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Breaking the Addiction to Incarceration: Weekly Highlights (03/01/2013)

Alex Stamm,
ACLU Center for Justice
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March 1, 2013

Today, the U.S. has the highest incarceration rate of any country in the world. With over 2.3 million men and women living behind bars, our imprisonment rate is the highest it’s ever been in U.S. history. And yet, our criminal justice system has failed on every count: public safety, fairness and cost-effectiveness. Across the country, the criminal justice reform conversation is heating up. Each week, we feature our some of the most exciting and relevant news in overincarceration discourse that we’ve spotted from the previous week. Check back weekly for our top picks.

Breaking News

The Eleventh Circuit Court of Appeals ruled in favor of ACLU client Luis Lebron, upholding the district court’s ruling that Florida’s mandatory suspicionless drug testing violates his and all other TANF applicants’ Fourth Amendment right to be free from unreasonable searches and seizures. “There is nothing inherent to the condition of being impoverished that supports the conclusion that there is a ‘concrete danger’ that impoverished individuals are prone to drug use,” the court said in its opinion, which you can find here. For more, read our press release.

Highlights from the Campaign to End Overincarceration

State Legislative Highlights: A number of states have either passed laws or are advancing bills that could mean fewer people incarcerated:

  • Colorado is considering a bill (HB 1156) to establish a pretrial diversion program for adults, as well as a bill to reduce the punishment for theft (HB 1160).
  • Florida is considering HB 159 and SB 420, which would allow judges to depart from mandatory minimum sentences for certain defendants charged with drug offenses.
  • Georgia recently advanced comprehensive juvenile justice reform, HB 242.
  • Hawaii is considering HB 255, which would allow prisons to release elderly persons if they suffer from debilitating illness and pose a low risk to public safety, as well as HB 455, which would decriminalize possession of small amounts of marijuana.
  • Indiana is considering a number of proposals to reduce incarceration, including HB 1006, which would create a felony threshold for theft, reduce sentences for lower-level drug offenses, reduce the school zone from 1000 to 500 feet, mollify the habitual offender statute, and expand judges’ discretion to suspend sentences; HB 1574, which would increase earned time credits, and HB 1482, which would increase the list of convictions eligible for expungement.
  • Massachusetts is considering S. 667, which would repeal mandatory minimum sentences for nonviolent drug offenses, along with H. 1645, which would reduce the “school zone” area within which drug offenses carry stiffer sentences.
  • Maine is considering a bill that would increase the time prisoners can earn off their sentences (LD 382).
  • Mississippi’s Senate just passed a major piece of sentencing reform, SB 2508, which would increase the threshold for felony theft and give judges and Department of Corrections officials the discretion to place people on house arrest rather than in prison.
  • Oklahoma’s HB 1056 would allow elderly prisoners who pose a low public safety risk to apply for conditional parole. As many as 2,000 prisoners could be eligible; each release would save the state over $16,000 per year.
  • Oregon is poised to enact positive sentencing reforms, including eliminating some mandatory minimums, in accordance with these recommendations.
  • South Carolina’s H. 3060 would repeal mandatory minimums for drug offenses and expand treatment diversion eligibility.
  • South Dakota enacted SB 70, which reduces first-time felony drug possession to a presumptive probation offense, introduces graduated sanctions for probation and parole violations, and makes other small-scale reforms. Unfortunately, though, SB 70 removes the right to a preliminary hearing for Class A misdemeanors—a critical procedural safeguard—and leaves intact the felony penalty for “altered state,” whereby a defendant can be charged with drug possession for failing a drug test. Defenders estimate that altered state constitutes roughly 25% of all drug possession charges in South Dakota, the only state that has such a law.
  • Texas is considering several reform bills, including SB 90, which would expand community treatment for drug possession, and HB 1069, which would reclassify certain minor offenses as misdemeanors.
  • Vermont’s Senate passed S. 1, which would require judges to consider the financial cost of available sentences if the defendant is charged with a nonviolent offense.

Federal Judge Certifies Class Action in Stop-and-Frisk Case: Last month, we were pleased to report that New York District Judge Shira Scheindlin issued a preliminary injunction against the New York Police Department in Ligon v. City of New York, the ACLU’s case challenging the NYPD’s violations of constitutional rights through its citywide Clean Halls program, which allows police officers to patrol in and around certain private apartment buildings. Earlier this month, Judge Scheindlin certified Ligon as a class action case and consolidated consideration of remedies in Ligon with the remedies in the broader class action suit against stop-and-frisk, Floyd v. City of New York, the trial for which will take place on March 11.

Michigan Court Rules that Juveniles Sentenced to Life Have Right to Parole: A year after the ACLU filed suit in Hill v. Snyder, a federal judge in eastern Michigan declared that all prisoners in Michigan who committed crimes as children and were sentenced to life now have a right to parole. Additionally, the court held that the Michigan statute that condemns youth to life without parole violates the 8th Amendment’s prohibition on cruel and unusual punishment. For more on the case, read our press release and the court’s order.

ACLU Cases Before the U.S. Supreme Court:

  • Florida v. Harris: A unanimous Court held that an alert by a well-trained narcotics detection dog certified to detect illegal contraband is sufficient to establish probable cause for the search of a vehicle. For more, read our amicus brief.
  • Bailey v. U.S.: A 6-3 Court held that the rule in Michigan v. Summers (that police may detain a suspect incident to execution of a search warrant) is limited to the immediate vicinity of the premises to be searched, and does not apply when a suspect is detained at a point beyond any reasonable understanding of the immediate vicinity of the premises in question. For more, read our amicus brief.
  • Maryland v. King: The Court heard oral argument today on whether or not the Fourth Amendment allows states to collect and analyze DNA from people arrested for, but not convicted of, criminal offenses, solely for use in investigating other offenses for which there is no individualized suspicion. The ACLU represented Mr. King in state court, and filed an amicus brief with the Supreme Court.
  • Missouri v. McNeely: Last month, the ACLU’s Steve Shapiro argued before the Supreme Court that the Fourth Amendment requires the government to obtain a warrant before forcibly drawing blood from a DWI suspect. For more, read our blog.

Other Noteworthy Items related to Overincarceration:

  • In a speech at Georgetown Law School earlier this month, Sen. Patrick Leahy, Chair of the Senate Judiciary Committee, advocated for the repeal of all mandatory minimums. For more, read our blog.
  • Sequestration may force the Department of Justice to cut staff, exacerbating already serious security concerns caused by overcrowding. Jesselyn McCurdy blogs about the better way to trim the DOJ budget: send fewer people to federal prison.
  • Two U.S Congressmen introduced bills that would respect states’ decisions to legalize marijuana by federally regulating it in ways similar to federal alcohol and tobacco regulation. For more, read our blog.
  • A recent report by James Austin and Michael Jacobson demonstrates that decisions made at the local level can have a dramatic effect on state prison populations. Read about it in this article in The Crime Report, co-authored by Kara Dansky and The Fortune Society’s Glenn Martin.
  • Odd news from the two largest private prison companies this month: GEO Group put its name on a college football stadium and the Corrections Corporation of America purported to celebrate black history month.
    • Take Action! Sign this petition to join us in asking Florida Atlantic’s president to reverse her decision to name their football stadium after GEO Group.

Highlights from the Campaign to Stop Solitary Confinement

ACLU Challenges New York’s Use of Solitary Confinement: In December, the New York Civil Liberties Union filed a federal lawsuit challenging New York’s arbitrary and unjustified use of extreme isolation on thousands of state prisoners. The plaintiff, Leroy Peoples, spent 780 days locked in a tiny, barren cell the size of an elevator with another prisoner for 24 hours a day as punishment for misbehavior that involved no violence and no threat to the safety or security of others. For more, read coverage by the New York Times, their editorial, and our blog.

BOP Agrees to Comprehensive Assessment of Solitary Confinement: Earlier this month, Sen. Dick Durbin announced that the Federal Bureau of Prisons agreed to a comprehensive and independent review of its use of solitary confinement. The National Institute of Corrections review will report on the effects of solitary confinement on prisoners as well as public safety and fiscal concerns with the practice. For more, read David Fathi’s blog and our press release.

State Legislative Highlights: States are advancing bills that could mean fewer prisoners in solitary confinement, and we expect more states will join them as the state legislative sessions progress:

  • Florida State Senator Audrey Gibson filed the “Youth in Solitary Confinement Reduction Act” (SB 812), which seeks to reduce the dangerous impact that solitary confinement has on young persons. For more, read ACLU’s op-ed and press release.
  • Montana introduced a bill, HB536, to stop solitary confinement of youth under 18, prisoners with serious mental illness, and others. In addition, it would place limits on the long-term use (over 30 days) of solitary confinement for everyone.
  • Nevada introduced SB 107, which defines solitary confinement as isolation from any other person, other than staff and an attorney, for 16 or more hours per day.
  • Texas is considering HB 686 and HB 1266, which would require the state to closely examine its use of solitary confinement.
  • Earlier this year, we highlighted a number of successful measures that states recently passed.

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