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Criminal Justice
By Roopal Patel & Meghna Philip – 12/22/11
If Lindsay Lohan can afford to pay more than $100 per night to stay in jail, so should anyone else who gets in trouble with the law, at least according to one California county official, Jeff Stone.
Last week, Riverside County, California initiated Stone’s plan to charge inmates $142 per night for being incarcerated in local jails. This is only slightly less than a one-night stay in Riverside’s finest hotel, which runs $190.
This jail stay fee is a short-sighted, fiscally insensible policy. The vast majority of those incarcerated will not be able to pay the fee. Celebrities like Lindsay Lohan are hardly representative of the majority of California’s jailed or imprisoned people, who are disproportionately poor. Stone himself has estimated that only about 25 percent of the county's prisoners would be able to pay anything at all if charged this new fee. The Sheriff's Deputy Chief of neighboring San Bernardino County said Stone’s estimate was high.
Under the ordinance, the county is allowed to garnish wages, put liens on people's homes, and charge parents if their children are jailed. Such financial consequences will push already economically struggling individuals further into poverty and have detrimental effects on the rehabilitation and re-entry of those involved in Riverside County’s criminal justice system.
In addition, there is evidence that instituting such fees may actually result in a net loss for state and local governments. In 2010, an investigative commission in Massachusetts demonstrated that the costs of adding a new jail fee in that state would far outweigh the benefits. The commission determined that the best fee system must track and determine an inmate's ability to pay, and that adequate development of tracking systems would be very costly. Considering the limited revenue that could be generated from an overwhelmingly indigent inmate population, as well as the socioeconomic costs of collecting from such a population, the commission decided not to implement the new jail fee. Such detailed cost-benefit analyses must be conducted before adding new fees that could be detrimental to both local budgets and inmates' rehabilitative prospects. Unfortunately, Riverside County has neglected such a process and implemented a fee that will likely cost more to track and enforce than any revenue it generates.
Riverside County's new policy illustrates how broken California’s criminal justice system is. In May, the Supreme Court found California’s state prison overcrowding unconstitutional, ordering it to downsize by 30,000 prisoners. In response, the state legislature approved a realignment plan to shift thousands of prisoners to local jails, stretching local resources to the limit and resulting in absurd policies such as Riverside’s new pay-to-stay fee.
But shifting the state prison population to local jails does not remedy the problem of prison overcrowding. California must focus its immediate energy on better long-term solutions to address the problems that led to its current state of overincarceration, such as scaling back its Three Strikes law, the toughest in the country. (Advocates are gearing up for a proposed ballot initiative to roll back the law next year.)
In the meantime, local jurisdictions must institute reasoned impact analysis when considering placing new debt burdens on the overwhelmingly poor population involved in the criminal justice system.
Tags: Justice, Criminal Justice, Fees & Fines
By Meghna Philip – 12/15/11
Last year, the Brennan Center published a comprehensive national report on the negative consequences criminal justice debt has on poor people. The report highlighted how underfunded criminal justice systems have sought to fill budget gaps by administering fees, fines and surcharges more and more aggressively, with less and less consideration of people’s ability to pay. Since the initial publication of this report, advocates around the country have mobilized around legal and legislative action to protect poor people from the unfair consequences of criminal justice debt.
Last week in Washington, D.C., at the National Legal Aid and Defenders’ Association (NLADA) Centennial Conference, the Brennan Center hosted a panel to highlight some particularly successful and inspiring efforts. The panel featured Nick Allen of Columbia Legal Services (CLS) in Washington State, Melissa Broome of the Job Opportunities Task Force in Maryland, and Carl Takei of the ACLU’s National Prison Project.
Nick Allen presented his organization’s successful pursuit of legislation for new waivers and reductions of interest on certain fines and fees. Interest on legal debt in Washington accrues at the high rate of 12 percent per year during incarceration, when prisoners are either unemployed, or making extremely minimal rates working inside prisons, and thus effectively unable to make payments. Before the legislation passed, one of CLS’ clients entered prison with $35,000 in debt. By release, his debt was more than $100,000 due to interest accrued. The new legislation allows a person to petition the court, after release, for a waiver of all interest that has accrued on their non-restitution legal debt during incarceration. The legislation received bipartisan support due to its potential for encouraging realistic payments of legal debt, reducing the costs of debt-related re-incarceration over time, and contributing to successful re-entry.
Melissa Broome spoke of the Job Opportunities Task Force’s efforts to pass legislation ensuring that existing statutory fee exemptions for poor parolees are actually enforced. In 2009, a Brennan Center report found that categorical exemptions put into place by the Maryland legislature to protect people who are unable to pay were largely inaccessible and unenforced. The legislature had vested the Parole Commission, a body with which parolees have little ongoing contact, with the exclusive authority to grant exemptions. The Commission routinely imposed the $40-per-month fee, without conducting evaluations of whether parolees should receive exemptions. Resulting debts led parolees to avoid meeting with their parole agents, which would then lead to parole violations and re-incarcerations, costly to the state. After significant advocacy efforts to highlight the negative consequences of inadequate fee exemptions, Maryland this year passed legislation to ensure that parolees are informed of and have better access to the fee exemption process.
Carl Takei outlined the ACLU’s litigation strategy to protect poor people from the rise of new debtors’ prisons in several states. This alarming practice violates the Supreme Court’s decision in Bearden v. Georgia, which dictates that it is a violation of the Fourteenth Amendment to jail someone who has failed to pay fines or restitution due to indigence. The ACLU’s report, In For A Penny, details its strategy of litigation and public education to put an end to this unconstitutional practice in Louisiana, Michigan, Ohio, Georgia and Washington.
Last week’s panel showcased promising examples of how to tackle reform in the creation and collection of criminal justice debt, and how to protect poor people from unjust consequences. A forthcoming Brennan Center report will highlight such stories, and provide further examples of achievable reforms that can be implemented across the country. As cash-strapped criminal justice systems continue to enhance debt collection, activists, advocates and policymakers must continue to fight penny-wise, pound-foolish practices and their disproportionate effects on poor people.
Tags: Justice, Criminal Justice, Fees & Fines
By Sarah Hook – 11/29/11
It has been nearly 50 years since the Supreme Court acknowledged in Gideon v. Wainwright that “lawyers in criminal courts are necessities, not luxuries.” The right to court-appointed counsel is now common knowledge, but the devil is in the details. When does this right attach? For some criminal defendants, it may be too late.
Recently, the Maryland Court of Appeals heard arguments in DeWolfe v. Richmond, in which the Brennan Center participated as a friend of the court. The case involves people who were arrested in Baltimore and detained after a bail hearing. Their requests for an attorney at this bail hearing were ignored. The circuit court ruled that they were entitled to an appointed attorney during the bail hearing because it constituted a “critical stage” in the proceeding.
The Maryland Attorney General is arguing that the initial bail hearing is not a critical stage for three reasons: the proceeding is not yet a “case” under the Maryland Public Defender Act, the hearing is not adversarial, and the lack of counsel is inconsequential because people facing criminal charges are only without counsel for 24 hours. This argument is flawed in each of its points, but more importantly, it demonstrates a disturbing disconnection from the realities faced by people going through the criminal justice system. It is only by elevating process over people that the Attorney General’s arguments are even plausible. A client-centered analysis of the situation reveals how correct the circuit court’s decision was, and why the Court of Appeals must affirm.
People arrested in Baltimore City are taken to Central Booking where charges are prepared and they wait to see a Bail Commissioner. The average wait time until a person is formally charged is 18 hours, during which the person is held in a crowded cell. It is difficult to tell a person who’s locked in a cage that they don’t yet have a “case.”
Viewed from the perspective of the accused, the proceeding is decidedly adversarial. The prosecutor sets out the probable cause for arrest and may request bail. The person then has the opportunity to argue against the prosecutor. Confronted with the authority of the Bail Commissioner and the charges arrayed against them, the accused are being forced to defend themselves against a powerful, professional adversary. Keep in mind that the average person accused of a crime does not have a high school diploma. These are exactly the kinds of circumstances where the advice of a lawyer is “a necessity.”
The Attorney General’s argument that bail hearings are inconsequential is laughably unrealistic. Twenty-four hours in jail is consequential for anyone who experiences it, as Judge Adkins pointed out during oral arguments. And people who can’t pay the amount set by the Commissioner must wait in jail until the next court session, which could be up to 30 days later.
Further, defense counsel is necessary at bail hearings to protect the accused and prevent prosecutorial overreaching. Without the advice of a lawyer, a person may reveal harmful or irrelevant information that could put their job, housing, or immigration status in jeopardy in ways that the right to counsel was designed to prevent. Since the Bail Commissioners are not required to have any legal training, the only lawyer in the room is the prosecutor. At this critical stage, the adversarial system is one adversary short.
The Sixth Amendment was not created to make the criminal justice system easier for the state to administer — it was designed to protect people. In holding that bail hearings are a “critical stage,” the circuit court correctly prioritized people over process. The Court of Appeals should affirm the circuit court’s decision and acknowledge that people have the right to counsel at the initial bail hearing.
Tags: Justice, Criminal Justice, Community-Oriented Defender Network, Indigent Defense Reform
By Molly Alarcon – 11/02/11
The Senate recently voted to reject a bill introduced by Sen. Jim Webb, D-VA, to create a bipartisan commission to study the nation’s broken criminal justice system. But its narrow defeat has only emphasized the strong support that exists for this legislation outside the halls of Congress.
There is no doubt that the country’s criminal justice system needs reform. The United States has 5 percent of the world’s population, but 25 percent of its prisoners — that’s 2.3 million Americans in prison, with an additional 5 million on probation or parole. The Census Bureau estimates that states and local governments spend around $195 billion a year on criminal justice services, a figure that continues to rise even as crime rates decrease. More than half of federal prisoners are incarcerated for non-violent offenses, and minorities are vastly overrepresented in jails and prisons. Groups and citizens from across the political spectrum supported the bill, demonstrating widespread dissatisfaction with this current system. The outpouring of support should compel this gridlocked and hyper-partisan Congress to take immediate action.
The idea of a national commission to study local, state, and federal criminal justice practices and make recommendations for evidence-based reforms is not new. In 1965, President Lyndon Johnson convened the President’s Commission on Law Enforcement and the Administration of Justice, which created the most recent study of its kind, as the nation faced rising crime rates, the increased use of narcotic and other illegal drugs, and overburdened local and state courts. According to the Commission’s executive director, James Vorenberg, the group “sought to show how police, courts, and correctional agencies could both reduce crime and treat people more decently.” The Commission made more than 200 recommendations, few of which, apart from expanded funding for local law enforcement, Congress passed into federal law. Instead, smart recommendations, like diverting drug offenders to treatment programs rather than prisons, expanding the ability of local courts to handle increased caseloads, and using technology to optimize administrative processes, were ignored. To this day, courts remain overburdened, non-violent drug offenders represent a huge proportion of prison populations, especially at the federal level, and court dockets are clogged and disorganized.
Advocates, reformers, academics, faith groups, law enforcers, and citizens from across the political spectrum have called for the federal government to sponsor this study of local, state, and national criminal justice policies. The Brennan Center, along with a diverse coalition of groups, including organizations like the National Correctional Industries Association, the American Probation and Parole Association, the American Jail Association, the United Methodist Church, the ACLU, Amnesty International, and the NAACP, worked in support of the Act. Appealing to Senators’ desires for justice, fairness, and fiscal discipline, our organizations were successful in encouraging 57 Senators to vote in favor of the bill last month, just shy of the 60 votes required for passage.
Since the vote, Senator Webb’s bill has received positive media attention from a number of major outlets, including editorial pieces by The New York Times and The Washington Post. A conservative blogger at the National Review called the Senate’s failure to pass the bill an “absolute scandal.” Critics claim the commission violates states’ right to determine their own criminal justice policies. But this argument rings hollow, as the commission would merely study state and local policies and make non-binding recommendations for reform based on best practices gleaned from the states themselves. Even fiscal objections to the bill lack punch — the commission would cost $5 million dollars in FY 2012, a pittance compared to the potential savings the group’s recommendations could yield.
“We cannot tolerate an endless, self-defeating cycle of imprisonment, release, and reimprisonment which fails to alter undesirable attitudes and behavior,” said President Johnson in his 1965 announcement of his Commission. “We must find ways to help the first offender avoid a continuing career of crime.” Nearly 45 years after the Johnson administration’s review — and at a time when state, local, and federal budgets are tight — finding ways to protect public safety, support rehabilitation, reduce racial disparities, and promote fairness and equity in our laws while enacting cost-effective criminal justice policies should remain a national priority. This 112th Congress, already accused of being the least productive Congress in recent history, must recognize the broad support this idea has garnered and pass the National Criminal Justice Commission Act without further delay.
Tags: Justice, Criminal Justice
By Thomas Giovanni & Laura K. Abel – 10/28/11
On Halloween, the Supreme Court will hear oral argument in a case illustrating how people and society suffer when indigent defense systems are chronically underfunded. In the case, Lafler v. Cooper, the Court will decide whether the Constitution is violated when an attorney’s advice to reject a plea bargain is based on a laughably poor legal error. However the Court decides, though, the decision will not address the underlying problems that made these errors entirely foreseeable.
In Lafler, Anthony Cooper brings a federal habeas challenge to a Michigan state court conviction. Mr. Cooper was accused of shooting a woman several times in her legs as she was running away. The most serious charge he faced was assault with intent to murder, with the maximum potential sentence being life in prison. The prosecution made a pre-trial offer: plead guilty to assault with intent to murder and take a prison sentence of approximately 4-7 years.
Mr. Cooper’s court-appointed attorney advised him to reject this plea offer, advising Mr. Cooper that because the victim had been shot below the waist, the prosecution could not establish his intent to kill. This advice was egregiously incorrect. Nonetheless, Mr. Cooper followed it and went to trial, where he was convicted on all charges and received a sentence of 15 to 30 years. By listening to his attorney’s incorrect advice, Mr. Cooper’s sentence was approximately four times longer than it would have been under the prosecution’s original plea offer.
This outcome was unfair and unnecessary. But given the state of Michigan’s indigent defense system, it is unsurprising. Michigan lacks many of the basic requirements of a functioning indigent defense system. Each county is required to run its own indigent defense system, without any statewide oversight. In many counties, including Wayne County, where Mr. Cooper’s trial occurred, there are attorneys who are assigned cases without being screened for competence, and are not provided with training or supervision. With this lack of support and oversight, it is inevitable that some attorneys will give bad advice.
These problems are well known. They have been documented in study after study.
The issues were aired publicly in the course of a multi-year class action lawsuit that eventually reached the Michigan Supreme Court. And they have been widely covered in the media.
In the face of all of this evidence, Michigan’s government has repeatedly failed to act. In a 2009 decision, the Michigan Supreme Court eschewed responsibility, saying that only the legislature could remedy the constitutional problems. The legislature has not done so. And just last month, Michigan’s governor established yet another commission to write yet another report on the problem.
Both of the lower federal courts that have addressed Mr. Cooper’s habeas petition have upheld it. The Supreme Court should do the same. But until Michigan makes a serious attempt to provide the constitutionally required level of representation to people facing criminal charges, we will see many more cases involving egregious attorney errors. In a nation founded on the principle of equal justice under law, that is simply unacceptable.
Tags: Justice, Criminal Justice, Indigent Defense Reform
By Rebekah Diller – 10/21/11
This post orginally appeared on the Vera Institute of Justice blog.
As states struggle to close persistent budget gaps, they are casting about for ways to raise revenue. One of the more penny-wise, pound-foolish schemes is to levy more fees on a group least able to pay: people involved in the criminal justice system. Just this year, Arizona instituted a $25 background check fee for any family member who wants to visit an inmate in state prison, a move made despite significant evidence that involvement with family is key for preventing recidivism.
Arizona is not alone. In Criminal Justice Debt: A Barrier to Reentry, a report published last year by the Brennan Center for Justice, we surveyed recent fee practices in 15 states and found a disturbing uptick in both the dollar amount and the number of fees imposed on criminal defendants. These fees kick in at almost all stages throughout the process: Fees may be charged for one’s public defender and prosecution, for court costs upon conviction, each day in jail or prison, and for each month of parole or probation supervision.
These fees may seem small in isolation—$25 here, $50 there—but as “The Unintended Sentence of Criminal Justice Debt” demonstrates, they can have harmful and lasting consequences. The amounts add up quickly, often totaling hundreds or thousands of dollars. Collections efforts take an added toll, generating additional fees and interest, often leading to driver’s license suspensions and wrecked credit histories. At its worst, inability to pay criminal fees paves the path back to prison by prompting violations of parole or probation, arrests for failure to appear at fee-related hearings, or other new offenses.
As the human costs mount, there is scant information about the repercussions of imposing these financial costs. Jurisdictions have looked at only one side of the ledger—the amount of money they expect to generate—without thinking through what happens when significant numbers of individuals cannot pay.
It is time to rethink the problem. First, states should exempt up front those who lack the means to pay. This is not only the just thing to do, it’s the smart thing. Jurisdictions would then stop spending scarce resources to chase down debt that is, in many cases, simply not payable.
Second, as “The Unintended Sentence” suggests, evidence-based analysis and programming are desperately needed. For individuals who cannot pay debts such as restitution and fines that are part of their sentence, credit for well-designed community service and other programming could offer a way out of the vicious debt cycle. The rigorous study associated with a demonstration project can help other jurisdictions reform their criminal debt practices too.
Tags: Justice, Criminal Justice, Fees & Fines
By Molly Alarcon – 10/18/11
The Senate will vote today and tomorrow on an appropriations bill that will influence two important federally supported programs: the Legal Services Corporation (LSC), which provides free civil legal aid to the poor, and Second Chance, a program that supports prisoner re-entry programs around the country. In addition, Senator Jim Webb of Virginia will introduce an amendment to create the National Criminal Justice Commission to study the country’s criminal justice system and make non-binding recommendations to Congress and the President.
The Legal Services Corporation distributes funds to legal aid programs around the country to assist low-income Americans facing civil legal problems, including foreclosure, domestic violence, and child custody disputes. LSC is meagerly funded by the federal government and, as a result, cannot keep up with demand for legal services. As the Brennan Center reported, programs around the country have been forced to lay off staff and cut back on services at a moment when a record number of Americans — 67 million — are eligible for LSC-funded help. In addition, a 1996 restriction bars LSC grantees from operating as effectively and efficiently as possible. The restriction bars grantees from using state, local and private funds for critical forms of representation, including class actions and legislative and administrative advocacy. In many states, justice planners have had to set up entirely separate organizations and law offices, funded by state and local public funders and private charitable sources, to do the work that LSC-funded programs cannot do, resulting in wasteful duplication of overhead, personnel and administrative costs. Read a short primer on the “non-LSC funds restriction,” here, and a full report by Rebekah Diller and Emily Savner on the restrictions here.
Currently, the Senate appropriations bill for Commerce, Justice, Science and Related Agencies preserves a minimal level of funding for Legal Services Corporation, and includes a provision to remove restrictions on how LSC grantees can use non-federal funds. This is good news. The Brennan Center has advocated lifting the LSC ban on non-federal funding since its adoption in the mid-1990s. For the third year in a row, the Senate bill’s inclusion of a short line to remove these restrictions, which was approved by the Appropriations Committee, is a significant accomplishment for legal aid supporters. While the Brennan Center would have liked to see funding for LSC increased to help the organization meet unmet demand, the funding level in the Senate bill is preferable to the House version, which includes only $300 million (as opposed to the Senate’s nearly $400 million). We urge the Senate to support the Legal Services Corporation clauses of the current spending bill.
The proposed appropriations bill also defunds the Second Chance Act, which is an unfortunate set-back for criminal justice reform advocates. As The New York Times editorial board noted, the Senate has its “priorities backward” on matters of criminal justice: in addition to removing all funding for Second Chance, it has proposed a $300 million increase in funding for the federal Bureau of Prisons to build new prisons. This would be a huge step backward, and the Brennan Center urges the Senate to restore funding for Second Chance.
The United States incarcerates more people — per capita and in total numbers — than any other country in the world, and since 1980, the federal prison population has increased 700 percent at a cost increase of 1,700 percent. Our criminal justice system has not been systematically reviewed since the Johnson administration in the 1960s. The National Criminal Justice Commission Act, which will be included as an amendment on the Senate spending bill, would create a blue ribbon commission to review the criminal justice system and recommend consensus-based, bipartisan reforms. Its passage would be an important first step toward developing evidence-based and cost-effective policies to increase public safety and improve our justice system.
Call your Senator today to voice your support for the Legal Services Corporation, the Second Chance Act, and the National Criminal Justice Commission Act.
Tags: Justice, Criminal Justice, Sentencing Reform, Civil Legal Aid
By Thomas Giovanni – 09/21/11
On September 16, 2011 the Brennan Center participated as a friend of the court in an important right to counsel case pending before Maryland’s highest court. The case, DeWolfe v. Richmond, will determine how early in a criminal case counsel must be provided to a low-income person facing criminal charges. It is one of the first cases in which a state supreme court will apply the U.S. Supreme Court’s 2008 decision in Rothgery v. Gillespie County, which held that the right to counsel begins once a police officer files a criminal charge and the accused is brought before a judicial officer.
In DeWolfe, the Maryland Court of Appeals will apply the Rothgery holding to the specific procedure used in the Baltimore City criminal courts, where a person charged with a crime may be brought before an official called a Commissioner for an initial bail hearing. During this hearing, the accused is not provided with counsel, even though the prosecutor is present. As a result, the accused may unwittingly incriminate himself. And he may be unable to meaningfully advocate for the Commissioner to decide against incarceration. The Brennan Center, together with the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, the American Civil Liberties Union of Maryland, the Center for Constitutional Rights, and the National Legal Aid and Defender Association, filed an amicus brief urging that Maryland law and the state and federal constitutions require that counsel be provided to represent the accused person at the hearing.
Tags: Justice, Criminal Justice
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