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This is a pretty big deal. The American Law Institute more or less built the foundation that the U.S. Supreme Court used to reinsitute capital punishment. They have just walked away from their work of the last five decades.
“The A.L.I. is important on a lot of topics,” said Franklin E. Zimring, a law professor at the University of California, Berkeley. “They were absolutely singular on this topic” — capital punishment — “because they were the only intellectually respectable support for the death penalty system in the United States.”
The institute is made up of about 4,000 judges, lawyers and law professors. It synthesizes and shapes the law in restatements and model codes that provide structure and coherence in a federal legal system that might otherwise consist of 50 different approaches to everything.
In 1962, as part of the Model Penal Code, the institute created the modern framework for the death penalty, one the Supreme Court largely adopted when it reinstituted capital punishment in Gregg v. Georgia in 1976. Several justices cited the standards the institute had developed as a model to be emulated by the states.
The institute’s recent decision to abandon the field was a compromise. Some members had asked the institute to take a stand against the death penalty as such. That effort failed.
Instead, the institute voted in October to disavow the structure it had created “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”
That last sentence contains some pretty dense lawyer talk, but it can be untangled. What the institute was saying is that the capital justice system in the United States is irretrievably broken.
I would have to say this is pretty good news for justice. I know, however, Delegate John Overington (R-Berkeley) isn't going to be happy. He has been trying to reinstate the death penalty in West Virginia for the last two decades, even going as far as to ambush a bill last session with an amendment on the floor of the WV House of Delegates that, by all rights, should have been brought up for a committee vote beforehand.
This information is important, given West Virginia's impending Criminal Justice Reform debate. We have some serious issues with prison overcrowding in West Virginia. They demand serious debate, not blatant political stunts meant to keep your name in the papers.
Taking away the fundamental freedoms spelled out in the Bill of Rights is not a cheap endeavor. We have talked extensively about the stubborn and obstinate nature of the Kanawha County Board of Education when it comes to random and suspicionless drug testing.
When I see this, it makes me wonder how many bake sales or cake walks or other grassroots fundraisers will have to be held so that Kanawha County students can raise enough money for an educational field trip to the Clay Center. That is where this money should have gone.
Now, While it is correct that the West Virginia driver's license currently meet the physical standards for what is required under Real ID, that's only about 1% of what Real ID is actually about.
Additionally, the proposed substitute for Real ID (also known as PASS ID) should never under any circumstances be portrayed as sound policy. Far from it, it is actually, in many respects, just as bad. In some cases, it is even worse. Consider the following:
An analysis of PASS ID (or Real ID Lite) will show that motor vehicle administrations across the country will still be mandated to copy and keep the source identity records of anyone applying for a license and hold on to that information for as long as the license is valid. So, it won't be enough to show your birth certificate, social security card, and a utility bill to get a driver's license in West Virginia. If "Real ID Lite" becomes law, all of that information will be stored in digital files, creating a treasure trove of your personal information. The opportunities for identity theft will be endless.
If creating massive government run databases with digital copies of your source identity documents (i.e. birth certificates, social security cards, etc.) isn't reason enough to take a "Pass" on the new PASS ID (sorry, couldn't help myself to a little play on words) then consider this:
PASS ID still allows for the introduction and usage of the controversial RFID chip. This is that little thing you heard about that would allow the government to track your individual movements right through your driver's license. YIKES!!!!!!!!!!!!!!!!!!!
The bottom line is that while West Virginia's current standards for obtaining a driver's license do meet some of the superficial criteria set forth in the Real ID Act, we by no means should allow government officials or anyone else for that matter to suggest that the proposed replacement for Real ID is anything but a privacy disaster waiting to happen.
As a rallying point for the beginning of the campaign, a decision was made to host a high profile symposium on community and law enforcement relations. We knew from the outset that our approach had to be one that not only invited, but encouraged law enforcement to engage and participate. To a certain degree, racial profiling has to be remedied from within the government structure, and if you don't engage law enforcement correctly, they are much less likely to cooperate. Then, the status quo reigns, and everybody loses.
The panelists for our symposium which was held last month at West Virginia State University included Charleston Police Chief Brent Webster, Stephen Haas from the Division of Criminal Justice Services, Meshea Poore from the Kanawha County Public Defenders office, and Kenneth Hale from NAACP of WV.
The event was moderated by Charleston Gazette editor Jim Haught and I assure you, there was very little glossing over the subject at hand. The questions and the candor were civil but did not shy away from the reality of racial profiling in West Virgina. So many people attended that several had to stand throughout the evening. I mark the event as a great success, and recent events confirm as much.
Earlier this week, it was announced that the Charleston Police Department would incorporate training tailored specifically to racial profiling for all police officers in the City. Some will say that law enforcement is just going through the motions to make it look like they are doing something, but we see something more significant.
In all honesty, Charleston's recent move should be treated as a first step in dealing with the problem. Much more needs to be done. However, what makes the City's actions in this matter so pertinent isn't just the action being taken. It is also because the action taken comes as a response to a community based campaign that is politely, but firmly demanding action to remedy racial profiling by law enforcement.
None of us are naive enough to think the political leadership in Charleston just decided to do this on a whim. I think everyone involved can ascertain that the organized and responsible community based campaign that has been at work for the last several months (and to some extent, the last seven years) has as much to do with this decision than anything else.
This is one of the best ways to move government away from unconstitutional policies like racial profiling. By building coalitions, engaging communities, and keeping the finger-pointing to a minimum, we are able to create an environment where public officials and their agencies have to join the conversation and accept input on how to make things better.
To reinforce, these are first steps and should be treated as such. But I will take positive increments of progress over no progress at all any day of the week.
Get the word out. If you know a current high school senior who is good on civil liberties issues and looking to go to college next fall, please make sure they know about the ACLU's Youth Activist Scholarship Program.
The requirements are pretty modest.
A demonstrated commitment to civil liberties issues through some sort of activism
You have to be a high school senior
You have to be enrolled in, or planning to enroll in an accredited college or university as a full time, degree seeking student
So, if you know anyone that you feel falls into this category, please get word to them. The process of evaluatiing applications takes a little time, and the deadline is the end of November.
Last week, I reported on a judiciary subcommittee meeting where officials within West Virginia's Corrections and Criminal Justice Bureaucracy claimed, among other things, that West Virginia had no settled process for evaluating prisoners' risk before possibly releasing them back into society.
The proposed lack of such an assessment tool was positioned as a contributor to the state's overcrowding problem. After all, one cannot reasonably let convicted inmates out for parole/probation/work release without a assessing whether they are fit, and or likely to stay out of trouble once released.
Well, after talking with a couple of folks who have worked very close to this situation for a long time, it has been pointed out to me that the state does have risk assessment/evaluation mechanisms. In fact, it seems as if these mechanisms, which certain officials maintain don't exist in West Virginia, have been in place since the mid 1980's.
The more I think about it, the more one half of this makes sense (more on the other half in a minute.) Unless Department of Corrections officials have been using Ouija boards for the last two decades, all prisoners granted parole or work release would have to undergo some form of risk assessment. Could you imagine the state's liability if they were letting people out without thoroughly evaluating them beforehand?
Now for the other half, the one that doesn't make much sense.
This revelation poses some very interesting questions with respect to the overcrowding debate. Why would state officials claim that West Virginia has little infrastructure in place to evaluate the risk of potential parolees or candidates for work release when it looks as if they have had said programs in place for over two decades?
It would be one thing if state officials had used their time in front of the state legislature to offer a critique of the current system. Let's say they got up and said "Our current system that we have been using for the last 20+ years needs to be updated and/or adjusted."
There has been a great deal of coverage about the kerfuffle involving the organization ACORN and the political theater waged by arch-conservatives in Congress to "cut off" their funding. Motions have been brought to cut off funds from ACORN in spending bills where no such funding even existed in the first place.
It's a classic dirty trick that puts lawmakers in a difficult position. Often times, said votes are used against incumbents in the classic "My opponent refused to vote to cut off funds to that horrible organization ACORN."
Glenn Greenwald offers some excellent insight on the whole mess, but more importantly, West Virginia Congressman Nick Rahall is not backing down for doing what was Constitutionally correct in the matter.
“The Supreme Court has held that our Constitution prohibits all legislative acts, ‘no matter what their form, that apply either to named individuals or to easily ascertainable members of a group, in such a way as to inflict punishment on them without a judicial trial ...’” the 3rd District congressman said.
“ACORN may be guilty of certain infractions and, if so, they should be investigated and punished through the appropriate administrative and judicial process, but Congress should not punish individuals or organizations without due process,” he said.
“It’s like throwing the baby out with the bath water.”
In a day when it seems as if Congress is ready at any minute to cower to the most ludicrous and unconstitutional whims of the right wing, it is heartening to see a Congressman stand up for the basic principles our Democracy is founded on. It is even better when that member of Congress is a major leadership figure, and downright sublime when he comes from West Virginia.
Because our Constitution and the rights therein provide protections for the least among us as a means of guaranteeing that everyone's rights be secure, defending Constitutional values can often be very controversial. Because of this, it is important to recognize lawmakers who will not be pushed around by a public opinion storm that is directly sponsored by right wing media outlets.
Congress cannot punish people or organizations simply because they are accused of wrong doing. In fact, NO GOVERNMENT ENTITY CAN. Imagine showing up in court, accused of, let's say, shoplifting. You are ready to present your case and engage in your constitutional right to due process.
All of the sudden, an intern from the state legislature swoops in and carries you off for a tour of duty picking up trash on the side of the road in an unflattering orange jumpsuit. Doesn't sound right, does it?
That's because legislative bodies don't get to vote on punishing anyone until, at a minimum, they have exhausted their due process rights in front of the judicial branch of government and have been found guilty beyond a reasonable doubt.
It troubles me to see certain members of Congress flagrantly ignoring what we learned in 8th grade civics class to score cheap political points. It is even more troubling to see a majority of Congress come down on the wrong side of this debate.
However, it is inspiring to see people like Congressman Rahall not only make the right decision, but who do so out of a duty to uphold the Constitution of the United States of America (Feel Free to start humming Battle Hymn of The Republic at this point.)
Some interesting news from the Values Voters' summit in Washington D.C. this last weekend.
Aside from Mike Huckabee winning the straw poll of preferred candidates, it seems as if the issue of 'gay marriage' is quickly fading as something Values Voters deem especially important.
I find the following quote especially provocative:
These are not the tea-partiers, who have a libertarian bent. This is a forum, rather, sponsored by the Family Research Council, an organization which continues to insist that homosexuality is curable and to link it to pedophilia. But the actual attendees at the forum -- religious conservative activists from around the country -- just don't seem to be all that riled up about the prospect of two men getting married.
This is significant for a few reasons in West Virginia. First, the West Virginia Family Policy Council, one of the main organizations behind lobbying efforts to "define marriage as between one man and one woman," are directly affiliated with the Family Research Council and their right wing agenda. If they cannot maintain excitement for this political issue from within their base supporters, and it seems they cannot, then the issue is in trouble.
What could this mean for the future? While I seriously doubt the recent news will keep West Virginia's political right wing from pushing the ludicrous idea of holding an election to determine the definition of marriage, the overall results of the forum may push any serious efforts regarding that issue to the wayside whether the political operatives behind it like it or not.
Remember, the Values Voter summit in D.C. is put on by the Family Research Council and is attended by their staunchest supporters. If those supporters are telling their leadership that gay marriage is no longer a serious issue, then that leadership is going to have to adjust their advocacy to match what the rank and file want or risk losing them. Right now, the political right, especially this flank of the political right, is in such a position that it can ill afford any serious turbulance.
ACLU of West Virginia has taken, and will continue to take, a keen interest in the ongoing debate as to:
What is causing West Virginia's current prison overcrowding problems, and
What policy recommendations and adjustments should be made to truly address this issue?
At yesterday's legislative interim meetings here in Charleston, I had the opportunity to see the curtain pulled back on a couple of deficiencies in current criminal justice policy that need to be corrected.
First, West Virginia provides little in the way of mechanisms to assess risk factors for offenders. This is to say that there is no established system to evaluate persons behind bars who may be candidates for early release and conversely, those offenders who definitely should not be put back out into society.
Such a system, if appropriately implemented could begin to alleviate the state's overcrowding problem by identifying offenders who pose a lesser threat of recidivism and getting them out of prison on a more realistic time line than may otherwise be dictated by their potentially overblown sentencing requirements.
Because West Virginia most likely has a great many non-violent offenders behind bars who either should not be there or who have served enough time, a risk evaluation system, once implemented, would inevitably begin to ease the overcrowding situation. Said system would also benefit society by conclusively identifying offenders who are far too dangerous to be let out of jail.
Secondly, and far more concerning was the issue of offenders who are eligible for parole but are still locked up due to lack of post incarceration infrastructure. This is serious business. The speaker present said he knew of 31 offenders in the system who had already been paroled but were still locked up due to lack of post incarceration options (i.e. things like half-way houses and community corrections programs.) However, he admitted that the number statewide was at least 100 and could be even more.
Even more concerning is a change in the Parole Board's policy that denies a parole hearing for any inmate who does not have a home plan in place upon release. Given that West Virginia's post incarceration infrastructure is inadequate, many prisoners are not able to make certain post incarceration plans. This lack of "what to do with you once you are out" type resources is a question that needs to be addressed by the legislature and hopefully, resources will be dedicated to this problem. However, the current situation demands scrutiny because prisoners who are otherwise eligible for a parole hearing are being flatly denied because of the state's shortcomings in the area of post incarceration infrastructure.
Two serious questions that need to be answered:
How many prisoners in West Virginia have been made eligible for parole but are still locked up?
How many prisoners in West Virginia have been denied a parole hearing due to the Parole Board's new policy which denies hearings to anyone who doesn't have a certain post incarceration home plan?
I am willing to bet the proponents of building a private prison meant to detain up to one-thousand undocumented immigrants in Pendleton Co., WV would have preferred a nice, quiet game of inside baseball to accomplish their ends.
However, they are not going to get one, and from what I have been able to find out from ACLU of WV members in the area (we're everywhere!) this proposal is about to get a chilly reception at tonight's public meeting in Franklin. We will not be able to attend this evening, but I hope the county officials pushing this initiative haven't gotten themselves overly committed. There is a whiff of "done deal" in the air even though it looks more and more as if a substantial portion, dare I say majority, of the Pendleton County community has no interest in playing host to this facility or the private prison contracting firm that is pushing it.
What was supposed to be a 'debate' between myself and Executive Director of the WV Family Policy Council turned into a deabte between me and Mr. Carey, and despite his needling, I feel our side was well represented.
Admittedly, Dys was repeatedly tossed softball question after softball question and more or less regurgitated his standard talking points. Other than that, it was almost as if he wasn't even there.
I have friends who have done this show before, so I had an idea of what to expect. I knew Mr. Carey would be more aggressive with our position but managed to get our points in. Granted, sometimes I had to talk right over him in order to make our points, but that is just fine with me. I thought it went well, and will go back if asked.
Some things I would like to clarify:
The proponents of this legislation do not want a special election, and it is downright disingenuous for them to suggest so. Their goal is to put this on the general midterm ballot so they can drive out voters for candidates in what has been documented already as a purely partisan political manuever.
The cost of the last special election in West Virginia was 1.67 million dollars. They know this and the fact that the state would never shell out that kind $$$ for something this ridiculous.
Majorities are not hard to come by. That's why individual rights should never depend on them, ever. How about a referendum on your individual right to counsel? How about an up or down vote on a woman's right to choose or your right to a trial by jury? Tribunals, after all, would save the taxpayers a great deal of money.
The show is interesting to watch. I highly recommend Senator Dan Foster's (D-Kanawha) discussion on municipal pension debt that was featured during the first session. Our debate is on the third segment. There is also a link to additional footage a little further down the page.
At First I didn't make the connection, but then former (and orginial) ACLU of West Virginia executive director (thx H.C.) reminded me that Henry Louis Gates Jr., the director of Harvard University's (YES, THAT HARVARD) W.E.B. Du Bois Institute for African and African-American Research is originally from Piedmont, WV. He is considered one of, if not the, foremost authorities in the country ON PLANET EARTH when it comes to what he does.
To address an issue pointed to in the article: I wouldn't be surprised if perceived socio-economic status has an impact on whether or not anyone gets pulled over. The study did not record any information on the perceived socio-economic status of the drivers, so no one can say for sure.
However, that does not account for why minority drivers (namely Blacks and Latinos) are subjected to roadside searches at a rate 2.5 times higher than that of their white counter parts. I want to point this out specifically because policy makers cannot look at what is going on in WV and simply apologize it away as a matter of poor people getting picked on.
The study, mandated by legislation spearheaded by ACLU of WV, required law enforcement officers to keep track of certain information during traffic stops. The results more or less sum up what everyone knows has been going on for a long time.
In response, ACLU of WV, in coalition with the statewide chapter of the NAACP, NASW (social workers,) Citizen Action Group, Community Coalition for Social Justice, and the Community Relations Service of the Department of Justice has launched a campaign to address racial profiling in West Virginia.
For those interested in participating in the campaign, there will be opportunities to do so. Initially, I recommend reading the overview of the report to further educate yourself about the issue at hand.
You can also join us on Facebook and keep your eye on this blog, as we intend further address racial profiling until something is done to remedy this blight on West Virginia's Highways.
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