Blog
Racial Justice
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 Laura Klein Abel – 02/28/11
This month, the Attorney General instructed the head of every executive agency to take immediate action to ensure that the agency is able to communicate with the people it serves, regardless of English language ability. While this move has been overshadowed by the justifiably loud celebration of the Justice Department’s decision to stop defending the anti-gay Defense of Marriage Act, it promises to have an equally profound effect on civil rights.
In order to serve its customers, the federal government must be able to communicate with them. As the Attorney General wrote, “[e]vents such as the H1N1 influenza pandemic, Hurricanes Katrina and Rita, the Gulf oil spill, and the 2010 Decennial Census highlight the need for federal agencies to ensure language access.”
Miscommunication can lead to tragedies. Human rights groups have documented instances of immigrants unable to communicate their need for health care, food or other assistance to staff at the detention centers run by the Department of Homeland Security. Domestic violence victims have been unable to inform law enforcement officers of their need for protection. Parents have been unable to obtain Food Stamps or healthcare for their children.
A year ago, on behalf of the National Language Access Advocates Network, the Brennan Center warned the Justice Department about these problems, describing the failure of many federal agencies to comply with their language access obligations. As we had recommended, the Attorney General’s recent letter to the executive agencies instructs each to develop or update a plan for ensuring that the agency’s own employees are able to communicate with the limited English proficient people they encounter. And, it reminds each of its obligation to provide language assistance guidance to all non-profits, state and local governments, and businesses it funds. Most importantly, the letter warns that DOJ will monitor whether federal agencies are fulfilling their language access obligations.
Without interpreters, all too often federal agencies cannot communicate with the people they serve. Without monitoring, all too often the Justice Department’s warnings are just empty words. The Attorney General’s letter promises improvement on both fronts.
Tags: Justice, Racial Justice, Civil Justice, Language Access
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 Garima Malhotra – 07/06/10
In a political climate where the partisan divide makes allies and alliances more predictable every day, last week's USA Today shed light on a rather unusual set of allies: cops and individuals recently released from prison. As USA Today reports, re-entry programs in Michigan and Rhode Island pair corrections officers with inmates before and after their release in an effort to aid them with their transition back into society, with the ultimate goal of preventing future crime.
It is surprising that such a logical approach is untraditional – and it is not surprising that it is effective. For example, in the western region of the Michigan Prisoner Re-entry Initiative program, only 11% of the program’s 713 participants have been convicted of new crimes in last four years – compared to 70% nationally. It goes without saying that job training, mentoring, counseling and support help the transition from prison to community and prevent recidivism.
But the idea is not new to the Brennan Center. Since 2007, we have been building a similar partnership. After a national convening of law enforcement and criminal justice allies, we created a Law Enforcement & Criminal Justice Advisory Council with whom we partner on both on state and federal reform of criminal disenfranchisement laws. Current members include police chiefs, prosecutors, heads of probation, parole and corrections departments, and presidents of leading professional law enforcement and community supervision associations.
These law enforcement professionals recognize that restoring the right to vote after release from incarceration affirms the returning members’ value to the polity, encourages participation in civic life, and helps to rebuild the ties that motive law-abiding behavior.
The Brennan Center Law Enforcement Advisory Council has been enormously effective. The American Probation and Parole Association (APPA), the National Black Police Association (NBPA), the Association of Paroling Authorities International (APAI) and the American Correctional Association (ACA) have all passed resolutions in favor of voting rights restoration. Members of the law enforcement community have supported campaigns to restore the right to vote to people with prior convictions across the country, including in Kentucky, New York, Rhode Island, Washington and Virginia. In December 2009, high ranking law enforcement and criminal justice professionals wrote to members of Congress urging them to sign the Democracy Restoration Act, legislation that seeks to restore the right to vote to individuals upon release from prison. And just recently, a group of law enforcement submitted an amicus curiae brief in a case that challenges Washington’s felony disenfranchisement law, arguing that the laws impede rehabilitation and successful reintegration.
When testifying recently before a United States House Judiciary Subcommittee, APPA Executive Director and Advisory Council member Carl Wicklund stated, “One of the core missions of parole and probation supervision is to support the successful transition from prison and jail to the community. Civic participation is an integral part of this transition because it helps transform one’s identity from deviant to law-abiding citizen.” Providence Police Chief Dean Esserman, another supporter of Rhode Island camping and Advisory Council member, explained, “denying the vote to people who completed their prison sentence disrupts the re-entry process and weakens the long-term prospects for sustainable rehabilitation.” And Gil Kerlikowske, now the Director of the Office of National Drug Control Policy, wrote when he was Chief of Police in Seattle, “voting is an important way to connect people to their communities, which in turn helps them avoid going back to crime. . . . We want those who leave prison to become productive and law-abiding citizens. Voting puts them on that path.”
In fact, the relationship between Rhode Island Department of Corrections Director A.T. Wall and Andres Idarraga, described in the USA Today article, started well before Andres asked Director Wall for a recommendation to Yale Law School. Andres was one of the primary spokespeople for the Rhode Island Right to Vote campaign, and he is one of 15,000 Rhode Islanders with a conviction in their past who had their right to vote restored when voters approved a ballot referendum in November 2006. Rhode Island became the first state to approve Brennan Center’s model bill that not only restores voting rights to individuals upon release from prison, but requires the Department of Corrections to notify individuals in writing about their right and provide voter registration forms. It was through his work with the right to vote campaign that Andres caught the attention of Director Wall, who had endorsed the campaign and is currently a member of our Advisory Council.
This partnership between corrections/law enforcement individuals and people coming out of prison is exciting and promising. It shows an increasing commitment within the criminal justice community to help address some of the systematic problems that result in some individuals’ repeated contact with the criminal justice system. Hopefully, this collaboration among unusual allies will continue to grow across the country, and the intuitive link between civic participation and successful re-entry will no longer be ignored.
Tags: Democracy, Voting After Criminal Conviction, Law Enforcement & Criminal Justice Advisory Council, Racial 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
By Alicia Bannon – 05/04/10
[new BC letterhead]
A lawsuit challenging Michigan’s inadequate defense services for the poor received an important victory on Friday, when the Michigan Supreme Court ruled that the suit could go forward. Now the spotlight shifts to New York, where a similar lawsuit, Hurrell-Harring v. State of New York, is pending before New York’s highest court, which could issue a decision at any time. These two cases represent the cutting edge of an important national movement to ensure that individuals have adequate representation in criminal proceedings.
In Duncan v. State of Michigan, a group of indigent people charged with crimes, represented by the American Civil Liberties Union of Michigan, maintained that the indigent defense systems in three Michigan counties deny countless poor people the right to effective representation in their criminal trials, violating both the United States and Michigan constitutions.
According to the plaintiffs, these counties fail to provide even basic resources and safeguards to provide criminal defendants with competent representation – for example, attorneys lack supervision and training, there are no performance or eligibility standards to monitor their work, and there are no standards for attorney workload to ensure that attorneys have adequate time and resources to properly represent their clients.
The result is that poor defendants routinely lack representation that meets even the basic standards of the legal profession. And the consequences are grim – including wrongful convictions (with the real wrongdoers roaming free), excessive incarceration, and costly delays and appeals that burden prosecutors’ offices and courts.
Moreover, as the Brennan Center argued in an amicus brief to the Michigan Supreme Court, filed jointly with the National Association of Criminal Defense Lawyers, the NAACP Legal Defense & Educational Fund, and the Constitution Project, many of the harms to the accused that result from inadequate representation cannot be remedied after-the-fact by post-conviction proceedings. For example, when attorney error leads to the wrongful denial of bail, no post-conviction review can undo the loss of liberty, as well as the resulting disruptions to work, family, and other important life commitments.
In allowing this suit to go forward, the Michigan Supreme Court implicitly recognized the vital role that the judicial branch plays when state action (or inaction) threatens systemic violations of constitutional rights. As the lower court explained in its earlier ruling [pdf],
“We cannot accept the proposition that the constitutional rights of our citizens, even those accused of crimes and too poor to afford counsel, are not deserving and worthy of any protection by the judiciary in a situation where the executive and legislative branches fail to comply with constitutional mandates and abdicate their constitutional responsibilities, either intentionally or neglectfully. . . . Judicial modesty does not equate to ignoring constitutional obligations.”
The current focus on reform extends far beyond Michigan. Across the country, in places that have forever failed to adequately guarantee the right to counsel, litigation, public education, exonerations, and community impatience are prompting states to act. Georgia, Montana, and Texas are three states with new statewide public defender systems. The progress isn’t perfect, of course; for example, Georgia has already backtracked on some of its reform efforts. But the progress is significant, and it is just the beginning.
Right now, all eyes are back on New York. Like Michigan, New York regularly denies poor defendants effective representation, particularly in counties outside of New York City. And like Michigan, New York has a legislature that has consistently failed to fix the problem. New York’s highest court should follow Michigan’s lead and ensure that all individuals – rich and poor – are guaranteed their constitutional right to counsel. When all else fails, it is up to our courts to ensure that justice is done.
Tags: Justice, Racial Justice, Criminal Justice, Community-Oriented Defender Network, Indigent Defense Reform
By Brennan Center for Justice – 04/27/10
The U.S. criminal justice system is burdened by myriad problems ranging from over-incarceration to racial and ethnic disparities in prosecutions. In the long term, the high costs of incarceration and the effects of a flawed system are unsustainable. At a press conference the morning of April 27, a bipartisan group of Representatives announced the introduction of a bill that aims to create a transparent, bipartisan Commission that will make recommendations for reform based on a comprehensive national review of our Criminal Justice System. Read more about the bill and the Commission it aims to create.
Tags: Justice, Racial Justice, Criminal Justice, Indigent Defense Reform, Sentencing Reform
By Nicole Austin-Hillery – 04/21/10
As a first-generation African-American female civil rights attorney, I have always been aware of the sacrifices that were made and the lives given so that I could attach that title to my lowly name. I was reminded of these sacrifices yesterday, on hearing the news of the death of Dr. Dorothy I. Height, one of the pre-eminent civil rights pioneers and President Emeritus of the National Council of Negro Women. Dr. Height’s passing comes on the heels of the death of another civil rights giant, Dr. Benjamin Hooks, former head of the NAACP. This seems a good moment to take stock of the civil rights warriors whose lives embolden me and sparked my decision to become a civil rights attorney.
Some people are enamored with celebrities and the lives they lead. I am enamored by the civil rights leaders whose decisions to stand up and oppose what is wrong – with their voices, their bodies, their lives – changed the way all Americans live their lives.
This morning, I stopped to reflect on the privilege I’ve had to meet some of my heroes and heroines and to say, thank you. Early in my career I met almost all of the Little Rock Nine; I remember feeling as though the stories that I read about their desegregation efforts had suddenly come to life! I was nearly speechless when I met Congressman John Lewis; I’d read his biography “Walking With the Wind” and made my way to his office where he graciously answered my questions as I tried to map out how my generation of civil rights leaders might succeed, as he had, in forging change. I still get chills when I think about meeting Dr. Height in Durbin, South Africa during the World Conference Against Racism and Xenophobia; I remember feeling amazed that her effort to forge equality for people of color and women meant that, despite being wheelchair bound, she was “no ways [too] tired” to travel half-way across the world in a continued quest for equal justice. And how lucky I am to have had the honor of meeting Dr. Benjamin Hooks, just months ago when I listened intently as he told stories of his early years in the struggle.
Today, in some ways, is for me much like the day candidate Obama became President-Elect Obama. I shed many tears that day. Not because this country elected its first African-American President but because I remembered all of the lives that were lost and the blood that was shed so that November 8th, 2008 would be possible. I shed tears today as I mourn the losses of Dr. Benjamin Hooks and Dr. Dorothy Height and remember that I continue to stand on the shoulders of their greatness.
Tags: Democracy, Justice, Racial Justice
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