Criminal Justice
From Error Toward Quality: A Federal Role in Support of Criminal Process
James M. Doyle
ACS is pleased to distribute “From Error Toward Quality: A Federal Role in Support of Criminal Process,”, an Issue Brief by James M. Doyle. Mr. Doyle is a lawyer in private practice with the Boston law firm of Carney & Bassil and the former head of the Public Defender Division of the Massachusetts Committee for Public Counsel Services, which is the statewide public defender agency.
Mr. Doyle begins his Issue Brief by observing that “[c]ontemporary medicine is experiencing a vibrant quality reform movement born in the aftermath of horrific reports of fatal medical errors.” Based on the reform experience in medicine, which is a team-oriented effort built on learning from routine human errors to improve practices and “prevent those inevitable errors from ripening into tragedies,” he sees an opportunity for the federal government to “catalyze the willingness of criminal justice practitioners and stakeholders to learn from their own mistakes . . . and lay the groundwork for a continuous quality improvement initiative in America’s criminal justice systems.” With the federal government’s help in designing a common template for assessing errors in the system, serving as a clearinghouse for collecting and sharing the analyses of errors performed at the local level, and providing other modest technical and financial support, Mr. Doyle believes that this effort could “set in motion a cultural shift that improves criminal justice, not by imposing top-down federal micro-management, but by exploiting the talents and insights of local systems’ frontline practitioners.” He also believes that it could “change a culture to one that routinely, every day, concentrates on improving the reliability of the criminal process for the victims, the accused, and the public.”
Mr. Doyle’s Issue Brief is the second in a series that ACS will be publishing focused on ideas about a possible role that the federal government can play in improving indigent defense systems in states around the country. Attorney General Eric Holder, Congress, and many other federal policymakers have taken notice of the crisis in indigent defense that has existed since 1963 when the U.S. Supreme Court held in Gideon v. Wainwright that each state has an obligation under the Sixth Amendment to the U.S. Constitution to provide a criminal defendant with an attorney when he or she cannot afford one, and they have specifically identified reform of the system as a priority. Mr. Doyle’s systemic approach to criminal justice reform, which he believes will help identify problems that undermine compliance with the Sixth Amendment, offers another recommendation as to what the U.S. Department of Justice, Congress, and other parts of the federal government do to help bring about reform.
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| ACS Issue Brief - Doyle - From Error Toward Quality.pdf | 245.43 KB |
A Legislative Approach to Indigent Defense Reform
Cara H. Drinan
ACS is pleased to distribute “A Legislative Approach to Indigent Defense Reform”, an Issue Brief by Cara H. Drinan, Assistant Professor of Law at The Catholic University of America, Columbus School of Law. Nearly every person who has observed the criminal justice system in action has seen that there are serious problems with providing representation to poor people accused of crimes. In 1963, the U.S. Supreme Court held in Gideon v. Wainwright that each state has an obligation under the Sixth Amendment to the U.S. Constitution to provide a criminal defendant with an attorney when he or she cannot afford one. Since then, even the best indigent defense systems have been overburdened, underfunded, and faced a host of other problems that undermine the ability of attorneys to zealously and ethically represent their clients. Attorney General Eric Holder, Congress, and many other federal policymakers have taken notice of this crisis in indigent defense and specifically identified reform of the system as a priority. But what can the U.S. Department of Justice, Congress, and other parts of the federal government do to help bring about reform? Professor Drinan’s Issue Brief is the first in a series that ACS will be publishing focused on ideas about a possible federal role in improving indigent defense systems in states around the country.
In her Issue Brief, Professor Drinan proposes a piece of legislation that would allow federal courts to hear claims alleging that a state has systemically violated the Sixth Amendment right to counsel. Some lawsuits like this have made progress recently in state courts in New York and Michigan, but suits of this type are still relatively rare and may not be feasible in every state. Professor Drinan argues that “[i]ndigent defense reform advocates need an opportunity to bring systemic indigent defense challenges . . . in the federal courts – courts that have traditionally been a refuge for victims of state constitutional violations.” She discusses current obstacles to federal court challenges, and why legislation like what she proposes is necessary and appropriate to make such suits possible. Professor Drinan proposes specific statutory language and discusses how it achieves several important goals, such as clearly affirming each state’s obligation under Gideon, taking full account of relevant Supreme Court precedent, clearly delineating limits on the proper parties to such a lawsuit, and enabling appropriate remedies. She also addresses several likely concerns that critics may raise about a proposal like hers, and concludes that “[g]iven the national crisis in indigent defense services, bold, timely action like the legislation that I propose in this Issue Brief is required and more than justified. Congress should consider enacting this or similar legislation soon, and the Attorney General should push for its passage.”
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| ACS Issue Brief - Drinan Indigent Def Reform.pdf | 268.5 KB |
Miranda's Future
Miranda's Future
On On Tuesday, July 13, 2010 ACS will host a panel discussion on the future of Miranda rights. As many have observed, changes to Miranda procedures are being discussed in the national security context. What are the arguments for and against such changes? Is there a demonstrated need for additional legal flexibility in the first few days after capturing an individual suspected of terrorism, or has experience shown that changes are unnecessary? Is there a danger that such proposed policy changes in the national security context will have corrosive effects in the domestic criminal justice arena? Are such proposed modifications part of a larger reconsideration of Miranda rights, also illustrated by the Supreme Court's recent decision in Berghuis v. Thompkins, which now requires a suspect to affirmatively state his/her desire to remain silent? National security and criminal law experts from a variety of different perspectives will discuss these and other questions.
The panel will take place from 12:30 - 2 pm and feature:
Disorderly (mis)Conduct: The Problem with "Contempt of Cop" Arrests
Christy E. Lopez
ACS is pleased to distribute “Disorderly (mis)Conduct: The Problem with ‘Contempt of Cop’ Arrests”, an Issue Brief by Christy E. Lopez, a civil rights attorney with a practice focusing on police and criminal justice reform. Almost a year ago, the issue of "contempt of cop" arrests was thrust into the national news when Harvard University Professor Henry Louis Gates, Jr., was arrested by Cambridge Police Department Sergeant James Crowley. Sergeant Crowley was responding to a 911 caller who had reported a burglary in progress at Professor Gates's home, which is where the two encountered each other. As the events unfolded - Crowley's investigation of the burglary call and Gates's response to the Crowley's questions and actions - the situation escalated, and led to Sergeant Crowley arresting Professor Gates for disorderly conduct in the middle of the day just outside the front door to his house. The charges were later dropped, and after President Obama waded into the whole affair by saying that he thought the police acted "stupidly," the President later hosted a "beer summit" with both Gates and Crowley at the White House to help resolve the situation.
Ms. Lopez argues that "Sergeant Crowley's decision to arrest Professor Gates may or may not have been stupid. It may or may not have been consistent with Cambridge Police Department policy. But, if the facts are as Crowley asserted in his arrest report, the arrest was unlawful." She describes the law, and contends that, however loud, rude, or obnoxious Gates was, his behavior "falls squarely in the realm of speech protected by the First Amendment," and he should not have been arrested. Ms. Lopez continues that, "[d]espite its illegality, the arrest of Professor Gates was not unusual. This scenario - an individual being arrested after responding obstreperously to perceived police misconduct - is one that plays out routinely across the United States, albeit without the Ivy League backdrop or culminating in conflict-resolution-through-beer."
In this Issue Brief, Ms. Lopez asserts that there is "widespread misunderstanding of police authority to arrest individuals who passively or verbally defy them" and that there is "abundant evidence that police overuse disorderly conduct and similar statutes to arrest people who 'disrespect' them or express disagreement with their actions." She believes that "abusive arrests cause direct and significant harm to those arrested and, more generally, undermine the appropriate balance between police authority and individual prerogative to question the exercise of that authority." To fully explore this issue, Ms. Lopez discusses the relevant law governing these types of arrests, and several investigations of problems in police departments around the country. She then details her reasons for asserting that "the harm caused by improper arrests and threats of arrest for disorderly conduct far outweighs the justification given by some police and pundits for the aggressive (overly-aggressive, some would say) use of these statutes," and concludes by proposing "a roadmap for legislators, advocates, law enforcement officials, and others seeking to address this problem."
The Crisis in Fourth Amendment Jurisprudence
Jay Stanley
ACS is pleased to distribute an Issue Brief by Jay Stanley, Senior Policy Analyst at the American Civil Liberties Union's Speech, Privacy and Technology Program, entitled “The Crisis in Fourth Amendment Jurisprudence.” In this Issue Brief, Mr. Stanley discusses the possible threat to Americans' privacy as rapid advancements in technology are placing stress on slowly evolving legal doctrines. He argues that "the broken state of our jurisprudence is a serious problem, and poses a substantial risk that advancing technology will leave privacy law in a dysfunctional state and the Fourth Amendment an empty shell." To emphasize the incongruity between fast moving technological change and the state of the law, Mr. Stanley points out that "[w]e are rapidly moving into a new world dominated by biometrics, location tracking, social networks, pervasive surveillance cameras, data mining, cloud computing, ambient intelligence and the 'Internet of things,' and a trend away from individual, case-by-case surveillance and toward wholesale, automated mass surveillance." Yet, the Fourth Amendment, which is "the constitutional amendment that most directly protects our privacy," "was created largely in the 1970s by men born between 1898 and 1924."
Mr. Stanley argues that even though our "evolutionary system of jurisprudence sometimes seems simply overwhelmed" in the privacy context, there are several reasons to be hopeful that the law can begin to catch up to our changing world. Among these reasons, which he discusses in the Issue Brief, are dramatic changes regarding First Amendment rights that occurred in the first half of the 20th century, showing that substantial change in the law is possible; vigorous dissents in cases establishing our current privacy jurisprudence that highlight the complexity of the issues and may provide the reasoning necessary to support a change; the possibility of agreement among liberal and conservative jurists, who have both raised concerns about the law; and developments in the law by state courts that highlight the problems with the Supreme Court's jurisprudence in this area. Mr. Stanley contends that "[u]nlike so many other rights, privacy in America today is actually in many respects far weaker than in the past." Nevertheless, he argues that "privacy will never stop being a vital human right," and change in the law is possible, but "[w]e must work to make this happen, lest America become a meaner, less forgiving, less just, and less free place."
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| ACS Issue Brief - Stanley 4th Amendment.pdf | 303 KB |
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