NPR North Carolina ran a story about prison oversight featuring Prof. Michael B. Mushlin of Elisabeth Haub School of Law at Pace University who has been tirelessly advocating for meaningful prison oversight. The level and extent of brutality occurring behind the walls of many prisons is unimaginable, and the fact that many if not all of the incidents go unreported, un-investigated, and unpunished makes these situations even more dire.
- Brian Mann, Reports of Prison Guard Brutality in New York Draw a Harsh Spotlight, NPR North Carolina (Oct. 20, 2016).
- Michael B. Mushlin, What’s Going on in Our Prisons?, N.Y. Times (Jan. 4, 2016), at A19.
- Michael B. Mushlin, Written Testimony on Correctional Oversight of the NYS DOCCS, Hearing Before the State Assembly Standing Committee on Correction (Dec. 2, 2015).
- Michael B. Mushlin, “I Am Opposed to This Procedure”: How Kafka’s In the Penal Colony Illuminates the Current Debate About Solitary Confinement and Oversight of American Prisons,93 Or. L. Rev. 571 (2015).
POST WRITTEN BY: John Humbach, Professor of Law at Pace Law School.
Much has been written about the extraordinary rates of incarceration as a pressing criminal justice problem. Mass incarceration is, however, only part of the challenge posed by the American criminal justice system. Already, an estimated 25% of U.S. adults have a criminal record and, with a million new felony convictions per year—one every 30 seconds—America’s ex-offender population is growing exponentially (see chart to the right). Our country is well on its way to becoming a nation of ex-cons.
The effects of being a “criminal” do not, moreover, end with release from prison. Newly released inmates are immediately met by a growing assortment of law-prescribed “collateral consequences” that now number in the tens of thousands. In their cumulative impact, these legal disabilities greatly reduce the ability of ex-offenders to find housing, make a living, get an education, obtain bank loans, support their children or, generally, to enjoy the usual rights and amenities of citizenship that are essential for a reasonable quality of life. As a result, our nation’s criminal-justice policy is literally re-making America into a legally divided multi-stratum society with an entrenched system of law-sanctioned discrimination against a large and growing underclass with a legally-prescribed inferior civic status.
Already, the ex-offender class is the nation’s largest legally discriminated-against minority group, and it is growing. The adverse social implications of this trend remain unclear and the critical demographic tipping point is still uncertain. But whatever the details, this is surely not good path for the nation to be on.
- John Humbach, Is America Becoming a Nation of Ex-Cons?, 12 Ohio St. J. Crim. L. 605 (2015) (SSRN) (Pace Digital Commons).
POST WRITTEN BY: Michael B. Mushlin, Professor of Law at Pace Law School, Scholar, and Renowned Expert on Prisoners’ Rights.
Continuing a national trend the New York City Board of Correction yesterday unanimously voted sweeping changes to the use of solitary confinement in New York City Jails. The reforms eliminate the use of solitary confinement entirely for anyone under the age of 18, for anyone 18 to 21 years old (this goes into effect in 2016), and for anyone with serious mental or serious physical disabilities or conditions. Terms in solitary for all others cannot exceed 30 consecutive days for a single infraction, and more than 60 days in any six month period. Due process protections are also expanded under these rule changes which will help limit the imposition of solitary on persons who did not break rules.
The changes voted by the Board of Correction address the major justification offered by opponents of solitary reform who have argued that solitary is necessary to contain the “worst of the worst,” inmates who are so violent that they cannot be safely confined in the general prison population. To deal with inmates who have acted in violent ways and who might pose a threat, the rules adopted by the Board of Correction allow for the creation of “Enhanced security Housing.” This housing allows the department to separate inmates who are violent without imposing solitary confinement on them. In these units inmates will be given services including psychological and mental health treatment to help them cope with violent tendencies and will not be locked into their cells 23 hours a day.
In the words of the Executive Director of the New York Civil Liberties Union the changes approved yesterday demonstrates that
New York City has taken an important stand for basic human rights and reaffirmed its commitment to the safety of prisoners, prison staff and our communities.
The reforms are a critical step in the national movement to end the shameful practice of solitary confinement in our nations penal institutions.
- Jasmine Garsd, New Solitary Confinement Plan For Younger Inmates at Rikers, NPR News (Jan. 14, 2015).
- ACLU, New Rules Make Rikers a Leader in Solitary Confinement Reform (Jan. 13, 2015).
- Michael Winerip & Michael Schwirtz, Rikers to Ban Isolation for Inmates 21 and Younger, The New York Times (Jan. 13, 2015).
- Mark Berman, New York City Will No Longer Put Its Youngest Prison Inmates In Solitary Confinement, The Washington Post (Jan. 13, 2015).
Pace Law School Professor and an expert on rights of prisoners, Michael B. Mushlin, weighs in on a proposed New York regulation, I.D. No. CMC-14-13-00010-P regarding inmate access to legal reference materials. The notice of the proposed regulation was published on April 3, 2013 and is available here starting on page 5. Public comment will be received until 45 days after publication of the notice.
BY MICHAEL B. MUSHLIN
In a society that operates under the rule of law access to the courts is the most basic right. Without the accountability that courts provide, rights that exist on paper can easily become only that. This is especially true for incarcerated persons for whom the right of access to the courts is the “foundation of every other right an inmate has.” Michael B. Mushlin, Rights of Prisoners, §12:1 (4th ed. 2010). It has long been recognized that an important way to implement the right is to provide access to legal materials contained in law libraries. Bounds v. Smith, 430 U.S. 817 (1977). See also, Lewis v. Casey, 518 US. 343 (1996) (inmates who lose claims or defenses that they might win if they had access to legal materials have been deprived of a constitutional right of access to the courts). The New York State Commission on Corrections has implemented the right of access to the courts by requiring all jails in the state to maintain small collections of essential legal materials governing New York State criminal law and some basic information about the constitutional rights of incarcerated people. The Commission is empowered under New York law to set standards for New York’s many jails holding pretrial detainees and persons serving misdemeanor sentences,
Now, however, the Commission proposes to abandon this simple requirement by amending its rule to eliminate the requirement that these legal materials be on site. Under the proposed amendments people who are held in these local facilities that choose to eliminate these small libraries will be limited to submitting written requests for material from other libraries with no guarantee the material will be delivered until the passage of three days following the request. (Alternatively, and less harshly, jails could establish computer terminals with online access but this would be limited only to New York state case law digests). To make matters worse in a little noticed addition to the proposal, the Commission seeks to eliminate the obligation that inmates be given access to typewriters on which to prepare legal papers. In its place the Commission would only require that inmates be given access to “black ink pens” with which to write their legal submissions. It is obvious, however, that typed or printed papers are more accessible to the judiciary than are handwritten document. See, e.g. United States ex rel. Wolfish v. Levi, 439 F. Supp. 114 (S.D.N.Y. 1977) (noting that typed papers “leap more vividly than handwritten ones to the watery judicial eye.”). These limitations on essential rights of incarcerated persons are imposed to achieve a small savings of a mere $5,000 per year per jail. The price tag for deprivation of constitutional rights has rarely been set so low. One can only hope that the Commission will on reflection abandon this proposal to limit the right of access to the courts.