ACLU Response to White House Drug Policy Proposal

ACLUThe White House announced a new proposal today for policies that respond to the opioid addiction crisis, including possibly imposing the death penalty for those charged with dealing drugs.

Jesselyn McCurdy, deputy director of the American Civil Liberties Union Washington Legislative Office, had the following reaction:

“The opioid crisis is a serious problem that requires a serious solution. But the draconian law enforcement provisions included in this proposal are unconstitutional and absurd.

“Drug trafficking is not an offense for which someone can receive the death penalty. The Supreme Court has repeatedly and consistently rejected the use of the death penalty in cases where there has been no murder by the convicted individual.

“This approach is also disturbingly reminiscent of the war on drugs, which set back American drug policy decades, and codified harm to black and brown people — laws we have just begun to reverse. And like the war on drugs — with a focus on extreme punishments instead of the root causes of drug use and no provisions to address racial disparities — the White House’s proposal will almost certainly fail to solve the actual crisis facing the country.

“The administration has, once again, put out a potentially disastrous and ill-thought-out policy proposal into our national discussion. The idea of executing people who sell drugs is ineffective, and lawmakers on both sides of the aisle understand that.”

This statement can be viewed online here:
https://www.aclu.org/news/aclu-response-white-house-drug-policy-proposal

ACLU Sues Georgia County Over Discriminatory, Wealth-Based Bail System

death rowThe American Civil Liberties Union and the ACLU of Georgia filed a federal class-action lawsuit today against Glynn County, Georgia, for violating the constitutional rights of people arrested for misdemeanors. The lawsuit was brought against the county itself, as well as the county’s sheriff, chief magistrate judge, and court-appointed public defender, and seeks an immediate and permanent change to an unconstitutional cash bail system that discriminates against the people who are financially strapped.

Those who cannot afford to pay money bail amounts determined by the county’s bail schedule are detained indefinitely, while those who face the same charges but can afford to pay the money bail amounts are freed until trial. Low-income people are also denied effective, meaningful representation at bail hearings where an attorney could argue for their release.

“People who cannot afford to pay bail or hire a private attorney face an impossible choice — plead guilty or face loss of their families, jobs, and homes as they wait for their cases to move through the system,” said Andrea Woods, Equal Justice Works Fellowship attorney with the ACLU’s Criminal Law Reform Project. “A person’s wealth should never decide their freedom, but that’s exactly what’s happening in Georgia and across the country. In Glynn County, the contract public defender and prosecutors alike refuse to grant people the presumption of innocence and ignore the government’s due process obligation to ensure that release upon arrest is the norm.”

The lawsuit argues that Glynn County’s system of money bail violates the Constitution because it keeps people in jail if they can’t afford bail while allowing those who can pay to go home to their families, jobs, homes, and communities. With each day in jail, the person’s chances for a fair trial diminish as evidence and witnesses disappear, and many plead guilty even when innocent just to go home.

“The Glynn County court system holds hostage the freedom of individuals arrested for misdemeanors, leaving those who are financially strapped unable to afford the predetermined ransom,” said Sean J. Young, legal director of the ACLU of Georgia.

The suit, filed on behalf of two plaintiffs representing a class in U.S. District Court for the Southern District of Georgia, accuses officials in the county of operating a two-tiered system of justice based on wealth, in violation of the Right-to-Counsel and Due Process clauses of the 6th and 14th Amendment and Equal Protection Clause to the 14th Amendment.

The lawsuit filed today includes a complaint, a motion for class certification, and a motion for a temporary restraining order and preliminary injunction.

The bail amounts for the suit’s plaintiffs are each $1,256. Neither of the plaintiffs can afford to hire a criminal defense attorney and are thus eligible for representation from the public defender.

Plaintiff Margery Mock is incarcerated on a $1,256 bond on an alleged criminal trespass charge from trying to visit a relative at a motel. Her possessions are currently in a storage unit, which she was living in at the time of her arrest because she does not have stable housing, and risks losing all of her property due to her wealth-based incarceration.

Glynn County’s system of wealth-based detention is arbitrary, the lawsuit argues. Each offense has an assigned dollar amount. If a person can arrange to pay the full amount to the sheriff in cash or property, or can arrange for payment through a bail bond company or another third party, the sheriff releases that person automatically without evaluating whether the person will flee before trial or endanger the community. Those who cannot pay the pre-determined bail amount must remain in jail, waiting days or weeks for their first hearing.

The lawsuit also targets the deficient misdemeanor public defender system in the county. Glynn County only pays one lawyer to represent everyone accused of a misdemeanor who cannot afford to hire a private attorney. This contract defender does not visit clients who are stuck in jail, file motions on their behalf, or appear at hearings to request lower bail. The contract attorney instead only meets clients when they plead guilty to sign off on sentencing paperwork.

The lawsuit against Glynn County is a continuation of efforts from the ACLU Campaign for Smart Justice to end wealth-based bail detention in Georgia and across the nation.

The ACLU Campaign for Smart Justice — an unprecedented effort to reduce the U.S. jail and prison population by 50 percent and to combat racial disparities in the criminal justice system — has launched a new initiative focused on bolstering the movement to end money bail and eliminate wealth-based pretrial detention through legislative advocacy, voter education, and litigation. The lawsuit in Glynn County is the third related filing by the ACLU in 2018 alone, with many to come across the country in the effort to end our overreliance on the money bail system.

Today’s complaint can be found here:
https://www.aclu.org/legal-document/mock-et-al-v-glynn-county-et-al-complaint

ACLU Comment on Sentencing Reform Senate Committee Vote

death rowWASHINGTON — The Senate Judiciary Committee will hold a markup vote tomorrow (Thursday, February 15) on a bill to address the problem of mass incarceration at the federal level.

The Sentencing Reform and Corrections Act (SRCA S. 1917), supported by the American Civil Liberties Union, aims to reduce incarceration rates by instituting reforms such as giving judges additional discretion in sentencing and reducing sentencing disparities. 

Jesselyn McCurdy, deputy director of the ACLU Washington Legislative Office, said:

“Tomorrow’s vote will be the most significant criminal justice reform legislation to be considered by Congress since 2010. The Sentencing Reform and Corrections Act is our best chance in nearly a decade to make meaningful reforms to help prevent mass incarceration. Mass incarceration is an utter failure as a public policy due to its failure to increase public safety and its disproportionate impact to poor communities and people of color.

“The bill isn’t perfect but will help reduce America’s incarceration problem that has ravaged our communities and left us with the world’s largest prison population. We urge Congress to swiftly enact this bill.”

An ACLU letter to Congress in support of the bill is available here:
https://www.aclu.org/letter/aclu-letter-s-1917-sentencing-reform-and-corrections-act-2017

This statement is online here:
https://www.aclu.org/news/aclu-comment-sentencing-reform-senate-committee-vote

Dallas Co., Texas sued over bail practices

death rowCivil Rights Corps, the Texas Fair Defense Project, the American Civil Liberties Union, and the ACLU of Texas filed a federal class action lawsuit against Dallas County, Texas, the sheriff, and the county’s judges and magistrates, for violating the constitutional rights of people arrested for misdemeanors and felonies. Those who cannot afford to pay money bail amounts determined by the county’s bail schedule are detained indefinitely, while those who face the same charges but can afford to pay the money bail amounts are freed until trial.

“No person should be kept in a cage just because she doesn’t have enough money to make a payment,” said Civil Rights Corps attorney Elizabeth Rossi. “The decision to throw a person who is presumed innocent in a jail cell is a serious one. And a person’s access to money should not be the only factor that determines whether she is free or is in jail.”

Dallas County’s system of money bail violates the Constitution because it keeps people in jail if they can’t afford bail while allowing those who can pay to go home to their families, jobs, homes, and communities. With each day in jail, the person’s chances for a fair trial diminish as evidence and witnesses disappear, and many plead guilty even when innocent, just to go home.

“It’s time for Dallas to create a post-arrest system that upholds due process and equal protection, and honors the presumption of innocence,” said Susanne Pringle of the Texas Fair Defense Project. “A fair pretrial system is also a safer pretrial system for the entire community. Dallas County’s current unconstitutional practice of holding anybody who cannot afford to make an arbitrary payment makes everybody in the county less safe.”

The suit, filed on behalf of six plaintiffs in U.S. District Court for the Northern District of Texas, accuses officials in the county of operating a two-tiered system of justice based on wealth, in violation of the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution.

The bail amounts for the suit’s plaintiffs range from $500 to $60,000. Of the six plaintiffs, nearly all are unemployed and living in poverty; one was working before his arrest and now fears losing that job because he is in jail. Plaintiff Shannon Daves, age 47, is homeless. On January 17, she was arrested and charged with a misdemeanor. She cannot afford the $500 money bail required by the court’s bail schedule. Ms. Daves is a trans woman and has been held in solitary confinement at the Dallas County Jail since her arrest because she is trans.

“In Dallas County, the government rips people out of their lives and throws them in jail, for no other reason than their inability to pay money bail,” said Brandon Buskey, senior staff attorney with the ACLU’s Criminal Law Reform Project. “That jail time can bankrupt a family. Dallas County hurts not only the people who can’t afford its money bail, but those who can barely afford it—the families who wipe out their savings or fall victim to the bail bond industry’s predatory loan schemes just to keep a loved one out of jail.”

Dallas County’s system of wealth-based detention is arbitrary. Each offense has an assigned dollar amount. If a person can arrange to pay the full amount to the sheriff in cash or property, or can arrange for payment through a bail bond company or another third party, the sheriff releases that person automatically, without evaluating whether the person will flee before trial or endanger the community. Those who cannot pay the pre-determined bail amount must remain in jail, waiting days or weeks a release hearing.

Studies show that money bail systems like Dallas County’s make it more likely that innocent people will plead guilty before trial so they can get out of jail. Studies show that keeping someone in jail before trial increases the likelihood that, when released, they’ll be charged with another offense and return to the system.

Nationwide, as in Dallas County, a person’s ability to pay bail is the most important factor in determining whether someone is released or detained following arrest. Yet research demonstrates that money bail does not improve public safety or court appearance rates. Non-financial conditions of release—like unsecured bond, reporting obligations, and phone and text message reminders of court dates—are more effective at ensuring public safety and court appearances.

In Dallas County, money bail has a devastating impact. Nearly one out of every six people in the county lives in poverty.

“The situation in Dallas County Jail is a crisis,” said Trisha Trigilio, senior staff attorney for the ACLU of Texas. “Like hundreds of people Dallas keeps locked in jail every day, our clients were never asked if they could afford the bail they were assigned. A judicial system where the amount of money in a bank account is the only thing standing between a defendant and her freedom is not a system interested in dispensing justice.”

Over the past two years, lawsuits have successfully challenged wealth-based detention, resulting in reform and judicial orders condemning these practices in Alabama, Georgia, Louisiana, Mississippi, Missouri, Tennessee, and Texas. In 2014, an Alabama federal judge held in a case challenging money bail practices in a municipal court that “[j]ustice that is blind to poverty and indiscriminately forces defendants to pay for their physical liberty is no justice at all.”

The lawsuit against Dallas County is a continuation of efforts to end wealth-based bail detention in Texas and across the nation.

The ACLU Campaign for Smart Justice — an unprecedented effort to reduce the U.S. jail and prison population by 50% and to combat racial disparities in the criminal justice system — has launched a new initiative focused on bolstering the movement to end money bail and eliminate wealth-based pretrial detention through legislative advocacy, voter education, and litigation. The lawsuit in Dallas County is our second bail related filing by the ACLU in 2018 alone, with many to come across the country as we work towards much-needed reforms to the money bail system.

Relying on longstanding Supreme Court precedent holding that no person should be kept in jail just because she cannot afford to make a payment, Civil Rights Corps attorneys have brought groundbreaking class action lawsuits across the country, challenging the scourge of money bail and shedding light on the traumatic experience of being jailed for being poor. These cases have prompted dozens of jurisdictions around the country to end their unconstitutional wealth-based pretrial detention policies, and they have provided momentum for a pretrial reform movement that is rippling throughout the United States and changing the way our legal culture and our society think about wealth-based human caging.

The Texas Fair Defense Project (“TFDP”) has worked to improve pretrial practices across Texas through both litigation and advocacy. This lawsuit is TFDP’s second lawsuit challenging unconstitutional money-bail systems in Texas.

For the complaint and more information about the case:
https://www.aclu.org/cases/daves-v-dallas-county

How Delaware reviews police deadly force debated

University of Michigan School of Engineering senior William Royster, 21, stands with the words “#Black Lives Matter” on tape over his mouth

University of Michigan School of Engineering senior William Royster, 21, stands with the words “#Black Lives Matter” on tape over his mouth

The Delaware Attorney General does not use the grand jury as an investigative body as was done in Ferguson and Staten Island. Local critics charge that the state’s review process is similarly flawed and should a similar situation arise here, the review will not earn the public’s trust.

Currently, a unit the Delaware Attorney General’s Office looks into every police use of deadly force in the state, including when a person is injured and not just when there is a death. A public report is then released by the office.

“There should be a third party without a vested interest,” said Richard Smith, president of the Delaware NAACP. “So the truth comes out.”

Rev. Derrick Johnson, who led a protest march to Wilmington Police Headquarters earlier this month, issued a similar call for a new, independent body – like a special prosecutor – to review citizen claims against police.

ACLU Delaware Executive Director Kathleen MacRae said police are “the only quasi-military body permitted to use force against American citizens in this country with no civilian oversight.”

She said the relationship between law enforcement and the prosecutors’ office is too “intimate” to allow for a dispassionate and unbiased review of police actions, and that some kind of outside organization should be created to conduct such reviews.

Civil rights attorney Thomas Neuberger, who has been involved in a number of civil lawsuits against Delaware police agencies, charged that “there is no hope in Delaware or anywhere in the country that police departments will be held accountable criminally for deaths of unarmed civilians.”

“The only remedy for victims of police brutality is in the civil courts,” he said.

Delaware Fraternal Order of Police President Fred Calhoun said that the state has a good process in place that has never provoked the backlash that is going on elsewhere. As a result, he said he does not favor changing Delaware’s review process, “when we haven’t shown there is a reason to change our system.”

Civil rights attorney David Finger, who has clashed with state officials over other civil rights issues in the past, agreed with Calhoun, saying that just because there are problems elsewhere does not mean there are problems here.

“You have to be careful not to take extreme examples and treat them as the norm,” said Finger.

The situations in Ferguson and Staten Island appear to be anomalies, he said. But he added that it is always good for a government or organization to periodically review how it is operating. “But you shouldn’t start with the assumption that it is broken.”

Tim Mullaney, chief of staff for Attorney General Beau Biden, defended the current system, saying it is far more than a cursory review. It is a full investigation, he said, with Department of Justice investigators who have arrest powers and who go to the scene of incidents and sit in on police interviews and create their own independent report.

The investigators are usually from the fraud division of the Attorney General’s Office and generally don’t have day-to-day interaction with police like employees in the criminal division, said Mullaney, a former U.S. Marshal and Dover Police officer.

Mullaney said if the use of force is justified, he writes up a short, usually two- to three-page public report explaining the finding. If the use of force is not justified, then the officer would be arrested and it would proceed through the criminal justice system like any other case.

Since 2008, Mullaney said he has issued at least 30 reports on police use of force. He said he first started reviewing use of force investigations when he was chief of the fraud division and continued in that role when he became Biden’s chief of staff.

But in all those reports, and as far as anyone can tell in the many years before Mullaney, there has never been a finding by the Delaware Attorney General that the use of force by police was not justified.

“The bottom line: it is what it is. The facts determine what it is,” Mullaney said, adding that to explain why there has never been a finding against police is a near-impossible task because it is like asking him to “argue a negative.”

While there may not be much formal contact between investigators from the fraud division and police, many investigators are former Delaware police officers, including retirees from the Wilmington and New Castle County police.

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