Overcriminalization And Justice

Bryan Stephenson is one of the best lawyers in Alabama, if not the country. He has an interesting article in the most recent issue of the Harvard Civil Rights/Civil Liberties Law Review. The article discusses how the rapid expansion of criminal prosecutions over the last thirty years has undermined the judicial system.

He has this to say about the current state of post-conviction review:

Mass imprisonment has resulted in a predictable increase in post-conviction appeals and federal habeas corpus filings, primarily by pro se litigants. People who have been wrongly convicted or illegally sentenced have an understandable desire to seek remedies and win their freedom. At the same time, imprisoned people who are unrepresented by counsel may believe that their rights have been violated when the conduct they challenge is not illegal or forms no basis for a new trial or sentence. State and federal post-conviction review historically required courts to address these issues and grant relief for recognizable constitutional violations while denying relief to prisoners who did not present claims that established violations of legal rights.

But in the last two decades courts and Congress have responded to the inevitable increase in litigation caused by mass incarceration by simply blocking post-conviction review. Similar efforts have been made to limit prisoner litigation challenging the conditions of confinement, denial of medical care, and other mistreatment in prison. As a result, substantive review of constitutional violations in thousands of cases involving wrongly convicted prisoners is now nearly impossible.

He uses our state as an example of how procedural rules are used to prevent review of legitimate claims:

The case of an Alabama death row prisoner illustrates the absurdity of the current state of the law. Joseph Smith was convicted of capital murder in Mobile County in 1998. He alleged that his conviction was wrongful because his appointed lawyer was constitutionally ineffective.

Under Alabama law, Mr. Smith’s appointed defense lawyer at trial could receive only $1,000 for his case preparation. Mr. Smith contended that the lawyer consequently did not investigate a great deal of evidence and mitigation that would have changed the outcome of the proceedings. Mr. Smith also claimed that the State illegally withheld evidence that would have established his innocence.

On direct appeal, Mr. Smith’s counsel could be paid only $2,000 total for the appeals to the Court of Criminal Appeals and the Alabama Supreme Court. No compensation or counsel was provided to Mr. Smith for additional appeals. When Mr. Smith’s conviction was affirmed on appeal, he had no money, no lawyer, and no ability to pursue his appeals.

State law at the time gave him twenty-four months to find volunteer counsel to investigate and prepare a petition for state post-conviction review (a prerequisite for federal litigation). After fifteen months, Mr. Smith still had no counsel. A month later the Alabama Supreme Court shortened the statute of limitations for filing post-conviction petitions from twenty-four months to twelve months. Before the original twenty-four-month deadline expired, Mr. Smith filed a petition pro se and asked the trial judge to appoint him counsel.The State of Alabama argued that the new twelve-month statute of limitations applied retroactively to Mr. Smith; as his petition was untimely, the State argued, he would not need counsel. Without appointing counsel to Mr. Smith, the circuit court agreed with the State and barred Mr. Smith’s petition. This action eliminated any chance for future postconviction review in state or federal court.

Because Mr. Smith is on death row and we monitor many of these cases, my office intervened and appealed the ruling barring his petition. On appeal, the Alabama Court of Criminal Appeals denied relief and affirmed the lower court ruling. We further appealed to the Alabama Supreme Court, which overturned the lower court judgment and reinstated Mr. Smith’s appeal in the trial court.

Fortunately, Mr. Smith then obtained volunteer counsel to represent him in his reinstated state post-conviction proceedings. However, at the first hearing on Mr. Smith’s case, the court appeared to agree with the State’s argument that the petition was insufficient and had no merit. The court announced that it would issue findings of fact and conclusions of law, and the State prepared a lengthy order, which the judge signed.

Mr. Smith then filed a timely appeal within the forty-two-day limitations period. The State did not contest the timeliness of Mr. Smith’s notice of appeal. Nonetheless, the Court of Criminal Appeals sua sponte asserted that the limitations period ran from the date of the hearing, not from the date of the trial court’s order, and dismissed Mr. Smith’s appeal as untimely. The Alabama Supreme Court denied Mr. Smith’s petition for certiorari.

All that litigation, and none of it ever touched the merits. In addition to being absurd, the situation faced by Mr. Smith is typical. Talk to any appellate lawyer in this state and they will tell you the same.

You may think the problems endured by Mr. Smith are no big deal. You may think, hey he is a murderer, he is lucky to get a day in court at all. That is your opinion, and you are entitled to it.

What is not acceptable is to agree with people like Troy King who confidently assert that the criminal justice system is rigged in favor of “those whose evil deeds brought them there.” That conclusion contradicts the facts.

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Explore posts in the same categories: Appellate And Post-Conviction Issues, Capital Punishment, Uncategorized

2 Comments on “Overcriminalization And Justice”

  1. Stephen Says:

    Stevenson is outstanding. I’m glad to be in the same state with him. Unfortunately, his project in Montgomery, EJI, is a little too biased in favor of his own NYU folks. It’d be nice if they had a stronger relationship with the law school in this state and could craft some local grassroots.

  2. Wheeler Says:

    i agree. i don’t know whose fault the current situation is, but it results in fewer good people working on eji type cases and also leaves eji subject to those tired old ‘yankee instigator’ charges.


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