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The "Show Me" State Shows the Nation on Juvenile JusticeTomorrow marks the 20th anniversary of the Convention on the Rights of the Child, the most comprehensive treaty on children's rights. The convention has been ratified by nearly every country in the world, except for the United States. The convention would fill current gaps in U.S. laws, and provide all children in America with the same robust protections that children in 193 countries are already entitled to. During this week in which we celebrate the 20th anniversary of the Convention on the Rights of the Child (CRC), it is important to give some thought to those of our children who most need the protection of the convention. Under the convention, children may not be subjected to cruel, inhuman or degrading treatment or punishment. In addition, children who have violated the law must be treated in a manner consistent with the child's dignity that takes into account "the desirability of promoting the child's reintegration and the child's assuming a constructive role in society." Under the CRC, "the arrest, detention or imprisonment of a child … shall be used only as a measure of last resort and for the shortest appropriate period of time." Unfortunately, ill-considered social policies too often result in children committed to juvenile facilities in this country not receiving the treatment they need. A number of studies have shown that children who are locked up are more likely to commit future criminal acts than children who are kept in the community. Given that the United States now locks up 93,000 kids in juvenile facilities across the country at a cost of $5.7 billion each year, we need a better way. That better way has to involve a massive reduction in the number of children that we lock up. For those who are confined in juvenile facilities, the "Missouri model" points the way. In contrast to traditional juvenile facilities, in Missouri's system children live in cottage-style dormitories that hold 10 to 15 children. Two facilitators work with the children in a well-thought-out program that focuses on personal change to allow youth to turn their lives around, in a safe and humane environment. The youth receive educational services and job training, but also help with social and emotional functioning. Each kid has an advocate assigned to them who assists with the process of reintegrating the child back into his or her community. The results are a dramatic improvement from traditional juvenile confinement, as fewer than 10 percent of youth released from the program are found to have committed a new crime within three years of release. The ACLU's National Prison Project is involved in two cases in which our litigation is pushing for system-wide juvenile reform. In the District of Columbia, we filed a motion asking the court to appoint a receiver to overhaul the totally dysfunctional Youth Services Agency. Ultimately, D.C. responded by appointing Vincent Schiraldi, a real reformer, as head of the agency. Schiraldi has completely reorganized the agency — now called the Department of Youth Rehabilitation Services — and is replicating the "Missouri Model" in D.C. As a result, a new state-the-art facility for committed children opened in May 2009, and the population of committed children has fallen dramatically. Similarly, in Rhode Island, our litigation has led to new facilities and a new philosophy that has cut the number of youth committed to the juvenile system and substituted positive programs for the old practice of placing kids who break facility rules in isolation. Finally, under the CRC, no "life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age." Whether such sentences impose cruel and unusual punishment barred by the Eighth Amendment of the U.S. Constitution is now under consideration by the Supreme Court. While we are hopeful that the Supreme Court will strike down these sentences, it remains important to fight them in those states that still allow this practice until it is ruled unconstitutional. Tags: CRC
Ending the Inhumane Practice of Shackling Prisoners During Childbirth(Originally posted on Daily Kos.) This has been a year of progress on one of the least justified policies that many prison administrators still follow. On October 2, the 8th Circuit Court of Appeals, by a vote of 6-5, held that a jury should decide whether there was a need to shackle Shawanna Nelson while she was in late-stage labor, because such treatment, in the absence of a security need, constitutes "cruel and unusual punishment" in violation of the Eighth Amendment of the U.S. Constitution. This is a critical legal victory in the campaign of the ACLU and many allies to end the practice of shackling pregnant prisoners who are in labor. Shawanna Nelson entered an Arkansas prison in June 2003 with a short sentence for a nonviolent crime. When she went into labor, the correctional officer accompanying her shackled her legs to both sides of her hospital bed. She remained shackled until she was taken to the delivery room. After the birth of her son, the shackles were again placed on her legs. She suffered intense pain and lasting medical problems from the birth and the inability to move her legs. After childbirth, authorities’ refusal to remove the shackles forced her to soil the bed. The correctional officer knew that she was not a flight risk, and knew that the restraints caused pain and unsanitary conditions. After a federal district judge allowed her case to go forward, Arkansas appealed to the 8th Circuit Court of Appeals, which threw out the case. At that point, the ACLU became involved, and staff from the Reproductive Freedom Project, National Prison Project and the ACLU of Arkansas assisted Shawanna’s lawyer in filing a petition asking that the case be reheard by the full 8th Circuit Court. The argument before the full court was hard fought and the court appeared to be closely divided. After I finished arguing on Shawanna’s behalf, I was uncertain whether she had won or lost that day. But I was thrilled and heartened by her presence, since she had been released from prison and was building a new life for herself and her son. Cathi Compton, her other attorney, introduced her to the court, so that they could see the real person who had been subjected to this inhumane practice. Shackling women in labor and during childbirth is extraordinarily dangerous, for both mother and newborn, yet most jails and prisons mindlessly continue the practice, despite a dearth of evidence that any woman has escaped from custody during child birth. Shackling women during labor and delivery is almost never needed from a security perspective. Rather, shackling imposes a physically and emotionally devastating additional punishment on those women who give birth during incarceration, and a punishment completely unrelated to the blameworthiness of the woman subjected to this degradation. Luckily, the ACLU and other advocates are gaining precious ground in the struggle to end this practice. Most recently, New York joined the list of states that have by statute prohibited this shackling during labor and delivery except in extremely limited circumstances. The federal Bureau of Prisons has also voluntarily reformed its practices; Immigration and Customs Enforcement, however, needs to follow suit so that women giving birth as immigration detainees do not suffer like Shawanna. Let us hope that, very soon, shackles in labor will have gone the way of the practice of chaining prisoners to a hitching post as punishment, and no more women will be victims of this painful and unnecessary practice.
Texas's Rx for Women in Need of Prenatal Care and Drug Treatment? Nueces County JailYesterday the Texas Court of Criminal Appeals heard oral argument in a case challenging the discriminatory punishment and incarceration of a pregnant woman, Amber Lovill, who violated the terms of her probation when she tested positive for drugs. Attorneys for both sides agreed that they would not have found themselves before Texas' highest court for criminal appeals had a probation officer not commented on Ms. Lovill's pregnancy in explaining why the State jailed her in 2007. But the fact is, the probation officer did identify Ms. Lovill's pregnancy as the reason she was treated more harshly than other probationers who relapse in their struggle to overcome substance abuse. Although probation officers said they typically work with probationers who relapse through less restrictive approaches such as increased visits and drug testing, they were unwilling to work with Ms. Lovill because she was pregnant. In the State’s own words, because she was pregnant she could not “maintain the willpower necessary to overcome a drug addiction.” So they locked her up in Nueces County Jail for the remainder of her pregnancy. At argument, Ms. Lovill's attorney emphasized to the Court of Criminal Appeals that when the State takes action for discriminatory purposes, such as a probationer's status or capacity as a pregnant woman, it violates the Constitution and Texas' Equal Rights Amendment. Certainly, women who violate the law should not receive a free pass because they are pregnant. But, as addressed in the ACLU’s amicus brief, just as an employer cannot fire a pregnant employee based on unfounded stereotypes about her capacity to work, the state of Texas cannot impose a harsher punishment on Ms. Lovill because of its archaic and unfounded view that pregnant women lack the capacity to address their drug use. No less disturbing was the State's argument that its harsher treatment of Ms. Lovill was necessary in order to protect fetal health. Assistant District Attorney Douglas K. Norman told the court that it is the State's job to protect the health of mothers and newborns. This is a laudable goal, but when the State's idea of protecting a pregnant woman’s health is to unfairly use the criminal justice system to throw her in jail, it becomes a dangerous idea instead. The State’s view rests on a fundamental misconception that jailing a pregnant woman benefits maternal and fetal health. This view has been so thoroughly debunked that fifty-two medical, public health, and child welfare experts and advocates filed an amicus brief on Ms. Lovill’s behalf explaining the serious harms of using punishment and incarceration to address drug use during pregnancy. The State's position in Ms. Lovill’s case today should ring alarm bells for all Texas women. Hopefully the Court of Criminal Appeals is listening.
Let's Do Some Math, Sheriff Joe(Also posted on Daily Kos.) Yesterday, I argued in Maricopa County Superior Court about whether Sheriff Joe Arpaio, "America's Toughest Sheriff," can block inmates' access to abortion. The specific issue is whether the sheriff can demand that inmates who seek abortion care prepay $300 a day in transportation and security costs. If an inmate can't come up with the money, she will be forced to carry the pregnancy to term. Of course, Sheriff Arpaio doesn't require inmates seeking other medical care to prepay for transport and security costs. We argued it is unconstitutional to make access to the constitutional right to terminate a pregnancy conditional on the ability to pay hundreds of dollars. Fortunately, the judge agreed. Ruling immediately after the arguments, the court held that the defendants are prohibited from demanding prepayment for transport and security costs. The sheriff has an uphill battle given that just a couple of years ago the Arizona Court of Appeals held that his policy of demanding a court order from inmates seeking abortion was unconstitutional. As the judge yesterday recognized, the issue of prepayment for transport costs is only a "slight extension" of the court order issue, and demanding prepayment is possibly more onerous than requiring a court order. But the most telling part of yesterday's argument came when the judge asked us to do some math. He asked both parties how many hours since June each of us worked on the case - we agreed it was at least 40 hours each. He then assumed an hourly rate of $250 an hour and asked us to calculate the total. The answer? A lot of taxpayer money is being spent on a policy that may cost the Sheriff a few hundred dollars a year given how few women request abortion access. Then the judge asked the question that sums it all up - he asked the sheriff's attorney to explain "the real reason" behind the policy. Clearly, it can't be that the sheriff is really worried about $300 a year. The sheriff's attorney didn't really respond. I suppose it was a bit of a rhetorical question. Sheriff Arpaio has repeatedly acted on his animosity to abortion by denying inmates their constitutional rights. All told, he will spend thousands of taxpayer dollars fighting over $300 a year simply because he wants to impose his moral beliefs on others. The courts have repeatedly stopped these unconstitutional tactics. And we will be prepared to deal with whatever Sheriff Joe does next.
We've Come So Far, But Have So Much Farther to GoThe U.S. is the world's leading incarcerator with over 2.3 million people – or 1 in 99 adults – in prisons and jails across the country. Our incarceration rate of 760 per 100,000 people is the highest in the world -- five to ten times that of other Western democracies. In addition, because of increased reliance on detention as an immigration enforcement strategy, the number of immigrant detainees has tripled in the last ten years. Massive incarceration in the U.S. undoubtedly causes much human suffering and, when coupled with overcrowding, mistreatment of vulnerable populations and other threatening conditions of confinement, greatly hinders the rehabilitation and reformation of those detained. For those in supermax prisons, extreme social isolation, sensory deprivation and other cruel forms of treatment or punishment also threaten their basic rights. When U.S. law falls flat, lawyers and advocates often look to international law to protect the rights of detainees. Last week, in front of a large audience at Columbia Law School, human rights lawyers and advocates gathered to discuss the importance of a human rights framework. Sir Nigel Rodley, human rights expert and author of The Treatment of Prisoners Under International Law, described his research and work on behalf of those in detention. He discussed how much the landscape had changed since he began to study the rights of people in detention, and the dramatic breakthroughs he's seen in the human rights field to address violations. Today, there are better norms and mechanisms available to monitor and address abuses, and the protections afforded in international human rights law often surpass protections available under U.S. law. Speakers noted that there were many moments when they looked to the human rights framework because the Constitution didn't provide enough specific protections, using international human rights law to reinforce core American values. The panelists pointed out that human rights law (especially the rights outlined in the International Covenant on Civil and Political Rights [ICCPR] and the Convention against Torture) can be a much more powerful tool to address prison conditions and rights violations. For example, if you take a close look at the ICCPR, it clearly states that incarcerated juveniles must be kept separate from adults, and that the aim of detention shall be rehabilitation. As the ACLU learned when it investigated the conditions of girls in confinement in juvenile detention facilities in New York, this was always not the case. The speakers from last week's panel also brought up how the U.S.' deviations from international human rights law have had serious ramifications around the world. Specifically, in the war on terror, U.S. actions have discredited us as a worldwide human rights leader and put us in the company of countries that routinely abuse human rights. Torture, secret detention, rendition, disappearances and holding people incommunicado threatened not only our security and safety but our standing in the world. Sir Nigel summarized the mood of the entire panel when he noted, "We've come so far, but we have so much farther to go." We couldn't agree more. Watch this space for video of the event!
Join us at “Human Rights and Detention”
This week, on Thursday, October 8th from 4:00 to 6:00 p.m., human rights lawyers and advocates will gather to discuss the importance of a human rights framework to protect the rights of those deprived of their liberty. This special event features Sir Nigel Rodley, whose book, The Treatment of Prisoners Under International Law, was just published in its third edition. Sir Nigel teaches human rights law at the University of Essex, served as the United Nations Special Rapporteur on Torture from 1993 – 2001 and is currently a member of the U.N. Human Rights Committee (which monitors compliance with the International Covenant on Civil and Political Rights). He will be joined by a panel of human rights lawyers and advocates discussing detention in four different contexts – prisoners' rights in the criminal justice system, prisoners in armed conflict and counter-terrorism situations, immigration detention and juvenile detention – and the value a human rights framework would provide in addressing rights violations in the United States. The event is free and open to the public, and is co-sponsored by the ACLU Human Rights Program and Columbia Law School Human Rights Institute. It will take place in room 103 of Jerome Greene Hall, located in Columbia University Law School at 435 West 116th Street in New York City. In addition to Sir Nigel, panelists include: David Fathi, Director, U.S. Program, Human Rights Watch; Scott Horton, contributing editor, Harper's Magazine and lecturer-in-law, Columbia Law School; Mie Lewis, staff attorney with the ACLU Women's Rights Project; and Sunita Patel, staff attorney, Center for Constitutional Rights. The panel will be moderated by Professor Peter Rosenblum, Faculty Co-Director of the Human Rights Institute at Columbia law school. If you’re in the New York area, please join us! For event details, click here.
People With HIV are "Dangerous As Rattlesnakes"Last night, Salon.com featured an op-ed by Rachel Maddow (Yes! That Rachel Maddow!) and Margaret Winter, Associate Director at the ACLU's National Prison Project (NPP). Maddow worked for NPP from 2002 to 2004, and still covers issues of discrimination against people who are HIV-positive on her show. The duo wrote about the recent announcement that the Alabama Department of Corrections will now allow HIV-positive prisoners to participate in the prisons' work-release programs. They write: HIV-segregation policies stemmed from raging paranoia about HIV contagion, paranoia that was extreme in Mississippi and even worse in Alabama. During a federal trial in the mid-1990s, an Alabama warden testified that the segregation policy was an essential security measure since people with HIV were as dangerous as rattlesnakes. He thought they should all be permanently tagged (and Alabama did make its prisoners with HIV wear special uniforms so they could be immediately identified even at a distance). A warden at the women's prison in Alabama testified that it was too dangerous to allow prisoners with HIV to attend chapel because they might leap from their seats and bite someone to deliberately infect them with the disease. Years later, former prisoners with HIV still weep when they describe the humiliation of being ostracized, isolated, mocked and warehoused in segregated dormitories behind razor wire in a prison-inside-the-prison, and in many cases serving far more time in prison simply because of their disease.As their article points out, it'll take many more small steps like Alabama's towards completely eliminating discrimination against HIV-positive prisoners. The NPP continues to advocate for HIV-positive prisoners in the South — you can watch interviews with prisoners at the Julia Tutwiler prison in Alabama on our website.
New York Governor Pledges to End Practice of Shackling Pregnant WomenOn Tuesday morning, a group of women held a demonstration in front of Gov. Paterson’s office dressed as very pregnant women who were handcuffed. Wearing fake pregnant bellies may seem silly, but the bill we were gathered to support is serious. Staff from the New York Civil Liberties Union joined the Correctional Association of New York and Women on the Rise Telling HerStory (WORTH) to draw attention to the shackling pregnant women who are incarcerated during labor and delivery—and to pressure Gov. Paterson to sign a bill that would put an end to this barbaric practice. The case against shackling pregnant women is clear:
While a fierce struggle for power in the New York State Senate at the end of the legislative session shelved a whole host of social justice bills, lawmakers agreed this was a matter that needed attention. Sponsored and championed fiercely by state Sen. Velmanette Montgomery and Assemblyman Nick Perry, a bill banning the shackling of incarcerated pregnant women passed overwhelmingly in the Assembly and unanimously in the Senate. To become law and make New York the sixth state to ban this inhumane practice, we only need Gov. Paterson’s signature. After the protesters chanted for a half-hour in front of the high-rise that houses his New York City office, Gov. Patterson actually came outside to speak with the demonstrators. He shook hands and reiterated his support for the health and safety of women. And best of all, he vowed to sign the bill. This has been eight years in the making and without the tireless work of Sen. Montgomery, Assemblyman Perry, and organizations like the Correctional Association and WORTH, we would not be where we are today. But it’s not often that direct action protest gets such quick and concrete results! As our action on Tuesday shows — sometimes women have to make a scene to get the job done. To see pictures from the demonstration go to: http://www.flickr.com/photos/nyclu/sets/72157622075888028/.
Wake Up California: It’s Time to Get Real About Criminal Justice Reform(Originally posted on Daily Kos.) The "Prison Population and Budget Reduction Package" proposed by the California Department of Corrections and Rehabilitation (CDCR) is like a drunk person walking home from a bar — it knows where it wants to go but oftentimes you find it stumbling off the sidewalk or turning down the wrong street.Since we believe budget cutting is no small feat and should be taken very seriously, especially in the wake of the prison riots in Chino and public safety needs, we've decided to pour the CDCR a strong cup of coffee and see if we can't point the plan in a better direction. The People's Budget Fix, as we've named it, responds to Gov. Arnold Schwarzenegger's $1.2 billion in unallocated cuts to the corrections budget with a series of smart reforms to save the state billions of dollars, improve public safety, and advance long-needed adjustments in California's Corrections system. Here's an outline of some of the ways the CDCR's budget proposal goes wrong and how we can do better. Step 1: Reserve Prison for Serious Offenses
Step 2: Focus Resources on Recidivism-Reduction
Step 3: Comprehensive Criminal Justice Reform The People's Budget Fix is indeed a sobering cup of coffee, opening our eyes to what smart and sensible criminal justice reforms can do to help save our state more money, improve public safety, and begin reforming our ailing prison system. But we can't stop there. The People's Budget Fix also calls upon the governor and the California legislature to go beyond the immediate fixes identified above and strive for lasting budget reforms. We must delve deeper into the sobering realities of our criminal justices system and its failures. We need a balanced sentencing commission to take the politics out of the public safety debate and put the people back in. And we need to address two costly and ineffective areas of our criminal justice system: the death penalty and California's Three Strikes law. Both of these policies cost that state billions of dollars in prison spending and court costs with no demonstrable returns for public safety. It is time for California to limit Three Strikes to violent offenses and replace the death penalty with effective alternatives that promote public safety. On August 18, when the governor and the legislature return to Sacramento to begin discussions of the Corrections' budget, we plan to be there to rally for the People's Budget Fix and to meet with Legislatures to discuss our proposals.We hope our proposals help our political leaders see straight and get us all home safely. The People's Budget Fix is supported by Drug Policy Alliance, the Ella Baker Center for Human Rights, Families Amend California's Three Strikes, and the ACLU California affiliates.
ACLU to Government: Shed Some Light on BagramToday, we sent a letter to the Department of Defense (DOD), asking them to reconsider their refusal to turn over information about the detention facility at Bagram in Afghanistan. The request is connected to the Freedom of Information Act (FOIA) request we filed earlier this year with the Departments of Defense, Justice and State and the CIA for documents related to the detention and treatment of prisoners at Bagram. Since filing our initial request, the government has been far from responsive in terms of turning over information. DOD has told us (PDF) that it has a list containing basic information about the Bagram detainees but is withholding it in its entirety, claiming national security and privacy concerns. Today's letter (PDF) is an appeal of their withholding of that vital information, which includes names, citizenships, duration of detention and capture location of detainees currently held at Bagram. The CIA has refused to even confirm the existence of records about Bagram, stating in a letter dated May 2009 (PDF), that it could "neither confirm nor deny the existence or nonexistence of records responsive" to the FOIA request. In June, we sent a letter (PDF) to the CIA appealing their refusal to comply. Although the U.S.-run detention facility at Bagram has been the focus of widespread media attention and public concern, very little information is publically available about the secrecy-shrouded facility or the prisoners held there. We know that the U.S. government has been detaining prisoners at Bagram since 2002, and recent news reports indicate that more than 600 individuals are currently detained there – some of whom have been held for as long as six years without access to counsel or a meaningful opportunity to challenge their imprisonment. The conditions of confinement at Bagram are reportedly primitive, with allegations of mistreatment and abuse continuing to surface; in fact, at least two prisoners have died there. Former Bagram detainees say they were beaten, deprived of sleep, and threatened with dogs while at Bagram, according to a June BBC report based on interviews with detainees held there between 2002 and 2006. There is concern that Bagram has become, in effect, another Guantánamo – except with many more prisoners, less due process, no access to lawyers or courts and reportedly worse conditions. Although the nation is embroiled in an intense public debate about U.S. policy pertaining to the detention and treatment of prisoners in U.S. custody, Americans remain in the dark about even the most basic facts about Bagram. And, as long as the Bagram prison is shrouded in secrecy, there is no way to know the truth or begin to address the problems that exist there. When prisoners are in U.S. custody and under U.S. control – no matter the location – our values and commitment to the rule of law are at stake. Now that President Obama has taken the positive step of ordering Guantánamo shut down, it is critical that we don't permit 'other Gitmos' to continue elsewhere. To learn more about our FOIA request and see the responses from government agencies, visit: www.aclu.org/bagram |
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