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American Bar Association endorses multiple criminal justice reform proposals

American Bar Association endorses multiple criminal justice reform proposals

The policy making body of the American Bar Association has approved multiple resolutions calling for a major reform of bail, an end to locking juveniles up in solitary confinement, and an end to mandatory minimum sentences.

The resolutions put the ABA, a voluntary professional association with over 400,000 members, in line with what many criminal justice reform groups have been actively pushing for years.

The resolution calling for bail reform urges local governments to adopt policies that allow people charged with crimes to get out of jail on personal recognizance or unsecured bonds. It also encourages local governments to only seek cash or secured bonds when they are “necessary to assure the defendant’s appearance and no other conditions will suffice for that purpose.” The resolution further suggests “that pretrial detention should never occur due solely to an inability to pay.”

Bail reform has been gaining steady traction around the country. Sen. Rand Paul (R-KY) and Sen. Kamala Harris (D-CA) recently sponsored legislation to reform bail nationally and states like Kentucky and New Jersey and the District of Columbia have moved to reform their respective practices. District Attorneys in places like Chicago and Houston have also come out in support of reform, arguing that it’s necessary to reduce the prison population and avoid disrupting the lives of people who could lose their jobs and income if they remain locked up for months or years on unresolved charges.

The ABA resolution and accompanying report also recommends doing away with juvenile solitary confinement. It suggests that temporary confinement of up to four hours could be used when a juvenile’s behavior could be harmful to himself or others. But the confinement should conclude when the immediate threat is over.

The ABA’s resolution around juvenile solitary confinement echoes ongoing efforts to end the practice. For example, former President Barack Obama adopted the Department of Justice’s recommendation to end solitary confinement in federal prison facilities. Yet the practice persists at the state and local levels.

The case of Kalief Browder generated national attention and outrage after it was learned that Browder had been locked up at Rikers Island in New York for three years — two of which were in solitary confinement — after he was wrongfully arrested for stealing a backpack.

Browder suffered mightily due to his isolation and treatment while in jail and attempted to kill himself four times. He later committed suicide after the charges were finally dismissed and he was released.

How widespread juvenile solitary confinement is at the state and local level is largely unknown due to the absence of available information.

According to Solitary Watch: “It is impossible to know how many young people under the age of 18 are suffering in solitary confinement as Kalief did, since neither state nor federal governments have reliable data on the total number of youth placed solitary confinement each year. The practice is known to be widespread, but it occurs differently in different types of settings and is referred to by a range of innocuous euphemisms, making it difficult to quantify or track.”

The ABA resolution also calls for an end to the use of mandatory minimum sentences. It asks the U.S. Congress and state legislatures to repeal existing mandatory minimum sentences and oppose the creation of any new such legislation.

The report stressed that the United States locks up more people than any other country on earth, and in the 25 years since the adoption of mandatory minimums for drug offenses the average annual sentence has tripled in time served.

Bar officials also pointed out that studies have repeatedly shown that mandatory minimum sentencing more harshly impacts people of color, with black defendants more likely to be charged and sentenced to a mandatory minimum sentence.

“Sentencing by mandatory minimums is the antithesis of rational sentencing policy,” the report said. “Because mandatory minimum sentences are not in line with the purposes of sentencing and, rather, lead to indeterminate sentencing, racial disparity, and mass incarceration, we urge the adoption of this resolution.”

Thanks to Jake Sussman.

Basic constitutional rights still denied in misdemeanor courts

Basic constitutional rights still denied in misdemeanor courts

If there’s a chance you could wind up in jail, you have the right to an attorney whether or not you can afford one. The U.S. Supreme Court has reaffirmedand clarified this right more than once, in doing so making clear that it applies to both misdemeanor and felony offenses. Yet in Nashville, Tennessee, defendants in misdemeanor courts aren’t being informed of this basic right, and in some cases are outright denied a lawyer, according to a report from the American Bar Association.

A review of court records showed that between 2015 and 2016, roughly 80 percent of defendants in Davidson County weren’t represented by a lawyer when their charges were resolved, according to the report. When volunteer lawyers observed misdemeanor court proceedings in September 2016, they watched as prosecutors negotiated plea deals with defendants before they were informed of or had surrendered their right to an attorney.

The lawyers also discovered that judges and prosecutors repeatedly failed to ask defendants about their financial situations, assigning unmanageable fees and not informing defendants of the possibility to have those fees reduced.

This unconstitutional denial of counsel in Nashville’s misdemeanor courts is far from isolated. Across the country, indigent defendants facing low-level misdemeanor charges are routinely denied or not informed of their right to counsel. In May 2015, the problem was acknowledged at a bipartisan U.S. Senate Judiciary Committee hearing on the right to counsel for indigent defendants.

“The Supreme Court’s Sixth Amendment decisions regarding misdemeanor defendants are violated thousands of times every day,” testified Sen. Chuck Grassley. “No Supreme Court decisions in our history have been violated so widely, so frequently, and for so long.”

Scenes described by the ABA report illustrate a daily reality playing itself out in overburdened state and local justice systems. Defendants are shuffled through courtrooms like parts on an assembly line, with efficiency taking precedence over justice. Prosecutors were observed discussing plea deals with groups of as many as five defendants at a time, rushing them through an opaque process without explaining the consequences of opting for a guilty plea.

Public defenders were not present in the courtrooms observed by the volunteer lawyers, and judges didn’t explain what was at stake for defendants.

“I think it’s a situation where a judge is more concerned with the number of cases in his courtroom than making sure that the prosecutor is doing their job and the defendant’s rights are protected,” Joseph Ozment, president of the Tennessee Association of Criminal Defense Lawyers told ProPublica.

The ABA report on Nashville is the first of a “larger, national project to review practices in misdemeanor courts in other states throughout the country.” It’s far from being the first formal documentation of this pervasive problem, which is acknowledged in the report’s introduction. But in spite of ample evidence of the problem, Sixth Amendment violations in low-level courts persist.

Thanks to Jake Sussman.

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A chance at freedom, barely

Louisiana State Penitentiary, otherwise known as “Angola,” where Henry Montgomery resides

A chance at freedom, barely

71-year-old Henry Montgomery has been in prison for over 50 years for his role in the shooting death of East Baton Rouge sheriff’s deputy Charles Hurt. But he now has a chance to see the free world. The petitioner in the U.S. Supreme Court case Montgomery v. Louisiana, which gave hope to thousands of people who thought they had no chance at redemption, finally received a parole-eligible sentence in July. He plans to apply for parole this year.

In Montgomery v. Louisiana, the Supreme Court held that Miller v. Alabama — which made automatic life-without-parole sentences for juveniles illegal — was retroactive. As a result, thousands of people sentenced to die in prison now have the opportunity to demonstrate to a court that they are not, in fact, “irreparably corrupt” and are capable of redemption.

Montgomery’s early life is a textbook example of the people who are facing resentencing after decades in prison — sentences that exceed what most adults convicted of murder receive. According to filings by Montgomery’s attorney, Montgomery had a childhood filled with physical abuse and neglect. His IQ at the time of his 1969 trial was estimated to be in the 70s. Since his time in prison, Montgomery has been a model inmate. The judge presiding over his resentencing, citing the recent changes in the law, begrudgingly agreed that Montgomery was not “irreparably corrupt.”

Hillar Moore, the current elected District Attorney for East Baton Rouge Parish, did not take a position during the hearing, instead focusing on the impact on the victim’s family. At the time of the Montgomery v. Louisianadecision, Moore told a local news program, “Disappointed by the decision, respect the decision, will follow the decision obviously, there will be no appeal to this decision.” Moore than added his concern that 17-year-olds would somehow commit more murders and serve shorter sentences in juvenile facilities. (Notably, Moore’s stated concern is not the actual holding of Montgomery, which simply held that most juveniles should be eligible for parole, not released after a short juvenile sentence.)

Moore’s fear-mongering gobbledygook is hardly surprising. Both the court and the district attorney were forced to follow the law, but they did so as half-heartedly as possible. This resistance is shared by other prosecutors across the state. Earlier this year, the Louisiana District Attorney Association blocked a recommendation that would have given all juveniles a chance at parole after 30 years (along with other basic reforms) which would have saved the state money and complied with the Supreme Court’s rulings.

And the state has continued to sentence juvenile offenders to life-without-parole: out of 23 eligible cases, Louisiana DAs have obtained life-without-parole sentences for 18 of them, a high rate considering that the sentence is supposed to be reserved “for all but the rarest of juvenile offenders.” Adding to the many challenges for those seeking a shot at freedom, attorneys assigned to represent individuals like Montgomery have limited resources; no additional funds were allotted for these time-consuming and costly investigations.

All of which is a disturbing portent for the sentencing outcomes for the nearly 300 inmates who are serving life without parole sentences for crimes they committed as teenagers in Louisiana (a number which is the third highest in the nation after Pennsylvania and Michigan).

Twenty states have already decided that life-without-parole sentences for juveniles just don’t make sense and have eliminated them; another 14 have almost no one serving the sentence. As Louisiana and other states contend with the shifting legal landscape, people like Montgomery may finally have a chance to see the world without bars.

Thanks to Jake Sussman.

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