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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
By Molly Alarcon – 07/01/11
The United States Sentencing Commission voted unanimously yesterday to reduce racial disparities in drug sentencing and bring fairness to the nation’s federal drug laws. The vote will apply the Fair Sentencing Act of 2010, which reduced disparities in sentencing for powder vs. crack cocaine offenses, retroactively to people currently incarcerated for those offenses. Now, those convicted under the old, harsher laws can petition a judge to adjust their sentence according to the new, fairer guidelines.
In a bipartisan effort, and after 17 years of advocacy by civil rights groups, including the Brennan Center, Congress passed the Fair Sentencing Act of 2010 to rectify a severe disparity in cocaine sentencing laws. The now infamous 100-to-1 sentencing disparity, where an offender could have 100 times the amount of powder cocaine as crack cocaine to trigger the same mandatory minimum sentence, had harmful racial implications. The old laws put thousands of African Americans and Latinos in prison for longer sentences for crimes involving relatively smaller amounts of crack cocaine, a disparity that exists in other areas of the federal criminal justice system as well. The Fair Sentencing Act ameliorated this 100-to-1 disparity, but did not eliminate it. Crack offenses are still treated more harshly, but the ratio has been reduced significantly to 18-to-1.
The U.S. Sentencing Commission’s decision to allow the new law to apply retroactively to current prisoners will go a long way toward rectifying the injustice of the old law. Of the approximately 12,000 current prisoners eligible for sentence reduction come November 1, 2011 (when the retroactivity provision takes effect), 85 percent are African American. Reprieve is not guaranteed for those individuals: each must petition a judge to reduce their sentence, and the judge must consider the public safety implications of releasing each prisoner on an individual basis.
Nonetheless, the Sentencing Commission’s vote was consistent with the desires of Congress — and all of the advocates who worked to pass the Fair Sentencing Act — to see fairness restored to federal drug sentencing laws.
Tags: Justice, Criminal Justice, Sentencing Reform
By Rebekah Diller – 04/14/11
The Maryland legislature this week took an important step toward helping formerly incarcerated individuals reintegrate successfully into society. In the final hours of the legislative session, it passed a bill that promises to reform a significant financial burden the state has placed on persons on parole.
For 20 years, the state has charged people on parole a $40 monthly fee for their supervision even though the fee is largely uncollectible. The unemployed, disabled and those enrolled in education or job training programs are supposed to be exempt. However, a 2009 Brennan Center report, Maryland’s Parole Supervision Fee: A Barrier to Reentry, found that the exemption system was broken. Most persons on parole are not even aware that the exemptions exist, much less of the system for applying for one. As a result, people emerge from parole in debt and, in many cases, with bad credit.
Maryland has finally taken steps to fix this problem. A bill passed Monday and awaiting the governor’s signature, will ensure that persons on parole are made aware of the opportunity for an exemption and the process by which to apply for one. More will need to be done upon its passage to ensure that the process for obtaining exemptions becomes truly accessible. However, the bill marks an important first step toward fixing the broken exemption system and removing a major barrier to reentry for the thousands of people coming out of prison each year in Maryland . Read the Brennan Center’s testimony in support of the bill here.
Tags: Justice, Racial Justice, Criminal Justice, Fees & Fines
By Nicole Austin-Hillery – 07/30/10
This week, Congress made two important advances involving two key pieces of criminal justice legislation that are part of the Brennan Center’s criminal justice advocacy efforts.
On Wednesday, the United States House of Representatives passed historic legislation that will help to end the longstanding sentencing disparity for offenses involving crack and powder cocaine. After more than 20 years of sentencing with a 100-to-1 disparity (a disparity put in place as a response to combating, what was then perceived, as the more harmful effects of crack cocaine on urban communities), legislation that reduces that disparity down to 18-to-1 is now headed to the desk of President of Obama.
This legislation, previously passed in the United States Senate in March of this year, is historic not only in terms of how far it goes in lowering the disparity but also in terms of the bi-partisan support behind passage of the legislation.
This legislation is particularly important to the Brennan Center because it is a key part of an effort in our Justice Program to offer reforms that will help reduce the impact of racial disparities in our criminal justice system. As noted in our report Racial Disparities in Federal Prosecutions, the sentencing disparity for offenses involving crack and powder cocaine is one of the harshest examples of racial disparities in our criminal justice system. It has long been argued that the unequal sentencing involving crack and powder cocaine disproportionately punishes African-Americans and the poor. This legislation goes a long way towards completely eradicating one of the systems most insidious disparities.
Advocates, including the Brennan Center, actively sought to pass legislation that would completely eliminate the disparity but ultimately a compromise was reached in the Senate between Judiciary Committee leaders, Chair Dick Durbin and ranking Republican leader, Jeff Sessions, which resulted in reducing the disparity down to 18 to 1. This compromise also eliminates the five year mandatory minimum sentence for simple possession of five grams of cocaine. This repeal is the first repeal of a mandatory minimum drug sentence since the 1970’s. The passage of this bill is expected to reduce the federal prison population by thousands and save an estimated $42 million in criminal justice spending over the next five years.
While this legislation is not and cannot be the final word on ending sentencing disparities, it is a major step on the road towards ultimate and complete elimination of the disparity.
The President is expected to sign this bill enthusiastically into law once it reaches his desk -- as lowering the disparity has been one of this White House’s criminal justice goals.
One day prior to passage of the historic sentencing legislation, the House of Representatives passed legislation that will create a blue-ribbon, bi-partisan commission charged with examining and making recommendations for reforming the nation’s criminal justice system. H.R. 5143, introduced by Representative William Delahunt is the companion piece to a bill originally introduced in the Senate by Senator Jim Webb (S. 714), who has made creation of this commission one of his key legislative priorities.
If the Commission is created, it will be the first comprehensive review of our nation’s criminal justice system since the Johnson Administration.
The commission will study all areas of the criminal justice system, including federal, state, local and tribal governments’ criminal justice costs, practices, and policies. After conducting the review, the Commission will make recommendations for changes in, or continuation of oversight, policies, practices, and laws designed to prevent, deter, and reduce crime and violence, improve cost-effectiveness, and ensure the interests of justice. The Commission will consist of a bi-partisan group of commissioners from various realms of the criminal justice system, including prosecutors, defenders and advocates. The Commission will spend eighteen months reviewing the system prior to making final recommendations for reform.
The bill has been endorsed by approximately 100 organizations including the Brennan Center, which is part of a coalition of advocates engaged in an effort to reform certain areas of our federal criminal justice system.
Tags: Racial Justice, Criminal Justice
By David S. Udell – 05/07/10
It’s a big week for justice.
Three victories in court this week represent important steps forward in ongoing national efforts to strengthen the role of the courts, secure the right to counsel, and hold government accountable to the rule of law: Hurrell-Harring v. State of New York, Duncan v. State of Michigan, and City of NY v. Maul. Through a series of amicus briefs, the Brennan Center is proud to have played a role in each.
Hurrell-Harring v. State of New York is a landmark decision on the right to counsel, just issued by the New York Court of Appeals. In this suit, brought by the New York Civil Liberties Union and the law firm Schulte Roth & Zabel, the plaintiffs (individuals charged with crimes) argue that systemic deficiencies in how five New York counties provide indigent defense services mean that poor people are regularly denied effective representation in criminal proceedings.
The State had sought to have the lawsuit dismissed, arguing that the individuals charged with crimes should not be permitted to bring an affirmative lawsuit to end the deficiencies, but instead should wait for the legislature to improve the system, or, alternatively, bring post-conviction appeals in their own individual cases. The Brennan Center, in partnership with Richards Kibbe & Orbe LLP, filed an amicus brief on behalf of former prosecutors arguing that the case should be allowed to proceed. The brief emphasized that the deficiencies alleged by the plaintiffs prevent prosecutors from being effective in their jobs and undermine the integrity of New York’s entire criminal justice system.
Writing for the majority, Chief Judge Lippman rejected the State’s arguments and ruled that the case could go forward. The Court concluded that the plaintiffs had alleged facts sufficient to state a claim for the violation of their Sixth Amendment right to counsel, as guaranteed under Gideon v. Wainwright. Critically, the Complaint had alleged both that criminal defendants regularly lack representation during critical stages of their criminal cases, and that even when counsel is appointed, the counsel is so non-responsive and disengaged from cases as to leave defendants effectively without representation at all. The Court also acknowledged the arguments in the Brennan Center brief, explaining that “[t]his action properly understood, as it has been by distinguished members of the prosecution and defense bars alike, does not threaten but endeavors to preserve our means of criminal adjudication from the inevitably corrosive effects and unjust consequences of an unfair adversary process.” This case will now proceed in the trial court.
Also from the New York Court of Appeals this week is City of New York v. Maul. In Maul, the majority held that a trial court correctly authorized a class action to proceed on behalf of developmentally disabled children and young adults, represented by the law firm, Patterson Belknap Webb & Tyler LLP, against state agencies responsible for determining appropriate placements in light of the plaintiffs’ disabilities. In giving a voice to a class of plaintiffs seeking to compel corrective action by the agencies, the decision secures a role for the courts in holding state executive agencies accountable to the rule of law. In an amicus brief that the Brennan Center helped to shape, the Center joined a statewide coalition of organizations urging the Court to recognize the value of the class action device as an essential tool for confronting government inaction that violates individuals’ statutory rights.
And, finally, last Friday, Michigan’s highest court ruled that another right to counsel suit, Duncan v. Michigan, could proceed. This suit, brought by the American Civil Liberties Union, the ACLU of Michigan, and the law firm Cravath Swaine & Moore, on behalf of indigent individuals accused of crimes in three Michigan counties, argued that Michigan’s provision of indigent defense services is constitutionally inadequate. In a succinct order, the Court declared that it is too early to dismiss a case in which plaintiffs allege that failures in the delivery of indigent defense services threaten denial of their constitutional right to counsel. This case, too, will now go forward in the lower court.
The Brennan Center submitted an amicus brief in Duncan, along with NAACP LDF, the Constitution Project, and the National Association of Criminal Defense Lawyers. The Brennan Center was also involved early on in helping investigate the facts and construct the complaint that became the Duncan lawsuit. Additionally, the Brennan Center Strategic Fund (our 501C4 affiliate), has been performing an ongoing role in helping to guide the work of the Michigan Campaign for Justice in advancing a comprehensive reform effort in Michigan.
Together, these cases represent an important step toward ensuring equal justice and affirming courts’ vital role in protecting constitutional rights.
Tags: Justice, Racial Justice, Criminal Justice, Community-Oriented Defender Network, Indigent Defense Reform
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