John Paul Stevens receives a 2012 Medal of Freedom from President Obama. (Reuters)

From The Atlantic:

John Paul Stevens, the avuncular former justice of the U.S. Supreme Court, gave an interesting speech yesterday at the American Constitution Society Convention in Washington, D.C. Not only did he offer some provocative analysis on the history of the 14th Amendment, as timely a topic as ever with the likely demise of the Voting Rights Act on the near horizon, but he also weighed in on Maryland v. King, the Court’s recent decision to permit states to swab DNA from suspects as as a “reasonable booking procedure” under the Fourth Amendment.

The speech isn’t long and you can read it for yourself to come to your own conclusions about where Stevens comes down on the intersection of old doctrine and new technology. But there was one sentence, near the end of the presentation, that struck me. Stevens said:

It seems to me that taking a DNA sample — or a fingerprint sample — involves a far lesser intrusion on an ordinary person’s privacy than a search that allows an officer to rummage through private papers.

Now, I am ordinarily a big fan of Justice Stevens. But this strikes me as crazy talk. The DNA search takes a moment, it is true, and in that sense (and perhaps that sense alone) it is less intrusive than a search through someone’s purse or briefcase. But the results of a DNA test are then compiled and held by the government, presumably forever, while the “results” of the bag search are quickly forgotten if they reveal no evidence of criminal conduct. It’s not necessarily the fleeting act of the search itself that offends Fourth Amendment protections it is also what is then done with the results of that search.

From Atlantic Wire:

A nation continues to wait for final word on the Supreme Court’s Big Four cases this term — voting rights, affirmative action, DOMA, and Proposition 8 — but the justices’ closest decision arrived first on Monday, in a 5-4 ruling on Salinas v. Texas in which the conservative members of the Court and Anthony Kennedy determined that if you remain silent before police read your Miranda rights, that silence can and will be held against you. Here’s what that means.

Basically, if you’re ever in any trouble with police (no, we don’t condone breaking laws) and want to keep your mouth shut, you will need to announce that you’re invoking your Fifth Amendment right instead of, you know, just keeping your mouth shut. “Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question,” reads the opinion from Justice Samuel Alito, which Justice Kennedy and Chief Justice John Roberts backed. Justices Thomas and Scalia had a concurring opinion while the remaining four Supremes dissented.

The Salinas case revolves around Genovevo Salinas, a man who was convicted of a 1992 murder of two brothers. Salinas was brought in for police questioning in January 1993. According to the dissenting opinion of Justice Breyer, he was called in to “to take photographs and to clear him as [a]suspect” and Salinas was questioned without being read his Miranda rights:

Because he was “free to leave at that time,” [App.14], they did not give him Miranda warnings. The police then asked Salinas questions. And Salinas answered until the police asked him whether the shotgun from his home “would match the shells recovered at the scene of the murder [Id., at 17.] At that point Salinas fell silent.

That silence was then used against Salinas in court, and he was eventually convicted. But the bigger question in revisiting this 20-year-old murder case was whether or not prosecutors were allowed to point to that silence, and win a case using Salinas’ own silence against him.

† Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, is the Editor of CI. Kay Whitlock, co-author of Queer (In)Justice, is contributing editor of CI. Criminal Injustice is published every Wednesday at 6 pm.

Four Score and One Too Many Years
by International Coalition to Free the Angola 3/Angola 3 News

Today, April 17, 2013, marks 41 years that Albert Woodfox and Herman Wallace have been unjustly incarcerated in solitary confinement in Louisiana. This is 41 years of living in concrete and metal cages of 6 x 9 feet; 41 years of being separated from their families and loved ones; 41 years of being wrongly accused of a murder they did not commit.

Over 41 years ago, prison officials at the Louisiana State Penitentiary (aka ‘Angola’), an 18,000-acre former slave plantation, were first confronted by the Angola 3′s challenge to the obscene human rights atrocities that were a daily reality for prisoners there. They responded to these efforts by fabricating a case against Albert and Herman for the tragic murder of prison guard Brent Miller in 1972. Shortly thereafter, when Robert King entered Angola, he was ensnared in the aftermath of that murder and joined Herman and Albert in solitary.

Art by Emory Douglas

Although the flame for justice for the Angola 3 continues to burn bright these many decades later, words cannot express the profound rage and frustration we feel commemorating one more year of Herman and Albert’s confinement. But we will not lose hope or forget how much we have already accomplished and just how close we are to winning both Herman and Albert’s release. Solitary confinement’s daily assault on Herman and Albert’s mind, body and spirit has not been able to deter them. Inspired by their heroic resilience on the frontlines of the struggle, we too, will never give up our fight for their release.

Continuing this fight for Albert, Herman and all prisoners, today we are launching an action to kick-start the call for a State Congressional Hearing to end the use of prolonged solitary confinement in Louisiana. Our friends at The National Religious Campaign Against Torture (NRCAT) have enabled this through their campaign calling “upon state legislators and departments of corrections to begin now to take steps to end prolonged solitary confinement” in all 50 states and the federal prison system.

We need only 500 people within a particular state to sign the statement and NRCAT will send these endorsements to that state’s governor, top corrections officials, and every member of that state’s legislature. When we hit 1,000 signatures they will do the same again. PLEASE spread the word to help us achieve our petition goal for Louisiana and in states across the country. Please sign this now.

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The Film

THE CENTRAL PARK FIVE, a new film from award-winning filmmaker Ken Burns, tells the story of the five black and Latino teenagers from Harlem who were wrongly convicted of raping a white woman in New York City’s Central Park in 1989. Directed and produced by Burns, David McMahon and Sarah Burns, the film chronicles the Central Park Jogger case, for the first time from the perspective of the five teenagers whose lives were upended by this miscarriage of justice. PBS

The Central Park Five will air on PBS Tuesday, April 16, 2013. To find where and when the documentary is showing at a theater near you, visit the Facebook page.

NYC’s Ongoing Denial of the ‘Central Park Five’ Is a Disservice to Black, Latino Men

I’m outraged at New York City. As a young black man recounting this case from the Central Park Five’s perspective, trying to not be outraged wasn’t even an option. I had the details to this story as I did Emmett Till, The Scottsboro Boys, Trayvon Martin and countless other cases of young black men being victimized by false claims of victimizing white people (specifically white women) — staying indebted to a historical and institutionalized hatred and fear of the black man. But beforehand, I didn’t have the details on this level, and I was mind-blown from start to finish of this documentary. So much it’s been a process to articulate it and put it in these words.

NYC owes the Central Park Five an apology (and their money — a $250 million civil suit filed in 2003), which really in itself won’t make up for the many years lost among the five men. But NYC refuses to give it — will not even acknowledge any wrongdoing in the case — some claiming that the actual serial rapist and murderer, Matias Reyes, was just the sixth missing person involved in the rape. NYC also asked for a subpoena of the documentary’s footage — claiming the filmmakers aren’t journalists and the documentary is one-sided. But the subpoena was denied being that the filmmakers are protected under freedom of speech. According to the documentary’s well-known filmmaker, Ken Burns, asked for the city of New York’s voice in the documentary, but prosecutors and police refused to give it.

More Than 100 Civil Rights Leaders, Elected Officials, Clergy, Former Prosecutors and Judges, Current and Past ABA Presidents, and a Former TX Governor Call for New, Fair Sentencing for Duane Buck

NAACP Calls Mr. Buck’s Death Penalty Case a “Blatant Example of Racial Bias”

(Harris County, Texas, March 20, 2013)
Today, 102 prominent individuals from Texas and throughout the country released a statement urging Texas officials to provide a new, fair sentencing hearing for Duane Buck.  Mr. Buck is an African-American man who was condemned to death after his sentencing jury was told that he posed a future danger because of his race.  The signatories write: “The State of Texas cannot condone any form of racial discrimination in the courtroom. The use of race in sentencing poisons the legal process and breeds cynicism in the judiciary. No execution should be carried out until the courts have a meaningful opportunity to address the evidence of fundamental injustice in Mr. Buck’s case. A new, fair sentencing hearing for Mr. Buck is absolutely necessary to restore public confidence in the criminal justice system.”

“The diverse chorus of voices calling for a new, fair sentencing hearing for Duane Buck reflect how Texas’s disturbing appeal to racial bias fundamentally undermines the integrity of the entire criminal justice system and makes each of us less safe,” said Sherrilyn Ifill, Director Counsel for the NAACP Legal Defense & Educational Fund, Inc. which represents Mr. Buck, along with the Texas Defender Service and attorney Kate Black.  “For anyone to trust the criminal justice system, it must be fair to everyone.”

“Mr. Buck’s hearing was tainted by racial discrimination,” stated NAACP President and CEO Benjamin Todd Jealous, a signatory to the statement.  “He deserves a new hearing that is not the product of race-based fear mongering posing as reasoned fact.  This case is a blatant example of racial bias being allowed to seep into a justice system that is supposed to be fair and equitable to all.”

RACE: New Study Shows Racial Bias in Seeking the Death Penalty in Harris County

A new study regarding the use of the death penalty in Harris County, Texas, was released in conjunction with the filing of an appeal by Harris County death row inmate, Duane Buck. The research was conducted by Professor Raymond Paternoster of the University of Maryland, who examined over 500 murder cases in the county. The study found that, in cases with circumstances similar to Buck’s and during the time in which he was tried, the Harris County District Attorney’s Office sought the death penalty 3.5 times more often when the defendant was African-American than when the defendant was white. When the cases were submitted to Harris County (Houston) juries, the net result was a greater proportion of African-American defendants ended with death sentences than white defendants. Buck’s case is also controversial because an expert witness testified at Buck’s trial that he was more likely to pose a future danger to society because he is African American, and hence more likely to commit violence. Read full study.

Action: Petition and Thunderclap Campaign

Please go to http://thndr.it/WGPhK8 and sign up to join the Thunderclap to help Duane Buck.

If we get 100 people to join us, Thunderclap will post 100 Tweets or Facebook statuses at the exact same moment on April 3, 2013 at 12 Noon Eastern.

• Click on “Support with Facebook” and / or “Support with Twitter.”
• Then take the next step and let your friends and followers know that you are helping.

That’s it. Thunderclap will do the rest! On April 3, 2013 at 12 Noon Eastern, the message will appear in your news feed, but don’t worry — Thunderclap will not spam you or your friends.

Sign the petition at Change.org petition asking for a new, fair hearing.

† Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, is the Editor of CI. Kay Whitlock, co-author of Queer (In)Justice, is contributing editor of CI. Criminal Injustice is published every Wednesday at 6 pm.

Prison Reform, Decarceration, or Smoke and Mirrors?
by Kay Whitlock and nancy a heitzeg

We are bombarded daily with a blizzard of often competing numbers and stories regarding the state of criminal injustice. Are prison populations declining?  Have we really “decreased incarceration” and expanded “diversion”? Have racial disparities in criminal justice decreased? Are they no longer relevant? Have police practices reduced incarceration rates? Are “community” correctional alternatives working? Have we entered a new  era of “prison reform”?

Is the push for “reform” attributable to progressive people power?  Or is it due to the emergence, several years ago, of Right on Crime the self-described “one-stop source for conservative ideas on criminal justice” – a project of the Texas Public Policy Foundation ? (The TPPF is a research institute in Austin, TX “committed to limited government, free markets, private property rights, individual liberty and personal responsibility.”) Or has it emerged from some combination of both?

Often these stories shed more heat than light.

Or to use another metaphor, it is often a matter of Smoke and Mirrors.

Throughout this year, Criminal InJustice has offered critical questions about the reality of both policy claims and the legitimacy of so-called reforms. Please see Con Artists, Profit and Community Corrections and Confidence Men & “Prison Reform”.

What follows is a series of critical questions designed to help us all further navigate what may be, in some measure, a shell game. These topics and more will continue to be addressed in depth here at CI. But for now, a road map and  a flashlight are offered below.

If these reforms really are substantive, and implemented in ways that demonstrate integrity – and if they are actually intended to help dismantle a policing/prosecution/detention emphasis in the criminal legal system – then politicians and policy advocates will be able to fully and transparently answer the questions we pose here and that will arise along the way. 

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The Neo-Confederate Supreme Court Gearing Up to Restore White Rule Over America, Alternet:

 If white rule in the United States is to be restored and sustained, then an important first step will be the decision of the five Neo-Confederate justices on the U.S. Supreme Court to gut the Voting Rights Act, a move that many court analysts now consider likely.

The Court’s striking down Section Five of the Voting Rights Act will mean that jurisdictions with a history of racial discrimination in voting – mostly in the Old Confederacy – will be free to impose new obstacles to voting by African-Americans, Hispanics and other minorities without first having to submit the changes to a federal court…..

The Supreme Court’s apparent intention to gut the Voting Rights Act also could be viewed in the continuum of its five-to-four ruling in the Citizens United case of 2010 in which the right-wing justices freed up rich Americans to spend unlimited amounts to influence political campaigns. In other words, the Court’s majority seems intent on tilting the political playing field in favor of white plutocrats.

But the Court’s Neo-Confederate rationale was underscored mostly openly by Justice Scalia and his sneering remark about minority voting rights being a “racial entitlement” and by Justice Kennedy’s insistence that Alabama has the “independent sovereign” right to set its own voting rules without federal oversight.

† Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, is the Editor of CI. Kay Whitlock, co-author of Queer (In)Justice, is contributing editor of CI. Criminal Injustice is published every Wednesday at 6 pm.

“[T]he Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.” Ford v. Wainwright, 477 U. S. 399, 409–410 (1986) .  ~ Justice Anthony Kennedy, writing for the majority in Panetti v. Quarterman (2007)

Andre Thomas is Both Mad and Now Blind, As is the System About to Murder Him…
by nancy a heitzeg

Much of the nation continues to move away from the machinery of death ; Death Penalty Information Center reports a near record low number of death sentences and executions as well as additional states considering abolition. Still, Texas marches on. The state  continued to lead the nation in both executions and , perhaps, controversy, including sending to death in defiance of Atkins v Virginia, one Marvin Wilson, IQ 61.

And, now,  Andre Thomas – a man with a documented life-long history of extreme mental illness, a man who, hearing the voice of God,  killed his estranged wife and 2 children , a man who himself then later removed first his right eye, according to Biblical proscriptions, then later removed his left, and ate it – awaits word from a federal district court in Beaumont, Texas as to whether he is sane enough to die.

Andre Thomas at Arrest, After removal of his Right Eye while awaiting trial; and After the removal of his Left Eye on Death Row, 2008

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