A Case for Labor Day: McGarry v. Pallito

In an August 10 opinion, the Second Circuit allowed a case based on the 13th Amendment right to be free from involuntary servitude to proceed.  Finbar McGarry, a Vermont resident, was arrested and detained pending trial in the Chittenden Regional Correctional Facility from December 2008 until June 2009. While there, he was housed in House 1 where all inmates, including pretrial detainees, are required to work. Despite his objections, McGarry was assigned to work in the prison laundry. He was told that refusal to work would result in administrative segregation. Defendants justified the requirement on the ground that it furthered a legitimate penealogical interest in “educating offenders about real world responsibilities.” McGarry subsequently filed several unsuccessful grievances complaining about the long hours he had to work and the intolerable conditions, including handling soiled clothing without gloves or the ability to clean his hands. He also alleged that working in the laundry resulted in a painful staph infection.

The appellate court reversed the district court judgment dismissing McGarry's pro se complaint. It found that his complaint had, in fact, presented a plausible 13th Amendment claim. It pointed out that "[t]he Amendment was intended to prohibit all forms of involuntary labor, not solely to abolish chattel slavery." Furthermore, the exception for those “duly convicted” did not apply and, although individuals may be detained before they have been convicted and the "liberties and privileges" of pretrial detainees may curtailed, "such conditions may not violate the Constitution." In United States v. Kozminski, 487 U.S. 931 (1988), the Supreme Court stated that involuntary servitude was “a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process.” Indeed, in federal facilities “[a] pretrial inmate may not be required to work in any assignment or area other than housekeeping tasks in the inmates’ own cell and in the community living area, unless the pretrial inmate has signed a waiver of his or her right not to work.” 28 C.F.R. § 545.23(b). The defendants principle argument, that allowing McGarry's claim to proceed “would demean and trivialize the deep significance of the Thirteenth Amendment in the history of this country,” was rejected by the Second Circuit. Rather, it found that McGarry's allegations were supported by "well-pleaded facts" and, therefore, his claim of "'threat of physical restraint or physical injury' within the meaning of Kozminski" was plausible and should be allowed to move forward.
 

Juvenile offenders and life without parole

Available on SSRN: "The Paradox of Graham v. Florida and the Juvenile Justice System" by federal district court law clerk (C.D. Cal.) Aaron Sussman, forthcoming in the Vermont Law Review. The author analyzes a series of Supreme Court decisions on sentences for juveniles that foreclose any possibility of parole, including Graham v. Florida (2010) as well as the recent Miller v. Alabama/Jackson v. Hobbs decision.  He finds "a sharp disjuncture emerges between the Supreme Court’s language and the realities of the criminal justice system, a disjuncture that, in the context of Graham and its progeny, helps preserve the perception of legitimacy but may inhibit even small steps toward improving the conditions and rehabilitative potential of the juvenile justice system."

A Variety of Views on Miller v. Alabama

Children in Prison for Life, New York Times

‘Elite’ Supreme Court Sides with Science and Juveniles, Jonathan Zimmerman, Christian Science Monitor

Justice for Juvenile Criminals, Denver Post

Justices Should Use More Than Their Gut and “Brain Science” to Decide a Case, Richard A. Posner, Slate

Mandatory Life Without the Possibility of Parole for Juveniles Is Unconstitutional, Joy Moses, Center for American Progress

The Roberts Court's Liberal Turn on Juvenile Justice, David S. Tanenhaus, New York Times

Shall We Lock Up a Child and Throw Away the Key?, George F. Will, Washington Post

The Supreme Court Gives (Some) Juvenile Lifers a Second Chance, Liliana Segura, Nation

Supreme Court Ruling on Juveniles is a Partial Victory, James Allen Fox, Boston Globe

Supreme Court Ruling on Life Sentences for Young Criminals, Christian Science Monitor

The U.S. Supreme Court Gives Teenage Murderers a Chance, Marni Soupcoff, National Post (Canada)

Mandatory Life Sentences for Juveniles

Today the Supreme Court handed down a 5-4 decision in the combined cases of Miller v. Alabama (10-9646) and Jackson v. Hobbs (10-9647). The majority opinion, written by Justice Kagen and joined by Justices Kennedy, Ginsburg, Breyer, and Sotomayor, stated that "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on 'cruel and unusual punishments.'"  See reports from Jurist, The New York Times, the Chicago Tribune, CNN Justice, Human Rights Watch, and the San Francisco Chronicle.

Felony Disenfranchisement

The Sentencing Project recently published Felony Disenfranchisement: An Annotated Bibliography (March 2012).  The document covers the past twenty years of disenfranchisement studies and analysis which, it is noted "examine disenfranchisement from a variety of perspectives – law, social science, history, and journalism [and] provide new estimates of the statistical impact of disenfranchisement, assess legal and moral perspectives on the policy, and place the issue in a comparative international context."  Links are provided to a number of the articles cited in the online version.  The information for the bibliography was compiled by Benjamin Bronstein, Jerome Pierce, and Achilles Sangster II.  Marc Mauer, Executive Director of The Sentencing Project, was the editor.

“Reassessing Solitary Confinement: The Human Rights, Fiscal and Public Safety Consequences”

On June 19, 2012, Professor Michael B. Mushlin submitted the following testimony in the Hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights (Chairman: The Honorable Dick Durbin, Ranking Member: The Honorable Lindsey Graham):

Thank you for holding this important hearing and inviting testimony. My name is Michael B. Mushlin. I am a Professor of Law at Pace Law School in White Plains, New York. I am the author of Rights of Prisoners,¹ a four volume treatise, and a member of the American Bar Association’s Task Force on the Legal Status of Prisoners. I am also a co-chair of the American Bar Association, Subcommittee on Implementation of the ABA Resolution on Prison Oversight,² and have served as chair of the Committee on Correction of the New York City Bar Association, the Correctional Association of New York and the Osborne Association, an organization that provides training and support programs for people in jail and prison or who are being diverted from imprisonment. Currently, I am a vice chair of the Correctional Association of New York, a 168 year old organization endowed by New York law with the authority to visit New York State Prisons with the responsibility to report on their condition to the New York state legislature. With colleagues, including Prof. Michele Deitch of the University of Texas, I participated in the organization of two national conferences on prison reform, the first Prison ReformRevisited: The Unfinished Agenda held at Pace Law School and the second, OpeningUp a Closed World: What Constitutes Effective Prison Oversight held at the University of Texas. Both conferences drew together professionals from all segments of the criminal justice and corrections fields to discuss improvement to the operation and oversight of the American prison system. For seven years, I was staff counsel and then the Project Director of the Prisoners’ Rights Project of the Legal Aid Society. I also served as staff counsel with Harlem Assertion of Rights Inc., and was the Associate Director of the Children’s Rights Project of the American Civil Liberties Union. For the 2012/13 academic year, I will be a Visiting Professor of Law at Brooklyn Law School.

I first confronted conditions in solitary confinement units over thirty years ago when I served as trial counsel in a federal civil rights case involving Unit 14, the solitary confinement unit at Clinton prison in upstate New York close to the Canadian border. What I saw there was deeply disturbing. Inmates were locked for 23 hours each day into small windowless cages for months and years on end. No programs or activities were provided to them. Without access to any meaningful activity, they were separated from one another spending almost all of their time entirely by themselves. During that one precious hour per day when a Unit 14 inmate could leave his cell there was only one place to go: a small space directly behind his cell called a “tiger cage.” The tiger cage was a small empty space with a barren floor surrounded on all sides by high concrete walls which were not covered by a roof. An inmate could walk only a few steps in one direction before turning. If he looked up he could glimpse a bit of the sky but nothing else of the outside world.³

Working on that case I witnessed firsthand the awful consequences of subjecting human beings to solitary confinement. I will never forget looking into the eyes of those inmates struggling to maintain a foothold on reality and sanity. Afterwards, when visiting other solitary confinement units, no matter where, I see that same pained, desperate stare. I have seen it so often, and in so many different places, that I have come to recognize it instantly as the gaze of a tortured person.

Aging prisoners

The ACLU has just released a compelling report, At America's Expense: The Mass Incarceration of the Elderly.  Some of the facts:

• In the U.S., 246,600 prisoners are 50 or older;
• The annual cost of incarcerating someone 50 or older is $68,270 a year - twice as much as an average prisoner;
• Even if released elderly prisoners rely on the government for healthcare and other aid, states will still save at least $28,362 a year for each prisoner; and
• Risk of recidivism is minimal as evidenced by a study of N.Y. prisoners which found that the 3-year recidivism rate for those released at ages 50-64 was 7%, and only 4% for those 65 and older.