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What the Sentencing Commission Ought to Be Doing Reducing Mass Incarceration
Beginning in the 1970s, the United States embarked on a shift in its penal policies, tripling the percentage of convicted felons sentenced to confinement and doubling the length of their sentences. This shift included a dramatic increase in the prosecution and incarceration of drug offenders. As a result of its move toward long prison sentences, the United States now incarcerates so many people that it has become an outlier; this is not just among developed democracies, but among all nations, including highly punitive states such as Russia and South Africa, and also in comparison to the United States' own long-standing practices. The present rate of incarceration in the United States is currently "almost five times higher than the historical norm prevailing throughout most of the twentieth century." In sum, the United States has a serious over-punishment problem. Our country's imprisonment rate has acquired the name, "mass incarceration," meant to provoke shame about the fact that the world's wealthiest democracy imprisons so many people, even at a time when crime rates have diminished and crime is "not one of the nation's pressing social problems." Most criminal justice scholars agree that our current prison population is too large. They also agree that the impact of imprisonment on the crime rate is modest and that the speed at which people are released from prison bears little relation to the likelihood that they will remain crime free. Many prisoners can serve shorter sentences without triggering an increase in crime. As a result, we can reduce sentence lengths substantially without adversely affecting public safety.Isolated Confinement in Michigan: Mapping the Circles of Hell
For the past twelve months, there has been a burgeoning campaign to abolish, or greatly reduce, the use of segregated confinement in prisons. Advocates for the campaign call such classifications "solitary confinement" despite the fact that in some states, like New York, prisoners in these cells are often double-celled. The Michigan Department of Corrections, as well as other prison systems, uses labels such as "segregation," "special management," "special housing," and "observation" for these classifications. Prisoners ordinarily use traditional terms, such as "the hole." In this Essay we will refer to such restrictive classifications as "segregation" or "segregated confinement." Our perspective on the problems with such classifications comes from serving as counsel for plaintiffs in Hadix v. Caruso. Hadix is a long-running class action regarding what was once called the State Prison of Southern Michigan; in this case, we are attempting to enforce remaining portions of a 1984 consent decree to which the Michigan Department of Corrections (MDOC) is subject. Part of what we describe in this Essay is the harm that segregated confinement has inflicted on mentally ill members of the Hadix class. The evidence of harm to mentally ill prisoners from segregated confinement that we found was entirely predictable. It has long been known that segregated confinement results in the deterioration of the mental health status of many prisoners so confined and the related deterioration of their ability to interact safely with other persons once released from segregation. This Essay, however, will not focus particularly on the harms caused by the propensity of segregated confinement to engender or exacerbate mental illness. We will describe examples drawn from our own experiences and other litigation in Michigan documenting the potential for lethality from assigning medically vulnerable prisoners to segregated confinement - an issue that has received less attention in the national campaign against the use of solitary confinement. We will also suggest explanations for why assigning such prisoners to segregated confinement is so predictably dangerous, as well as why the MDOC has been so slow to recognize these dangers.The Federal Bureau of Prisons: Willfully Ignorant or Maliciously Unlawful?
The Federal Bureau of Prisons ("BOP") and the larger U.S. government either purposely ignore the plight of men with serious mental illness in the federal prison system or maliciously act in violation of the law. I have no way of knowing which it is. In a complex system comprising many individual actors, motivations are most likely complex and contradictory. Either way, uncontrovertibly, the BOP and the U.S. government, against overwhelming evidence to the contrary, continuously assert that there are no men with serious mental illnesses housed in the federal supermax prison, the Administrative Maximum facility in Florence, Colorado, also known as ADX. Men and women with serious mental illnesses may not be constitutionally assigned to supermax confinement. Even BOP's own policies forbid the placement of anyone with a serious mental illness in the ADX. The government claims no one with a serious mental illness is in the ADX. Nonetheless, the place is full of men who by any definition have serious mental illnesses. Any thorough review of the 433 men at the ADX would demonstrate that about one-third of the men suffer a severe mental illness. The prison is filled with men who have been previously found unfit to stand trial, men who have long-standing histories of intensive psychiatric treatment, men who take antipsychotic medication, men who decorate their cells with their own feces, and men who mutilate their own bodies. After an investigation, the Washington Lawyers' Committee for Civil Rights and Urban Affairs and the law firm Arnold & Porter, LLP filed suit on behalf of several individuals and a putative class. The U.S. Department of Justice defends the status quo at the ADX and has moved to dismiss the entire lawsuit for failure to state a claim under the Eighth Amendment. As of this writing, it shows no intention of addressing the systemic failures that have led to so many men with serious mental illnesses being placed at the ADX.The Right to Counsel for Indians Accused of Crime: A Tribal and Congressional Imperative
Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it presents for Indians and tribal sovereignty. While an Indian has the right to defense counsel in federal criminal court proceedings, he does not in tribal court. This distinction makes a grave difference for access to justice for Americans Indians not only in tribal court, but also in state and federal courts. The Article provides in-depth analysis, background, and context necessary to understand the right to counsel under the ICRA and the U.S. Constitution. Addressing serious civil rights violations that negatively impact individual Indians and a tribe's right to formulate due process, this Article ultimately supports an unqualified right to defense counsel in tribal courts. Defense counsel is an indispensable element of the adversary system without which justice would not "still be done." Tribes, however, were forced to embrace a splintered system of justice that required the adversary system but prohibited an adequate defense. The legacy of colonialism and the imposition of this fractured adversary system has had a devastating impact on the formation of tribal courts. This legacy requires tribal and congressional leaders to rethink the issue of defense counsel to ensure justice and fairness in tribal courts today. The Article concludes that tribes should endeavor to provide counsel to all indigent defendants appearing in tribal courts and calls upon Congress to fund the provision of counsel to reverse the legacy of colonialism and avoid serious human rights abuses.Race, Markets, and Hollywood’s Perpetual Antitrust Dilemma
This Article focuses on the oft-neglected intersection of racially skewed outcomes and anti-competitive markets. Through historical, contextual, and empirical analysis, the Article describes the state of Hollywood motion-picture distribution from its anticompetitive beginnings through the industry's role in creating an anti-competitive, racially divided market at the end of the last century. The Article's evidence suggests that race-based inefficiencies have plagued the film distribution process and such inefficiencies might likely be caused by the anti-competitive structure of the market itself, and not merely by overt or intentional racial-discrimination. After explaining why traditional anti-discrimination laws are ineffective remedies for such inefficiencies, the Article asks whether antitrust remedies and market mechanisms mght provide more robust solutions.Cascading Constitutional Deprivation: The Right to Appointed Counsel for Mandatorily Detained Immigrants Pending Removal Proceedings
Today, an immigrant green card holder mandatorily detained pending his removal proceedings, without bail and without counsel, due to a minor crime committed perhaps long ago, faces a dire fate. If he contests his case, he may remain incarcerated in substandard conditions for months or years. While incarcerated, he will likely be unable to acquire a lawyer, access family who might assist him, obtain key evidence, or contact witnesses. In these circumstances, he will nearly inevitably lose his deportation case and be banished abroad from work, family, and friends. The immigrant's one chance to escape these cascading events is the off-the-record Joseph hearing challenging detention. If he wins the hearing and is released, he can then secure counsel, and if so, will likely win his case. Yet detained and most likely pro se, he may not even know a Joseph hearing exists, let alone win it, given the complex statutory analysis involved, regarding facts, witnesses, and evidence outside his reach. The immigration detention system today is unique in modern American law, in providing for preventive pretrial detention without counsel pursuant to underlying proceedings without counsel - let alone proceedings so complex that result in a deprivation of liberty as severe as deportation. In this Article, I call this the cascading constitutional deprivation of wrongful detention and deportation. I argue, under modern procedural due process theories, that this cascading constitutional deprivation warrants appointed counsel, notwithstanding traditional plenary power over immigration laws. In a post-Padilla v. Kentucky world where criminal defenders must now advise their clients on the same issues litigated at the Joseph hearing, I argue a right to appointed counsel for mandatorily detained immigrants pending removal proceedings is constitutionally viable and practically feasible.A Failure of the Fourth Amendment & Equal Protection’s Promise: How the Equal Protection Clause Can Change Discriminatory Stop and Frisk Policies
Terry v. Ohio changed everything. Before Terry, Fourth Amendment law was settled. The Fourth Amendment had long required that police officers have probable cause in order to conduct Fourth Amendment invasions; to administer a "reasonable" search and seizure, the state needed probable cause. But in 1968, the Warren Court, despite its liberal reputation, lowered the standard police officers had to meet to conduct a certain type of search: the so-called "'stop' and 'frisk.'" A "stop and frisk" occurs when a police officer, believing a suspect is armed and crime is afoot, stops the suspect, conducts an interrogation, and pats him down for weapons. In Terry, the Supreme Court detached reasonableness from probable cause for such "limited" searches and seizures; if a police officer's suspicions, based on articulable facts, lead her to believe that crime is afoot and that a perpetrator is armed, then under the Fourth Amendment, a search for weapons is constitutionally permissible. Despite reversing precedent, Terry and its Supreme Court progeny allowed police officers to rely upon their reasonable suspicions to conduct searches only under narrow conditions. Lower courts, however, have enlarged Terry beyond recognition. Indeed, police officers now have wide latitude to stop and frisk suspects. From the New York stop and frisk numbers flows the class-action Floyd v. City of New York. In Floyd, minority plaintiffs contend that the city's stop and frisk practices unconstitutionally infringe upon personal liberty. The Fourth Amendment as currently interpreted, however, permits cities like New York to promulgate stop and frisk practices that result in racial harassment. What constitutional tool, then, can compel local governments and police departments to revamp their discriminatory stop and frisk techniques? The answer must be the Equal Protection Clause.Have a Job to Get a Job: Disparate Treatment and Disparate Impact of the ‘Currently Employed’ Requirement
Countless people struggle to find a job in a competitive job market despite possessing solid qualifications. Although the news media reports that job numbers are improving, the problems of unemployment particularly loom for people of color, older workers, and people with disabilities. These groups are often unemployed longer than other job seekers. These groups also suffer the disparate impact of job advertisements that require "current employment" as a prerequisite for hiring. The harsh reality is that the longer a job seeker is unemployed, the closer a job seeker becomes to becoming permanently unemployed. Job advertisements that require "current employment" exacerbate the problem. However, traditional disparate impact analysis under the civil rights laws can help to address some of the issues faced by these long-term unemployed job seekers.Towards a Balanced Approach for the Protection of Native American Sacred Sites
Protection of "sacred sites" is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples. The Supreme Court in Oregon v. Smith held that rational basis review, and not strict scrutiny, was the appropriate level of judicial review when evaluating the constitutionality of neutral laws of general applicability even when these laws impacted one's ability to practice a religion. Reacting to the decision, Congress enacted the Relgious Freedom Restoration Act (RFRA), which reinstated the strict scrutiny test for challenges to neutral laws of general applicability alleged to have substantially burdened free exercise rights. In a controversial 2008 decision, the Ninth Circuit held that a "substantial burden" under RFRA is only imposed when individuals are either coerced to act contrary to their religious beliefs or forced to choose between following the tenets of their religion and receiving a governmental benefit. In all likelihood, such a narrow definition of substantial burden will prevent Native American practitioners from successfully invoking RFRA to protect their sacred sites. In this Article, I first explore whether the Ninth Circuit's definition of "substantial burden" is mandated under RFRA. To a large degree, this question comes down to whether a pre-RFRA Supreme Court decision, Lyng v. Northwest Indian Cemetery, precludes courts from adopting a broader definition of what is a substantial burden under RFRA. Although this Article contends that neither Lyng nor RFRA precludes the adoption of a broader definition of "substantial burden," the Article nevertheless acknowledges that many judges may disagree. The Article therefore recommends enactment of a legislative solution. The legislation proposed is a compromise between the needs of Indian religious practitioners and those who argue that religious practitioners should not have a veto over how federal lands are used and developed. Therefore, in return for the broadening of what can constitute a substantial burden on free exercise rights, the Article recommends the adoption of an intermediate type of judicial scrutiny. The Article also discusses ways to limit what can be considered sacred sites under the legislation so as to ensure protection of sites vital to Native American culture and religion without unnecessarily burdening federal management of federal lands.
