Michael Lind writes that “Obama can't rest on his laurels. He still needs to fix our broken criminal justice and child care systems.”

Lind writes that there “should be an end to the permanent forfeiture of voting rights.

“People who have served out their punishment should be allowed to return to society as fully functioning citizens, not permanently relegated to a legal and political underclass. And tyrannical majorities should not be allowed to disenfranchise specific populations indirectly, as white majorities have sometimes sought to do, by connecting the forfeiture of voting rights to minor offenses like drug possession committed disproportionately by minorities and the poor.”


He cites a report from The Sentencing Project that notes that one in 13 African-Americans is disenfranchised as a result of a prior conviction; the numbers are even higher in Virginia (20 percent), Kentucky (22 percent) and Florida (23 percent).

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A matter of justice, without delay

We live at a time when our national government is transfixed with “tough on crime” policies. We also live at a time when crime rates are the lowest in decades.

Take British Columbia, which, until the late 1990s, had the highest rate of Criminal Code offences of the four western provinces. Today, its rate (third lowest of the four) is about where it was in 1970; it has been dropping for the past 10 years, with youth crime falling faster than overall crime. And yet, less crime has not translated into lower court costs. Crime is down 33 per cent in the past six years, but criminal justice costs are up 35 per cent in the same period.

Smacked in the face by these results, the B.C. government has been conducting internal reviews; it also issued a green paper on modernizing the justice system and appointed lawyer Geoffrey Cowper to study the problem. His findings, reported last month, were disturbing. In fact, if you took the words “lawyers,” “judges” and “justice system” out of the report, an innocent could imagine he was describing the health-care system.

To wit, these observations from Mr. Cowper:

“The system fails to meet the public’s reasonable expectations of timeliness.”

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The Harper Doctrine: Once a Criminal, Always a Criminal

Liberal and Conservatives have agreed that our criminal justice system should rehabilitate offenders — until now

By Edward L. Greenspan and Anthony N. Doob

In February 1993, Canada’s crime rate stood at an all-time high, Brian Mulroney was prime minister, and a Conservative-dominated House of Commons committee released a report on crime prevention that held no surprises for those who followed criminal justice policy. It described the “inherent inadequacy of the criminal justice system” as a means of addressing the problem, pointing out: “If locking up those who violate the law contributed to safer societies then the United States should be the safest country in the world. In fact the United States affords a glaring example of the limited impact that criminal justice responses may have on crime....Evidence from the U.S. is that costly repressive measures alone fail to deter crime.”

The committee chair, Conservative Member of Parliament and former RCMP officer Bob Horner, told the press, “If anyone had told me when I became an MP nine years ago that I’d be looking at the social causes of crime, I’d have told them that they were nuts. I’d have said, ‘Lock them up for life and throw away the key.’ Not any more.”

Skepticism about the idea that imprisonment constitutes a good solution to the crime problem began decades before these stark statements. In 1938, for example, a Royal Commission examining the country’s penal system concluded: “The undeniable responsibility of the state to those held in its custody is to see that they are not returned to freedom worse than when they were taken in charge. This responsibility has been officially recognized in Canada for nearly a century but, although recognized, it has not been discharged. The evidence before this Commission convinces us that there are very few, if any, prisoners who enter our penitentiaries who do not leave them worse members of society than when they entered them.”

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Life Without Parole for Pot? 10 Worst Cases of Cruel and Unusual Punishment

Our government spends more than $7 billion annually to enforce marijuana prohibition in shockingly cruel ways, but the efforts have not deterred marijuana use. 

Cannabis is one of the most innocuous substances known to humans. Safer than Advil, a little (or a lot) of weed has never killed anybody, nor is it known to induce the kind of violent behavior linked to, say, alcohol. What's more, marijuana shows great therapeutic promise. It has been proven to reduce nausea associated with several ailments and chemotherapy, help cure post-traumatic stress disorder (PTSD), slow the progression of multiple sclerosis, and protect eyesight from glaucoma, among other medical benefits.

The side-effects of pot are minimal, especially when compared to legal, often lethal drugs like OxyContin or Xanax. The consequences of a marijuana arrest, however, can be far more damaging than the drug itself.

America’s legal system continues to treat the plant as if the 1920s propaganda film Reefer Madness were true. In the United States -- where a marijuana arrest occurs every 42 seconds, on average -- the war on pot has disastrous consequences for its victims. Here are 10 of the most shameful examples in which the crime – related to weed -- does not even come close to matching the punishment.

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Save the Jury

How to amend the Constitution to make the criminal justice system more fair.

Over the next few weeks, some of Slate’s favorite legal eagles will propose their favorite Constitutional amendments, in the service of our effort, with Me the People author Kevin Bleyer, to rewrite the founding document. Here’s the first crack from NYU law professor Rachel Barkow, for the benefit of another group we think of fondly—accused criminals.

Trial by Jury (Article III and the Sixth Amendment)

Defendants who wish to invoke their right to trial at the moment face an often-exorbitant price.  That’s because prosecutors often charge them with crimes that impose stiff sentences (and often mandatory ones). If they plea bargain, the sentence comes down, but if they gamble and go to trial, they usually do much more time. 

The Supreme Court has prohibited unconstitutional conditions in virtually every other context.  The state is not allowed to condition welfare benefits or permits on the relinquishment of constitutionally protected property rights or First Amendment rights, for example. But the court has taken a different path when it comes to the right to a jury trial. In this context, the court has allowed the state to condition the benefit of a lesser sentence on the relinquishment of the right to a jury trial. And it has done so for the sake of expediency.

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Five things about crime and doing the time in Canada

The Post’s Sarah Boesveld lists five things you should know about the Statistics Canada Report on Cases in Adult Court by Province 2009-10:

1. Cases on the decline
Canada’s courts heard far fewer criminal cases during the period of 2009-10 than the year prior, dropping to 262,616 criminal cases from the 392,907 disposed of by judges in the 2008-09 period. The number of cases was almost the same the year before that, but about 3% higher than in 2006-07. Before that, criminal court case loads had been dropping for four years.

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Interview with Marc Mauer of the Sentencing Project

Crime Rates Are Plummeting -- And No One Knows Why

Could it be that America is actually turning less violent? Or are we as violent as ever — but have simply found different ways of assuaging our urges?

Los Angeles' violent-crime rates are four times lower now than they were 1992. The interesting thing is, nobody can really explain why.

As of December 25, last year, only 293 homicides were reported in LA, along with 781 rapes, 10,734 robberies, and 9,129 aggravated assaults. In 1992, that blood-soaked year of the Rodney King Riots, Los Angeles saw 1,092 murders, 1,861 rapes, 39,222 robberies, and 47,736 aggravated assaults.

These figures echo a nationwide trend. "Crime Rate at 20-Year Low Level," reads a February 24 headline in the Frederick, Maryland News Post. "Major Crime at 39-Year Low in Elgin," the Chicago Tribune crowed on February 22. "Fresno's Murder Rate Is Drastically Down in 2011," announced that California's town's ABC-TV affiliate on February 23. Such headlines are typical these days. Crime's down. What's up?

Theories abound. Various agencies, such as the office of LA Mayor Antonio Villaraigosa, credit themselves with the shift. But in the din of the applause, some of these theories and claims cancel each other out.

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Jurors lean towards leniency, study shows

A STUDY of jurors has found that more than half favoured a more lenient sentence than the judge imposed in their case.

The Australian Institute of Criminology study of 698 jurors from 138 trials revealed that 52 per cent of jurors selected a less severe sentence than the judge.

This was most likely the case for culpable driving and property offences. In sex, drugs and violence offences, the responses were more evenly split between jurors who would have picked more severe and those who would have picked less severe sentences.

The study of Tasmanian jurors, released by the Australian Institute of Criminology, found that 90 per cent of jurors surveyed thought that the sentence imposed in their case was appropriate.

And, 83 per cent also believed that judges were in touch with public opinion.

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Here is a link to the report. Tom

It's Time For Our Nation To Be Smart on Crime

Smart on Crime: Recommendations for the Administration and Congress provides the 112th Congress and the Obama administration with analysis of the problems plaguing our state and federal criminal justice systems and a series of recommendations to address these failures. The report examines the entire criminal justice system, from the creation of new criminal laws to ex-offenders’ reentry into communities after serving their sentences. Our comprehensive recommendations range from helping to restore and empower victims to identifying ways to protect the rights of the accused.

Due to the undeniable human costs and the overwhelming fiscal costs, Americans from diverse political perspectives--particularly professionals with experience in all aspects of the criminal justice system--recognize that the system fails too many, costs too much, and helps too few. Smart on Crime provides the most promising recommendations for resolving our nation’s criminal justice crisis.

Leading Criminal Justice Experts Share Insights

Several Smart on Crime report contributors discussed America’s broken criminal justice system and shared their hopes for concrete reform. We invite you to hear what some of the nation’s leading experts have to say about a system of justice that they are passionate about—in their own words.

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