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  • 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.

  • 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.

  • 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.

  • Let’s Not Jump to Conclusions: Approaching Felon Disenfranchisement Challenges Under the Voting Rights Act

    Section 2 of the Voting Rights Act of 1965 invalidates voting qualifications that deny the right to vote on account of race or color. This Article confronts a split among the federal appellate courts concerning whether felons may rely on Section 2 when challenging felon disenfranchisement laws. The Ninth Circuit Court of Appeals allows felon disenfranchisement challenges under Section 2; however, the Second and Eleventh Circuits foresee unconstitutional consequences and thus do not. After discussing the background of voting rights jurisprudence, history of felon disenfranchisement laws, and evolution of Section 2, this Article identifies the points of contention among the disagreeing courts. The crux of this Article is that both sides of the debate have erred. Both sides wrongly assume that the consequences of accepting these vote denial challenges are predictable. However, because a standard approach to vote denial challenges under Section 2 does not currently exist, no court can foresee the results of allowing such challenges to felon disenfranchisement laws. Therefore, predicting the constitutional implications of accepting these challenges without first identifying an appropriate analysis is impossible. This Article concludes by proposing an analysis for consideration. The proposed approach is a tailored version of sliding scale scrutiny--an analysis that the United States Supreme Court following Burdick v. Takushi, now applies to constitutional voting rights claims. Using this adapted approach, the Supreme Court can resolve the current split in authority and find that Section 2 is a viable vehicle for challenging racially-discriminatory felon disenfranchisement laws.

  • Felon Disenfrachisement Laws: Partisan Politics in the Legislatures

    This examination of the institutional changes to state legislatures, synthesized with an analysis of the handling of felon disenfranchisement laws by state legislatures, presents a troubling realization about the law today: in the twenty-first century, partisan politics moderates decisions about even the most basic and fundamental principles of democracy. This Note suggests that because state legislators follow their party leadership and position, a state's traditional treatment of racial minorities, geographic location, and even ideology are not the strongest indicators of a state's disenfranchisement laws. Rather, partisan politics drives changes to the state laws governing felon voter eligibility.

  • Discrimination in Sentencing on the Basis of Afrocentric Features

    This Article does not challenge the prior research on sentencing discrimination between racial categories that found no significant difference in sentences given to similarly-situated African Americans and Whites. In fact, in the jurisdiction investigated- Florida- no discrimination between African Americans and Whites was found in the sentences imposed on defendants, looking only at racial category differences. Rather, the research suggests that in focusing exclusively on discrimination between racial groups, the research has missed a type of discrimination related to race that is taking place within racial categories: namely, discrimination on the basis of a person's Afrocentric features. By Afrocentric features, this Article means those features that are perceived as typical of African Americans, e.g., darker skin, fuller lips, or a broader nose. The research found that when one examines sentencing from this perspective, those defendants who have more pronounced Afrocentric features tend to receive longer sentences than others within their racial category who have less pronounced Afrocentric features.

  • Splitting Hairs: Why Courts Uphold Prison Grooming Policies and Why They Should Not

    Part I of this Note describes the substance of prison grooming policies and provides a sampling of cases that have challenged these policies under the Equal Protection and Free Exercise Clauses. Part II explores three theories of discrimination that describe certain types of discriminatory conduct that could be prohibited by the Equal Protection and Free Exercise Clauses. These theories inform the definition of "equal protection of the laws" and impact the analysis of equal protection challenges to prison grooming policies. Part III explores the "religious exemptions" doctrine and explains how courts have interpreted the protections offered to religious groups by the Free Exercise Clause. This Part also explores the ways in which the development of the Free Exercise Clause has mirrored the development of the Equal Protection Clause and argues that these similarities justify a similar analysis of challenges to prison grooming policies brought under either theory. Part IV analyzes prison grooming policies by interpreting the constitutional provisions to prohibit oppressive discriminatory conduct directed at minority group members. Part V concludes this Note by arguing that adoption of an anti-oppression theory of discrimination in the analysis of Free Exercise and Equal Protection claims requires courts to strike down prison grooming policies.