Solitary Confinement: New York's Hidden Problem

Professor Michael B. Mushlin's latest thought-provoking article from The New York Law Journal is available at: http://www.newyorklawjournal.com/PubArticleFriendlyNY.jsp?id=1202570044326#[9/4/2012_2:05:28_PM] 

Georgia State University Prison Initiative

An interesting project has been posted on Kickstarter (a funding platform for independent projects): One Nation, Behind Bars: Ed Solutions for Mass Incarceration. A Georgia State film student is looking to raise another $1200 by midnight tomorrow to fund his senior thesis project, described as a

quality student produced, directed, and edited 45-minute to 1-hour documentary film [that] will investigate and discuss the societal advantages and ever-growing need for education programs in the U.S. Prison System ... by focusing on The Georgia State University Prison Initiative, a service-learning project that brings together 15 GSU students ... and 15 volunteer inmates at Philips State Prison just outside of Atlanta in order to study literature, discuss contemporary societal issues, and increase inmate and student literary and social competency.

Just like PBS, there are rewards for contributing so, if you're interested and have a few bucks to share .... 

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.