Recent Developments
In the fast-paced world of corrections, it is a challenge to stay current on matters such as “best practices,” organizational and operational challenges, and legal requirements (flowing both from Congress and the courts). Here and in the pages immediately following we will provide information about developments in correctional law and policy, as well as identifying issues on the horizon. Please contact us if you are aware of important matters that have not been mentioned.
Cases
Legislative Actions
Reports & Studies
Publications
Cases
Governor Defies The Courts
Almost wo weeks after review by the NC Supreme Court which left standing a unanimous ruling by the Court of Appeals (accessible here), Governor Beverly Perdue announced that she would block the release of prisoners who were to be freed under the court's ruling (press report accessible here). Only a week earlier, the Governor correctly expressed the view that the State had no choice in the matter, and that the prisoners would have to be freed (news account here)
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The legal basis for the court's ruling was not complex. It had only to decide whether the law meant what it said: "A sentence of life imprisonment shall be considered as a sentence of imprisonment for a term of 80 years in the State’s prison." N.C. General Statute Section 14-2. The ccurt decided that the statute required people sentenced to a life term of imprisonment to serve 80 years. Although the law was subsequently repealed, the change could not apply retroactively of the Constitution's ex post facto clause. (The ex post facto clause prohibits the enforcement of a law that would punish people for conduct that occurred before that law enacted.)
In 1981, the Legislature enacted a statute that awarded day-for-day "good time" sentence reduction credit, which essentially cut a prisoner's sentence in half (assuming continuous good behavior in prison). Credit was also awarded for prisoners productively engaged in work or education ("gain time") and those who performed exceptional acts ("meritorious" time). The plaintiff in this case was admitted into the prison system in 1975 and had maintained good behavior. He was thus entitled to 40 years of good time credit. In addition, Mr. Bowden had been awarded some 2,500 days of credit against his sentence, including more than 1,500 days of credit for meritorious acts. The court concluded that the prisoner, Mr. Bowden, had completed his lawful sentence and was entitled to immediate release.
Governor Perdue's defiance may well cost the State tens of thousands of dollars as each of the estimated 120 prisoners returns to court to secure their release. Many of those prisoners will likely then seek compensation for being held in prison illegally.
New York High Court Rejects Challenge to
Prison Phone "Commissions"
On 23 November 2009, six justices of New York highest court rejected claims that excessive prison telephone rates violated the law. Walton v. NY State Department of Correctional Services. One justice dissented. The 2004 suit, filed by the Center for Constitutional Rights on behalf of prisoners families, asserted that the exhorbitant fees violated due process, denied them equal protection of the law, and amounted to government confiscation. Although the court found that permitting the DOCS to collect "commissions" increased calling costs, and even though the court questioned the wisdom of that policy, it found that DOCS had legal authority to accept money from the telephone company, MCI. The court cited a number of equally dubious decisions from other states to support its holding.
While the suit was being litigated, NY Governor Eliot Spitzer announced that as a matter of executive policy, DOCS would no longer be permitted to collect "commissions" generated from prisoner phone calls. Effective 1 April 2008, a legislative enactment made it unlawful for DOCS to accept revenue in excess of the cost of operating the prisoner phone system.
Almost all state prisons and jails have telephone contracts that provide huge payments from prisoner phone service providers, some as much as 63% of all telephone revenue. For instance, North Carolina has a statewide contract that pays a "commission" of 56% of all revenue (excluding surcharges and taxes). Compare this with the 30% of revenue generated by public payphones on state property.
In 2004, the estimate for revenue that would be generated on NC's public payphones was $1,452,445. Prison payphones were expected to bring in a whopping $10,384,838.
But a few states decline to be entangled in the questionable morality of shamelessly exploiting the familes and friends of prisoners. Neither Michigan, Missouri, Nebraska, New Hampshire, New York, Oklahoma nor Rhode Island accept "commissions" on prison payphone services. And a few other states provide prisoner phone access at rates that are merely high (and not outrageous). For 15-minute collect interstate calls: Florida charges 12 cents per minute; Michigan and New York, 15 cents; Missouri bills 17 cents a minute; and the cost in New Hampshire is 18 cents per minute.
It seems clear that if the families of prisoners are ever to be delivered from the abusive practices of inmate phone service providers the FCC will have to take strong action.
U.S. Supreme Court Decisions
Jimenez v. Quarterman (No. 07-6984)(January 13, 2009)
Federal law allows a convicted person one-year to file a petition for a writ of habeas corpus (which ordinarily attacks the validity of the conviction or the sentence imposed). Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. § 2244(d)(1)(A). The one year time-limit begins at the conclusion of all direct appeals (or when the time for filing such an appeal has expired). When there is a petition for post-conviction relief pending in state court, the one-year clock stops and recommences when the state court renders a decision.
Defendant Jimenez filed a post-conviction claim which alleged he had been denied the right to appeal his conviction. The state appellate court agreed and granted Mr. Jimenez the right to file his appeal late. But the appeal was unsuccessful and Mr. Jimenez filed a second claim for post-conviction relief. After 355 days, the court denied the claim and Mr. Jimenez then file petition for habeas corpus in the federal district court. However, the district court held that the habeas petition was untimely because Mr. Jimenez' judgment became final, even before he was granted a belated appeal. The case was dismissed and the 5 th Circuit Court of Appeals declined to review the lower court's decision.
Unremarkably, the U.S. Supreme Court held that a successful post-conviction challenge in state court meant that the earlier judgment of the trial court was not final, that the 355 days during which his second post-conviction was pending before the state appellate court did not diminish the one-year habeas time-limit, that Mr. Jimenez' habeas petition was timely filed, and the lower courts had been wrong to dismiss the petition. The lower courts' decision was reversed and the case was sent back to the district court for ordinary consideration.
Chambers v. United States (No. 06-11206)(January 13, 2009)
A federal statute (the Armed Career Criminal Act) imposes a mandatory 15-year prison term on a felon unlawfully in possession of a firearm when the defendant has three prior convictions for committing certain drug crimes or violent felonies. 18 U.S.C. § 924(e)(1). The following section of the statute defines a “violent felony” as one that "involves conduct that presents a serious potential risk of physical injury to another."
At defendant's sentencing, the court noted Mr. Chambers three prior felony convictions. The statute was taken into consideration and the court concluded that the failure to report for weekend confinement was a “violent felony.” Thus, the court imposed a mandatory 15 year term of imprisonment, and that sentence was affirmed on appeal by the 7 th Circuit Court of Appeals.
Again, the U.S. Supreme Court unsurprisingly held that failure to report for penal confinement
was beyond the definition of a violent felony as defined by § 924(e)(2)(B)(ii). The decision of the lower courts was reversed.
Herring v. U.S. (# 07-513)(January 16, 2009)
Police officers obtained a search warrant on the basis of information that the suspect was wanted on a warrant in a neighboring county. As it turned out, that information was inaccurate. Meanwhile, the police conducted a search as a part of the defendant's arrest and found drugs on his person and an unloaded gun in his truck. In response to the criminal charges that were subsequently preferred, the defendant argued that the search had been illegal and that the evidence obtained should therefore be excluded.
The trial court held that the officers were not guilty of any wrongdoing and the constitutional protection against illegal searches did not apply. The appellate court agreed, characterizing the foul-up as negligent record-keeping. Since the error was unintentional, the exclusion of the evidence would not deter unlawful conduct by the police and the purpose of the “exclusionary rule” would not be served.
In a 5-4 decision, the Supreme Court held that evidence obtained illegally as a result of negligence could be used to prosecute criminal defendants. Systemic error or reckless disregard of constitutional rights might justify exclusion of the evidence, but here the “good faith” exception to the exclusionary rule applied.
Writing for the dissent, Justice Ruth Bader Ginsburg observed that the Court's ruling would leave defendants with no remedy for the violation of constitutional rights.
Some commentators have noted that the decision extends the “good faith” exception to the exclusionary rule and the so-called “drug exception” to the Fourth Amendment's guarantee against unreasonable search and seizure.
Oregon v. Ice (No. 07-901)(January 14, 2009)
A line of cases that sharply altered the manner in which criminal sentences are handed down began in Jones v. United States , 526 U.S. 227 (1999), in which the United States Supreme Court held that a judge may not impose add time to a criminal sentence based on her own determination of aggravating factors. Instead, for purposes of federal sentencing, the Court concluded that, except for prior convictions, every finding that increases a sentence for a crime must be alleged in the indictment and proven to the jury beyond a reasonable doubt. This decision dramatically altered federal sentencing in the United States.
In Apprendi v. New Jersey , 530 U.S. 466 (2000), the Court extended that principle to criminal sentencing in state courts – each element of a crime that could result in a harsher sentence (other than prior convictions) must be alleged in the indictment and proven to the jury beyond a reasonable doubt.
In United States v. Cotton , 535 U.S. 625 (2002), the issue was the effect of the federal sentencing guidelines (providing a range of sentences based upon the quantity of drugs as determined by a court). The Court held fast to its newly established precedent, as it did in Blakely v. Washington , 542 U. S. 296 (2004)(holding that the Sixth Amendment's jury-trial guarantee requires that the jury, rather than the judge, determine any fact (other than the existence of a prior conviction) that sentences handed down in state court must be supported by the facts either admitted by the defendant or determined by a jury to be true beyond a reasonable doubt.)
Thus, the decision handed down on 14 January 2009 in Oregon v. Ice (No. 07-901) is perplexing. Convicted on two counts of first-degree sex offense, the defendant was sentenced under a statute that provided for concurrent sentences in most circumstances. (When sentences are run concurrently, they are served simultaneously. Consecutive sentences, on the other hand, require that sentences be served one after the other.) The trial judge made a determination that aggravating factors in the case allowed the judge to impose consecutive sentences, though the key facts that doubled the sentence were not presented to a jury, much less were they proven beyond a reasonable doubt. Under the Jones – Apprendi – Blakely line of cases, this process seemed a violation of the 6 th Amendment's guaranteed right to a jury trial. Surprisingly, however, the Court held that it did not.
By a 5-4 decision, the Court took note of the historical practice and the States' authority
over administration of their criminal justice systems. In that light, the 6 th Amendment does not prohibit judges from finding facts to determine whether sentences should be imposed concurrently or consecutively. Neither allegations in an indictment nor a jury determination are required – a departure from previously established precedent that is difficult to understand, much less explain.
After all, the decision to impose consecutive sentences can (and usually does) substantially lengthen a term of imprisonment, the same effect that results from a finding of aggravating factors. The determining factor is not a prior conviction, so the matter seems clearly to fall under the Sixth Amendment.
That historical practice permits such a procedure is no less true of sentencing under state or federal law as it existed prior to the Jones – Apprendi – Blakely line of cases. Nor was respect for state sovereignty a weightier factor under these circumstances. The appellate court reversed the trial court's decision on the authority of this well established line of precedent.
The Court reached the contrary result, explaining that the Jones – Apprendi – Blakely rule is founded on the slender reed of whether the finding of a particular fact was understood as within the jury's domain by the Bill of Rights' framers more than 200 years ago. The case was reversed and remanded.
Commentary: It seems obvious that if the 6 th Amendment's guaranteed right to a jury trial applies to determinations that increase a term of imprisonment as the Court held in the Jones – Apprendi – Blakely decisions, it surely applies to determinations that may double the length of a sentence.
As the Court moves further from foundational doctrines of jurisprudence such as declining to entertain political questions or the need to stand by principles once decided ( stare decisis ), and discounts the importance of predictability in the law, our judicial system becomes increasingly suspect as a political – a struggle between opposing ideologies rather than a search for justice.
United States Court of Appeals for the Fourth Circuit
U.S. v. Comstock (No. 07-7671)(8 Jan. 2009)
A newly-enacted federal statute 18 U.S.C. § 4248 (2006) purportedly grants federal authorities the power to civilly commit “sexually dangerous” persons indefinitely, even after they have completed a lawfully imposed term of incarceration. The 4 th Cir. Court of Appeals concluded that: "The Constitution does not empower the federal government to confine a person solely because of asserted "sexual dangerousness" when the Government need not allege (let alone prove) that this "dangerousness" violates any federal law." Slip op. at p.2.
In essence , the court found that the means by which Congress chose to indefinitely incarcerate people who have committed no crime was constitutionally infirm, but the actual practice could be achieved in alternate ways.
Commentary: The notion that people may be incarcerated based upon the possibility that they may in the future commit a criminal act is both dangerous (since those criteria could encompass virtually everyone), and repugnant to fundamental principles of limited government in a free society. There are certainly cases in which a person presents an immediate danger of harming himself or others and must be civilly committed for the good of all. However, in the absence of proof beyond a reasonable doubt that such harm is threatened, there are no meaningful constraints upon the arbitrary imposition of deprivations of liberty by government.
Reports, Studies & Publications
- Internal Exile: Collateral Consequences of Conviction
in Federal Laws and Regulations
- Children in the Criminal Justice System
- Eye Witness identification
- Recent Publications
Internal Exile: Collateral Consequences of Conviction in Federal Laws and Regulations
In collaboration with the Public Defender Service for the District of Columbia, the ABA's Commission on Effective Criminal Sanctions compiled an overview of statutory and administrative materials that have adverse consequences for people convicted of federal crimes as of January 2009.
Children in the Criminal Justice System
A new study finds that children may be tried criminally as adults in every state, and preadolescent children as young as 7 may be tried in the adult courts of more than 20 states. Deitch, Michele, et.al., From Time Out to Hard Time: Young Children in the Adult Criminal Justice System, The University of Texas at Austin, LBJ School of Public Affairs (2009). http://www.utexas.edu/lbj/news/images/file/From%20Time%20Out%20to%20Hard%20Time-revised%20final.pdf
Eye Witness ID Study 2008
IN THEORY, JUSTICE is blind. In practice, it may be legally blind. Researchers set up an experiment with college students to test the reliability of witnesses. First, the researchers staged a crime, which involved a person walking into a room where the witnesses happened to be and taking a laptop in plain view. Afterward, the researchers showed the witnesses a photo lineup of six people - none of whom were the actual thief - and asked if the witnesses could make an identification. An overwhelming majority of the witnesses made an identification. Two days later, each witness was given one of several randomly chosen stories about who had or had not confessed. A majority of the witnesses who had made an initial identification but were later told that someone else in the lineup had confessed switched their identification to the confessor.
Likewise, half the witnesses who had (correctly) declined to make an identification but were later told that someone else in the lineup had confessed now identified the confessor, as if the confession had simply jogged their memory. If these findings are even somewhat indicative of what happens in the real world, then they call into question the fundamental reliability of eyewitness evidence.
Quoted directly from press release: Hasel, L. & Kassin, S., "On the Presumption of Evidentiary Independence: Can Confessions Corrupt Eyewitness Identifications?" Psychological Science (December 2008).
Recent Publications
Schlanger & Shay, Preserving the Rule of Law in America's Jails and Prisons: The Case for Amending the Prison Litigation Reform Act, 11 Univ. Penn. Journal of Constitutional Law p.139 (2008)(PLRA's obstacles to meritorious lawsuits undermine the rule of law in nation's jails and prisons and weaken governmental accountability, requiring amendment of the Act, at a minimum).
Smart on Crime: Recommendations for the Next Administration and Congress
A group of scholars, prisoner advocates, and others convened by teleconference in late summer/early autumn this year to consider the most pressing issues in criminal justice reform to develop recommendations for the Obama Transition Team. The fruits of that combined wisdom can be found at the following links.
http://www.2009transition.org/
; www.2009transition.org ; and www.constitutionproject.org
The recently completed Justice Policy Institute report, “ A Decade of Resistance to t he Prison Industrial Complex ,” a .pdf document, can be retrieved at www.justicepolicy.org .
The ACLU's National Prison Project has compiled a “ Resource Guide: State Standards for Pregnancy-Related Health Care in Prisons ,” which describes minimum health care standards for pregnant women in prison. The Guide explores actual policy and practice in various states and provides contact information for further information on a state-by-state basis. (It may be shocking to learn that very often, women in labor remain handcuffed and shackled; the shackles being removed, if at all, near the moment of delivery.) Access the guide at: http://72.3.233.244/reproductiverights/gen/pregnancycareinprison.html
In collaboration with the Urban Institute, the National Institute of Corrections (NIC), and the JEHT Foundation, the Pew Center on states convened two meetings of national experts on successful strategies for assisting prisoners after their release from prison. The consensus recommendations can be found in the publication, “ Putting Public Safety First: 13 Strategies for Successful Supervision and Reentry .” http://www.pewcenteronthestates.org/report_detail.aspx?id=46538
A prisoner advocacy organization, Epoch Publications, has published an on-line “ National Inmate Resource Directory ,” accessible at http://www.epochpublications.com/index.html .
The staff of North Carolina Prisoner Legal Services' Safe & Humane Jails Project recently completed a resource manual for Detention Administrators entitled “ Identifying and Treating People with Mental Illness in North Carolina's Jails: A Practical Approach .” Funding for the project was provided by the North Carolina State Bar's program, Interest on Lawyers' Trust Accounts (IOLTA).
