COMPARE U.S. AMERICAN JUSTICE

In a package of stories, The Economist magazine concludes that justice is harsher in America than in any other rich country. About 2.4 million Americans are behind bars, roughly one in every 100 adults. If those on parole or probation are included, one adult in 31 is under “correctional” supervision. As a proportion of its total population, America incarcerates five times more people than Britain, nine times more than Germany and 12 times more than Japan. Overcrowding is the norm. Federal prisons house 60% more inmates than they were designed for. State lock-ups are only slightly less stuffed.

The system has three big flaws, say criminologists. First, it puts too many people away for too long. Second, it criminalises acts that need not be criminalised. Third, it is unpredictable. Many laws, especially federal ones, are so vaguely written that people cannot easily tell whether they have broken them. In 1970 the proportion of Americans behind bars was below one in 400, compared with today’s one in 100. Since then, the voters, alarmed at a surge in violent crime, have demanded fiercer sentences. Politicians have obliged. New laws have removed from judges much of their discretion to set a sentence that takes full account of the circumstances of the offence. Since no politician wants to be tarred as soft on crime, such laws, mandating minimum sentences, are seldom softened. On the contrary, they tend to get harder.

From Crime and Justice News

“ACTUAL INNOCENCE ACT OF 2009″

NEW YORK – Joined by civil rights advocates, Sen. Eric T. Schneiderman (D-Manhattan/Bronx) and Assm. Hakeem Jeffries have unveiled legislation to help exonerate innocent people who were wrongfully convicted in cases that lack DNA evidence. The “Actual Innocence Act of 2009” establishes “actual innocence” as a lawful basis for vacating a prior conviction and removes certain roadblocks that can prevent the wrongfully convicted from presenting proof that conclusively establishes their innocence.

“New York is behind the curve when it comes to giving the courts an opportunity to reverse wrongful convictions in non-DNA cases. Experts have proven that DNA exonerations represent only a small fraction of all wrongful convictions, that’s why innocence claims must be fully and fairly aired,” said sponsor Sen. Eric T. Schneiderman, Chair of the Senate Codes Committee and member of Chief Justice Lippman’s task force on wrongful convictions. “This ‘actual innocence’ legislation is about justice and fairness – it ensures that innocent people don’t spend decades behind bars while real criminals go free.”

For wrongfully convicted individuals in these non-DNA cases – even if new evidence comes to light – New York State law offers only limited hope for relief by establishing procedural obstacles that can deprive them of having an innocence claim thoroughly heard. The tragic result – as demonstrated in hundreds of DNA exoneration cases throughout the country – is that an innocent person can spend years in jail while the real perpetrator is free to commit more crimes and terrorize countless victims.

“In many cases, those convicted of serious crimes do not have access to attorneys with the experience and expertise to help prove their innocence. This legislation levels the playing field and will ensure that in non-DNA cases, the wrongfully convicted will have a greater opportunity to prove that they were actually innocent,” said Assm. Hakeem Jeffries, the bill’s Assembly sponsor.

The Schneiderman/Jeffries bill (S.6234) creates a freestanding ground of “actual innocence” upon which a criminal court could grant a post-conviction motion to vacate its prior judgment of conviction. The motion can be granted only where a defendant is able to present “reliable and relevant” proof that “conclusively establishes” the defendant’s actual innocence of the crime of which he or she was convicted.

To ensure that a defendant cannot benefit from prior inaction or delay aimed at “gaming” the system, the bill would specifically permit the court to deny relief where it determines that the defendant’s failure to act was intentional.“Prolonged and unnecessary incarceration of the innocent is detrimental to all – the wrongly incarcerated, society, the criminal justice system and the victim. I can only hope that the proposed legislation ensures that others wrongly incarcerated like me, never have to suffer like I did in securing their freedom through the criminal justice system,” said Marty Tankleff, who was wrongfully convicted for the murder of his parents based on a false confession.

“New York State’s criminal justice system, like many other states,’ has too often stressed the ‘criminal’ more than the ‘justice,’ sometimes resulting in innocent people being convicted and incarcerated. But new tools are available to prove the innocence of the wrongly convicted, and I am proud to co-sponsor this legislation which will make them more fully available in New York State,” said Sen. Velmanette Montgomery (D-Brooklyn).

“I strongly support this legislation.  Opening the courthouse doors to prove the innocence of those wrongfully convicted is not only just, but must also be the moral obligation of the state,” said bill co-sponsor Sen. Thomas K. Duane (D-Manhattan). “If this bill provides for the exoneration of just one person it will be worth it.”

“The Actual Innocence Act is a tremendous step toward justice for wrongfully convicted and factually innocent prisoners in New York. While procedural barriers serve a purpose in limiting frivolous claims, they must yield in cases where compelling evidence of innocence comes to light after conviction for justice to prevail. The proposed legislation effectively balances the interest in maintaining valid convictions and exonerating the actually innocent,” said Glenn Garber, Director of the Exoneration Initiative.

“The authority to take away one’s liberty is perhaps the state’s most awesome power. And yet New York’s rules of criminal procedure place an extraordinary burden upon the individual who wishes to put before the court compelling evidence of his wrongful conviction.  This bill restores fairness and integrity to the criminal justice system when the evidence indicates the state has put an innocent person behind bars,” said Robert Perry, Legislative Director of the New York Civil Liberties Union.

“Experts estimate that DNA testing is possible in just five to ten percent of all criminal cases – and even among those cases, evidence is often lost or destroyed and cannot be tested to prove innocence. This proposed law is critical for helping people prove their innocence when DNA testing is not possible,” said David Loftis, Managing Attorney at the Innocence Project, which is affiliated with Cardozo School of Law.

BUFFALO NEWS SAYS INNOCENCE COMMISSION OVERDUE IN NEW YORK

New York State’s legislature hasn’t been interested in an innocence commission, an idea that is gaining momentum. This was noted in the Buffalo News today in an opinion piece that calls on the state to take the matter seriously. Select this link for the article.

The editorial states: “Democrats will take over the Senate in January. This is an obvious and comparatively easy problem for them to address. No state can ever guarantee that the innocent will never be wrongfully convicted, taken from their families and locked behind bars. People aren’t perfect, so their systems can’t be either. But New York can do a whole lot better than it has. It should do that.”

CRIME POLICY REFORMER SAYS TIME IS RIGHT FOR “RADICAL IDEAS”

From “Crime and Justice News,” 11/7/08
Eric Sterling, president of the non-profit Criminal Justice Policy Foundation, writes on the Huffington Post that the economic and political time is right for “innovative, even ‘radical,’ ideas in criminal justice. “Last year we had 2.3 million Americans in prison and jail,” Sterling writes. “How many American cars did these men and women buy last year? That’s right, none. That 2.3 million is about ten times greater than the 250,000 prisoners in America during the auto industry’s glory days of the 1960s and 1970s. There are another 8 million Americans who got a felony conviction for possessing or selling drugs in the last twenty years. With their convictions, these people rarely have jobs. They don’t have a legal income and they don’t have credit.”

He goes on to make the case that placing these citizens into the consumer stream might help the economy. He writes, “The economic effect of more than ten million American adults who can’t buy cars, houses, furniture, appliances, or other durable goods is like 9- 11, Katrina, and every other hurricane combined. Even with a job, many are without a credit card and are shut out of the marketplace. From Ticketmaster to Amazon.com to the local shore store, American businesses are losing sales. Economically, our criminal justice policies are cutting our throat. Aside from the economic cost, is imprisonment of all of these 2.3 million Americans good anti-crime policy? Not according to the research. Effective crime fighting uses smart police strategies, adequate mental health care, good schools, recreation for youth, jobs and focused rehabilitation.”

PUBLIC OPINION CHANGES OVER TIME

In criminal justice cases, those involving law enforcement fall prey to sensationalism and the “let someone pay –anyone” response. This is true in the case of Troy Davis, a Death Row prisoner in Georgia, where the extreme pressure from law enforcement to uphold the conviction is flying in the face of national and international pressure to slow down and request a serious review through the legal system.

A case, 36 years old, is in the public eye for a review from Angola Prison in Louisiana. The case also involves law enforcement and two prisoners convicted in the case of the death of correctional officer. The case of two prisoners, who have been in solitary confinement for 36 years, is now being questioned in coverage from National Public Radio.

Check out the above link for excellent photos, interesting print and audio reporting.

FOUR EX-PRISONERS SEEK “CERTIFICATE OF INNOCENCE”

From Crime and Justice News, citing an article from the AP:

Lawyers at Northwestern University have filed petitions on behalf of four exonerated former Illinois inmates, the first under a new law that would allow them to seek compensation from the state. Under the law, exonerees can apply to the county court of their conviction for compensation instead of waiting for a pardon from Gov. Rod Blagojevich. That county court may grant a “certificate of innocence.” “People would still like to receive the innocence pardons from the governor,” said Karen Daniel, an assistant law professor at Northwestern University School of Law. “This wouldn’t replace that process. It’s an alternative means of getting the compensation.”

Among the four filings was one for Marlon Pendleton, 51, who is eligible for seven years of compensation after he was exonerated on DNA evidence from convictions of aggravated criminal sexual assault and armed robbery. A certificate would make Pendleton eligible for job training and provide him with more than $100,000 in compensation. The Illinois General Assembly overrode Blagojevich’s veto of the legislation, making it law Sept. 22. Blagojevich has faced criticism for a backlog of hundreds of clemency petitions.

Associated Press/Chicago Tribune

BOOK ON PARDONS GIVES BROADER CONTEXT

The virtual end to pardons and grants of executive clemency on the state and national levels is of concern to scholar Kathleen Dean Moore in her book on pardons. She says the political climate has made “…the exercise of mercy a politically risky act” which defeats the intentions of this nation’s Founders who believed that without a clemency power “justice would wear a countenance too sanguinary and cruel.”

Launch of Discussion

This is an effort, sponsored by friends and family members of Gary McGivern, to support the creation of an Innocence Commission in New York State using his case as an example of the way in which the situation was politicized over the years.