Category Archives: Criminal Law

A Second Chance

A Second Chance

by Erika Rucker

  • Introduction

A new Alabama law effective July 6, 2014 allows criminal offenders to petition to have their record expunged under limited circumstances. Under Code of Ala. § 15-27-1, a person can file a petition to have their criminal record expunged.[1] An expungement order is “the erasure of a person’s criminal record.” The term often refers to the complete destruction of a physical record and deletion of an electronic record.[2]

Prior to the enactment of what is being referred to as Alabama’s “expunging law”, the legislature was inconsistent at best on what powers the courts had to expunge a criminal’s record. Prior to the current law, the statute provided that an offender that was subsequently released without any charges or if the offender was cleared of the offense through the judicial system, then the agency involved would make a report to the central record-keeping agency. After such report, the offender’s information relating to the offense would be expunged or eliminated. The authority granting such power, however, provided an inconsistent approach to the expunging of records.[3] The new expunging law, however, explicitly grants the circuit court such authority.[4]

  • Overview of the Expunging Law

An offender can petition to have their criminal record expunged under four limited circumstances.[5] First, if the charge was dismissed with prejudice.[6] Second, if the grand jury determined that the offender should not be indicted on the charges due to insufficiency of evidence.[7] Third, if the person was found not guilty of the charge.[8] Last, if the charge was dismissed without prejudice over two years ago, has not been refiled, and the petitioner has not been convicted of any other criminal violation within the prior two years.[9] The law allows the offender to petition to expunge a wide range of violations from traffic violations to non-violent felony offenses.[10]

The offender must meet the expungement requirements and file a petition in the circuit court where the offender was charged with the offense. Additionally, the petitioner must pay a $300 filing fee (plus any related court costs) and provide the court with a case action summary or certified copy of the arrest and disposition of the case.[11] The district attorney and the victims involved in the offense have 45 days to file a petition opposing the expungement. If, however, no one objects to the record expungement, the court will review the petition to determine whether or not to grant the expungement of the petitioner’s criminal record.

If the court approves the petitioner’s request for the expungement of the record, the information relating to the offense, including an arrest record, is considered erased. However, the Alabama Criminal Justice Information Center will keep an archived record in a protected file.[12] This enables law enforcement and judicial officers access to a person’s criminal record.

  • Effect of the Law

Although offenders may embrace the new expunging law, others worry that this new law can create serious risks to public safety. In addition to fears of public safety, members of the community are also divided over whether the county or the city should be in charge of handling the petitions for expungement. Lastly, concerns over the relevance of the law in today’s age of technology are also raised.

Those in opposition of the law express concerns over whether the law will implicate public safety issues concerning complete access to an offender’s criminal records. The information relating to an offender’s criminal record allows the public to obtain information relating to a particular person’s prior criminal history and this law in effect erases the availability of this information. Margaret Love, former chair of the American Bar Association’s Criminal Justice Standards Committee Task Force on Collateral Sanctions, wrote in a 2003 law journal article that the policies underlying expungement of records “requires a certain willingness to ‘rewrite history’ that is hard to square with a legal system founded on the search for truth.”[13]

Supporters of the law counter the opposing argument by emphasizing that the information is only unavailable to the public, but can be made available to law enforcement and judicial officers. Additionally, the law excludes the expunging of violent felony charges including: capital murder, murder, manslaughter, assault, kidnapping, rape, sodomy, robbery, burglary, arson, stalking, sexual abuse and domestic violence 1 and 2.[14] This limits the scope of the law to extend only to misdemeanors and non-violent felony offenses.

In its current form, the expunging law grants the circuit court in the county where the petitioner was charged exclusive jurisdiction. The effect of granting the circuit court exclusive jurisdiction gives the county where the offense occurred all court costs and other proceeds associated with the petition for expungement. Even if the offense was adjudicated through the municipal or city courts, the circuit court will have sole jurisdiction over the expungement. Some municipal court systems had hoped the expungement process would be an additional avenue for local courts to raise revenue. However, supporters of granting the circuit court exclusive jurisdiction argue that the city does not have time or resources to handle petitions for expungement.

Finally, concerns over the relevance of the expunging law in the ever-developing age of technology surface as the law’s effective date nears. The effect of the internet emphasizes that once something goes viral, it never truly disappears. During the most advanced age of technology, it is difficult to understand how information can actually disappear without a trace. If the purpose of the law is to clear a person’s record, the question remains of how effective such law can be when information is never really lost once it has gone viral. Although a criminal record may be expunged by the state, other unofficial records and information relating to the offense will not be erased. The potential irrelevancy of the expunging law begs the question of whether the law is enacted to serve the public or whether it is more of a cash cow scheme for the government.

While there are valid concerns and supporting arguments for the new expunging law, the true effects of the law will be unknown until the law becomes effective July 6, 2014.


[1] Code of Ala. § 15-27-1.

[2] 19 CommLaw Conspectus 123, 124.

[3] 35 Cumb. L. Rev. 385, 386.

[4] Code of Ala. § 15-27-1.

[5] Code of Ala. § 15-27-1.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Code of Ala. § 15-27-2.

[11] Code of Ala. § 15-27-1.

[12] Brian Lawson, Alabama Legislature approves measure to expunge criminal records,, April 3, 2014,

[13] 19 CommLaw Conspectus 123, 124.

[14] Code of Ala. § 12-25-32.

Unbridled Discretion: Should Warrantless Searches of Cell Phones be Permitted Under the Fourth Amendment?

Unbridled Discretion: Should Warrantless Searches of Cell Phones be Permitted Under the Fourth Amendment?

By Lacy Triplett

In relevant portion, the Fourth Amendment provides people “the right…to be secure in their persons…and effects, against unreasonable searches, and no warrants shall issue, but upon probable cause…”[1] Although the Fourth Amendment states that searches of persons and their effects must be conducted pursuant to a warrant, there are certain exceptions to that rule.[2] One common exception is a search incident to arrest, which as stated in Chimel v. California permits a police officer to search an arrestee’s person and the area within the arrestee’s immediate control.[3] The Chimel Court rooted the search incident to arrest exception in two justifications: (1) the need to protect an officer’s safety and (2) the need to prevent the arrestee from destroying evidence.[4]

In addition to searching the arrestee’s person, any items or containers on the arrestee’s person at the time of the arrest or within the arrestee’s reaching distance may be searched incident to the arrest.[5] The exception has been used for decades to uphold the warrantless searches of a variety of objects, such as pagers, wallets, and address books.[6] Yet the law is in flux in regard to warrantless searches of cell phones. Various circuits have decided the issue with the majority of those courts holding that cell phones are permitted to be searched incident to arrest under varying Fourth Amendment jurisprudence.[7] Despite the variance among the circuit courts, the Supreme Court will soon settle the split and provide police officers with an easy and practical rule to apply in the field.

On April 29, 2014, the United States Supreme Court will hear oral arguments regarding whether the Fourth Amendment requires police officers to obtain a search warrant prior to searching an individual’s cell phone incident to his lawful arrest.[8] The Court will hear United States v Wurie and its companion case, Riley v. California, both of which involve cell phone searches with the former being a flip-phone cell phone and the latter being a smartphone.[9]

United States v. Wurie

An officer was performing routine surveillance in Boston when he noticed Wurie and another individual engaged in what the officer believed to be a drug sale in a convenience store parking lot.[10] Wurie drove off in his car, while the officer and another member of the Boston Police Department stopped the other individual and found two plastic bags of crack cocaine in his pocket.[11] The individual stated he bought the crack cocaine from Wurie and noted that Wurie lived in South Boston.[12] Wurie was later arrested for distributing crack cocaine.[13] When Wurie subsequently arrived at the police station, two cell phones were taken from him as well as a set of keys and a large sum of cash.[14] Prior to being booked, one of Wurie’s cell phones received repeated calls from a number listed as “my house.”[15] The officers then opened Wurie’s cell phone to check his call log, and as soon as the officers opened the phone they saw Wurie’s wallpaper, which was a picture of a young black woman holding a baby.[16] The officers were able to determine the phone number associated with the caller ID for “my house,” which led them to an address where Wurie’s car was parked when he was arrested.[17] The officers then took the keys they confiscated from Wurie and went to the address associated with “my house” where the officers saw a woman who resembled the photograph on Wurie’s cell phone wallpaper.[18] Once at the apartment, the officers entered and “froze” it while they obtained a search warrant.[19] Upon receipt of the warrant, the officers seized cocaine and marijuana, guns, ammunition, and cash.[20]

The United States District Court for the District of Massachusetts denied Wurie’s motion to suppress the evidence officers obtained from searching his cell phone.[21] The First Circuit held that the officers’ search of Wurie’s cell phone was a violation of the Fourth Amendment, and specifically stated “warrantless cell phone data searches are categorically unlawful under the search-incident-to-arrest exception, given the government’s failure to demonstrate that they are ever necessary to promote officer safety or prevent the destruction of evidence.”[22] The First Circuit continued by stating that the Supreme Court, when it decided the cases which set forth the search incident to arrest exception, “could not have envisioned a world a world in which the vast majority of arrestees would be carrying on their person an item containing not physical evidence but a vast store of tangible data—data that is not immediately destructible and poses no threat to the arresting officers.”[23] In reversing the district court, the First Circuit stated, “warrantless cell phone data searches strike us as a convenient way for the police to obtain information related to a defendant’s crime of arrest…without having to secure a warrant. We find nothing in the Supreme Court’s search-incident-to-arrest jurisprudence that sanctions such a ‘general evidence-gathering search.’”[24]

Riley v. California

Riley was suspected in a gang shooting and was stopped in his vehicle by officers.[25] A subsequent search of his car revealed two handguns, which were forensically tied to the earlier shooting.[26] Riley was arrested and his cell phone was seized; his cell phone records showed that his phone was used near the shooting location around the time the shooting occurred and contained pictures of Riley making gang signs.[27] The trial court denied Riley’s motion to suppress the evidence from his vehicle search and from his cell phone search.[28]

People v. Diaz, a California Supreme Court case, controlled the Court of Appeals for the Fourth District’s ruling.[29] Diaz held that warrantless searches of cell phones were permissible because attempting to define a container as “worthy” or “unworthy” exceeded the bounds of the Fourth Amendment.[30] The California Supreme Court further stated that the storage capacity of an item was irrelevant.[31] Riley followed the precedent set forth by Diaz, and resulted in the Fourth District affirming the denial of Riley’s motion to suppress.

Possible Outcomes

Hopefully, the Court will issue a concrete ruling after it hears oral arguments on the issue of whether a search warrant is needed before officers search an arrestee’s cell phone, which will provide guidance to police officers. The Court may take the approach of the majority of circuit courts and find that a cell phone is a container, which can be searched incident to arrest so long as the search is limited in scope and contemporaneous to the arrest. Or, the Court may take the approach of the First Circuit in Wurie and find that the privacy interests in an individual’s cell phone greatly outweigh the government’s need to immediately search a cell phone without first securing a warrant. The Court may take other approaches and rule that officers are only permitted to seize cell phones incident to arrest and are prohibited from searching them until there is a warrant. Another approach is that officers can only search cell phones when there is reason to believe that there is evidence of the crime on the cell phone, which falls in line with the Court’s recent decision in Arizona v. Gant.[32] Whatever ruling the Court chooses to adopt will have a substantial impact on police officers and citizens alike, either by significantly restricting the types of searches that can be performed or by significantly imposing on an individual’s privacy rights.

[1] U.S. Const. amend. IV.

[2] United States v. Robinson, 414 U.S. 218, 224 (1973).

[3] 395 U.S. 752, 762–63 (1969).

[4] Id.

[5] United States v. Curtis, 635 F.3d 704, 711–12 (5th Cir. 2011).

[6] See United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996); United States v. Watson, 669 F.2d 1374, 1384 (11th Cir. 1982); United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993).

[7] See Silvan W. v. Briggs, 309 F. App’x 216 (10th Cir. 2009); United States v. Finley, 477 F.3d 250 (5th Cir. 2007); United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012); United States v. Murphy, 553 F.3d 405 (4th Cir. 2009).

[8] United States v. Wurie, SCOTUSblog,

[9] Greg Stohr, Mobile-Phone Searches by Police Get Top U.S. Court Review, Bloomberg, (Jan 17, 2014)

[10] United States v. Wurie, 728 F.3d 1,1 (1st Cir. 2013).

[11] Id.

[12] Id.

[13] Id. at 2.

[14] Id.

[15] Id.

[16] Wurie, 728 F.3d at 2.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Wurie, 728 F.3d at 12.

[23] Id. at 12.

[24] Id. at 13.

[25] People v. Riley, D059840, 2013 WL 475242 (Cal. App. 4th Dist. Feb. 8, 2013).

[26] Id. at *1.

[27] Id. at *2.

[28] Id.

[29] Id. at 6.

[30] People v. Diaz, 244 P.3d 501, 507 (Cal. 2011).

[31] Id. at 95.

[32] 556 U.S. 332 (2009).

New Difficulties in Executions Prompt Constitutional Questions

New Difficulties in Executions Prompt Constitutional Questions

By Alex Darby

                The death penalty is currently facing renewed scrutiny in the United States as the drugs previously used for lethal injection become increasingly difficult to obtain. States that still employ the death penalty have scrambled to find alternative methods of killing those on death row, raising new questions about the constitutionality of the death penalty.

The death penalty has become increasingly rare in most Western countries. Many of the companies that produce the drugs used in lethal injections are based in European countries that have banned the death penalty.[1] The drugs most commonly used in lethal injections were previously pentobarbital and sodium thiopental; however, upon increased public outcry that the drugs were used in executions, the companies that produced these drugs have either stopped production or sell the drugs with the strict prohibition that they cannot be used in executions.[2] For example, on learning that the drug propofol would be used for executions in Missouri, the German manufacturer of the drug requested the return of the drugs and threatened European Union sanctions. The governor postponed the execution of a man on death row for fear that the use of propofol would threaten the supply of the drug needed for hospitals.[3] The German company threatened the use of European Union sanctions and requested that the drug be returned.[4] Alabama has been forced to postpone executions because it has run out of pentobarbital, the initial drug used in the state’s executions.[5] Further, even states that may currently have a stockpile of the drugs will face a shortage when the drugs expire and are no longer usable.

To deal with the shortage of previously used drugs, states are turning to untested drugs from compound pharmacies that are “produced in small amounts on special order without strict regulatory oversight and have been linked to contamination in the past.”[6] This creates a significant issue as the manner of death that these drugs produce is not always clear. Dennis McGuire was executed by the state of Ohio using an untested combination of drugs.[7] The execution was the longest recorded execution in Ohio history, taking nearly 24 minutes.[8] McGuire spent roughly 10 minutes gasping and snorting before he finally died.[9] A properly performed lethal injection takes between 4 and 5 minutes to be completed.[10] These seemingly painful side effects and increasing secrecy around the sources for the drugs raise new Due Process and Eighth Amendment issues.

Some states, such as Oklahoma have enacted laws that keep the source of the drugs and the types of drugs used secret, even from the court itself.[11] The Alabama legislature is currently considering a law similar to the Oklahoma statute.[12] Proponents of the law argue that it is important to keep this information secret to ensure suppliers are willing to continue to provide the drugs.[13] However, an Oklahoma judge recently ruled that such secrecy is unconstitutional.[14] Proponents of the laws argue that the secrecy is required to ensure drug companies will continue to supply the needed drugs while opponents argue that without knowing what the lethal cocktail is composed of, there is no way ensure that the execution does not violate the Eighth Amendment prohibition on cruel and unusual punishment.[15] An Oklahoma judge held that, because of the potential Eighth Amendment risks, the secrecy surrounding the composition of the drugs created a Due Process issue that rendered it unconstitutional.[16]

The Eighth Amendment sets out a prohibition on cruel and unusual punishment. The Supreme Court has held varying positions on the constitutionality of the death penalty since the 1970’s. In 1972, the Court struck down Georgia’s death penalty statutes and with it similar statutes in a majority of states.[17] The Court changed course just four years later, holding that the death penalty is not per se unreasonable.[18] Under this reasoning, the resulting death is not unconstitutional, but the manner in which the punishment is carried out may be.

When the Court has recently reviewed cases involving lethal injection, the Court held that the Eighth Amendment prohibits methods that create an objectively intolerable risk of harm.[19] The risk of some pain is not sufficient, as in Baze v. Rees the court upheld the method lethal injection because they were alleged to cause severe pain only if administered improperly.[20] The issue that arises in the case of drugs from compound pharmacies is that these drugs are often untested- including the injection used in the execution of Dennis McGuire in Ohio. There is no way to know whether the resulting death will be painful or not until the inmate is lying on the table gasping. The attempt by various states to shroud the drugs used in secrecy creates an even more significant risk. There is no way for an attorney to argue that the drugs pose an Eighth Amendment violation, as there is no way to even speculate the effects a drug may have if the type of drugs to be used is untested and its source unknown.

While the difficulty procuring these drugs is causing significant difficulties for some states, it provides a new opportunity to discuss the death penalty, and whether it is still aligned with the views of the majority of the country. The Court has long tied Eighth Amendment analysis to evolving standards of decency.[21] The United States is one of the few Western countries that still use capital punishment. Further, the majority of executions in the United States occur in only a handful of states. [22] The death penalty has a long history in this country; however, the methods formerly used- such as hangings or the electric chair- would make many uncomfortable today. The idea that lethal injection is a “humane” means to end human life is now being challenged as new drugs produce accounts of deaths that seem far from painless. It is time that the US again raise its standard of decency, and prohibit this punishment altogether.


[1] See Facts About the Death Penalty, Death Penalty information Center,; The Council of Europe,

[2] Manny Fernandez Executions Stall as States Seek Different Drugs NY Times (November 8, 2013),

[3] Aidan Lewis, Lethal Injection: Secretive US States Resort to Untested Drugs, BBC News (Nov. 14, 2013),

[4] Id.

[5] Alabama Out of Execution Drugs, Can’t Carry Out Sentences, Al.Com (Mar. 25, 2014, 8:04 p.m.),

[6]Erik Eckholm, Oklahoma Told It Can’t Shield Suppliers of Execution Supplies, NY Times (March 26, 2014),

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Kyle Whitmore, While Alabama Legislature Considers Execution Secrecy Bill, Oklahoma Judge Rules Similar Laws Unconstitutional, AL.Com (Mar. 26, 2014, 3:25 p.m.),

[12]  Id.

[13] See Lewis, supra note 3.

[14] Whitmore, supra note 11.

[15] Eckholm, supra note 6.

[16] Id.

[17] Furman v. Georgia, 408 U.S. 236, 240 (1972).

[18] Gregg v. Georgia, 428 U.S. 153, 179 (1976).

[19] Baze v. Rees, 553 U.S. 35, 50 (2008).

[20] Id. at 54-55.

[21] Roper v. Simmons, 543 U.S. 551, 561 (2005).

[22] See Facts About the Death Penalty, Death Penalty information Center,

“Deliberate Indifference” to Prison Sex Abuse Sets Stage for 8th Amendment Challenge

“Deliberate indifference” to prison sex abuse sets stage for 8th Amendment challenge

by Tiffany Ray

If it’s true that the measure of civilization in a society can be judged by entering its prisons,[1] then Alabama is a barbaric place. The proliferation of sexual misconduct, coercion, vulgarity and mistreatment that constitutes life at the Julia Tutwiler Prison for Women in Wetumpka, Ala., is by now well known: A 36-page report by the U.S. Department of Justice, released early this year and widely reported in the press, documents a 20-year history of “unabated staff-on-prisoner sexual abuse and harassment” that has left the women incarcerated there to “universally fear for their safety.”[2]

In its report, which is the result of an extensive investigation, the DOJ asserts that, for nearly two decades, guards at Tutwiler have raped and sodomized inmates and coerced them into performing oral sex.[3] They have forced them to submit to sexual abuse in order to receive basic necessities such as tampons or laundry service.[4] They have watched the women as they take off their clothes, shower, and use the toilet, and they have subjected them to sexually explicit verbal abuse.[5] Allegations of such abuse are investigated superficially, if at all, and women who have reported such allegations have been subjected to further abuse by guards, to segregation, or to lie detector tests.[6]

The DOJ asserts that the state has violated (and presumably continues to violate) the Eighth Amendment rights of Tutwiler prisoners by “failing to protect [them] from harm due to sexual abuse and harassment from correctional staff.”[7] The Eighth Amendment provides board protection to prisoners from “cruel and unusual punishment” by government, but what are the contours of that right?

The Supreme Court has found that the test for what constitutes a cruel and unusual condition is not static, but rather drawn “from the evolving standards of decency that mark the progress of a maturing society.”[8] Surely what is happening at Tutwiler Prison is indecent by any standard. According to the Court, the conditions “must not involve the wanton and unnecessary infliction of pain, nor . . . be grossly disproportionate to the severity of the crime warranting imprisonment.”[9] The Constitution “’does not mandate comfortable prisons,’ (citation omitted), but neither does it permit inhumane ones.”[10] Conditions may be “restrictive” or even “harsh” and still be Constitutional.[11]  However, “a prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.”[12]

In Farmer v. Brennan, one of three cases cited by the DOJ to support its assertion of a constitutional violation, the Supreme Court determined that deliberate indifference is shown when an official was “subjectively aware of the risk.”[13] In that case, a transsexual prisoner who was biologically male and projected feminine characteristics was raped and beaten after being placed in the general male population of a high-security prison.[14] Vacating and remanding a lower-court ruling for defendants in the case, the Court found that a prison official could be held liable for denying a prisoner humane confinement conditions if the official “knows that inmates face a substantial risk of serious harm and disregard that risk by failing to take reasonable measures to abate it.”[15]

The Court determined that deliberate indifference of prison officials equated to the subjective recklessness requirement of criminal law; something more than negligence but less than “acts or omissions for the very purpose of causing harm or with knowledge that harm will result.”[16] The Court said prison officials need not be aware of a specific risk from a specific source: “. . . [I]t does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk.”[17]

In Farmer, the Court said the Eighth Amendment both constrains the actions of prison officials – preventing them, for example, from using excessive force against a prisoner – and also imposes duties on them to provide “humane conditions of confinement.”[18] Specifically, officials must “ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take ‘reasonable measures to guarantee the safety of the inmates.’”[19] In Helling v. McKinney, the Court found that deliberate indifference to conditions that pose a serious risk to future health violates Eighth Amendment standards, even when no harm has yet occurred.[20] Prisoners have found relief from the courts from exposed electrical wiring, exposure to contagious diseases from other inmates, and, in Helling, from constant exposure to secondhand smoke.[21]

From such a footing, it does not seem far to go to determine that inmates deserve relief from the “universal fear” of sexual abuse and retaliation by their jailers. No one should live day to day with the fear that they might be the next target for abuse, and particularly in a place that is designed to provide them no means of escape. Just the threat of such abuse is corrosive and debilitating, particularly for the women at Tutwiler who, the DOJ says, are already more vulnerable because they are more likely to have been a victim of abuse prior to incarceration.[22] Surely the state has a duty to protect inmates from such treatment.

Moreover, it appears from the DOJ report that state officials have had notice of sex-abuse problems at Tutwiler since at least 1995, when the agency reported it as part of an investigation into the prison’s treatment of mental health issues.[23] More recent evidence was available as well: A 2007 DOJ report of sexual assault in prisons found that Tutwiler was among the worst offenders, ranking 11th out of 146 prison facilities for reports of sexual assault.[24] A report by the Montgomery-based Equal Justice Initiative in 2012 found that conditions had not improved since 2007 and that “pervasive sexual misconduct” continued.[25] It seems clear that the state knew women at Tutwiler were being sexually abused and yet failed to act to prevent it.

News of poor prison conditions in Alabama is hardly a shock, but the level of depravity and disregard apparently at work at Tutwiler is particularly galling. State officials have attempted to defend the indefensible; Kim Thomas, Commissioner of the Alabama Department of Corrections, for example, has said the DOJ’s findings were “off-base,” and prison conditions were not unconstitutional, though he declined to talk in specifics.[26]  Thomas said the department had requested an independent examination by the National Institute of Corrections, part of the DOJ, in 2012 following the Equal Justice Initiative reports of sexual abuse at Tutwiler and has been working to implement changes since then.[27] Among the improvements cited by officials are efforts to recruit more female prison staff at Tutwiler and train prison staff on proper management of female inmates, and plans to install security cameras.[28]

The fact that such improvements are not already an integral part of Tutwiler management would suggest a level of long-term apathy that casts doubt on the ability of state officials to take meaningful action now. Clearly, the state has been on notice for a long time that rights violations were occurring – or at the very least, were likely occurring – at Tutwiler. And yet the “proactive” steps cited by officials to curb such abuses began only a couple of years ago, and have apparently gotten nowhere. Meanwhile, Alabama prisons have been perennially underfunded, and there is no political gain for legislators in advocating an appropriation of additional resources for the benefit of convicted criminals. Thus, there is little hope of any drastic commitment by the Legislature to push through needed reforms.

Fortunately for the inmates of Julia Tutwiler Prison, the DOJ investigation appears far from over. The pervasiveness of sex-abuse allegations has led the DOJ to expand its examination to other, related areas: excessive use of force, constitutionally inadequate conditions of confinement, constitutionally inadequate medical and mental health care, and discriminatory treatment based on national origin, sexual orientation, and gender identity.[29] The DOJ report also included a litany of reforms the agency says must be implemented to curb sexual misconduct by prison staff, as well as the threat of a legal action brought by the Attorney General if they are not.[30]

[1] This statement is often attributed to Fyodor Dostoyevsky. See, e.g., Fyodor Dostoyevsky quotes,, available at

[2] Letter from Jocelyn Samuels, Acting Assistant Attorney General, U.S. Department of Justice, Civil Rights Division, to Hon. Robert Bentley, Governor of Alabama (Jan. 17, 2014),

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Rhodes v. Chapman, 452 U.S. 337, 346 (1981).

[9]  Id. at 347.

[10] Farmer v. Brennan, 511 U.S. 825, 832 (1994).

[11] Rhodes, 452 U.S. at 347.

[12] Farmer, 511 U.S. at 829.

[13] Id. at 828-29.

[14] Id. at 829-30.

[15] Id. at 848.

[16] Id. at 835.

[17] Id. at 843 (quoting Helling v. McKinney, 509 U.S. 25 (1993)).

[18] Id. at 832.

[19] Id.

[20] 509 U.S. 25, 33 (1993).

[21] Id. at 34.

[22] See Letter from Jocelyn Samuels to Hon. Robert Bentley, supra note 2.

[23] Id.

[24] Id.

[25] Id.

[26] Mike Cason, Department of Justice finds conditions at Julia Tutwiler Prison to be unconstitutional,, Jan. 17, 2014,

[27] Id.

[28] Id.

[29] See Letter from Jocelyn Samuels to Hon. Robert Bentley, supra note 2.

[30] Id.

Right to Perfect Counsel or Merely Effective Counsel: A Discussion of Burt v. Titlow

Right to Perfect Counsel or Merely Effective Counsel: A Discussion of Burt v. Titlow

By Erika Rucker


Under the Sixth Amendment to the United States Constitution, a criminal defendant is guaranteed effective assistance of legal counsel.[1] When a state prisoner asks a federal court to set aside a sentence due to ineffective assistance of counsel during plea bargaining, our cases require that the federal court use a “‘doubly deferential’” standard of review that gives both the state court and the defense attorney the benefit of the doubt.[2]


In Burt v. Tidlow, the respondent, along with his aunt, allegedly murdered a man by pouring vodka down the victim’s throat and smothering the victim with a pillow.[3] Prior to trial, the respondent reached an agreement with the prosecutor and agreed to testify against his aunt in exchange for a guilty plea of manslaughter and a minimum sentence of 7-15 years.[4]

Prior to the respondent’s aunt’s trial was to commence, the respondent obtained alternate legal counsel. At the request of the respondent’s new attorney, the respondent demanded a lower minimum sentence in exchange for his testimony. The prosecutor refused to accept the respondent’s new plea agreement and the respondent withdrew his  initial plea. By withdrawing his original guilty plea, the respondent’s first degree murder charge was reinstated.[5]

At trial, respondent was convicted of second-degree murder and was sentenced to a twenty to forty year term prison sentence.[6] On direct appeal, respondent argued that his subsequent legal counsel, who advised him to withdraw his original plea agreement, was ineffective.[7] The respondent argued that his attorney did not take the time to learn more about the case which would reveal the strength of the state’s case against his client.[8]

The Court of Appeals rejected the respondent’s claim that his counsel was ineffective. The Court of Appeals held that the respondent’s counsel acted reasonably in light of the fact that the respondent proclaimed innocence. The Court utilized an objective standard of reasonableness and concluded that “[w]hen a defendant proclaims . . . innocence . . ., it is not objectively unreasonable to recommend that the defendant refrain from pleading guilty—no matter how ‘good’ the deal may appear.” [9]

Upon review by the Sixth Circuit, the judgment was reversed. The Sixth Circuit stated “[t]he record in this case contains no evidence” that [the attorney] fully informed respondent of the possible consequences of withdrawing the guilty plea, the Sixth Circuit held that the attorney rendered ineffective assistance of counsel that resulted in respondent’s loss of the benefit of the plea bargain.[10] The Sixth Circuit remanded the case with instructions that the prosecution must reoffer the respondent the original plea agreement.[11]

Ultimately, the Supreme Court found that the legal counsel given to the respondent was effective. The Supreme Court held that respondent was reasonably advised by his attorney prior to withdrawing his initial plea agreement.[12]

The Supreme Court has stated that counsel should be “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment,”[13] and that the burden to “show that counsel’s performance was deficient” rests squarely on the defendant.[14]


Although legal counsel may not be perfect, the client is not entitled to have perfect counsel. Instead, a client is entitled to effective legal counsel. Additionally, an attorney’s violation of ethical norms does not render the attorney’s counsel ineffective per se.[15] While a client may not agree with their attorney’s legal strategy during the course of representation, this does not deem the attorney to be ineffective assistance of counsel.

While the decision reached in Burt  v. Tidlow does not stray from the legal norms which are squarely in place, the decision does reiterate the high threshold that a criminal client claiming ineffective assistance of counsel must overcome. Furthermore, the decision focuses narrowly on the legal assistance given during the plea bargaining stage. It is at this stage of litigation that effective legal counsel can be the most crucial because the majority of cases are not fully litigated to trial.

Burt v. Titlow clarifies that the presumption that counsel will presumed to be adequate and the  burden to rebut this presumption rests with the defendant stands firmly, especially in the plea bargaining stage of criminal trials

[1] U.S. Const., amend. XI.

[2] Cullen v. Pinholster, 563 U. S. ___, ___, 131 S. Ct. 1388 (2011) (slip op., at 17).

[3] Burt v. Titlow, 2013 U.S. LEXIS 8039, 6 (U.S. Nov. 5, 2013)

[4] Id.

[5] Id.

[6] Id. at 7.

[7] Id. at 8.

[8] Id.

[9] App. to Pet. for Cert. 102a.

[10] Id., at 589-592.

[11] Burt, supra note 2, 10.

[12] Id.

[13] Strickland v. Washington, 466 U. S., at 690 (1984).

[14] Id., at 687.

[15] Mickens v. Taylor, 535 U. S. 162, 171 (2002).

Solitary Confinement and the Eighth Amendment

Solitary Confinement and the Eighth Amendment

By: Alex Darby

Herman Wallace died of cancer on October 4th, just days after being released from prison in Angola, Louisiana, where he had been held in solitary confinement for the last forty-one years of his life.[1] Convicted of the murder of a prison guard, Wallace was released after a federal judge determined his indictment was constitutionally flawed because no women were included in the jury.[2] While in solitary confinement, he worked on projects, such as designs for his dream home.[3] Wallace stated this work “helped me maintain what little sanity I have left to maintain my humanity and dignity.”[4] Unfortunately for many in the prison system, maintaining dignity and sanity is impossible when subjected to solitary confinement, an issue with serious Eighth Amendment implications.

Prisoners held in solitary confinement are typically isolated in an eight by ten foot cell between twenty-two and twenty-four hours per day.[5] While the number of inmates held in solitary confinement is difficult to determine, studies estimate 25,000 are held in maximum security “supermax” facilities where solitary confinement is common, and up to 80,000 inmates are held in some type of segregated housing, separate from the general prison population.[6] Prisoners may be placed in special, or segregated housing units for administrative or disciplinary reasons, with harsher restrictions imposed on inmates segregated for disciplinary reasons.[7]

These conditions result in various health issues that range from acute to severe, worsening with longer sentences. While psychological problems are most common, physiological symptoms also appear in prisoners held in solitary confinement.[8] These symptoms include heart palpitations, insomnia, joint pain, and worsened pre-existing conditions.[9] Psychological impacts can be even more profound. Prisoners commonly show a range of symptoms stemming from anxiety, depression, cognitive disturbances, paranoia, and psychosis.[10] A prisoner at a California supermax prison noted the impact of solitary confinement on inmates, stating:

I have seen inmates lose their mind completely because of the sound of a light where they are yelling at the light, cursing at the light, believing that for some reason the [authorities] planted some kind of noise inside the light purposely…and so the inmates that ain’t strong minded, don’t have something to hang on to, the light, the sound of the door, can make them lose their mind… I found it strange, you know, how can a grown man, a very big, grown man, break down to a light. But that’s what [that place] can do[11]

The harsh reality for many of these prisoners is that they already suffer from some type of mental illness, and this is only worsened by their stay.[12] There is a significantly higher percentage of inmates with mental illness in segregated housing units that in the general prison population.[13] These psychological symptoms often result in self-harm.[14] In one California supermax prison, nearly 70% of the suicides committed in the prison were committed by inmates in segregated housing units.[15]

Solitary confinement is a relatively common practice in supermax prisons throughout the United States.[16] Prisoners have asserted claims attacking the conditions of solitary confinement as a violation of the Eighth Amendment prohibition against cruel and unusual punishment.[17] These challenges face significant setbacks. Circuit courts have held that solitary confinement is not necessarily cruel and unusual punishment.[18] Under these rulings, the punishment does not in itself violate the Eighth Amendment, but could potentially be cruel and unusual if there are other problems present.[19]

In Eighth Amendment challenges, the Supreme Court has held that prison conditions may constitute cruel and unusual punishment when there is “a substantial risk of serious harm” and prison officials show “deliberate indifference.”[20] The issue arising under these cases is that the “serious harms” often recognized by the court typically involve physical risks, not psychological ones.[21] To successfully argue a serious harm, an inmate must show he has been deprived of “a basic human need” and courts are hesitant to accept mental health as such.[22] This is especially clear in the Prison Litigation Reform Act, which prevents a prisoner from bringing suit – even an Eighth Amendment suit – for mental or emotional injury alone.[23] It is far easier to show physical signs of abuse, but this does not diminish the harm that can potentially be done to the mental health of incarcerated individuals in solitary confinement.

Individuals have previously been successful in bringing Eighth Amendment claims against conditions in solitary confinement, but the rulings often focus on the physical conditions of confinement rather than the solitary confinement itself.[24]

The Supreme Court has repeatedly asserted that the measure of the Eighth Amendment is based on “the evolving standard of decency that marks the progress of a maturing society.”[25] The court’s views on solitary confinement do not seem to be evolving along with the views of society. The focus on physical harm, while minimizing psychological harms inflicted on inmates, runs directly counter to society’s changing views on mental health. With mental health rapidly changing from a taboo topic to one of increased public focus, society clearly recognizes that mental health is often as important as physical health. Psychological harms are very real, and in many cases cause inmates to seek desperate measures, including taking their own lives. While a complete prohibition on solitary confinement is arguably unworkable in the prison system, the court system should have a way for prisoners to challenge solitary confinement based on its psychological impact alone, especially when solitary confinement persists for a substantial length of time.

[1] John Schwartz, Herman Wallace, Freed After 41 Years in Solitary, Dies at 71, N.Y. Times  (Oct. 4, 2013),

[2] Id.

[3] Id.

[4] Id.

[5] Solitary Confinement Fact Sheet, National Alliance on Mental Illness, 2 (Last accessed Oct. 10)

[6] Jean Cassella & James Ridgeway, How Many Prisoners Are in Solitary Confinement in the United States?, Solitary Watch (Feb. 1, 2012),

[7] Special Housing Units, Federal Bureau of Prisons, 2, 8-10 (Jul. 29, 2011),

[8]Sharon Shalev, A Sourcebook on Solitary Confinement, SolitaryConfinement.Org 15 (2008) (alteration in original),

[9] Id.

[10] Id.

[11] Id. at 14.

[12] Solitary Confinement Fact Sheet, supra note 5.

[13] Id.

[14] Shalev, supra note 6, at 17.

[15] Id.

[16] John F. Cockrell, Solitary Confinement: The Law Today and the Way Forward, 37 Law & Pshychol. Rev. 211, 216 (20012-2013).

[17] Id. at 215.

[18]Hawkins v. Hall, 644 F.2d 914, 917 (1st Cir. 1981); Sweet v. S.C. Dept. of Corr. 529 F.2d 854, 861 (4th Cir. 1975) Burns v. Swenson, 430 F.2d 771, 777 (8th Cir. 1970); Ford v. Bd. of Managers of N. J. State Prison, 407, F.2d 937, 940 (3d Cir. 1969).

[19] Id.

[20] Farmer v. Brennan, 511 U.S. 825, 828 (1994)

[21] See, Cockrell, supra note 16, at 216-18.

[22] Christine Rebman, The Eighth Amendment and Solitary Confinement: The Gap in Protection from Psychological Consequences, 49 DePaul L. Rev.567, 603 (1999)

[23] Cockrell, supra note 16, at 17.

[24] See, e.g., McCray v. Sullivan, 509 F.2d 1332, 1337 (5th Cir. 1975)

[25] Trop v. Dulles, 356 U.S. 86, 100-01 (1958).

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