Articles Posted in Current Events

Cleveland, Ohio has become the latest city to enter into a consent decree with the United States Justice Department (“DOJ”) concerning the conduct of its police force.  Other cities that have previously entered into similar agreements include New Orleans, Seattle and Detroit.

The consent decree stemmed from a DOJ investigation that found Cleveland police officers had routinely used excessive force (e.g., tasers, pepper spray and guns) against mentally ill, unarmed and already-handcuffed suspects.  DOJ investigators reviewed approximately 600 use-of-force incidents that occurred between 2010 and 2013 and concluded that officers almost routinely used guns in a “careless and dangerous manner”.  Other problems with the police department included its apparent inability and/or unwillingness to investigate complaints against itself.

The consent decree will cover such topics as use of force by police officers, community policing and engagement, accountability, crisis intervention and bias-free policing.  The consent decree will be supervised by a Federal judge, and will terminate only after Cleveland can demonstrate sustained and substantial compliance with its terms.  If the City fails to implement the changes contemplated by the agreement, the judge can order them to do so. Continue reading ›

The Cook County Jail in Chicago is one of the largest county jails in the United States, holding up to 9,000 inmates on any given day.  It is estimated that approximately one third of these inmates are mentally ill.  Indeed, Cook County officials have stated that the jail is, in effect, the largest mental health facility in Illinois.

Unfortunately, and as I have written in other posts, it is not unusual for a jail or prison facility to hold such a large number of mentally ill inmates.  What is unusual at Cook County, however, is the fact that the new director of the jail is a Clinical Psychologist, Dr. Nneka Jones Tapia.  Dr. Jones Tapia is apparently no stranger to the issues of mentally ill jail inmates or the situation in Cook County, having previously been in charge of the jail’s four divisions that house its large population of inmates with mental health issues.

Statistics show that the overall inmate population at the jail may be falling; however, the number of inmates with mental health issues either remains constant or increases.  These inmates suffer from the entire array of mental health problems including, without limitation, depression and bipolar disorder.  Some of them are floridly psychotic and require stabilization. Continue reading ›

Human Rights Watch (“HRW”) recently issued a new Report finding that mentally ill inmates in US prisons are frequently mistreated, neglected and abused.  The Report also contains a lot of information concerning the role of prisons in the mental health system in this country.

First, according to the HRW Report, prisons have become the primary mental health care facilities in the United States.  One in every six inmates is mentally ill.  In fact, there are three times as many mentally ill prison inmates as there are patients in mental health care facilities.  The rate of mental illness in our prison population is three times higher than in our general population.  Figures gathered by the US Justice Department buttress these findings.  According to a DOJ study, 75% of women and 50% of men in State prisons, and 75% of women and 63% of men in local jails, will have a mental health problem requiring services in any given year.

Mentally ill inmates experience mistreatment and abuse on two different fronts.  First, inmates who do not suffer from mental illness routinely exploit them.  Additionally, their mental illness frequently leads them to violate institutional rules (e.g., making excessive noise, failing to comply with orders, cursing, banging on cell doors), with the result that they are punished for displaying the symptoms of their respective illnesses.  Depending upon the facts and circumstances surrounding a given violation, an inmate can be punished with placement in administrative segregation (the “hole”).  A sufficiently long period of time in such an environment can cause their illness to worsen significantly.  Inmates have also been subjected to excessive force by corrections officers, and some have even died from asphyxiation because of the manner in which guards have tried to control them. Continue reading ›

New York’s Rikers Island is the second largest jail in the United States, housing between 11,000 and 12,500 inmates at a given time.  It is also one of the most violent jails in the country.

For many years, experts have acknowledged that placement in solitary confinement can negatively impact an inmate’s mental health.  Until recently, juvenile inmates at Rikers were routinely placed in solitary confinement even for minor offense including talking back, simple horseplay, possession of unauthorized amounts of clothing or art supplies, or ignoring a direct order.  Some of these juveniles sat in solitary confinement – locked alone in a cell for 23 hours a day – for up to 90 days.  Other juveniles sat in solitary confinement for up to one or even two years.

In August 2014, the United States Attorney’s Office in Manhattan issued a report that was highly critical of the New York City Correction Department’s treatment of teenage inmates at Rikers.  It noted that the atmosphere at the jail was permeated with a “deep-seated culture of violence”, and that the use of solitary confinement for juveniles (also known as “punitive segregation”) was “excessive and inappropriate”.  Forty percent of the teenage inmates were subjected to the use of force by guards at least once, and required medical assistance more than 450 times.  Teenage inmates were also instructed regularly to not report their injuries to other guards or the jail’s infirmary.  US Attorney Preet Bharara noted that “[t]here is a pattern and practice of conduct at Rikers that violates the constitutional rights of adolescent inmates … We are talking about a culture problem and a systemic problem – not an individualized issue …” Continue reading ›

I recently learned about TED Talks.  In short, these are presentations by people who have “ideas worth spreading”.  If interested, you can learn more about TED Talks at

Anne Milgram, the former New Jersey Attorney General, gave a TED Talk where she discusses what she calls “moneyballing criminal justice”.  In brief, Ms. Milgram wants to focus more efforts upon collecting statistical data surrounding arrests, convictions, and other aspects of the criminal justice process, and use it to make better decisions concerning basic issues, including whether to release or incarcerate someone after they have been arrested for a particular offense.  Ms. Milgram notes correctly that many judges rely upon instinct and experience when making this important decision, and that such decisions are therefore based upon subjective reasoning and are frequently incorrect.  She wants to develop a universal risk assessment tool that State and Federal judges can use to guide their decision making as to the “release or incarcerate” decision, which is one of the first major issues addressed in any criminal matter.  She likens her efforts to those used by baseball teams that selected good players using statistical analysis, as opposed to the purely subjective observations and instincts of scouts.

Many of Ms. Milgram’s observations are absolutely correct.  First, the only surprise relating to the fact that we spend $75 Billion annually on criminal justice is that the number seems small.  I always thought it was much larger.  Prisons and jails in this country are an industry unto themselves.  Next, our recidivism rate is obscenely high, leading to the obvious conclusion that a lot of this money is wasted.  Indeed, it often seems that the only thing we accomplish by the end of the case is to temporarily disable a defendant from having another encounter with the system.  We seem to focus more on “processing” defendants through the system, with no eye on long-term solutions to the problems associated with criminal conduct.  Additionally, Ms. Milgram notes correctly that there is astonishingly little helpful statistical data describing the operations of our system.  Interestingly, she failed to note that there is a federal agency called the Bureau of Justice Statistics that collects statistical data concerning various criminal justice issues.  However, the manner in which BJS identifies the subjects concerning which it will collect and analyze data has always been a mystery to me.  Further, many of the reports available on the BJS website are dated to the point where they are probably no longer valid.  Moreover, even if the material is helpful, I don’t know too many judges who make a habit of reading statistical reports from the BJS website. Continue reading ›

It has been 20 years since New Jersey enacted Megan’s Law, which require convicted sex offenders to register with local authorities in the community where they live.  Whether and to what extent the law has accomplished anything remains a hotly debated subject.

Briefly, the law requires, among other things, that convicted sex offenders undergo an assessment that is supposedly geared towards determining their risk of re-offending.  Offenders in the lowest tier (one) are placed under what is considered to be the most lenient level of supervision.  Offenders in tiers two and three are supervised more strictly, and appear on the New Jersey State Police Internet Sex Offender Registry.  The other States and the Federal system have enacted similar laws.

A State-wide army of parole officers are charged with supervising convicted sex offenders throughout New Jersey.  Once an offender is placed under parole supervision, the parole officer responsible for their case has tremendous latitude over where they can live and work and what kind of job they can have.  An offender’s parole officer can also restrict their ability to socialize with minors, even if the latter are members of the offender’s own family.  It is extremely difficult to challenge the actions of a parole officer.  Typically, the offender must receive a determination from the parole board that denies their request to adjust the terms or conditions of their supervision.  That determination must then be appealed to the Appellate Division of the New Jersey Superior Court.  The overall process of challenging restrictions can easily take a year or more. Continue reading ›

The New York Times recently published an article entitled “Final Word on U.S. Law Isn’t:  Supreme Court Keeps editing.”  (5/24/14)  Although it appears in the ostensibly “popular” press, every attorney needs to read this article and consider what it means for their practice.

Everyone relies heavily on Supreme Court opinions.  If we know that a new decision is due on an issue relevant to one of our cases, we almost instinctively defer action if possible to see whether the Court’s pronouncement will affect our strategy.  When these opinions appear, we all spend time pouring over them, because every word matters.  Anything thing the Court says – no matter how seemingly minor or trivial – can have a far-reaching effect on a particular case, area of law, or the legal system.

The problem is that there are actually several “generations” of Supreme Court opinions, and only the last version may truly be termed “final”.  The first version is the “bench” opinion, which becomes available when a new decision is announced.  The second version is the Slip Opinion, which appears on the Court’s website.  The third version is a softcover print, which is followed by the “official” version that appears in the United States Reports. Continue reading ›

Six Passaic County residents were arrested recently and charged with staging automobile accidents.  The State is alleging that their actions defrauded two insurance companies out of approximately $78,000.00, in connection with accidents that occurred on or about April 29 2009.  According to the State, four of the six suspects were in a minivan that the driver purposely drove into another vehicle carrying the other two suspects.  The six have been charged with conspiracy, insurance fraud and theft by deception in a State Grand Jury indictment handed up on April 10, 2014.  The charges could lead to prison terms.

This is just one of many recent cases involving the New Jersey Office of the Insurance Fraud Prosecutor (“OIFP”), which was first established in 1998.  This is a special section in the New Jersey Attorney General’s Office devoted to cases involving insurance fraud.  This is not the only office dedicated to such matters.  Many – if not most or all – of the county prosecutor’s offices in the State have specialized sections devoted to insurance fraud.

A cursory review of recent insurance fraud prosecutions shows that New Jersey is serious about prosecuting insurance fraud in all of its forms: Continue reading ›

New Jersey judges are currently appointed for initial seven-year terms.  At the end of this period, a judge’s appointment is reviewed by the Governor and the State Senate with an eye toward determining whether they should be reappointed with tenure, which would guarantee the security of their position until they reach the mandatory retirement age of 70.  The current administration has used this framework to construct a judiciary that reflects its own policies.  Judges who issue decisions during their initial seven-year term that are not in tandem with the administration’s views and choices stand a good chance of being denied tenure, which results in their removal from the bench.  Many New Jersey judges and lawyers have voiced concerns over the facts that such actions rob judges of the independence that is requisite to a court system that functions properly and fairly, and helps deliver justice to the State’s citizens.

One example that has remained with me for some time illustrates the point.  A number of years ago, much closer in time to when the current regime came to power, a non-tenured criminal judge rendered a decision in a case that was favorable to the defendant, who was a sex offender.  The judge was not simply trying to be “nice” to the defendant; rather, he did exactly what the relevant statute required in that case and under those circumstances.  Put somewhat differently, he simply did his job.  Nevertheless, he was subsequently denied tenure, apparently because of this decision.

But it does not end in the State’s trial courts.  Two New Jersey Supreme Court justices, one Democrat and one Republican, have been denied tenure.  It’s pretty clear that this occurred because the current administration view the New Jersey Supreme Court as an “activist” court with judges that “legislate from the bench”.  The debate over the administration’s efforts to remake the Supreme Court in its own image has taken on added prominence recently since the Chief Justice is completing his initial seven-year term and is up for reappointment.  Failing to reappoint a sitting Chief Justice would be virtually unheard of, even in a State with politics as colorful as New Jersey, but it is conceivable given the administration’s actions in this area. Continue reading ›

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