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Breaking the Addiction to Incarceration: Weekly Highlights September 27, 2013

Alex Stamm,
ACLU Center for Justice
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September 27, 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 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.


Federal news

Attorney General Holder announced that the Department of Justice (DOJ) does not intend, at present, to challenge the legalization of marijuana for recreational use by adults in Washington and Colorado. Read the ACLU’s statement and the DOJ memo describing its criteria for enforcing federal marijuana restrictions.

The Senate Judiciary Committee also held an important hearing entitled “Conflicts between State and Federal Marijuana Laws,” in which experts testified about how the federal government should address the legalization of marijuana for recreational use by adults in Colorado and Washington State. Watch video of the hearing and read witness statements here, and read the ACLU’s statement in Sen. Leahy’s submission for the record (p. 17).

The Senate Judiciary Committee held a hearing entitled “Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences,” in which experts testified about the need to reform federal mandatory minimums that are unnecessarily long, too inflexible, and too expensive. Read more at our blog, watch video of the hearing and read witness statements here, and read the ACLU’s statement in Sen. Leahy’s submission for the record (p. 14).

The House Judiciary Committee held a hearing entitled “Oversight of the Federal Bureau of Prisons,” in which witnesses testified about issues such as overcrowding, reentry initiatives, and solitary confinement. You can watch video of the hearing here, and read our statement calling for measures to restrict the use of solitary confinement.

Attorney General Holder’s August speech on the need for criminal justice reform has reverberated across the country, sparking rebukes of mass incarceration in a variety of major media outlets. Read the ACLU’s op-eds in in The New York Times, Des Moines Register, New England Patriot-Ledger, and Portland Press Herald. Also, check out some of these highlights from editorial boards around the country:

Attorney General Holder went on to announce this month that DOJ will apply the mandatory minimum charging policy he announced in last month’s speech not only to new cases, but also to pending cases. Read his address and ACLU legislative counsel Jesselyn McCurdy’s comments in Time‘s coverage of the announcement.

State news

Most state sessions have concluded, but several states and DC are still considering bills that could safely reduce state adult correctional populations. You can review recent activity in state legislatures to reduce prison populations, with contextual information about each state, at our state map. Below are some highlights:

  • California‘s SB 649, which would give prosecutors the discretion to charge possession of any drug as a misdemeanor rather than a felony, was approved by the House and Senate. It now awaits Governor Brown’s signature. Learn more about the bill here.
  • The District of Columbia Council is considering a bill to make possession of less than one ounce of marijuana a civil offense punishable by a $100 fine. A hearing on the bill is scheduled for late October.
  • Kansas’ governor signed HB 2002, which revises a mandatory minimum statute for homicide. The current “Hard 50” law allows state judges to impose a sentence of life with no parole eligibility for 50 years if he or she finds certain aggravating factors in a murder conviction. To bring the law into compliance with U.S. v. Alleyne, the bill requires that aggravating factors must be found instead by juries.
  • Massachusetts is considering S. 667, which would repeal mandatory minimum sentences for nonviolent drug offenses, as well as H. 1645, which would reduce the “school zone” area within which drug offenses carry stiffer sentences.

A panel of federal judges extended California’s deadline to comply with its ruling in Plata v. Brown by another month. Earlier this month, California lawmakers and Gov. Jerry Brown made a deal to fund new recidivism-reduction programs, reduce probation revocations, transfer inmates to private facilities, and seek a three-year extension of the Plata deadline. The state now has until January 27, 2014, to come up with a solution to the state’s prison overcrowding problem and a plan for reducing the population by 9,600 inmates.

In her recent State of the Judiciary speech, Ohio Supreme Court Justice Maureen O’Connor called on the state’s judges to help fix the state’s prison overcrowding problem, stating that “any attempt to stem the tide of growth is directly tied to sentencing.” Despite the passage of a broad sentencing reform bill in 2011, the state’s prison population is rising again, and is now higher than when the bill was passed. You can find the full text of her remarks here, and can read more about the state’s backslide here.

The ACLU published an op-ed in the Montgomery Advertiser laying out common-sense approaches to address Alabama’s severe prison overcrowding problem.

Earlier this year, the ACLU asked Newark Mayor Cory Booker to adopt a Police Transparency Policy, which would require the recording and reporting of stop-and-frisk practices. He agreed, and last month the city released its first set of data. What the data show is troubling—just as in New York City, few stops result in a citation or arrest, and a disproportionate number of people stopped are Black. In related news, Mayor Booker released his proposals for criminal justice reform as part of his campaign to represent New Jersey in the U.S. Senate.


Most state sessions have concluded, but several states are still considering bills that could safely reduce state youth correctional populations. Below are some highlights:

  • California’s governor signed SB 260, which requires the parole board to review the cases of people who are serving extreme sentences in adult prisons for crimes committed when they were younger than 18.
  • Massachusetts’ governor signed H. 1432, which raises the age of adult criminal court jurisdiction from 17 to 18.
  • Wisconsin is considering AB 387, which would raise the age at which a young person could be sentenced to adult prison facilities from 17 to 18.

New data from the Pew Center on the States show that between 2010 and 2011, the number of committed youth—those locked up as a result of a court-ordered sanction—fell in 43 states, and the total number of committed youth fell by 14 percent. Read more of Pew’s findings here.


Most state sessions have concluded, but some states are still considering bills that could reduce the number of prisoners held in solitary confinement. Here are some promising developments from the last month:

  • California‘s SB 61 was approved by the Assembly Appropriations Committee. The bill, which has already passed the Senate and one other Assembly committee, would impose strict limits on the solitary confinement of youth.
  • Massachusetts is considering S. 1133, which would restrict the use and duration of solitary confinement.

Our petition asking Attorney General Holder to ban the solitary confinement of youth in federal prisons has more than 35,000 signatures. Learn why solitary confinement is not appropriate for young people: read the petition and a blog in which Grace Bauer tells the story of how solitary confinement affected her 13-year-old son.

The New York City Board of Corrections voted unanimously to start making rules governing when prisoners in the Rikers Island Jail can be held in solitary confinement.


The Corrections Corporation of America (CCA) has been held in contempt of court for repeatedly falsifying records to hide the true number of staffing vacancies in one of the most violent prison facilities in the country. As part of its settlement with the ACLU in 2011, CCA agreed to hire more guards, but has been lying about its noncompliance with that agreement. “For CCA staff to lie on so basic a point — whether an officer is actually at a post — leaves the Court with serious concerns about compliance in other respects, such as whether every violent incident is reported,” wrote U.S. District Judge David Carter in his decision. Read more at our blog.

Kentucky ended its relationship with CCA last month, choosing not to renew its contract and moving all of its prisoners to publicly run facilities. The decision ended a checkered history of private prisons in the state, including “criminal charges of sexual misconduct, poor health care and lawsuits at the CCA-run Otter Creek Correctional Center in Eastern Kentucky,” according to the Louisville Courier-Journal.

In the Public Interest published a report on quota requirements in private prison contracts, finding that 65% of such contracts have occupancy guarantees that range from 80 to 100 percent. The report documents the millions that some states have spent paying for vacant beds in public facilities that could not be used because the state had to house prisoners in private facilities according to contract. You can find the full report here.

The City Commission of McAllen, Texas, rejected GEO Group’s bid to construct a 1,000-bed private federal jail that would have been used primarily to house immigrants. More than 500 people signed a petition opposing the project, and a room full of people expressed their opposition at a recent public forum. The City Commission may decide to request new bids from other companies, but community opposition, which the ACLU and its allies helped to organize and support, has paid off for now.

Fight the Prison Profiteers! Powerful companies are making a fortune off locking up people for profit. We’ve teamed up with Beyond Bars and The Nation Magazine to create a series profiling these prison profiteers and an action campaign to fight their abuses. The first video will be out soon. Make sure to bookmark the site and help us put a stop to this injustice.


  • Drug Testing Ruling: Victory! The ACLU prevailed in Barrett v. Claycomb, our challenge to Linn St. Technical College’s mandatory and suspicionless drug testing program of all incoming students. U.S. District Judge Nanette Laughrey issued a strong 62-page decision holding that the drug testing policy is unconstitutional as applied to most students. Read more at our blog.
  • Indigent Defense Ruling: Maryland’s highest court ruled this month that Maryland law requires defendants to be provided with counsel at their initial appearance before a judge or commissioner. The ruling recognizes the importance of having an attorney present at such a critical stage of the proceedings, where bail is determined and key decisions are made regarding the liberty interests of criminal defendants. Thanks to this decision, all defendants, irrespective of socio-economic or social status, will be afforded the guiding hand of counsel at the earliest possible point in their case. The ACLU, along with a number of other advocacy organizations, submitted an amicus brief in support of the plaintiffs.
  • Indigent Defense Litigation: The Department of Justice (DOJ) filed a statement of interest in Wilbur v. City of Mount Vernon, the ACLU’s class action against two small Washington State cities’ failure to provide meaningful assistance of counsel to indigent persons who face criminal charges in municipal court. DOJ’s filing states that an independent monitor was an appropriate and necessary remedy to allow for meaningful and lasting supervision. The executive director of the National Association of Criminal Defense Lawyers called it “the most optimistic development we have seen in years.” Read coverage by The Seattle Times and The New York Times editorial board’s take.
  • Juvenile Life Without Parole Ruling: A federal judge in Michigan ruled that Miller v. Alabama, which held that mandatory life without parole (LWOP) for juveniles is unconstitutional, applies to those sentenced prior to Miller. Following Miller, the ACLU challenged Michigan’s mandatory juvenile LWOP law, and the court ruled in favor of the ACLU’s clients earlier this year. The state attorney general subsequently took the position that the order only applied to individuals named in the lawsuit, but the court rejected this argument and made clear that his earlier ruling applies to all prisoners in Michigan given a mandatory LWOP sentence as a juvenile. Read coverage of the decision here, and read more about Hill v. Snyder here.
  • Fourth Amendment Litigation: The ACLU filed a lawsuit in U.S. District Court for the Northern District of Alabama against the Etowah County Sheriff and two officers in the Sheriff’s Department because the plaintiffs have been subjected to an ongoing series of unannounced, random, and suspicionless inspections of their home, and they have been threatened with arrest if they fail to cooperate. ACLU attorney Brandon Buskey calls the officers’ actions “unconstitutional harassment.” You can find our press release and the complaint here, and you can read more at our blog.
  • Prison Phone Rate Ruling: The Federal Communications Commission voted to cap the cost of a long-distance phone call from prison. Before the ruling, a 15-minute call could cost as much as $20; a 15-minute call would now cost no more than $3.75. Here’s an explanation of the ruling and a chart showing the savings that the ruling will produce in each state.
  • Life Sentences Report: The Sentencing Project released a new report on the rise of life sentences in the U.S., entitled “Life Goes On: The Historic Rise of Life Sentences in America.” Among many other findings, the report finds that as of 2012, over 159,000 people were serving life sentences—an 11 percent increase since 2008.
  • Unions Denounce Mass Incarceration: At this year’s AFL-CIO convention, President Richard Trumka denounced mass incarceration as a barrier to shared prosperity. The nation’s largest labor federation then passed a resolution supporting measures to “alleviate prison overcrowding,” “oppose legislation and policies that require inappropriately long mandatory sentences for nonviolent crimes,” “treat drug use as a public health issue,” and oppose private prisons. The resolution passed with support from unions that represent prison guards and workers. In related news, the president of the Council of Prison Locals, American Federation of Government Employees—a prison guard union representing 30,000 employees—said that the “explosion in the federal prison population is the ‘direct result’ of Congress approving strict anti-drug enforcement laws involving mandatory minimum sentences in 1980s,” and supported the Durbin-Lee Smarter Sentencing Act of 2013.

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