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Those closest to the problem are closest to the solution

Those closest to the problem are closest to the solution

The organization I founded, JustLeadershipUSA’s, slogan is “Those closest to the problem are closest to the solution.” It’s a slogan based on history. No movement for social justice has ever succeeded without the full participation and leadership of those most affected. The incredible movement to vanquish HIV/AIDs would never have happened without Act Up. The same can be said about the historic achievements of the Civil Rights movement, the women’s movement and the LGBTQ movement.

By the same token, without reform efforts led by formerly incarcerated people, many of them graduates of Leading with Conviction, the leadership training program run by our organization, the movement to end mass incarceration in the U.S. will not get to the finish line. Without our willingness to push the envelope and bring the sense of urgency needed to overcome decades’ worth of misguided, reactionary criminal justice policymaking, the country may squander its chance to bring about transformative change. Such change is possible, but only if we have a seat at the table and a role in deciding what’s on the menu.

In spite of the stigma and marginalization experienced by people with criminal convictions, we have built a vibrant human rights movement that challenges the most basic premises upon which this country’s criminal justice system is based. If I had to pick an event that marked the beginning of our movement it would be the 2003 founding of All of Us or None in California by Dorsey Nunn. All of Us or None went on to launch the Ban the Box campaign which has done such an amazing job of raising awareness about the collateral consequences of a criminal record. This work led to the passage of hundreds of local “ban the box” laws and, most importantly, has opened the door to fair employment practices for tens of thousands of people who would otherwise have been shut out.

This was followed by the publication of Eddie Ellis’s “language letter,” another powerful landmark in our movement’s history. Eddie Ellis (1941–2014) founded the Center for NU Leadership in New York City, and in 2007 he wrote “An Open Letter to Our Friends on the Question of Language.” The letter urged allies to reject terms like “inmate,” “convict,” “prisoners” and “felons” which were “devoid of humanness” and to refer to us as “PEOPLE in prison,” PEOPLE with criminal convictions,” etc. “ He wrote, “We believe we have the right to be called by a name we choose, rather than one someone else decides to use.” This was an empowering moment for us.

Susan Burton is another pioneer of the formerly incarcerated people’s movement. She founded A New Way of Life back in 1998 and called attention to the terrible conditions of confinement for incarcerated women and the barriers they faced when released.

These early grassroots efforts gathered momentum, and exactly a year ago the Formerly Incarcerated, Convicted People, and Families Movement held its first national conference in Oakland, CA. More than 500 people from more than 30 states came together to unite behind a 14-point platform whose first point reads:

“The first goal of changing the criminal justice system is to create and implement alternatives to incarceration, working toward a society where prisons do not exist. We demand the end of mass incarceration and commit ourselves to fighting the notion and the practice of building new prisons, juvenile detention facilities and immigration detention centers.”

Yes, we fight for incremental reforms in order to alleviate suffering. But we never forget that our long term objective is to build a society where restoration, not incarceration, is the answer. We understand that if we shoot for an audacious goal then everything else becomes low(er) hanging fruit. This is the strategy we have successfully employed in the #CLOSErikers Campaign which was launched by JustLeadershipUSA a little over a year ago. By sticking to our uncompromising demand that Rikers Island could not be reformed but had to be shuttered, we hastened the removal of young people from the island, won limits on solitary confinement, put a spotlight on the inequities of New York City’s bail system, AND pressured a reluctant mayor to announce that closing Rikers is now the city’s policy.

Bold and audacious efforts to end mass incarceration led by formerly incarcerated leaders are going on all over the country: campaigns to raise the age of criminal responsibility, to restore voting rights to people with records, to close prisons and jails, to end mandatory sentencing, and to shut down private prisons, to name a few.

Glenn E. Martin is the President and Founder of JustLeadershipUSA (JLUSA), an organization dedicated to cutting the U.S. correctional population in half by 2030. He is part of the vanguard of advocates working to make that future a reality. His goal is to amplify the voice of the people most impacted, and to position them as reform leaders. At its core, JLUSA challenges the assumption that formerly incarcerated people lack the skills to thoughtfully weigh in on policy reform. Rather, JLUSA is based on the principle that people closest to the problem are also the people closest to its solution.
Mr. Martin speaks from personal experience, having spent six years incarcerated in a New York State prison in the early 1990s. That experience has informed his career, which has been recognized with honors such as the 2016 Robert F. Kennedy Human Rights Award, 2017 Brooke Russell Astor Award, and the 2014 Echoing Green Black Male Achievement Fellowship. Mr. Martin is also the founder of the #CLOSErikers campaign. Prior to founding JLUSA, he was the Vice President of The Fortune Society, the Co-Director of the National HIRE Network at the Legal Action Center, and the co-founder of the Education from the Inside Out Coalition.
The views and opinions expressed in this article are Mr. Martin’s and do not necessarily reflect the views of the Fair Punishment Project.

Contra Costa County will stop forcing families to pay for incarcerated kids

The decision was unanimous.

Contra Costa County will stop forcing families to pay for incarcerated kids

The decision was unanimous.

Contra Costa County will no longer impose the Juvenile Cost of Care Fee, which has forced countless families to hand over hundreds — sometimes thousands — of dollars for kids in detention or serving probation. On Tuesday, nearly a year after a moratorium on imposing the fees was announced, the county’s Board of Supervisors unanimously voted to do away with them entirely.

Throughout California, Black juveniles are arrested at four times the rate of white juveniles and spend more time in detention or monitored on probation. In a report published last March, the University of California-Berkeley painted a bleak picture of Contra Costa County’s juvenile fees, specifically. By the time the moratorium went into effect last November, approximately 6,900 families were in debt. Parents and guardians were chalking up $30 a day for a kid to be housed in a juvenile detention facility, regardless of whether or not they were adjudicated for a crime. Probation also came with steep costs — to the tune of $17 a day for electronic monitoring. Collectively, the families of youth found not-guilty over a four-year period shelled out $58,172 for administrative fees. In 2015, the average length of stay was 36.65 days.

Less than one-third of the revenue was funneled into youth support.

Researchers and juvenile justice advocates have long argued that administrative fees do more harm than good. In addition to forcing poor families into debt, there are collateral consequences for the kids involved. According to the Juvenile Law Center, young people incurring these fees are more likely to recidivate. In California, specifically, fees have also resulted in individual cases lasting longer than they should, and juveniles are detained longer than what their cases warrant. Additional fines are also imposed on them — and their families — when the initial fees are not paid.

With their vote on Tuesday, Contra Costa County supervisors showed that they understand the human costs of this financial burden.

“The fee really didn’t serve a purpose,” Supervisor Karen Mitchoff, who was reportedly on the fence, said. “I do think parents have a responsibility for their child’s welfare, even if they are in our custody. But my concern was that some parents would have to pay it, and others won’t. So we just made it so nobody is going to have to pay it.”

The decision comes on the heels of a major vote in the California State legislature to repeal all administrative fees for juvenile defendants under the age of 21. The bill passed in the Senate and Assembly early this month, and now rests with Gov. Jerry Brown.

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Deceptively Tragic: Qualified Immunity in Police Suits

Minneapolis Police Squad Car
Wikimedia Commons

Deceptively Tragic: Qualified Immunity in Police Suits

It is all too commonplace to read of police-civilian encounters ending in what is reported as “tragedy.” In May of this year, 15-year-old Jordan Edwards was shot and killed when a Balch Springs, Texas police officer fired a rifle into the window of the car in which Edwards was a passenger, as the car tried to drive away from a high school party. The police chief, disavowing the officer’s actions, called it a “horrific tragedy.” In July, Australian citizen Justine Damond was shot and killed by a Minneapolis police officer when she approached the officer’s car, unarmed, to report an assault. The then-chief of police, ousted in the aftermath of the killing, called Damond’s death “clearly tragic,” and the governor of Minnesota echoed the sentiment. Examples are, unfortunately, too numerous to enumerate.

The language of tragedy makes sense coming from these sorts of elected and appointed public servants who work with and regularly communicate with the communities in which these events occur. The same is not true of another set of government actors: judges— especially those who hear the court cases that arise in the aftermath of those events. From those actors, we expect not intuitive channeling of the community’s emotional responses to events, but rather analytical dispassion and objectivity. The depth of this sentiment is evidenced by the controversy sparked in 2009, when then-President Obama was preparing to make his first Supreme Court appointment and publicly discussed what he thought were core attributes of a justice. His selection of “empathy” sparked outrage from the right and discomfort from at least some of the left. Calling balls and strikes — Chief Justice Robert’s famous description of the job of a judge — requires no emotion.

And so, it is striking when judicial opinions speak in an emotional register. After reading through a year’s worth of decisions in civil rights suits against law enforcement, I was struck by something of a pattern. Courts frequently went beyond recounting the bare facts of police-civilian encounters that ended in injury or death of the civilian to describe the encounter as “tragic.” More strikingly, this occurred disproportionately in cases where the civil suit was dismissed on the ground that the defendant officer enjoyed “qualified immunity” from suit for whatever constitutional injuries might have been inflicted.

The ability to sue police officers when they violate the rights of civilians is often thought to be an important vehicle for keeping law enforcement in check. The fact that courts frequently depart from their usual judicial register to emote about law’s inability to hold these officers accountable is striking — and disingenuous.

Here’s why qualified immunity has this effect on the power of constitutional litigation. Ordinarily, as any first year law student learns, if one person behaves negligently toward another person and causes them harm, the harmed person can sue for damages. Thanks to a Reconstruction Era federal statute known as “Section 1983” (short for 42 U.S.C. § 1983), roughly the same is supposedly true for public officials. Section 1983 creates a right of action for any individual whose constitutional rights were violated by a state or local official — including police — to sue the violator for damages. Federal officers can also, at least sometimes, be sued for violations of constitutional rights, including in instances where they violate the Fourth Amendment.

That is, except in cases of qualified immunity, which shields public officials — police among them — from lawsuits, even if a plaintiff’s rights have been violated. Exceptions are made only in cases where that plaintiff can establish that it would have been clear to every reasonable official that the offending conduct was unconstitutional in the moment it was committed. The stated justification for the blanket application of qualified immunity in civil rights suits is nakedly policy-driven: Officials frequently come in contact with the public and make decisions touching on individuals’ constitutional rights, many such decisions are discretionary or split-second, and the Court fears that public servants might be deterred from action or from service all together if their decisions could be infinitely second-guessed in litigation.

Fair enough, one might think: Police shouldn’t be at risk of a legal “gotcha” when they do their best. But over time qualified immunity has snowballed. Today, the Supreme Court insists that a plaintiff’s suit against a government officials must be dismissed even if officials violated a long-established general rule, such as “police can’t use excessive force,” so long as courts haven’t already applied that general rule in a case with facts similar to those in the new plaintiff’s case.

Consider the example of Treneshia Dukes of Clayton County, Georgia, who was severely burned when police, searching for marijuana in her home at 5 AM, entered by throwing a powerful explosive device into her bedroom. Noting the minimal gain to law enforcement in “deploying a dangerous device into a dark room” to stop mere marijuana possession, as well as the fact that the departmental policy and training barred the conduct of the officer, the Eleventh Circuit found a violation of the Fourth Amendment. But while plenty of cases had held that police may not use unreasonable force in executing a search warrant, the Eleventh Circuit had never told police that throwing this type of device into an occupied bedroom is excessive — who’da thunk ?— so Dukes’s suit was dismissed.

In theory this exacting standard applies equally to every type of constitutional suit against a government official, but it has special bite with suits alleging that police have violated the Fourth Amendment. That is because the law governing whether a particular search, arrest, or use of force violates the Fourth Amendment requires a highly context-dependent assessment of the particular facts that might have been known to officers at the time of the encounter, and the particular qualities and conduct of the civilian involved. Change the facts slightly, and the Fourth Amendment analysis can come out differently. This often leads courts to say that police couldn’t have known that the conduct in which they engaged violated the constitution. Hence, qualified immunity is a particularly effective barrier to police accountability through civil rights litigation.

Which brings us to tragedy. In at least forty decisions in the last year, courts described as “tragic” or “tragedies” the events giving rise to civil rights suits in which qualified immunity was raised as a defense. In only five of those decisions were the plaintiff’s claims permitted to go forward. In all others, the “tragedy” was held to be without civil legal recourse because of the doctrine of qualified immunity. Frequently these were not mere passing references to “tragic” facts, but extended stand-alone editorializing. For example, when the Supreme Court dismissed the claims of post-9/11 detainees who alleged that officials conspired to violate their rights, Justice Kennedy wrote for the Court, “If the facts alleged in the complaint are true, then what happened to respondents in the days following September 11 was tragic. Nothing in this opinion should be read to condone the treatment to which they contend they were subjected.” Rather, the question was simply “whether a reasonable officer in petitioners’ position would have known the alleged conduct was an unlawful conspiracy.”

If courts are using the language of “tragedy” simply to signify that injury or death at the hands of government officials is terribly sad, it is relatively unobjectionable in what it communicates. In that case, the nomenclature of tragedy serves as shorthand for the truism that the law does not protect all interests or remedy all harms.

But the judicial inclination toward the language of tragedy in this context has a different and more pernicious interpretation as well. The passage from Justice Kennedy’s opinion, and passages like it from lower courts, carry a tone of inevitability, like Oedipus’s fated downfall; it suggests courts are faced with no “good” options, like Abraham’s impossible choice between his son and his God. On this account, courts invoke tragedy to explain, implicitly, that their hands are tied in the choice they must make between the legal “question before the court” and the plaintiff’s request for legal accountability. Moreover, this suggests, whatever misfortune is suffered by the losing plaintiff, equivalent misfortune would necessarily be caused by the opposite result.

But nothing could be farther from the truth. Qualified immunity, and the impact it had in those dozens of dismissed claims, is a judicial invention through and through. The particular balance it has struck — a balance that puts a firm thumb on the scale for police against plaintiffs’ interest in recompense — has been judicially chosen. To be sure, the merits of that choice are open to debate — a debate that scholars are increasingly pushing, and one which Justice Clarence Thomas, no civil rights softie, recently suggested receptivity. But the language of tragedy pretermits instead of engaging that debate, and implicitly declares an equivalence in the magnitude of the competing interests at stake.

The extent to which qualified immunity defangs constitutional litigation as a tool of police oversight is lamentable. But even more regrettable is a deliberate judicial deflection of responsibility for that result. At minimum, the courts’ seemingly strategic invocation of tragedy to cover their own tracks in qualified immunity doctrine indicates that, to twist a phrase, even sad facts will continue to make bad law.

The views and opinions expressed in this article are mine and do not necessarily reflect the views of the Fair Punishment Project.

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