Hello Street Law Advocates,
Today we're going to deviate a bit from our normal programming discussing the constitutional rights of defendants in the criminal justice system and police. Instead, we're going to dive into prisons. Figuratively, of course.
As you may know, our federal prisons are severely short-staffed and overcrowded. Despite these conditions, as noted in the U.S. Department of Justice’s fiscal year report for 2024, the population will expand to ten percent overcapacity this year. Overcrowding in prisons is not new, but what if I told you that the conditions resulting from overcrowding may give rise to serious constitutional violations?
The Eight Amendment to the Constitution prohibits cruel and unusual punishment. Specifically, it states:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted."
While most think that this bar is limited to torture, the Supreme Court of the United States has extended the prohibition against cruel and unusual punishment to encompass an obligation to ensure humane conditions. In Estelle, the petitioner was injured during his mandated work, and he felt that the doctors did not provide prompt enough treatment.In response to his claim, the Court held that the government must provide adequate medical care to inmates. Further, the Court has upheld mandates that prison systems severely change their system and reduce inmate populations to satisfy these notions.
Later, in Brown v. Plata, the Supreme Court of the United States sought to determine whether a Prison Litigation Reform Act (PLSRA) mandate that the California prison system substantially reduce its inmate population was constitutional.At this time of this litigation, California had almost double the maximum capacity of inmates, similar to the overcrowding currently in federal prisons. Indecency and were not receiving adequate medical care or conditions because of overcrowding, leading to people succumbing to treatable ailments, an elevated suicide rate, and people being kept in crowded, small cages awaiting treatment. The Court here determined that this was inconsistent with current notions of human decency and determined that these Eight Amendment violations could be remedied by a judicial mandate that the California system severely reduce the number of inmates.
Currently, there is nothing in the U.S. Department of Justice’s report to suggest that federal inmates are being treated under the inhumane conditions as seen in Plata, but why should they have to wait before this issue is addressed? Isn’t the entire point of a constitutional right to prevent violations from happening? Federal inmates should not have to wait for the overcrowding to seriously affect their quality of life, for the prison population to be decreased, or for the facilities to be renovated for prison facilities to conform with what we consider as humane conditions. Yes, incarcerated persons have been temporarily stripped of their liberty due to their actions and resulting criminal convictions, but at no point do they lose their humanity.
 Shannon Heffernan, Federal Prisons Are Over Capacity – Yet Efforts to Ease Overcrowding Are Ending, The Marshall Proj. (Jan. 6, 2024), https://www.themarshallproject.org/2024/01/06/federal-prisons-release-staffing; Glenn Thrush, Short on Staff, Prisons Enlist Teachers and Case Managers as Guards, N.Y. Times (May 1, 2023), https://www.nytimes.com/2023/05/01/us/politics/prison-guards-teachers-staff.html.
 U.S. Dep’t Just. Fed. Prison Sys., FY 2024 PERFROMANCE BUDGET Congressional Submission (2024), https://www.justice.gov/d9/2023-03/bop_se_fy_2024_pb_narrative_omb_cleared_3.23.2023.pdf.
 U.S. Const. amend. VIII.
 Estelle v. Gamble, 429 U.S. 97 (1976).
 Here, the court concluded that the treatment was adequate and not contrary to the petitioner’s constitutional rights. Id.
 Brown v. Plata, 563 U.S. 493 (2011).
Hello Street Law Advocates,
Generally, when people think of the criminal justice system, one of their first ideas is that they have the right to a lawyer during the criminal justice process. However, this right is not as absolute as one might think. When imprisonment is not being imposed, there generally is no right to counsel. This means that a court can try you for an alleged crime without an attorney present, so long as they do not impose a prison sentence. This however is not as straight up of an analysis. Even though a lot of charges have some sort of incarceration penalty, the possible penalty is not what decides the right to counsel.
Instead, the analysis is backward-looking.
Only if incarceration is actually imposed is the right to an attorney granted, meaning that you are not entitled to an attorney when the court imposes a fine.  Additionally, there needs to be a finding that you are indigent, or not able to afford an attorney for the court to appoint you one. With the high cost of litigation, however, most people meet the indigency definition because the average hourly cost of an attorney is too high for the average American to pay.
The idea that the right to affordable counsel is not guaranteed across the criminal justice system begs the question — does this principle truly progress ideas of fairness when considering the impact certain charges can have socially and economically?
For example, a defendant who is convicted of driving under the influence of alcohol (DUI), and who is not sentenced to imprisonment has no right to an attorney when the court takes on their case. The defendant will have the social stigma of receiving a DUI and will have a conviction on their record which can be used to calculate a harsher sentence for other criminal behavior, yet they do not have the guaranteed right to an affordable attorney. Additionally, this conviction can result in the deprivation of driving rights, which will affect a defendant's job and everyday life. Sure, it would be burdensome on the criminal justice system to ensure realistic access to counsel for every indigent defendant for every criminal charge to have the right to counsel, but in a system that revokes rights, does anything less realistically comply with notions of fairness and justice?
Why can’t we connect the right to affordable counsel with any penalty that has unfair collateral consequences associated with a criminal conviction regardless of an imposed prison sentence?
Food for thought.
 Scott v. Illinois, 440 U.S. 367 (1979).
 See Powell v. Alabama, 287 U.S. 45 (1932); Scott v. Illinois, 440 U.S. 367 (1979).
 Gideon v. Wainwright, 372 U.S. 335 (1963).
Hello Street Law Advocates,
In the wake of Trump’s federal indictment, many question why he was not detained prior to trial, which is the reality for many defendants in the federal system. According to the Federal Criminal Code and Rule 18 § 3142, a pre-trial detention hearing should be held if the defendant constitutes 1) a serious risk to community safety, 2) a serious flight risk, or 3) poses a serious risk of obstruction of justice.
Keeping in mind that Trump was federally indicted for conspiracy to obstruct justice, which would appear to clearly pose a serious risk of obstruction of justice under Rule 18 § 3142, no pre-trial detention hearing was held. In comparison, approximately 60% of defendants are held pre-trial, a lot for less severe charges.[i] Jack Teixeira, the former Massachusetts Air National Guard member who was also recently charged with mishandling classified documents, is calling out this disparity. Despite the fact that Teixeira has significantly fewer resources than Trump, the Court determined Teixeira was a flight risk and was ordered to remain detained prior to his trial. The crimes prosecutors allege Teixeira committed are essentially the same as Trump’s first 31 charged offenses. The only notable differences are that Teixeira is accused of transmitting the information while Trump is not, and that Trump is accused of conspiracy to obstruct justice, and Teixeira is not. [ii]
The question remains: how can two defendants with very similar charged offenses have drastically different pre-trial detention results? The answer is most likely determined by the identity of a specific defendant. Here, Trump is a well-know, albeit infamous political leader, whereas Teixeira is not. Additionally, Trump would be easily recognized if he attempted to flee justice, whereas Teixeira would not. This analysis is how many courts are likely to begin distinguishing the two defendants, but is it convincing to the American public? Teixeira’s argument, alluded to above, may have some merit. He points to his modest income and how he is without the capacity to flee from prosecution whereas Trump is more likely to sustain his livelihood in another country, far from the United States’ prosecutorial reach. [iii] This discrepancy in outcome is likely due to the discretion of judges, who, after all, are merely human. However, when viewed in an objective analysis, the distinction our system makes between defendants seems to be more arbitrary than necessary to secure a criminal conviction.
Hello Street Law Advocates,
After the first federal Trump indictment, there has been some confusion on what exactly a federal indictment means in relation to a state indictment. Generally, these two are very similar. In order to charge an individual with a felony offense punishable by imprisonment for a year or more, or a death sentence, the government needs to 1) indict you, or 2) charge you through an information.[i] An indictment is held once a month, and the government must prove that there is probable cause to support an arrest for the offense in order for a grand jury to issue an indictment.[ii] A grand jury must have between 16 and 23 members. An indictment is issued only if a minimum of 12 of those members agree that an indictment is appropriate.[iii] In this case, this means that the special investigator was able to prove to at least 12 of the grand jurors that the federal government has probable cause to charge Trump with a violation of 18 U.S.C. § 793(e), which covers willful retention of national defense information, in addition to a separate violation of 18 U.S.C. § 1512(k), which covers conspiracy to obstruct justice and other charged criminal violations.
A federal indictment, however, is more daunting of a challenge to defeat than the New York state indictment. According to New York’s 2020 Criminal Justice Statistical Report, approximately 30% of felony indictments result in prison sentences, and approximately 67% of felony indictments result in convictions.[iv] In contrast, fewer than 1% of defendants facing a federal charge went to trial and won their case, and 90% pled guilty prior to trial. [v] With this framework and history in mind, it would appear Trump faces insurmountable odds in escaping his trial without a felony conviction either through trial or plea deal.
Keep on the lookout for a follow up post discussing why Trump was able to escape pre-trial detainment after his arraignment.
[i] Fed. R. Crim. P. 6
[ii] United States v, Sells Eng’g, 463 U.S. 418, 423 (1983).
[iii] Fed. R. Crim. P. 7
[iv] New York State Division of Criminal Justice Services, Criminal Justice Statistical Report for New York: Criminal Justice Case Processing Arrest through Disposition New York State January – December 2020 (2021). https://www.criminaljustice.ny.gov/crimnet/ojsa/dar/DAR-4Q-2020-NewYorkState.pdf
[v] John Gramlich, Only 2% of federal criminal defendants go to trial, and most who do are found guilty, Pew Research Center (June 11, 2019), https://www.pewresearch.org/short-reads/2019/06/11/only-2-of-federal-criminal-defendants-go-to-trial-and-most-who-do-are-found-guilty/
Hello, Street Law advocates!
In this second installment of our discussion of the Trump Indictment, we will cover the ramifications of a grand jury indictment, how these ramifications would play out differently for the average American when compared to how it has impacted Mr. Trump, and how those ramifications can lead to due process issues. In a post for the Marshal Project, Caroline Grueskin recounted her experience serving on a New York grand jury. Grueskin discusses how grand juries serve as both a sword and shield of the criminal justice system. Grand juries are a sword in the sense that an indictment is followed by an arraignment, which is when the defendant enters a plea in response to the indictment, is usually confined, and bail is usually set. They are also a shield because they allow the community to have a say in pursuing a criminal case. Grueskin recounts the trials and tribulations the jurors went through during the indictment process. She recalls when she first heard the reputation of grand juries which is that “they can indict a ham sandwich,” and how that statement made her feel disenfranchised with the criminal justice process. Grueskin then comes to the realization that most cases do not go to trial, which results in a majority of defendants being incarcerated on uncontested charges. This leads her to realize that grand juries are not a problem but are in most instances the only check on the power of prosecutors to charge a defendant and force a plea deal before trial.
After a defendant is indicted, they are met with the sword of the criminal justice system which is an arrest, if they haven’t been already, and an arraignment. An arraignment is the initial hearing of a criminal case where the defendant learns about their rights, the charges against them, and whether to hold the defendant in prison before trial or release them until the trial. In most cases, the defendant will likely be held in jail unless they can post bail which is granted after the judge weighs several factors such as the type and severity of the crime, how long the defendant has lived in the area, their local family, prior criminal records, and possible threats to witnesses. The judge weighs these factors to determine what amount of bail is appropriate for each defendant to successfully act as a deterrent to not returning to the Court’s custody and an incentive to get the bail money back from the Court system. The normal arraignment experience however was not the experience Trump had during his arraignment. There were no handcuffs, no mug shot, no holding cell, and no pre-trial confinement. For most defendants, they are placed in unsanitary conditions in overcrowded holding cells while awaiting arraignment, then sent to prison to await trial if they cannot afford to pay the bail. Some prior defendants report nothing to eat but moldy sandwiches and the crowded cell being littered with urine-filled plastic cups.
What is most concerning, is that these people have not been found guilty of a crime before their confinement, and many of them did not know about the indictment — meaning they could not provide a defense before their liberty is held hostage by the state. In determining whether to hold an individual before trial, the courts balance the defendant’s presumption of innocence with public safety. This, however, is a slippery slope that often ends up penalizing people who have not yet been convicted of a crime. In some instances, judges are able to weigh the prosecution’s evidence before trial to determine whether to confine a defendant or how high bail is to be set. The due process clause is supposed to protect defendants from unnecessary punishment, however, the common practice of holding people in subhuman conditions while they await trial falls far from the standard the due process clause mandates. Here, there is no standard that judges apply in determining who is detained awaiting trial and who is not, which leads to outcome inconsistencies that the Trump arraignment exemplifies.
Most New Yorkers Don’t Get the Trump Treatment at Arraignment, The Marshall Project, https://www.themarshallproject.org/2023/04/04/indictment-arraignment-meaning-new-york-trump (last visited May 23, 2023)
Caroline Grueskin, Confessions of a Grand Juror, The Marshall Project (Oct. 27, 2015), https://www.themarshallproject.org/2015/10/27/confessions-of-a-grand-juror
Office of the United States Attorneys, Initial Hearing / Arraignment, https://www.justice.gov/usao/justice-101/initial-hearing
Shima Baradaran, Restoring the Presumption of Innocence, 72 Ohio St. L. J 723, 766-76 (2011).
Hello, street law advocates!
As many of you have seen in the news, former President Trump was recently indicted on 34 counts of falsifying business records in the first degree in violation of New York’s Penal Law 175.10. Sen. Mitt Romney of Utah, a critic of the indictment expressed concern that this is an instance of prosecutorial overreach that may not meet the standard of due process. [i]
Mr. Trump allegedly falsified business records in an attempt to cover up his campaign’s suppression of negative information by having his lawyer pay $130,000 to an adult film actress. This payment was made through a shell corporation from the Lawyer’s personal bank account which Trump then reimbursed under the guise of legal fees. In addition, Trump allegedly falsified entries made in New York business records in attempt to conceal the hush money payment to the adult film actress. [ii]
In order to be convicted of falsifying business records in the first degree in violation of New York Penal Law 175.10, an individual needs to commit the crime of falsifying business records in the second degree with the intent to defraud and an intent to commit another crime or to aid or conceal the commission thereof.[iii] The standard of proof necessary for a grand jury in New York is whether the prosecution has provided enough legally sufficient evidence to warrant a possible conviction when viewed in the light most favorable to the state. [iv] Legally sufficient evidence is evidence that solely needs to establish the possibility of every element of an offense charged. This standard of proof is considerably lower than what is needed to sustain a criminal conviction and is just a precursor to taking a case to trial. The standard of proof in a criminal trial is a beyond a reasonable doubt standard which means that the jury thinks the defendant is guilty, and there is no reasonable doubt that contradicts a guilty finding. This contradicts the standard of proof for a Grand Jury in New York, because it is a higher bar of evidentiary proof than a Grand Jury needs to issue an indictment. In the context of former President Trump’s alleged crimes, the prosecution needs to show evidence to the grand jury that establishes that he may have 1) falsified business records and 2) did so intending to commit another crime or hide evidence of another crime, whereas during trial they need to prove that Trump actually committed these acts beyond a reasonable doubt. Essentially, the prosecution does not need to show that he committed any crime, just show that it is plausible that he did.
Upon inspection of the indictment, there are no currently available facts available suggesting that former President Trump committed the underlying criminal behavior. The indictment merely states that the grand jury accused Trump of committing the alleged crime, and then provides a short statement outlining the elements necessary to prove a conviction under New York Penal Law 175.10. The statement of facts merely gives an illustrative story that seeks to prove the alleged criminal actions but provides conjecture that is not dispositive of criminal behavior. While the statement of facts is not alone sufficient to support a criminal conviction, these facts do at least establish the mere possibility that these allegations happened, which under New York law, is enough to support an indictment.
The statement of facts and indictments have spurred criticism of the criminal justice system and have led to mainstream discourse seeking to highlight the issues with criminal justice practices. While it is great that these topics are back in the mainstream consciousness, we as a society should be careful to not only address these systemic issues that disproportionately impact underserviced and minority communities when a celebrity may be affected by it. Over the next couple of weeks, we will be adding to this blog thread to highlight criminal justice and constitutional issues that affect the average person to shed light on the legal discourse that actually affects our communities.
[i] Politico, Bragg’s Case Against Trump Hits a Wall of Skepticism – Even from Trumps Critics, https://www.politico.com/news/2023/04/05/alvin-bragg-case-against-trump-00090602
[ii] Politico, Read the Full Trump Indictment and Statement of Facts, https://www.politico.com/news/2023/04/04/read-the-trump-indictment-document-00087925
[iii] N Y PENAL § 175.10
[iv] People v. Arcila ,59 N.Y.S.3d 783, 784 (N.Y. App. Div. 2017).
Every time a person interacts with law enforcement, they are in one of three phases. They are either 1) free to go, 2) detained, or 3) under arrest. Justice101 teaches vulnerable populations to terminate the interaction at the earliest opportunity. However, Thaddeus Johnson and Natasha Johnson published an article in the February edition of Time Magazine that suggests a different approach — if we want to decrease interactions with law enforcement, we need to decrease the number of traffic stops.
Time’s article centers around the recent beating and death of Tyre Nichols in Memphis at the hands of members of Memphis’ police force. On January 7, 2023, Nichols was pulled over by police, after which they viciously beat him. Nichols died three days later due to “extensive bleeding caused by a severe beating.”
According to the Johnsons’ article, Nichols’ death is yet another reminder to certain populations within the United States that all too often, interactions with law enforcement turn deadly for those stopped by police. This is made all the worse by pretextual policing, where officers stop a person who, while they are arguably committing a traffic violation, the police wish to investigate other, unrelated possible criminal activity.
The most common way an American encounters law enforcement is through a traffic stop. In fact, police pull over more than 50,000 drivers daily in the United States. While many of these stops are with the intent to keep the roads safe, the Johnson’s assert a large number are simply pretextual policing. Moreover, they assert that pretextual policing is more likely to impact Black drivers, particularly young, Black men. Importantly, “while Black male drivers are more likely to be searched, they are less likely to be found with contraband.”
While the article recognizes that many state and local governments have made changes following the death of George Floyd in Minneapolis, MN in 2020 — more work must be done. Essentially, the article explains different ways in which police forces can re-focus their priorities away from mundane traffic stops, and instead focus on higher impact police activities, such as more serious violations of speeding and running traffic lights, as well as spending time handling routine calls and interacting with citizens. Basically, a focus on “community building, innovative problem-solving, effective communication, and civility.”
What do you think? How do you feel about how police officers spend their typical day? Do you think it would be improved if communities took the steps suggested in the Johnson’s article? Let us know!
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