Archive for the ‘Criminal Law Reform’ Category:
By Terri Burke
A few days ago we posted our response on Facebook to a proposed law that would require drug testing of applicants for Temporary Assistance of Needy Families (TANF), which was endorsed by Gov. Perry and Lt. Gov. Dewherst. Our post drew a number of very spirited replies from supporters and non-supporters. To those who commented, thank you all for writing. Let me respond to some of your comments to emphasize a few points:
Halyi, There is no evidence welfare recipients use drugs at a higher rate than the rest of the population. When Florida tried this, over the 4 month period before the courts shut them down, the state lost $45,000 and discovered only 2.6 percent of the folks tested positive for drugs.
Jonathan, this drug test will only identify drug “use” not abuse. However much some of us may deplore any drug use, there is a difference between use and abuse. Moreover, the constitutional questions raised by mandatory government testing are far more problematic than testing by a private employer. This represents serious government overreach.
Robert, children of the occasional marijuana smoker are surely better off with that parent than being thrown into the Child Protective Services system (I don’t know where you live but search www.chron.com for some very scary stories about that if you haven’t seen them).
Johnathan, the average TANF monthly check is about $200, according to Gov. Perry. I don’t know much about drugs, but I doubt that buys very many.
Keilah, if you buy the argument that the taxpayers have a right to demand that those who receive taxpayer dollars be drug tested, then why aren’t we demanding drug testing of all the veterans, the senior citizens who receive Medicare and Social Security, farmers who get government subsidies, entrepreneurs who receive Texas Enterprise Funds from the governor’s office, and so on. My point is quite simple: we are making poverty a crime. We are going to drug test a group of people who differ from these others only because they may be poorer, they may be black, they may be brown – not because they are drug users.
I’m sorry we disagree on this but I hope you will continue to comment on our Facebook posts, receive our emails, and continue to challenge us when you think we should be. It is only through these dialogues that we get a better sense of the thinking of all Texans.
By Dione Friends
Online Media Coordinator
Being released from prison isn’t just about being free. Former inmates face serious obstacles to rejoining society as productive members.
Mental health issues, lack of education, and minimal work experience are huge barriers on the path to a “normal life.” The latest national data indicates that about two-thirds of released prisoners are arrested within three years.
The transition from prison to home just got a little easier thanks to our coalition partners at the Texas Criminal Justice Coalition. Their new website features resources for youth and adults seeking to rebuild their lives.
Housing services, legal clinics, employment services, educations assistance, and other services are only a few clicks away with this new tool. See the website in action by double clicking the video below to watch it full screen. Or try it out for yourself.
The Texas Criminal Justice Coalition works on issues across Texas’ criminal and juvenile justice systems to create stronger families, less taxpayer waste, and safer communities
Criminal law reform is a priority of the ACLU of Texas. We seek to end excessively harsh criminal justice policies that result in mass incarceration and stand in the way of a just and equal society. Learn more about our campaign goals by visiting criminaljusticetx.org.
The ACLU and Human Rights Watch recently released the report Growing Up Locked Down which looks at the practice of placing youth in solitary confinement (22-23 hours a day isolated from human contact in a small cell). The report outlines a myriad of concerns associated with this practice.
Holding youth in solitary confinement causes psychological, physical harm, and social and developmental harm. Isolated youth exhibit mental health issues such as increased risk of suicide, self harm, and exacerbation of existing mental health issues. Youth held in this form of confinement also rarely receive the kind of exercise necessary for a normal young person leading to physical harm. Finally, youth in solitary confinement often do not have significant contact with family members, do not have meaningful educational services, and rarely receive counseling and other basic services. This problem is particularly dramatic for youth with intellectual disabilities or mental health issues. The report recommends a number of reforms to address this litany of issues, but in general this practice simply should be used minimally or never.
In Texas, youth are placed in solitary confinement in the following settings:
- County (adult) jails
- State run juvenile facilities
- County run juvenile facilities
- Juveniles certified as adults may be placed in solitary while incarcerated in state prison facilities
In each of these settings, youth face the same risks of harm identified in the national report. In some cases, for example youth housed in county jails awaiting trial, the youth awaiting trial are placed in solitary confinement without a criminal conviction. In county jails, youth are placed in solitary confinement to protect the youth from the adult population in these facilities, but ironically this protective placement causes many other problems.
To address these issues in Texas, the ACLU of Texas is asking legislators to support two important reforms. First, the ACLU of Texas along with a number of partner organizations is working to end the use of solitary confinement as punishment. Solitary confinement has such a negative impact on youth, it should only be used in emergency or dangerous situations for short stints of time. It should not be a punishment for failing to clean one’s cell or having contraband reading material.
Second, we are asking legislators to create basic review for any youth placed in solitary confinement. Drawing on the example of West Virginia, we have recommended that legislators pass a bill requiring the following:
- Any facility that houses youth in solitary confinement must create an oversight committee or an Administrative Segregation Committee
- An Administrative Segregation Committee will include at least one medical professional (either a mental health or medical expert)
- The Committee will review initial placement of all youth placed in solitary confinement in the facility
- The Committee will continue to regularly review the placement of the youth for the duration of placement
- The Committee will create a Behavior Improvement Plan for the youth which provides a graduated return of privileges and a roadmap for the youth to leave solitary confinement and return to a less isolated setting
The negative impact of solitary confinement, the human toll of this suffering, and the practical impact on recidivism rates of mishandling our wayward youth all argue for reforms to the use of solitary confinement. Ultimately, almost all youthful offenders will return to our communities and it is in our collective interest to ensure that they receive the kind of treatment and services that allow for success. Tell your local newspaper we cannot afford the lost lives or the increased prison population that is caused by overusing solitary confinement.
By Matthew Simpson
Parents and community members will have an opportunity to advocate for students at the Texas Legislature later this month. On Oct. 30, 2012, the Senate Criminal Justice Committee will hear testimony on a variety of issues facing students in our public schools. These are the topics the committee will address:
Alternative Education Programs
The committee will look at Disciplinary Alternative Education Programs (DAEPs) and Juvenile Justice Alternative Education Programs (JJAEPs). Students are placed in DAEPs and JJAEPs when they are removed from the classroom. DAEPs are a part of school districts whereas JJAEPs are run by county juvenile justice boards. Advocates have expressed concerns about the quality of the education provided in DAEPs and JJAEPs. There are also alternative approaches to discipline that allow students to remain in a normal classroom setting that can actually produce better outcomes.
Racial Inequity in School Discipline
Second, the committee will review research that highlights racial inequity in suspension, expulsion, and tickets at school. Organizations like Texas Appleseed and the Council of State Governments Justice Center have found African-American and Latino students are more likely to be ticketed at school, expelled, and suspended. Special education students are also disproportionately represented in statewide studies. These trends raise troubling concerns about the way students are disciplined across Texas.
Zero Tolerance, Alternative Schools, and Student Ticketing
Third, the committee will consider how zero tolerance policies, separate alternative education campuses, and law enforcement in schools have become problematic in Texas. Zero tolerance policies require harsh disciplinary responses like suspension and expulsion when certain rules or laws are broken. The policies are widely considered a failure because they tie the hands of administrators. Even conservative groups like the Texas Public Policy Foundation are voicing concerns about this approach to school discipline. Another critical issue is the overzealous use of ticketing by law enforcement in school. Over 275,000 tickets are issued to students in schools EACH YEAR in Texas. Expulsion, ticketing, and suspension undermine school success and ultimately undermine the chances of any individual student graduating. It is essential that we address our high dropout rates as we move toward an ever more sophisticated workforce and economy. We can start improving student success by making basic reforms to suspension and ticketing policies.
Children in the Foster Care System
Fourth, the committee will look at how foster children fair in school and in the juvenile justice system. The committee will likely look at ways to improve case management and information sharing so that youth receive appropriate services.
Alternative Discipline Models
Finally, the committee will look at “[e]vidence-based models used for addressing juvenile delinquency prevention that are targeted to non-adjudicated, but at-risk youth, in the school disciplinary system.” Positive Behavioral Intervention and Supports (PBIS) is one school discipline model that helps keep students in school and out of the juvenile justice system.. PBIS is a good alternative because it allows a school-wide approach to school discipline that focuses on prevention rather than simply relying on punishment. Graduated Sanctions is another alternative model. This approach creates disciplinary consequences of growing seriousness with each infraction. Tickets or suspensions are used as last resort measures.
The good news is that state legislators want to improve how we handle discipline at school and are ready to listen to suggestions. We, as parents, students, and Texas residents, have the opportunity to weigh in at this hearing and in the future as these issues continue to be discussed.
Want to get involved? Here’s how you can take action:
- Learn more about school discipline.
- Write your representative.
- Meet with your local legislator: Sign up for the Community Action Network and email firstname.lastname@example.org
By Nimrah Siddiqui
ACLU of Texas Volunteer
Americans expect that they will not be found guilty without a fair trial. A similar principle applies to sentencing of individuals found guilty of a capital offense which, according to our laws, includes the opportunity to provide evidence that the death penalty is too harsh in the circumstances of their case. On August 22, 2012 the U.S. Supreme Court stopped the execution of John Balentine for precisely this reason. The cancellation came just one hour before his execution was set to take place.
Balentine’s lawyer, Lydia Brandt, has argued that extenuating conditions in his childhood, such as violence and delayed emotional development, were not considered when the district court of Potter County handed him the death penalty. According to Brandt, Balentine’s lawyers in his original trial and early appeals failed to present evidence that could have persuaded jurors to give him a life sentence. Brandt cited a recent court ruling from Arizona regarding the issue of ineffective counsel, Martinez v. Ryan, to request a review of his case.
There are two phases in the death penalty trial. First, the jury decides whether the defendant is guilty. If the jury finds the defendant guilty, then the jury decides the punishment. This is called the sentencing phase. In the sentencing phase, attorneys can present mitigating evidence to prove that the defendant should not have to face the death penalty. The majority of death penalty cases involve defendants who have experienced extraordinary circumstances, such as traumatic life experiences or intellectual disabilities, that sometimes convince jurors the death penalty isn’t deserved.
While the system allows for the presentation and consideration of mitigating evidence, the system is also plagued by “randomness” and wantonness, according to a 2011 report from the Death Penalty Information Center (DPIC). The report looks at how capital cases are arbitrarily assessed and reveals how factors other than the severity of the crime or the guilt of the criminal can influence the decision to use the death penalty.
Ineffective legal representation often plays a role in death penalty cases, as well. In many cases, defendants who are unable to pay are represented by inexperienced or over-burdened attorneys. The DPIC has compiled a long list of cases in which the competency of the lawyer or the right to an attorney is at issue.
The Texas Defender Service is an organization that works toward access to competent defense and ensuring a fair criminal justice system in Texas. There current cases of interest include Duane Buck, Marcus Druery, Yokamon Hearn, Ricky Kerr, and Scott Panetti.
John Balentine was the fifth prisoner on Texas’ death row to receive a stay of execution in 2012. There are nine more executions scheduled this year, with two scheduled in September. Robert Harris is scheduled to be executed September 20th, and Cleve Foster is scheduled for execution September 25th.
By Debbie Russell
Editor’s Note: The Harris County hearing was reset for three weeks from today. State District Judge Joan Campbell told the prosecutors she was “floored” that the role of an Austin
police detective has not been disclosed.
Our friends at the ACLU-MA have already provided the linear version of events here. A more detailed account by Jordan Smith of The Austin Chronicle is here. First to break the news was an active Occupy Austin participant, Kit O’Connell, blogging here at FiredogLake.com, which includes the most relevant portions of the transcript of the hearing in Houston last week that brought to light these activities.
On Wednesday, September 5, in a Harris County court, a judge will rule to proceed forward or move to dismiss, essentially by suppressing much of the prosecution’s evidence against the Occupiers.
Background: Across the United States, urban police departments prioritize the drug war and the so-called “war on terror” over simply rooting out violent criminals. The war on drugs targets non-violent, low-level users for the most part, in an effort to log higher arrest numbers such that it appears they are doing their job. The war on terror, formerly the purview of federal entities, and now being done in conjunction with them, takes many forms including: data-mining; spying on people without prior cause; infiltration of activist groups (many times acting as provocateurs); and the use of military tactics to chill free speech.
Case in point: Evidence is mounting that an undercover Austin Police detective induced members of Occupy Austin to commit felony obstruction of a roadway during a demonstration in Houston in December 2011. Or, did he – and two colleagues – intervene in protester plans in order to keep them, and police and firefighters responding to the Houston protest, safe?
The big question is did Austin Police Chief Acevedo order or approve the operation? There’s no doubt that it happened…one of the undercovers proudly admitted it in a court hearing last week. He said he pushed for activists to “step it up” and suggested building lock boxes – a riskier action than simply linking arms to block a roadway. The problem is, participants didn’t know it was “felony” risky! Never before had this action brought more than a misdemeanor charge, but an assistant district attorney in Harris County found a way to bump it up by claiming the lock boxes could have been hiding explosives (a sad irony since the real activists are committed to non-violence).The main risk with lockboxes is that they can be harmful to the users depending on how public safety officials choose to remove them.
Bottom line: Those in charge of our public safety not only lied about who they were and encouraged riskier actions than were being initially planned, but they bought the materials, assembled them and delivered the “criminal instruments” to the activists, putting them at risk of injury and unintended commission of a felony. In no way did this activity by APD protect anyone from harm. In fact, it created it.
Debbie Russell is an Austin-based activist and ACLU of Texas volunteer.
By Sarah Guidry
Interim Executive Director
Earl Carl Institute for Legal & Social Policy
Thurgood Marshall School of Law at Texas Southern University
I recently found out that back in the late 1800s, my paternal great grandfather purchased land and built a school for the education of his children and grandchildren. I recall hearing my father talk about how his grandfather had volumes of Shakespeare on his book shelves that contributed to my father’s yearning to learn. As a child, not a single day passed without my parents and grandparents “preaching” the importance of education. As parents and grandparents of African American children, they knew, as I do, that education is a way to a better life. Education improves key aspects of life including financial, social, familial, and spiritual. Education is power!
My forbearers would never have envisioned today’s educational system that routinely criminalizes our children and closes the doors of opportunity. Students are pushed towards lifelong involvement in the criminal justice system when they are ticketed for relatively minor disciplinary issues. This phenomenon is now widely referred to as the school-to-prison pipeline.
The Earl Carl Institute for Legal & Social Policy, Inc. (ECI), is a research, writing, and advocacy think tank, affiliated with the Thurgood Marshall School of Law on the campus of Texas Southern University, a historically black university. The institute is one of the few organizations providing legal representation to students in school ticketing cases.
We frequently represent children in cases we consider particularly egregious; which brings to mind the story of a student we’ll call Mick. Mick retained the ECI Juvenile Justice Project to represent him in a school ticket case. Mick has ADHD and Asperger’s syndrome, a form of autism, which most often manifests through difficulty with social interaction, and repetitive and restricted patterns of behavior. Mick has an issue with elopement. That’s when a student leaves a permissible area of containment and enters onto another part of the school grounds unsupervised or without permission.
Mick was issued a ticket for trespassing on school grounds after he eloped from his Behavior Support classroom. Mick’s Individual Education Program specifically requires that his emergency contact (in this case, his mother) be notified immediately if Mick elopes, before involving the police. Multiple school personnel followed Mick around the campus for two hours; never once notifying his mother. One of the principals finally suspended Mick to have an excuse to call police. School policy holds that the only lawful place a suspended student may physically “wait” is in the front office. If the student leaves that area or refuses to go to the office, the school may call the police to arrest the student for “trespass.” Only after six squad cars arrived on scene, and Mick was handcuffed and placed in the back seat of a squad car, was Mick’s mother notified of the situation. This was Mick’s third ticket for behavior related to his disability.
ECI was ultimately able to get Mick’s case dismissed. Mick potentially could have had three criminal misdemeanor convictions against him, all by the age of 12, possibly affecting his dream of going to college to earn a degree in computer science and becoming a gaming designer.
Other cases have included a student:
* With anxiety disorder ticketed for disruption of class for singing the ABC song which calms him;
* Overheard saying a curse word in the hallway that was ticketed for disruption of class/profanity;
* With Asperger’s Syndrome who was ticketed for assault when he brushed past a substitute teacher to leave the classroom and walk a certain hallway. He was following his school behavior plan for when he starts to have a meltdown;
* Who was bullied, including being held down and beaten. After the third bullying incident when he’s had enough and tries to defend himself, he is ticketed for disruption of school by affraying (fighting)
* Who, at age 17 and in the ninth grade, was told to withdraw from school and get a GED despite his low grade functioning (4th grade level) and in violation of the school’s duty under federal law to supply services that will allow him to be successful in school. He then was slapped with truancy fines and the court issued warrants for unpaid fines even though the student only receives social security disability benefits and could not pay.
ECI believes that the school ticketing issue should be of particular concern to the African American community. According to a report issued by Texas Appleseed, 97 percent of school tickets are discretionary (meaning the school does not have to issue the ticket). Moreover, young African Americans receive a disproportionate number of these tickets. In some school districts, African Americans are ticketed at a rate double their percentage of the school population.
We cannot afford to stand back and watch the efforts of our great-grandparents, grandparents, and parents eroded by a school system that would rather send children to jail than to college. If you need help fighting this up-hill battle, please contact the Earl Carl Institute at 713.313.1139 or visit our website at www.earlcarlinstitute.org for more information.
By Alex Wagner
ACLU of Texas Legal Intern
|Test your knowledge about over-incarceration in Texas|
The University of San Francisco Law School and the Center for Law and Global Justice recently published a report comparing the American criminal justice system with that of other countries. The results were not flattering.
Compared to the rest of the world, the United States incarcerates for longer periods of time for less serious offenses. That’s why the U.S. has the highest incarceration rate in the world, despite the fact that several European countries actually exceed the United States in prison admissions per capita per year. According to the report, the sentencing practices of the United States are not only out-of-step with the rest of the world and fail to address rehabilitation.
Drug offenders in America are incarcerated for much longer than their international counterparts. Possession of one kilogram of cocaine could earn an American offender a decade in prison, while an offender in Britain would only receive a six-month sentence for the same offense.
And America has many more prisoners serving life sentences without the possibility of parole than any other country in the world. There are about 42,000 prisoners in the US serving life sentences, compared to 59 prisoners serving life in Australia and 41 in England. In most countries life sentences are reserved for extremely heinous crimes such as multiple homicide, whereas in America life sentences can be meted out for much less. Thanks to habitual offender statutes (California’s “three strikes law” being an infamous example), Americans can receive decades in prison for stealing a pair of shoes if the infraction is the third strike.
The report also blames our high incarceration rates on lack of judicial discretion and mandatory minimum sentencing, the frequent use of consecutive sentencing, and the rise in prison privatization. Private prisons hold about 6 percent of state prisoners and 16 percent of federal prisoners. Private prisons benefit financially from laws that require longer sentences, and the industry therefore lobbies against shorter sentences.
The report makes several recommendations to shorten prison terms and bring our sentencing practices more in-line with the rest of the world:
• Abolishing mandatory minimum sentences in favor of more flexible sentencing guidelines;
• Reserve life without parole sentences for only the most extreme cases;
• Retroactively applying new sentencing laws when the new law would reduce the sentence of an offender; and
• Consider international legal standards when codifying sentencing laws.
The ACLU has worked to address over-incarceration nationwide by promoting the passage of the National Criminal Justice Commission Act. Several states, including Texas, are also starting to address the issue and have passed bipartisan reforms to reduce incarceration rates.
Purchase tickets to see Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness in Houston October 2nd.
By Elora Mukherjee
Staff Attorney, ACLU Racial Justice Program
Originally posted on the ACLU Blog of Rights
On Friday, the ACLU settled a class action lawsuit, pending court approval, against officials in the East Texas town of Tenaha and Shelby County over the rampant practice of stopping and searching drivers, almost always Black or Latino, and often seizing their cash and other valuable property. The money seized by officers during these stops went directly into department coffers. It was highway robbery, targeting those who could least afford to challenge the officers’ abuse of power, under the guise of a so-called “drug interdiction” program and made possible by Texas’s permissive civil asset forfeiture laws.
Hundreds, if not more than a thousand, people have been stopped under the interdiction program. From 2006 to 2008, police seized approximately $3 million from at least 140 people as part of the program. None of the ACLU’s clients were ever arrested or charged with a crime after being stopped and shaken down.
Officers who are defendants in the case testified that there were no limits on the searches and seizures conducted under the interdiction program. One of the defendants, Barry Washington, testified that he considered the ethnicity and religion of the motorists to be factors relevant to establishing reasonable suspicion of criminal activity. Under oath, when asked what indicators of criminal activity might be, Washington testified:
Well, there could be several things. There could even be indicators on the vehicle. The number one thing is you have two guys stopped, and these two guys are from New York. They’re two Puerto Ricans. They’re driving a car that has a Baptist Church symbol on the back, says First Baptist Church of New York.
The plaintiffs in the ACLU’s lawsuit lost hundreds or even thousands of dollars to the defendant officers. If they refused to part with their money, officers threatened to arrest them on false money laundering charges and other serious felonies. The consequences for parents of color were even worse: officers threatened mothers like Jennifer Boatwright that if they did not part with their cash and valuables, their children would be taken away from them and put in foster care. This was not an empty threat; when Dale Agostini, a successful restaurant owner, refused to hand over $50,000 in business earnings he was carrying to buy new restaurant equipment, police seized both his money and his 16-month-old son. When Agostini pleaded to keep his son or at least kiss him goodbye, the officers refused and simply continued counting the money they had seized from him.
Thankfully, pending court approval of the ACLU’s settlement, police will now be required to observe rigorous rules that will govern traffic stops in Tenaha and Shelby County. All stops will now be videotaped, and the officer must state the reason for the stop and the basis for suspecting criminal activity. Motorists pulled over during a traffic stop must be advised orally and in writing that they can refuse a search. In addition, officers are no longer using dogs in conducting traffic stops. No property may be seized during a search unless the officer first gives the driver a reason for why it should be taken. All property improperly taken must be returned within 30 business days. And any asset forfeiture revenue seized during a traffic stop must be donated to non-profit organizations or used for the audio and video equipment or training required by the settlement.
To the best of our knowledge, this settlement is unprecedented in not only strictly monitoring traffic stops for racial profiling and other abuses, but also removing the incentives that can lead law enforcement to engage in highway robbery.
While Tenaha represents some of the most egregious abuses in racial profiling and civil asset forfeiture, the facts are far from unique. The ACLU is investigating similar abuses in states across the nation. In the meantime, the settlement in Tenaha should send a message to law enforcement departments across the nation: officers should focus on protecting the communities they serve, not on policing for profit.
By Gislaine Williams
Statewide Advocacy Coordinator
Community advocates gathered in vigils across the state yesterday as Texas carried out the controversial execution of Marvin Wilson Tuesday evening. The United States Supreme Court refused to stop the execution, despite significant evidence that Mr. Wilson was intellectually disabled. In its 2002 case Atkins v Virginia, the Court ruled that executing people with intellectual disabilities violates the Eight Amendment’s ban on cruel and unusual punishment.
With an IQ of 61, Mr. Wilson was declared intellectually disabled by a board-certified neuropsychologist. Texas argued that Wilson was not intellectually disabled using its own standards, known as the “Briseño factors” – standards that are not used by medical professionals and that the American Association on Intellectual and Developmental Disabilities called “fundamentally incompatible with the scientific and clinical understanding of intellectual disability.”
The family of author John Steinbeck also issued an appeal to stop the execution. The Texas Court of Criminal Appeals used Lennie Small, a mentally handicapped character in Steinbeck’s novella Of Mice and Men, as a benchmark in the case establishing the Briseño factors. Thomas Steinbeck wrote that his father’s “work was certainly not meant to be scientific, and the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability.”
Lee Kovarsky, attorney for Mr. Wilson, released this statement once the US Supreme Court denied a stay of execution:
We are gravely disappointed and profoundly saddened that the United States Supreme Court has refused to intervene to prevent tonight’s scheduled execution of Marvin Wilson, who has an I.Q. of 61, placing him below the first percentile of human intelligence. Ten years ago, this Court categorically barred states from executing people with mental retardation. Yet, tonight Texas will end the life of a man who was diagnosed with mental retardation by a court-appointed, board certified specialist. Read the full statement.
Mr. Wilson, 54, was sentenced to death for the 1992 murder of Jerry Williams. His execution marks the 484th execution in Texas since the death penalty was reinstated in 1976. It is the 245th execution under Governor Rick Perry. There are currently nine more executions scheduled for 2012.
Learn more about the Texas death penalty at the Criminal Law Reform campaign website.
Tell Texas to stop executions: Take action here
Find a vigil near you: Texas Coalition to Abolish the Death Penalty vigil schedule