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CRIME AND PUNISHMENT
JUVENILE JUSTICE
And Justice for Some
Black and Hispanic youths are treated more severely than white teenagers charged with comparable crimes at every step of the juvenile justice system, according to a comprehensive report released in April. The report, called "And Justice for Some," was sponsored by the U.S. Justice Department and six of the nation’s leading foundations.
The report found that minority youths are more likely than whites to be arrested, held in jail, sent to court for trial, convicted and given longer prison terms. The disparity widens with each additional step into the juvenile justice system.
Ira Glasser, Executive Director of the ACLU, said the report’s findings did not surprise him. "It’s a well established fact," he said, "that the racism in our society is nowhere more evident or more severe than in the criminal justice system."
More Youth on Death Row
More people under age 18 are awaiting execution than at any other time since the ban on capital punishment was lifted in 1976, The New York Times reported in August. Even many prosecutors who support the death penalty are expressing concern about sentencing to death those who were still children when they committed their crimes.
"Experts say that the trend toward harsher punishment for younger offenders is occurring amid growing scientific evidence that the brain is still developing through adolescence and that with proper intervention violent juvenile offenders can be rehabilitated," the Times said.
The United States is one of only seven countries that permit such executions, according to the State Department. Several international human rights treaties prohibit the practice.
The United States Supreme Court upheld the constitutionality of the death penalty for 16- and 17-year-olds by one vote in a devastating 1989 ruling written by Justice Antonin Scalia.
PRISON INDUSTRIAL COMPLEX
Reading Between the Bars
Acting on behalf of eight local publishers and the prisoners who want to read their papers, in March the ACLU of Colorado filed a federal court challenge to the censorship of books, newspapers, magazines, and political commentary by the Colorado Department of Corrections.
The ACLU said the list of banned reading material included political commentary from both the left and the right; religious periodicals; novels; plays; and publications that advocate prisoners’ rights. The lawsuit does not deal with sexually explicit publications.
The result of the policy "is an arbitrary, erratic, inconsistent and irrational regime of censorship that repeatedly violates the constitutional rights of publishers as well as prisoners," said Mark Silverstein, Legal Director of the ACLU of Colorado.
A Punishing Decade for Drug Offenders
The number of drug offenders in many state prisons tripled from 1986 to 1996, even when adjusting for population growth, according to a report issued in July.
The study by the Justice Policy Institute also said that the number of blacks jailed on drug charges had quintupled during the 10-year period. It called the period "the most punishing decade in our nation’s history."
Ira Glasser, Executive Director of the ACLU, agreed that the findings, although not unexpected, are deeply disturbing. "The war on drugs in America has turned into a war on civil liberties, and particularly the civil liberties of African-Americans," he said. "Most of those in jail for drugs committed minor offenses, and the punishment in no way fits the crime. Our nation’s drug laws are doing nothing to alleviate the drug problem or the crime associated with it."
Fighting for Female Prisoners
Saying that female prisoners at a Michigan county jail are subjected to sexual harassment and barred from work release and other jail programs, in March the ACLU of Michigan filed a federal class-action challenge to a new state law barring prisoners from seeking protection in the courts. The law, which went into effect on March 10, exempts prisoners from the protections of the state human rights law, which prohibits discrimination on the basis of race, gender, and religion.
"Discrimination, harassment, and unfair treatment are real and legitimate problems within the Michigan prisons and jails," said ACLU of Michigan Executive Director Kary Moss. "For the state legislature and governor to take away the state law remedy is to turn the clock back 100 years."
One in 147 Jailed: You Do the Math
The U.S. prison population, long the largest in the world, may have surpassed two million this year, according to a U.S. Justice Department report.
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| Vermont artist Delia Robinson is engaged in a series of paintings on the "current preoccupation of the prison industry on how to best pack a prison." She illustrates the relationship between this mindset and diagrams that were used by slave traders on how best to load slave ships. This is a detail from "How to Pack a Prison." |
From the end of 1990 to mid-1999, the prison and jail population swelled by almost 712,000 inmates, resulting in an incarceration rate of one in every 147 Americans, up from one in every 218, according to the report. The nation’s steadily increasing incarceration rate comes as a result of tougher laws that impose stiffer sentences and put more drug offenders behind bars, the ACLU said.
Since 1973, when harsh drug laws were passed, 85 percent of the increase in incarceration has been due to drug convictions, the bulk of them for nonviolent crimes, noted ACLU Executive Director Ira Glasser.
People of color are paying the highest price for this strategy, Glasser said, because of the "stunning and unjustifiable" racial disparities in sentencing between crack cocaine and powder cocaine, as well as other racial disparities in how drug laws are enforced.
Criminal Justice in Crisis: A Civil Rights Emergency
A groundbreaking report issued in May by the Leadership Conference on Civil Rights powerfully made the case that criminal justice reform is a civil rights emergency that belongs on the agenda of all organizations that care about civil rights.
The report from the nation’s oldest, largest and most diverse civil and human rights coalition documents that black and brown Americans are routinely subjected to ever harsher treatment at every stage in the criminal justice system, while their white counterparts are treated preferentially.
"We are not asking Congress to be soft on crime," said Laura W. Murphy, Director of the ACLU’s Washington National Office. "Minorities are no less fearful of becoming crime victims than whites. Any contradiction between law enforcement and civil rights is unnecessary. But to ensure that such contradictions are erased, Congress must include a civil rights analysis of any new crime bill it passes."
Ganging Up on Religion
In February, the ACLU of Massachusetts went to the state’s highest court on behalf of a prison inmate whose rosary beads were seized by guards who claimed that the beads signified gang affiliation.
The inmate, Peter Kane, said that his right to religious freedom has been violated and denies belonging to any gang. The beads were black-and-white, and prisoners are permitted to have only solid-color beads.
Attorney John Reinstein of the ACLU of Massachusetts said the prison officials are sending the message that "if you want to pray, pray our way."
"The net effect of what the Department of Corrections is doing here," Reinstein said, "is to make it more difficult for people to pray. I certainly don’t think you want to deprive people of the focus and sustenance they get from religion."
Religious groups agreed. C.J. Doyle, Executive Director of the Catholic Action League, was skeptical of the state’s policy. "Given the easy availability of drugs and knives in Massachusetts correctional facilities," he said, "it’s hard to believe a set of rosary beads would constitute a mortal danger." A judge dismissed the case, saying it did not raise constitutional issues.
A School for Scandal
In November, the ACLU of the Dakotas received the details of a proposed settlement that would protect detained juveniles from abusive and inhumane treatment behind state bars.
The ACLU chapter for North and South Dakota, along with Human Rights Watch and The Youth Law Center, filed a lawsuit after 14-year-old detainee Gina Score died following a forced run at the State Training School in Plankinton. ACLU Chapter Director Jennifer Ring was among those who pressured officials to end the abuse.
"This litany of horrors has got to stop," Ring said. According to news reports, school staff forced seven girls who purposely slashed their arms with broken light bulbs to wait three-and-a-half hours in shackles before receiving treatment.
Other girls held in the school reported that they had been strip-searched by male guards, sprayed with pepper spray while naked, and handcuffed spread-eagle to their beds. Many of the abuses, recorded on videotape, were committed against children charged with minor offenses such as routinely skipping school.
Ring told the Associated Press that the settlement will improve conditions for the inmates and will allow the Youth Law Center to monitor the site.
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| This illustration was created by Pamela Lewis and Gary Abramson of the Miami Ad School to highlight the tragedy of innocent lives taken through capital punishment. |
WITNESS TO THE EXECUTION
For the Record
In May, for the first time in more than 150 years, Arkansas executed a woman. Christina Marie Riggs did not deny that she killed her two young children. But the ACLU of Arkansas said that serious errors had occurred at the trial, that Riggs’ due process rights were denied, and that she was mentally ill when she committed the crimes.
In February, Texas executed a 62-year-old great-grandmother, the first woman executed in the state since the Supreme Court reinstated the death penalty in 1976.
By the end of the year, Texas had executed more than 150 people since George W. Bush became governor in 1995.
"The increasingly frequent use of the death penalty in Texas has garnered international attention in the last six months and has brought a renewed focus on the death penalty debate in the United States," said ACLU Capital Punishment Project Director Diann Rust-Tierney.
The Good News
Despite some states’ continued enthusiasm for conducting executions, support for the death penalty is at a 19-year low. Recent polls have found that death penalty support dropped to 64 percent this year, down from 75 percent in 1997 and 71 percent in 1999.
Forty-two percent of the public believes that the death penalty is not applied fairly, over 60 percent favor suspension of the death penalty until questions about its fairness can be studied, and 80 percent of the public believes that an innocent person has been executed.
Court Takes Another Look at Execution of the Mentally Retarded
In November, the U.S. Supreme Court agreed to hear an appeal by Texas death row inmate Johnny Paul Penry, after staying his execution. Penry’s case is synonymous with the debate about executing defendants with mental retardation, and the Court said it will use the case to clarify how much opportunity jurors in death penalty cases have to consider the defendant’s mental capacity.
Penry’s I.Q. has been tested between 50 and 63, and he has the mental abilities of a six-year-old. A ruling in the case is expected by July 2001.
The Evidence Mounts
Several reports issued during the year provided more proof that the death penalty is administered unfairly, with racial and economic factors playing a key role in determining who is executed.
In April, the ACLU of Virginia and a coalition of civil rights groups endorsed a report that faulted every significant aspect of the death penalty in Virginia. It found that unfairness, errors, and lack of adequate defense for poor defendants are rife in the system.
In June, a landmark study by a team of lawyers and criminologists at Columbia University revealed that two out of three capital convictions were overturned on appeal. The primary causes were errors by incompetent defense lawyers and police officers and prosecutors who withheld evidence.
Another report, released by the ACLU of Washington in August, found that the state’s death penalty system is also fundamentally flawed and unfair. Based on the report’s findings, the ACLU called on the state to halt executions.
In September, a U.S. Justice Department report found significant racial and geographical disparities in the imposition of the federal death penalty. The report found that in 75 percent of cases in which a federal prosecutor sought the death penalty, the defendant was a minority.
A Stacked Deck in Texas
Texas inmate Gary Graham, who was executed in June despite powerful evidence of his innocence, had many strikes against him in his quest for exoneration.
One of them was his lawyer, Ronald Mock, who says he has had more clients sentenced to death than any lawyer in the country. Five of Mock’s death row clients have petitions pending in court accusing him of ineffective counsel. The Texas Bar Association has reprimanded Mock several times for professional misconduct. And he has been jailed for failing to file court papers on time in a capital case.
"These facts about Mock are alarming not because they are unusual, but rather because they are typical of the lawyers who are appointed to represent capital defendants in Texas," said Diann Rust-Tierney, Director of the ACLU’s Capital Punishment Project.
Homophobia on Death Row
A gay man who was on death row in Texas for 16 years was ordered released in March. Calvin Burdine’s defense attorney had slept through his trial in 1984, and had called his client a "fairy" and "queer" in court.
The prosecutor had argued that Burdine should be executed because prison is "fun" for gay men. The case became a cause celebre for anti-death penalty and gay rights advocates. Activists believe that Burdine would not have been on death row if not for his sexual orientation and the homophobic climate in the courthouse.
DNA Saves Another Man from Death Row
A 35-year-old Texas man imprisoned for a decade for a rape conviction debunked by DNA evidence was freed in August in advance of an expected pardon from Governor George W. Bush. The Texas Board of Pardons and Paroles voted 18-0 to pardon Roy Wayne Criner, who was convicted of raping and killing a 16-year-old girl, after evidence showed that he was not responsible for the crimes.
Bush has issued 18 pardons and Texas has executed more than 150 people since he took office nearly six years ago. He insists that capital punishment in Texas is fair and says he has no concerns that an innocent person could be executed.
Families of Murder Victims Oppose Death Penalty
Responding to testimony from murder victims’ families — two of them state representatives — New Hampshire passed legislation in March to abolish the state’s death penalty law, the first time in more than 20 years that a state legislature has voted to end executions. The last execution in the state was in 1939.
Claire Ebel, Executive Director of the ACLU of New Hampshire, which had advocated vigorously for the bill, said passage of the measure could be attributed in large part to moving testimony from families of murder victims, as well as deepening public concern about the accuracy and fairness of the death penalty.
In emotional testimony before a House committee earlier this year, Rep. Jane Kelley (D-Hampton) explained why she still opposed the death penalty even after her granddaughter was murdered. Rep. Max Sargent (R-Hillsboro), whose niece and nephew were murdered, said that he decided to change his vote after talking with his sister, the children’s mother.
The bill was vetoed, however, by Governor Jeanne Shaheen, and support for the bill was not sufficient to override the veto. Supporters hope to re-introduce anti-death-penalty legislation in 2001.
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