Month: April 2017

Historic Harris County Decision

On April 28th, Judge Lee H. Rosenthal issued an unprecedented 193-page ruling, holding that the Harris County money bail system is unconstitutional. The judge considered hundreds of exhibits, thousands of videos, hundreds of thousands of records, and numerous live expert and factual witnesses over an eight-day trial. She concluded that the Harris County’s bail system unfairly punishes the poor by ignoring individuals’ ability to pay bail. The court would arbitrarily set bail based and often ignored recommendations to release non-violent people on personal bonds.

In closing, Judge Rosenthal wrote, “In Harris County, they may be homeless. They may lack family, friends, and [people in their lives willing to bail them out]. Some are, no doubt, of bad reputation and present a risk of nonappearance or of new criminal activity. But they are not without constitutional rights to due process and the equal protection of the law.”

Going forward, Harris County will have to ask all those arrested on misdemeanor charges about their financial situation. If a person is eligible for release, they must be released on unsecured money bond. The decision will apply to over 50,000 misdemeanor arrestees in Harris County every year.

“The opinion destroys the supposed justifications of the American wealth-based pretrial detention system in devastating factual and legal detail,” stated Alex Karakatsanis, the lead attorney for Civil Rights Corps, which represents one of the plaintiffs. “In my view, it is a turning point for our criminal legal system.”


Arkansas Executions

Arkansas’ attempt to execute eight death row inmates prior to April 30th, when their supply of midazolam expires, stands in stark contrast to the declining trend of execution by lethal injection and opens a new front in the culture wars.

According to the Bureau of Justice Statistics, execution by lethal injection has fallen significantly since the turn of the century. At its peak in 1999, 98 people were executed; that number dropped to 35 in 2014. While this stems from many factors, part of the change is from the three drugs involved in the process: midazolam, which is used to render the individual unconscious; vecuronium bromide, which is used to halt their breathing; and potassium chloride, which stops their heart. Controversy has surrounded the drugs’ use as many producers sought to distance themselves and their products from lethal injections. For instance, several European drug companies began banning exports of these types of drugs, notably sodium thiopental the precursor to midazolam, to the U.S. starting in 2010. Shortly afterward, Hospira, based out in Illinois, stopped making the drug as well. The culmination occurred in 2012 when the EU created export controls over these products.

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Given the new restrictions, states looking to execute prisoners sought out new, and arguably less effective, alternatives such as midazolam. In one such case that went to the Supreme Court, Joseph R. Wood III suffered for two hours after receiving a lethal injection. With the introduction of the new drugs, there has been an increased number of lawsuits for injunctions and stays of execution. The main argument of these cases revolves around midazolam’s inability to work as an effective sedative and the Eighth Amendment rights of prisoners, specifically regarding the infliction of cruel and unusual punishment.

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Until recently, Arkansas seemed to be following the national trend, having not executed an inmate since 2005. However, on February 27th, Governor Hutchinson set the execution dates of eight men, and on April 20th, the state carried out its first execution in over a decade. Ledell Lee was executed by lethal injection moments before his death warrant was to expire. This was quickly followed by the double execution of Jack Harold Jones and Marcel Wayne Williams on April 25th. This double execution was the first of its kind since 2000. Finally, Kenneth Williams was executed on April 27th.

The executions speak to a larger political sea change. Justice Gorsuch was nominated to the Supreme Court on January 31st, and confirmed on April 7th. Now on the bench, Gorsuch will break the 4 – 4 splits of the previous few months, moving the Court in a conservative direction. This was the case with Ledell Lee who appealed his case to the Supreme Court. The Court ruled the execution could move ahead minutes before his death warrant expired, with Gorsuch placing the tiebreaking vote.

The ruling on Lee came after injunctions from the Fifth Circuit Court and Eighth Circuit Court of Appeals blocked the executions because of issues surrounding the drugs midazolam and vecuronium bromide. The Eight Circuit Court of Appeals cited several previous ineffective uses of midazolam and the prisoners’ Eighth Amendment rights in issuing its April 15th injunction. As the court stated, “The threat of irreparable harm to the plaintiffs is significant: If midazolam does not adequately anesthetize plaintiffs, or if their executions are ‘botched,’ they will suffer severe pain before they die.”

The Fifth Circuit Court ordered a separate temporary injunction based on a lawsuit filed by McKesson, the company that distributes vecuronium bromide. The company claimed the state misled them about the use of the drug. However, this injunction was vacated after Arkansas appealed it in the State Supreme Court—a ruling that clears the way for the drug to be used in future executions.

In his dissent to the Lee case, Justice Breyer wrote:

The apparent reason has nothing to do with the heinousness of their crimes or with the presence (or absence) of mitigating behavior. It has nothing to do with their mental state. It has nothing to do with the need for speedy punishment. Four have been on death row for over 20 years. All have been housed in solitary confinement for at least 10 years. Apparently the reason the State decided to proceed with these eight executions is that the ‘use by’ date of the State’s execution drug is about to expire. In my view, that factor, when considered as a determining factor separating those who live from those who die, is close to random.

It is becoming clear that, in the current political environment, the Eighth Amendment has less traction than it ought when determining death penalty cases. Whether it is an emphasis of market factors over individual lives or a lack of concern about the pain an inmate suffers, courts are becoming more stringent about what “cruel and unusual” means. As such, lawyers will need to take new approaches to defend their clients.

Four of the executions have been blocked. Stacey E. Johnson received a stay to allow for new forensic evidence. Working in coordination with the Innocence Project, lawyers successfully argued for a stay of execution, stating “newer methods of DNA testing that have never been performed in the case could provide compelling proof that Johnson didn’t commit the crime.”

Don William Davis and Bruce Earl Ward were granted stays based on their mental health. The attorney for Davis and Ward claims they were denied access to independent mental health experts. They are currently waiting on a ruling from the Supreme Court regarding defendant access to independent mental health experts.

Finally, Jason Farrell McGehee received a preliminary stay based on the state parole board’s suggestion that Governor Hutchinson grant him clemency. This puts his potential execution date after the drugs have expired and would require another order.

The four stays granted reflect narrow arguments tailored to the specific merits of each case and rely heavily on developments in the legal field. Two are waiting on a new ruling from the Supreme Court and one is attempting to bring new DNA evidence to bear, underscoring the changing legal landscape.

This change will have several implications. First, as courts have shown their reluctance to moderate how lethal drugs are acquired and their efficacy in executing prisoners, there will be increased use of lethal injections across the United States. Second, there will be less use of the Eighth Amendment as a strategy as the courts seem far less sympathetic to the pain prisoners may suffer during execution. Finally, the debate between pro- and anti-death penalty advocates will intensify as the number of executions increases and reignites the death penalty as a new front in the culture wars.

— Zachary Leibman is a Systemic Justice Fellow for the 2016 – 2017 academic year

Capital Punishment and Ineffective Representation

From one of our systemic justice students, here is an illuminating website briefly describing capital punishment in America, focusing in particular in how inadequate representation disadvantages a large number of capital defendants and skews the system against them.  Included is an overview of several inmates in Arkansas who are currently scheduled for execution beginning April 17th and who received wholly ineffective representation.

Final Day of the 2017 Systemic Justice Conference!

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Today is the final day of the 2017 Systemic Justice Conference: Repairing our Broken Systems!

Come for breakfast at 9:45am in time for the Justice Lab presentation on A Coordinated Community Approach to Homelessness which starts at 10:00am. That will be followed by another systemic lawyering panel — see the remarkable panelists below — and then lunch and the final Justice Lab presentation on Whistleblowing: Enhancing Employee Knowledge, Strategic Options and Consequences, followed by a group conference wrap-up discussion.

Today’s systemic lawyering panel features:

  • Lam Ho – Executive Director of CALA (Community Activism Law Alliance)
  • Corey Stoughton – civil rights litigation and strategy consultant based in London (formerly D.O.J. and ACLU of N.Y.)
  • Matt Segal – Legal Director of the ACLU of Massachusetts
  • Phil Torrey – Managing Attorney of the Harvard Immigration and Refugee Clinical Program


Don’t miss it!


Sunday, April 9, 2017

9:45 – 10:00 AM | Breakfast Pickup (Pound Hall)

10:00 – 11:15 AM | Homelessness (Pound 101)

A Coordinated Community Approach to Homelessness

Presenters (Justice Lab): Ross Brockaway, Pete Davis, Elle Dodd, Franco Pillsbury, Catia Sharp

11:20 AM – 12:20 PM | Systemic Lawyering Panel (Pound 101)

Panelists: Lam Ho, Corey Stoughton, Matt Segal, Phil Torrey

Moderators: Jieun Lim and Marilyn Robb

12:20 – 12:45 PM | Lunch (Pound Hall)

12:45 – 2:00 PM | Whistleblowing (Pound 101)

Whistleblowing: Enhancing Employee Knowledge, Strategic Options and Consequences

Presenters (Justice Lab): Esther Agbaje, Stephanie Kelly, Alisan Oliver-Li, Nicolette Roger

2:00 – 3:00 PM | Conference Wrap-Up: Problem Causers, Problem Solvers, Initiatives

Moderators: Sara Bellin and Jacob Lipton

Day Two of the 2017 Systemic Justice Conference

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Come to Pound Hall, Harvard Law School for day two of the 2017 Systemic Justice Conference!

Highlights include:

  • Brunch Forum of recent graduates!
  • Presentations on Qualified Immunity, Delivering Legal Services, & Amicus Briefs
  • The second Systemic Justice Showcase of the weekend!
  • Systemic Lawyering Panel featuring Jason Adkins, Sabi Ardalan, Esme Caramello, & Robin Steinberg
  • Narratives about our political moment

Come one come all!


Saturday, April 8, 2017

9:30 – 9:55 AM | Brunch Forum with Breakfast Pickup (Pound 101)

Moderator: Jacob Lipton

Panelists: Rebecca Chapman, Ben Elga, Alec Harris, Anna Joseph, Bianca Tylek

10:00 – 11:00 AM | KEYNOTE ADDRESS: Robin Steinberg (Pound 101)

Moderator: Robin Ladd

11:05 – 12:20 PM | Qualified Immunity (Pound 101)

(Un)Qualified Immunity: Protecting Police over Plaintiffs

Presenters (Justice Lab): Charlie Birkel, Mike Banerjee, Paul Maneri, Harmann Singh, Shivani Agarwal

12:20 – 12:35 PM | Lunch Pickup (Pound Hall)

12:35 – 1:35 PM | Justice Showcase #2 (Pound 102)

1:40 – 2:40 PM | Delivering Legal Services (Pound 101)

Streamlining Intake and Triage in Delivering Legal Services

Presenters (Justice Lab): Yoseph Desta, Amber James, Sarah Vasquez Lightstone, Allena Martin, Mitha Nandagopalan

2:45 – 3:45 PM | Systemic Lawyering Panel (Pound 101)

Panelists: Jason Adkins, Sabi Ardalan, Esme Caramello, Robin Steinberg

Moderators: Robin Ladd and Harmann Singh

4:00 – 4:10 PM | Coffee/Tea Break (Pound Hall)

4:15 – 5:30 PM | Amicus Briefs (Pound 101)

Understanding and Reforming Amicus Briefs in the Supreme Court

Presenters (Justice Lab): Sonia Chakrabarty, Jessica Lewis, Brendan Roach, Mark Satta

5:30 – 6:00 PM | Narratives (Pound 101)

A series of brief narratives by students, staff, faculty, alums, and others about the frustrations with, and inspiration from, this political moment.

Moderators: Isaac Cameron and Corey Linehan

6:00 – 7:00 PM | Reception (Lewis 214A)

TODAY through Sunday! 2017 Systemic Justice Conference: Repairing Our Broken Systems

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Over the last decade, the U.S. has been confronted with repeated reminders that our systems are failing. From growing wealth and racial inequalities to climate change and environmental degradation, and from economic and criminal-justice crises to a deeply dysfunctional political system, there is ample evidence that our systems are broken. This year’s Systemic Justice Conference will highlight some of the resultant systemic injustices in an effort to suggest some potential repairs. Join us today through sunday for:

Presentations from The Justice Lab and the Systemic Justice course!
Keynote address by Robin Steinberg!

Saturday Systemic Lawyering Panel featuring:

  • Jason Adkins – founder and director of Adkins, Kelston & Zavez, P.C.
  • Sabi Ardalan – Assistant Director and Lecturer on Law at the Harvard Immigration and Refugee Clinical Program
  • Esme Caramello – Clinical Professor of Law and Deputy Director of the Harvard Legal Aid Bureau
  • Robin Steinberg – Founder and Executive Director of the Bronx Defenders

Sunday Systemic Lawyering Panel featuring:

  • Lam Ho – Executive Director of CALA (Community Activism Law Alliance)
  • Corey Stoughton – civil rights litigation and strategy consultant based in London (formerly D.O.J. and ACLU of N.Y.)
  • Matt Segal – Legal Director of the ACLU of Massachusetts
  • Phil Torrey – Managing Attorney of the Harvard Immigration and Refugee Clinical Program

Registration here!
Full schedule here!

Afternoon of Engagement workshop TODAY

Event TODAY: Afternoon of Engagement 

Members of the Harvard community will have received an invitation from President Drew Faust to participate in An Afternoon of Engagement, an innovative, interactive workshop that is part of the outreach efforts of the University Task Force on Inclusion and Belonging, which will take place on Wednesday, April 5, in Sanders Theatre. The event starts 2pm, doors open at 1:15

About the event:

This interactive workshop will use story-telling and small-group conversations to explore what the concepts of inclusion and belonging mean for our campus and to generate solutions, drawing on the collective wisdom of our community. Your work this afternoon will help shape the Task Force’s conceptions of inclusion and belonging and guide its exploration of solutions and formulation of recommendations. 

As President Faust wrote, diversity, inclusion, and belonging are not incidental concerns; they are fundamental to Harvard’s mission and identity.  We aspire to build a university that is open and inclusive and that inspires a sense of belonging for all members of our community. This is a necessary foundation for enabling all students, staff, and academic personnel to meet their aspirations for academic and personal growth. To achieve this vision, we need your wisdom and good ideas.

Registration and Additional Details:

All members of the community are welcome and encouraged to attend.  Please visit the event website to register and to learn more about the program and speakers.