Jail hijab-strip subject to suit

A California woman forced to remove the headscarf she wore for religious reasons may pursue a civil damages suit against jail officials.
That's the unanimous ruling that an 11-member en banc panel of the U.S. Court of Appeals for the 9th Circuit issued Wednesday in Khatib v. County of Orange.
The principal opinion, by 9th Circuit Judge M. Margaret McKeown (below left), related that when in public the plaintiff, Souhair Khatib, wears a hijab that covers her hair and neck, in accord with her Muslim beliefs. Her troubles began when she and her husband appeared in a court in Orange County, in southern California, to seek an extension on community service they were supposed to perform following their plea to misdemeanor violation of state welfare laws. Far from granting the request, authorities took the couple into custody and seized Khatib's hijab. Judge McKeown described what happened next:

Weeping, Khatib explained that her religious beliefs forbade her from taking off her headscarf and pleaded with the officers to allow her to keep it on. Khatib was warned that the male officers would remove the headscarf for her if she did not voluntarily do so. Wanting to avoid being touched by the male officers—another violation of her religious beliefs—Khatib reluctantly complied.
Khatib spent the majority of the day in a holding cell in view of male officers and inmates. Experiencing 'severe discomfort,' 'distress,' and 'humiliat[ion],' Khatib attempted to cover herself by pulling her knees into her chest and covering her head with a vest she was wearing. At a hearing that afternoon, the court reinstated Khatib’s probation and provided an extension of time to complete community service.

At issue before the 9th Circuit was the Religious Land Use and Institutionalized Persons Act of 2000, which, as McKeown wrote,

prohibits state and local governments from imposing 'a substantial burden on the religious exercise of a person residing in or confined to an institution.'

Reversing an earlier 2-1 panel decision and rejecting an argument put forward by Orange County, California -- and siding with the U.S. Department of Justice, which entered the case on behalf of Khatib -- the 9th Circuit held that the county courthouse holding facility was an "institution" for purposes of the Act. Thus it remanded the case for determination of whether Khatib's religious freedom had been impermissibly burdened.
Save for the statement of facts quoted above, McKeown's opinion was dispassionate.
But a concurrence by 9th Circuit Judge Ronald Gould indicated the human considerations underlying the circuit's decision. "A Muslim woman who must appear before strange men she doesn’t know, with her hair and neck uncovered in a violationof her religious beliefs, may feel shame and distress," he wrote, adding: "A recognition of this very real harm helps inform our judgment on the scope of covered institutions."
The Khatib decision, when contrasted not only with U.S. incidents described in the final paragraph here, but also with actions in France and elsewhere abroad, about which we've written in posts available here, exposes the gulf in understandings of this issue.

On September 13

On this day in ...
... 1865 (145 years ago today), a daughter, Maud, was born into an Anglican clerical family in England. Active on social welfare issues, as a teenager she helped organized a branch of the Salvation Army in Paris, France. Efforts to do the same in Switzerland met with imprisonment before success. Known as the "Little Mother of the Prisons," Maud performed social work in London's slums and campaigned for prison reform. Maud Ballington Booth (right) and her husband, a son of the Salvation Army's founder, attained U.S. citizenship and established the Volunteers of America. (photo credit) She died on August 26, 1948, in New York.

(Prior September 13 posts are here, here, and here.)

Justice for Girls?

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

For over a century, concerns have been expressed about a ‘crime wave’ involving women and girls. Freedoms and greater equality for women were thought to be a cause. Recent concerns in the United States and Canada have, similarly, blamed perceived increases in crimes by girls on equality and equal opportunity. The only problem is that credible evidence of a ‘crime wave’ involving young girls does not exist.
More important than this phantom crime wave are credible data demonstrating that girls are being treated differently from boys by the youth justice systems of both Canada and the United States. Because the justice system’s response to girls is an understudied topic in most developed nations and it has never been the subject of transnational comparative assessment, the aim of Justice for Girls?, the 2009 monograph that I coauthored with Dr. Anthony N. Doob, was to review the social and legal developments in two countries, the United States and Canada, on the assumption that a comparative approach would help unravel the puzzles of girl crime and justice.
The separate justice systems for youths that were developed in the early 1900s in each country initially had very broad mandates and aimed simultaneously to divert youths from the adult system and to provide services to help ‘reform’ or ‘rehabilitate’ them. In both countries a disproportionate number of girls were brought into the system and sentenced to custody for non-criminal or ‘status’ offences. The stated goal, however, was not punishment: each country justified the inclusion of status offences as being a mechanism to accomplish rehabilitation. Although boys were much more likely to cause trouble in the community, girls, for most of the first two-thirds of a century of juvenile justice, appeared to be the special targets of rehabilitative interventions in both the United States and Canada.
In the 1960s the acceptability of placing status offenders in custody declined. In Canada, a 1965 federal report explicitly recommended removing status offences from the jurisdiction of the Act. But this was not accomplished until 19 years later. Although certain rights were addressed by the U.S. Supreme Court in the 1960s, federal legislative change related to status offences first occurred in the United States in the mid-1970s, with the enactment of the Juvenile Justice and Delinquency Prevention Act. Unlike in Canada, one of the key goals in the American 1974 Act was only to reduce the use of custody for status offences.
Avoiding intervention into the lives of troubled and troublesome children was difficult to accomplish in both countries. During the final quarter of the 20th century, both countries had developed mechanisms to ensure that youths could be placed in custody if they violated orders of the court. Offences were created:
► In the United States, the offence of ‘violating a valid court order’ (which could have been originally imposed for non-criminal behavior), and
► In Canada, the offence of ‘failing to comply with a disposition’ (in which a youth originally had to have been found guilty of an actual offence for which a normal sentence was imposed).
Each of these had the effect of allowing youths to be incarcerated for ‘normal’ youthful behavior – violating the edicts of their elders (in this case judges). Thus, both countries maintained what are, in effect, status offences, and used them somewhat disproportionately with girls. Minor offences and status offences continued to push girls into the justice system.
The constitutional differences between the United States and Canada make the comparison between the two countries more complex, yet also more interesting:
► The U.S. federal government obviously plays a limited role in juvenile justice legislation since the legislation is a state responsibility.
► In contrast, Canada’s youth justice legislation is a federal responsibility. With only one government responsible for youth justice legislation, it is not surprising that changes were more dramatic in Canada than in the United States.
During the latter half of the 20th century, the incarceration of girls in Canada and the United States declined slightly. However, since the 1970s the United States experienced an explosion in the use of imprisonment, while Canada experienced relative stability. In that context, it is remarkable that the United States saw a decline in the imprisonment of girls that was comparable to the best estimate of what was happening in Canada. What sets Canada apart from the United States is what happened after 1 April 2003, when Canada’s new youth justice legislation was enacted: a dramatic reduction, for both girls and boys, in the use of custody.
There are, however, still concerns that girls are more likely than boys to be incarcerated for very minor offending. In Canada the best existing data suggest that there are still more girls relative to women in custody, while in the United States there are slightly fewer girls relative to women in custody. Given that in both countries there are substantially fewer boys relative to men in custody, and that girls commit less serious offences and have less extensive criminal histories than boys, girls should not be seen in custody as much as they are – if the reason for incarcerating them is their offence and criminal record.
This two-nation comparison shows that the persistence of protectionist incarceration over time is a strong element in both nations despite the policy efforts to reduce it and the obvious progress that has been made. Until quite recently, the two nations did not differ substantially in their success in eliminating protective incarceration. However, in 2003 Canada’s new youth justice legislation had a dramatic effect in reducing the incarceration of girls. The allocation of political responsibility for juvenile justice in the United States does not allow federal legislation to have the same impact as the Canadian reforms of 2003. Nevertheless, changes in U.S. state systems could produce similar changes with similar impacts. The Canadian trends suggest that U.S. systems could reduce dramatically the incarceration of girls (and boys) – if there were a will to do so.

On May 21

On this day in ...
... 1780 (230 years ago today), a daughter, Elizabeth, was born into a banking family in Norwich, England. They were "'relaxed'" Quakers, dressing in clothes more colorful and fashionable than was typical for their denomination. Over time she grew more serious, married and gave birth to 11 children. Elizabeth Fry became renowned for her work in English prisons, among them Newgate, where women were detained. Among her achievements was an end to shackling of women convicts during transport. She founded a prisoners' aid society and testified before Parliament. Her work extended beyond prison reform to include aid for the poor, training of nurses, rights for women, and abolition of the death penalty. As posted, societies bearing her name continue to work toward these goals. Fry's been depicted on Britain's £5 note (above right) since 2002. (credit)


(Prior May 21 posts are here, here, and here)

High Court takes up child LWOP

This morning the U.S. Supreme Court's set to hear argument on the constitutionality of sentencing children to life without parole for crimes not resulting in the death of a human being.
Under review are 2 cases:
► Graham v. Florida, No. 08-7412, involving a 17 year old sentenced to life imprisonment without possibility of parole after his conviction for violating a probationary sentence, imposed a year earlier, for felony robbery.
► Sullivan v. Florida, No. 08-7621, involving a 13 year old who received the sentence following conviction for sexual battery.
Lyle Denniston's superb preview at SCOTUSblog notes the differences between the ages and prior criminal behavior of the 2 petitioners, andwonders "which of those differences may have persuaded the Court to grant both cases," rather than grant 1 and hold the other, as is its typical practice.
Critical will be how this Court views the 2005 precedent in Roper v. Simmons, in which a 5-Justice majority held that execution of juveniles violates the ban on cruel and unusual punishments in the 8th Amendment to the U.S. Constitution. Subsequent changes in the composition of the high bench likely will not have disturbed the 5-4 split on that precise precedent; the question, rather, is whether Justices will consider Simmons to have augured a similar result in these cases.
Will the findings in Simmons respecting the unformed personality of children militate in favor of a less-harsh sentence in these cases, as it did there? Will it matter that the offenses at issue here were not homicides? Conversely, will Justices focus less on the nature of the child and more on the nature of the sentences, concluding that Simmons does not control for the reason that "death is different"?
And what of the rest of the world? Will Justices go "looking beyond their borders," to quote Justice Ruth Bader Ginsburg, for guidance in interpreting the Constitution?
They sure did in Simmons, and so drew much criticism, as I've written here. Not much overt consultation of foreign and international law since then. Among those favoring a return to that methodology in these cases are Amnesty International, the Amsterdam Bar Association, the Bar Council of Hong Kong, the Bar Human Rights Committee of England and Wales, the Bar of Montreal, the Center for Constitutional Rights, the Columbia Law School Human Rights Clinic, Human Rights Advocates, the Law Council of Australia, the Law Society of England and Wales, the Law Society of Ireland, the Netherlands Bar Association, the New Zealand Law Society, The Advocates for Human Rights, and Union Internationale Des Avocats. Here's what their Brief for Amnesty International, et al., As Amici Curiae in Support of Petitioners, which cites many treaties and national laws, has to say:

Amici urge the Court to consider international law and opinion when applying the Eighth Amendment's clause prohibiting cruel and unusual punishments. International standards for sentencing juvenile offenders to life in prison without the possibility of parole bears directly on domestic compliance with international legal and societal norms. Those standards also provide an important indicator of evolving standards of decency, which in turn illuminate the contours of acceptable conduct under the Eighth Amendment. The United States is the only country in the world that does not comply with the norm against imposing life without parole sentences on juveniles under the age of 18. Prohibiting the sentence challenged in these cases would bring the United States into compliance with one of the most widely accepted human rights norms and with its international treaty obligations, and it would honor the Eighth Amendment principles that led this Court to strike down the juvenile death penalty in Roper v. Simmons, 543 U.S. 551 (2005).

Principal authors of the brief in addition to San Francisco lawyer Neil A.F. Popovic are the authors of authors of the 2008 report depicted above left: IntLawGrrls Connie de la Vega and Michelle Leighton.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'We don't have enough water for a brewery, and IBM ain't exactly knocking at the door. What else were we gonna do?'

-- A small-town mayor on why his community wanted a prison built there, quoted in an op-ed by Eric J. Williams, Professor of Criminal Justice at California's Sonoma State University. The quote captures in a nutshell why Williams makes a prediction that contradicts claims of the Republican leadership. In Williams' view, if rural communities in the United States were asked to house persons now detained at Guantánamo, there'd be far more YIMBYs (Yes, In My Backyard) than NIMBYs. It's a question that my colleague at the University of California, Davis, School of Law, Professor Lisa R. Pruitt, has explored at her Legal Ruralism blog, a daily feature in our "connections" list at right. Her post's enticingly entitled "Are cowboys wimpy? Perhaps only when it comes to alleged terrorists."

(credit for photo of federal "Supermax" prison in Florence, Colorado)

Prisoners indemnified for undignified conditions

It's not enough that France's prisons are overcrowded, provoking a rash of suicides and now a strike by guards that shut down a few prisons last week. (image credit)
The administrative tribunal in Rouen held last week that the government is liable for jailhouse conditions that do not respect human dignity. The three detainees who brought the suit were awarded 3000 euros each after having been held for over two years in cells in which the cabinet d'aisance* has no separate ventilation or even a "real partition" separating it from the main room. In addition, the toilets are close to the eating area (the photo accompanying the article shows several pots and pans hung up and a couple of baguettes, indicating that detainees cook and eat in their cells). In a 10.8- to 12.36-square- meter cell shared by 2 or 3 detainees, such a setup was judged to show a "lack of respect for intimacy" and constitute a "violation of health and hygiene rules."
Perhaps worse, the prison administration doesn't seem to be learning from its mistakes -- last year, another detainee was awarded 3000 euros by the same tribunal for essentially the same reasons, and similar suits (and awards) can be expected to follow if something isn't done: Rouen's maison d'arrêt (house of detention, or jail) opened in 1864, has space for 650 detainees, but houses 700 to 850. It clearly doesn't live up to its name of "Bonne nouvelle" (good news).

*literally, "a small room where one takes one's ease" (think "water closet").

On April 30

On this day in ...
... 1927, at a 500-acre site in Alderson, West Virginia, about 270 miles southwest of Washington, D.C., the Federal Industrial Institution for Women, the 1st women's prison run by the U.S. government, opened. Intended for every woman sentenced to a year or more, the prison run by Dr. Mary Belle Harris (far left) held, for the most part, persons convicted of Prohibition-era alcohol- or drug-related crimes. Among those urging its establishment had been Eleanor Roosevelt (center, with Elinor Morgenthau near right). According to this website:

One judge described the prison as a 'fashionable boarding school.' In some respects the judge was correct; the overriding purpose of the prison was to reform the inmates, not punish them. The prisoners farmed the land and performed office work in order to learn how to type and file. They also cooked and canned vegetables and fruits.

Today, Alderson remains a minimum-security prison holding about a thousand convicted women. (credit for 1934 photo taken at Alderson)
... 1919 (90 years ago today), at the Paris Peace Conference, the "Big Three" powers of the United States, France, and Great Britain, agreed, over China's objection, with Japan's claim to the Shantung province that once had belonged to now-vanquished Germany. President Woodrow Wilson conditioned his approval on a requirement that Japan return the province -- now known as Shandong, in red on map (credit) -- "once China's civil strife ended."

(Prior April 30 posts are here and here.)

On September 10

On this day in ...
... 2003 (5 years ago today), Swedish Foreign Minister Anna Lindh was stabbed fatally while shopping in Stockholm. She died the next day. Lindh (left), 46, an immensely popular politician, had been expected eventually to become Sweden's Prime Minister. A man was convicted of Lindh's murder; however, in 2004 his life sentence was overturned, and the assailant was committed to a mental institution. (credit for AP photo by Geert Vanden Wijngaert)
... 1971, a day after guards "forcefully suppress[ed] a scuffle" and transferred 2 prisoners to isolation cells in an overcrowded state penitentiary just south of Buffalo, New York, the riot at Attica prison (below) escalated:

[V]iolence boiled over when a group of inmates managed to leave their cells and force their way into the prison’s nerve center, where they beat several guards with pieces of pipe, lengths of chain, and baseball bats, fatally injuring one of them.
More than one thousand strong, the inmates quickly took control of the prison and set fire to several of its buildings. By the time the state police was summoned and managed to recapture part of the facility that afternoon, the inmates had regrouped in one of the yards and were holding 40 hostages in a ring of wooden benches.

The uprising would end days later with more bloodshed. Nearly 3 decades later, litigation ended with a federal court approving a settlement of $8 million "to compensate more than 500 inmates and relatives for the abuse that the prisoners suffered."

Death or torture: just say "no"

Perhaps in deciding whether or not life in prison without parole (LWOP) violates the European Convention on Human Rights' ban on torture and other inhumane or degrading treatment, the European Court should ask Jack Harry Smith, the oldest death-row inmate in Texas, who says that

[d]eath is death...[but a] life sentence is a whole lot worse - it's torture. (Photo: Hope in a Prison of Despair)

Indeed, as Americans have begun to turn away from the death penalty for a variety of reasons (as indicated by last year's Death Penalty Information Center report, my post on it and my short article in the next (I think) Revue de science criminelle), all death-penalty states except New Mexico have instituted LWOP as an alternative to a death sentence. It is somewhat paradoxical, then, that the recent Supreme Court ruling in Baze v. Rees deciding that lethal injection of the 3-drug "cocktail" currently in use does NOT violate the 8th Amendment ban on cruel and unusual punishment has unleashed a flurry of activity aimed at clearing up the backlog that accumulated while states awaited the decision in Baze. In other words, states are now scrambling to schedule the executions they'd held off on. Among them will probably figure that of Smith, now 70, who claims he's innocent of the 1978 murder for which he was convicted. According to William Hubbarth of Justice for All, a victims rights group in Houston, the backlog of executions should be cleared "post haste," though he's careful to add that there's no "cheering section for the death penalty." For Hubbarth, the issue is not "killing the inmate," but "imposing the penalty that 12 of his peers have assessed." Ahhhh, if it were that simple, I doubt Justice Stevens would have suggested in his concurring opinion in Baze that it is time to reexamine the validity of the death penalty. While we're at it, perhaps we should take it from one who knows, like Jack Harry Smith, and ditch LWOP in favor of rehabilitation programs that work, like the Philippine dance program I've posted on. At the same time, we could take a look at the real cost of keeping people in prison and start investing seriously in schools to keep them out of prison to begin with.

Incarcerating men increases STDs in women

Thanks to The Nation’s guestblogger Samhita Mukhopadhyay for the heads up on the link between incarceration and sexually transmitted diseases (STDs). Samhita blogs for Feministing and is a member of WireTap's advisory board. Having blogged at The Nation on the rate of incarceration in the US, then on STDs and teenage girls, she was informed by a reader of

a study that came out years ago on the connections between rate of STD cases and the rate of incarceration. The conclusion? Women in communities with higher rates of incarceration are more susceptible to high rates of STD exposure, even when they are engaging in low risk behavior.

Expanding on the Washington Post’s spotlight on the study, Samhita points out that the issue is NOT, as the news articles might make it seem, that women are running around having multiple partners and spreading STDs while their men are in jail, but that the emasculation occurring in communities with high incarceration rates leads men to greater sexual risk taking, as well as rape. She therefore calls on the feminist and anti-incarceration movements to work together—a call I heartily second.

Rehabilitation’s just a (dance) step away

It has now become yet another terrifying experiment in seeing just how far a state can go in treating prisoners as subhuman. In her latest Boston Review essay, our colleague Colin Dayan describes how the Supreme Court of one of the world’s oldest and largest democracies, in a case called Beard v. Banks (2006), upheld prison regulations providing that certain prisoners could be

isolated 23 hours a day in their cells, denied radio and television broadcasts, and prevented from earning a GED (General Education Diploma) or taking special education classes. They ate alone and could not make telephone calls except in emergencies or when related to legal representation. Unable to speak or socialize directly with other inmates, they stared at the unpainted, concrete, and windowless walls onto which nothing could be posted. Except for the occasional touch of an officer’s hand as they were handcuffed and chained to leave their cells, they had no contact with other human beings. Although prisoners could “graduate” out of [this special unit], the duration of their stay—beyond the minimum requirement of ninety days—was at the discretion of prison administrators, and most did not graduate. In this already severely restricted environment, the new [] policy categorically prohibited access to magazines, newspapers, or books, except paperbacks from the prison library—called “leisure books” in “[the unit’s] Rules and Regulations”—and books of a legal or religious nature.

Prison officials offered two reasons for this sweeping restriction of prisoners’ First Amendment rights. Newspapers, they said, could be wound up, turned into projectiles, used as night sticks, and deployed to make fires and hide contraband. Moreover, these officials argued, the deprivation of personal photographs and secular periodicals serves the goal of rehabilitation. Prisoners like to read about current events and look at photographs of their loved ones. Take these things away, the theory went, and recalcitrant prisoners, those “who have few other privileges to lose,” would behave.

Meanwhile, across an ocean, in a former dictatorship where “[p]risoners sleep on hard pallets more than a dozen to a cell and are held to a strict schedule of work and other activities from dawn to light-out[,]” inmates are learning that “they can be productive, that they aren’t useless scum of society”. In the prison where rehabilitation through dance began, gangs have been broken up, “weekly outbreaks of violence have subsided, inmates’ health has improved and recidivism rates are down dramatically”. This country? The Philippines, where the dance craze has spread to other prisons, thanks, in part, to this YouTube video, in which 1500 prisoners groove together.

Back in the United States, as Dayan's essay reminds us, on one day in 2006 some members of the Supreme Court expressed extreme dismay over Salim Hamdan’s being denied the right to be present at his trial before a military commission. That was just one day after members of the Court -- including some who'd expressed concern in Hamdan -- handed down the retrograde judgment upholding the denial of anything that might show certain prisoners that they are still present as human beings in society.