Two recent stories about the two different systems of criminal justice in America, for the haves and have-nots. From the Guardian, an article about the need for bail reform in California, “Wealthy murder suspect freed on bail as man accused of welfare fraud stuck in jail” –
and from the Marshall Project, a story about Kristen Anderson, a social worker at The Bronx Defenders, a public defense office serving low-income communities in New York City, who talks about the difference between her own experience with bipolar disorder and the clients she works with:
‘I was diagnosed with bipolar disorder the year I graduated from college. It happened after my first full-blown manic episode, in which I sped on a highway at over 100 miles an hour after buying a $3,000 engagement ring on a whim, planning to surprise my then-boyfriend halfway across the world. Needless to say, this plan did not come to fruition, and my spontaneity, risk-taking, and impulsivity soon morphed into terrifying psychosis. I was suddenly convinced that my reality was just a big stage and everyone was acting out a script, and I was hospitalized and prescribed anti-psychotics and mood stabilizers. About four years after my first episode, I pursued a master’s degree in social work with the intention of becoming an advocate for those like me. In a mental health policy class, I remember debating the use of physical restraints, and arguing vehemently against the practice. My classmates did not know that I myself had been strapped to ER beds and restrained in seclusion rooms.But it was in that same class that I learned about the deinstitutionalization and subsequent over-incarceration of people with mental illnesses, and began to slowly comprehend my privilege as a white woman whose circumstances had allowed her to lead a productive and fulfilling life in between episodes. Now that I am a social worker at the Bronx Defenders, I’ve met many people like Raheem: men and women of color struggling with mental illness while trying to survive in the South Bronx, one of the poorest districts in America. Many end up ensnared in the criminal justice and immigration systems instead of getting the health care they need.’
In Florida, one of four states where a felony conviction currently results in a lifetime loss of civil rights, the state’s Supreme Court has approved a ballot Initiative for 2018 that could help restore rights for more than 1.6 million Florida voters who are currently prohibited from voting. For more information, see the Florida Rights Restoration Coalition: https://floridarrc.com/about
The Marshall Project lists “Five Things You Didn’t Know About Clearing Your Criminal Record“:
- In the Internet age, expungement only goes so far. There will always be Google. But any bit you can pare down someone’s record helps them gain access to employment or housing.
- An expunged record can still hurt your chances of landing a job. Beyond doing a simple Internet search for your name, employers can use private information providers to run background checks on job candidates, even though an expunged record in many states does legally allow you to leave the box blank when a job application asks if you have ever been convicted of a crime.
- Congress is considering whether to make even more people eligible for expungement. Under the REDEEM Act people convicted of nonviolent federal crimes could apply to have them sealed, and nonviolent juvenile offenses would automatically be expunged or sealed, depending on age.
- If you aren’t a citizen, even an expunged crime can still make you deportable.Under immigration law passed in 1996, a “conviction” for the purposes of deportation includes any instance in which a person pleads guilty to a crime or some kind of punishment is imposed, such as some mandatory diversion programs. Even if the record was sealed or expunged, it could still be used as a reason to remove someone from the country.
- If you’re trying to clear your record — there’s an app for that.In Chicago, Maryland, and Louisiana, advocates and developers have built apps to help people understand whether or not they are eligible for expungement, and how to get in touch with a lawyer.
The “Grits for Breakfast” blog reviews John Pfaff’s criminal justice reform treatise “Locked In,” finding his recommendations wanting: specifically, that his two big recommendations cannot be followed simultaneously. Focus on reducing “admissions” to the criminal justice system requires a focus on nonviolent offenses. Focus on violent offenses, as Pfaff insists, and they are only a fraction of those annual criminal justice admissions. Per Grits these are contradictory suggestions. There is hope, though, in another suggestion: a Cap-and-Trade system for incarceration similar to the system used for pollution controls. Basically each county would receive an allocation of sentencing time, and if they wanted to punish people more they’d have to purchase it from other counties in a market setting. That would place financial responsibility for over-incarceration on the local actors most responsible for it. The idea comes from “The Small Prison” by Cheryl Lero Jonson, John E. Eck & Francis T. Cullen, in The American Prison: Imagining a Different Future
Judge Rakoff of the Southern District of New York talks about how judges tolerate or encourage injustice in an interview with Joel Cohen – author of “Broken Scales: Reflections on Injustice” – in the ABA Journal:
“I think too many courts have been too quick to leave unchallenged—and even unthought about—certain kinds of evidence that historically have been produced in criminal cases and that should have been subjected to greater scrutiny. For example, a great deal of forensic science has now come under scrutiny from the scientific community. In 2009, the National Academy of Sciences published a report that was highly critical of most forensic science other than DNA. And this included things well-regarded by many people—fingerprinting, hair analysis, bite-mark analysis, arson analysis and so forth. But before and even after that report, very few judges critically analyzed the forensic science that was being presented to them.”
The reasons, according to Judge Rakoff, are: high workloads that don’t leave time for adequate reflection; too many cases that are alike, leading judges to assume that the next case is just like the other 55 they’ve seen (Innocence Project exonerations are filled with examples of that—where judges were totally blind to suggestions that this particular defendant might be not guilty, or might not be as guilty as others in cases that the judge had seen before); and that so many judges are former prosecutors and so few are former defense counsel.
The Sixth Circuit Court of Appeals in Kentucky Court has overturned a lower court dismissal and allowed a malicious prosecution case against Kentucky officials to go forward. The case was brought by Susan King, who was wrongfully convicted of murder after a police detective went to extraordinary lengths to incriminate her, even when the evidence said otherwise. The details of the case are set out at length in the Marhall Project’s “About the Gun-toting, One-legged Kentucky Woman Seeking Justice…”, found here.
The West Virginia legislature at the last minute passed a compromise bill – SB76, the WV Second Chance for Employment Act – that would allow individuals convicted of non-violent felonies to return to court after 10 years to have their convictions reduced to misdemeanors.
For several years the WV legislature has been considering how to improve employment opportunities for people with non-violent convictions, but the House and Senate had different ideas about how to do it. The Senate approach would have expanded the state’s expungement law, which now applies only to youthful misdemeanors, while the House preferred reducing nonviolent felonies to misdemeanors. On April 8, the Senate agreed to accept the “forgiving” approach favored by the House, creating a new category of “reduced misdemeanor” that need not be reported on employment applications but will be reflected in background investigations.
Adam Gopnik of the New Yorker favorably reviews John Pfaff’s book on the causes of and cures for mass incarceration, “Locked In.” The book was discussed in previous posts on this blog; Gopnik reiterates the central thesis, that the cause is not mandatory minimums, the war on drugs, or drug convictions in general: its the prosecutors.
“So what makes for the madness of American incarceration? If it isn’t crazy drug laws or outrageous sentences or profit-seeking prison keepers, what is it? Pfaff has a simple explanation: it’s prosecutors. They are political creatures, who get political rewards for locking people up and almost unlimited power to do it.”
One statistic among many, from “Locked In”: While violent crime was increasing by a hundred per cent between 1970 and 1990, the number of “line” prosecutors rose by only seventeen per cent. But between 1990 and 2007, while the crime rate began to fall, the number of line prosecutors went up by fifty per cent, and the number of prisoners rose with it. Its the central paradox of mass incarceration: fewer crimes, more criminals; less wrongdoing to imprison people for, more people imprisoned.