BY: Michael B. Mushlin, Professor of Law at the Elisabeth Haub School of Law at Pace University, Scholar, and Renowned Expert on Prisoners’ Rights.
The tragic and shocking shocking death of Terrill Thomas reminds us — as if we need reminding — that prisons and jails are places that need careful oversight. Without oversight, as Kafka warned over a century ago horrors will inevitably occur. Yet in America, sadly, there is little meaningful oversight of our penal institutions. That has to change or there will be more and more needless and cruel deaths to mourn.
- Zach Cartwright, Man Dies of Thirst in Jail Run by Pro_Trump Sheriff After Being Denied Water for 6 Days, U.S. Uncut (Sept. 20, 2016).
- Ryan J. Reilly, An Inmate Died of Thirst in a Jail Run by a Loudly Pro-Trump Sheriff, The Huffington Post (Sept. 19, 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).
The New York State Assembly will soon vote on Assembly Bill No. 9939, which would establish independent oversight of NY’s prisons. Prof. Michael B. Mushlin drafted a letter in support of the Bill, which he sent to the Speaker Heastie on June 7, 2016.
The purpose of the 2015 Assembly Bill No. 9939 is summarized as follows:
[This Bill] creates the office of the correctional ombudsman to achieve transparency, fairness, impartiality, and accountability in New York state correctional facilities; relates to reports by coroners; designates investigators of the office of the correctional ombudsman as peace officers; authorizes the attorney general to investigate the alleged commission of any criminal offense committed by an employee of the department of corrections and community supervision in connection with his or her official duties; relates to the confidentiality of certain records; and includes the office of the correctional ombudsman records within the definition of public safety agency records; makes related provisions.
Prof. Mushlin concludes his letter with a quote from the U.S. Supreme Court Justice Anthony Kennedy from his 2003 speech to the American Bar Association:
It is no defense if our current prison syste is more the product of neglect than of purpose. Out of sight, out of mind is an unacceptable excuse for a prison system that incarcerates over two million human beings in the United States.
POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.
The lead editorial in the New York Times of June 6, 2016 addresses an important issue: the all-too-frequent failure or resistance of prosecutors to comply with their constitutional obligation to produce to the defense evidence in their possession that is potentially exculpatory or mitigating for a defendant. To address this issue, the editorial suggests that the United States Department of Justice should monitor the practices of district attorneys’ offices in which such problems have arisen in the past.
This proposal may have merit, but it contains at least one troubling issue indicated in the editorial’s title: “To Stop Bad Prosecutors, Call the Feds.” This title and the editorial’s text suggest that the problem at issue is entirely or primarily the fault of local district attorneys’ offices and that such problems are absent or de minimis in the offices of federal prosecutors.
The editorial’s concern for fairness to individuals facing state criminal charges is to be applauded, but its proposal raises questions regarding federal prosecutors, who themselves are members of the Department of Justice, the department that would conduct the oversight. Will federal overseers, eager to advance their careers, monitor prosecutors in their own department as carefully as they review prosecutors in state offices? Will the Department’s oversight mandate be limited to local district attorneys’ offices? If so, will this foster an idea that federal prosecutors are exempt from scrutiny regarding their compliance with Brady v. Maryland?
In considering the editorial’s proposal, it is perhaps worth remembering an old question asked by the Roman poet Juvenal: Quis custodiet ipsos custodes? Who will guard the guardians?
Pace Professor Bennett Gershman makes a case for the establishing a prosecutorial misconduct commission, as New York considers doing just that. Read the article in The Daily Beast titled How to Hold Bad Prosecutors Accountable: The Case for a Commission on Prosecutorial Conduct.