The Pennsylvania Supreme Court has ruled that criminal defendants have the right to sue  a county  to prove a that public defender’s office isn’t adequately funded to provide the constitutional right to an attorney. The actual decision is here:

“We recognize for the first time in Pennsylvania a prospective cause of action enabling indigent criminal defendants to prove that the level of funding provided by a county to operate a public defender’s office has left that office incapable of complying with Gideon, creating the likelihood of a systematic, widespread constructive denial of counsel in contravention of the Sixth Amendment to the United States Constitution.”

From the Marshall Project:

“For some proponents of justice reform, the failure this year was actually a relief. They escaped what some had feared as the worst outcome: Congress enacting a diluted reform bill, declaring mission accomplished, and dropping the subject for years. Another consolation is the prospect that Hillary Clinton, who has vowed to “reform our criminal justice system from end to end,” wins, gets a somewhat less conservative Congress, and keeps her promise.”

From the Bazelon Center for Mental Health Law, the National Disability Rights Network, here.

That is the title of an excellent review by Judge Rakoff of “A War Like No Other: The Constitution in a Time of Terror.” The takeaway:

“Fiss’s discussion of the ways in which the war on terror has tended to impede our freedoms is by no means limited to the examples discussed above. His ten cogent essays cover everything from unfettered surveillance to secret watch lists to drone assassination—the common theme being that, in the absence of more effective judicial scrutiny, the government will always use the excuse of war to take authoritarian measures that no other excuse could hope to justify. Such measures might well be open to serious question even against the background of a conventional war. But the unique features of the war on terror—its uncertain legal status, its shifting, nonstate adversaries, its untraditional methods, its unclear goals, and its highly indefinite duration—all combine to make it difficult for the courts to intervene, even when they sense (as the Supreme Court did in its habeas decisions during the Bush administration) that the courts may be the branch of government best situated to place meaningful limits on the wide-ranging government activities supposedly justified by this strange war.

It is true that, even in the case of more traditional wars, US courts have been loath to intervene, both because of a reluctance to second-guess the commander in chief in a time of peril and because of a fear that curtailing the weapons of war could lead to defeat. What good is freedom, the thought goes, if it enables your enemy to make you his slave?

But quite aside from the fact that the war on terror is not that kind of war (threatening imminent invasion or mass destruction) and that the kind of measures we are here considering are not military decisions, we must always remember exactly what we are fighting for. The war on terror, for all its uncertainties, is in some respects a war of values: the monstrous methods of al-Qaeda, ISIS, and others are but a reflection of their authoritarian values and extremist ideologies. They hate us, not just because we are rich, but because we are, on the whole, free, liberal in thought, and humane in feelings. It would be ironic, and tragic, if in seeking to safeguard our security so as to preserve our values, we undercut, for now and for the future, the very values that make us so proud to be Americans.”

Read the class-action complaint from the Campaign Legal Center, challenging Alabama’s felon disenfranchisement:

Interesting article on factors effecting judge’s decisions – in this case, whether their alma mater LSU won or lost an important game the week before. Bad news from the study – which analyzed more than 8,000 cases – for both the defendants who appeared after a loss, and for the idea of judicial impartiality. The article has strong connections to other, perhaps more striking studies on the impact of implicit bias on both judging and prosecutorial discretion:

“Robert J. Smith and Justin D. Levinson, “The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion,” Seattle University Law Review, 35 (2012): 806, http://bit.ly/1jEkffp, citing Task Force on Race and the Criminal Justice System, “Preliminary Report on Race and Washington’s Criminal Justice System,” Seattle University Law Review, 35 (2012): 647, http://bit.ly/KQHUxg. “‘[E]ven after legally relevant factors . . . are taken into account,’ racial differences affect how cases are processed: whites are less likely to have charges filed against them.” Smith and Levinson also state, “Similarly, prosecutors have been shown to charge white and black defendants differently in homicide cases. See, Michael L. Radelet and Glenn L. Pierce, “Race and Prosecutorial Discretion in Homicide Cases,” Law and Society Review, 19 (1985): 587, http://bit.ly/19QoljK (finding that the race of the defendant and victim mattered in charging decisions in Florida).”

Last Thursday the House of Representatives – with a remarkable lack of public notice – passed the JJDPA reauthorization bill. Now its up to the Senate, currently deadlocked over  Zika funding.

The Detroit Free Press discusses the imminent release of one juvenile lifer recently re-sentenced after Miller v. Alabama, and summarizes the chances for others in Michigan, which has 363 people serving mandatory life terms for crimes they committed when they were teens — the second highest number of juvenile lifers nationwide. Legal experts say it’s partly because Michigan sentences children as young as 14. Elsewhere, 38 states have abolished juvenile life-without-parole sentences, or have fewer than five people serving that sentence.

To paraphrase Bill Clinton’s famous campaign mnemonic of 1992 – the over-incarceration problem in America isn’t the war on drugs, or draconian sentencing – its overcharging by prosecutors. Criminologist John Pfaff lays out the argument in this Slate interview:

So why did the prison population keep on rising after 1991, when the crime wave ended? It seems like if your theory is right, that the increase in violent crime and property crime caused the prison boom, the end of the crime wave should have been accompanied by decreasing incarceration rates.

Three things could have happened. One, police just got much more efficient—they’re just arresting more and more people, with new policing technologies, new policing approaches—maybe they’re just arresting a bigger share of offenders. But we don’t actually see that. Arrests tend to drop with the crime rate. So the total number of people being arrested has fallen. The other thing it could be is we’re just locking people up for longer—but like I said, it’s not that. So clearly what’s happening is we’re just admitting more people to prison. Though we have a smaller pool of people being arrested, we’re sending a larger and larger number of them to prison.

Why would that be?

What appears to happen during this time—the years I look at are 1994 to 2008, just based on the data that’s available—is that the probability that a district attorney files a felony charge against an arrestee goes from about 1 in 3, to 2 in 3. So over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges. Defendants who they would not have filed felony charges against before, they now are charging with felonies. I can’t tell you why they’re doing that. No one’s really got an answer to that yet. But it does seem that the number of felony cases filed shoots up very strongly, even as the number of arrests goes down.

Isn’t the traditional explanation for why prosecutors tend to be overzealous is that their political careers depend on it?

The political question is interesting because generally the district attorney election is not very difficult to win. DAs tend to win elections pretty regularly. So, when Joe Hynes was defeated in the Democratic primary in Brooklyn, New York, in 2012, he was the first sitting Brooklyn DA to run for re-election and lose in more than a century. But that’s not to say that politics don’t matter: Maybe it’s that next election they’re looking at, that they remain tough on crime because they want to become attorney general or governor. There’s no clear data on this. We’re only just starting to look at this question. But that strikes me as a possible story. What might have happened is the crime boom made being a prosecutor more of a launch-pad position—it elevated the status of prosecutors, and perhaps elevated their political ambitions, and they remained tough on crime even as crime started going down.

OK. So why does any of this matter? Why is it important for reformers to have the right theory for why mass incarceration happened?

The reason it’s important to get it right is that if we’re trying to reduce the prison population, we want to make sure we do it correctly—and if you focus on the wrong thing, you won’t solve the problem. So if you think it’s the war on drugs, you might think, ‘OK, if we just decriminalize drugs, that will solve the problem.’ And, you know, it’s true that if we shift away from punishment to treatment that could be a huge improvement. But just letting people out of prison—decarcerating drug offenders—will not reduce the prison population by as much as people think. If you released every person in prison on a drug charge today, our state prison population would drop from about 1.5 million to 1.2 million. So we’d still be the world’s largest incarcerating country; we’d still have an enormous prison population.

And if we focused on cutting back sentence lengths, maybe that would weaken DAs’ bargaining power at plea bargaining, but since people aren’t serving the massively long sentences anyway, it probably won’t have that big an effect on prison population either.

What would?

Well, the real growth in the prison population comes from county-level district attorneys sending violent people to prison. And there’s a lot to be said for nonprison approaches to a lot of people who are in prison for violent crimes. But that’s a political issue that we haven’t even begun to address, in part because it’s politically scary.

Where does that leave reformers who want to see the prison population drop significantly?

What makes it very hard is that the person we really need to target now—whose behavior we need to regulate—is the district attorney, and the district attorney is a very politically independent figure. He’s directly elected, and he’s directly elected at the county level. So there’s no big centralized fix. You can’t necessarily go to Washington and say, ‘Here’s the law that’s going to control what the DAs do,’ because they don’t have to listen to the federal government at all. So you have to figure out how to go county by county and either elect DAs who have less punitive attitudes, or you can try to sort of change the incentives DAs face at the state level. But it’s very tricky.

Californians for Safety and Justice (www.safeandjust.org), in partnership with the California Budget and Policy Center, has published a “Toolkit” designed to help local advocates understand local budgeting processes and take advantage of opportunities to improve local investment priorities stemming from recent changes in criminal justice: policy aimed at reducing over-incarceration at both the state and local level.