The Campaign for Alternatives to Isolated Confinement-NJ strongly supports legislation introduced today by state Senator Raymond Lesniak to sharply curtail the use of isolation, sometimes referred to as solitary confinement or segregation, in prisons and jails in
New Jersey. This legislation would also ban the isolation of vulnerable populations such as juveniles and people with mental illness.
The ground-breaking legislation would install limits on and provide safeguards for the use of isolated confinement on all prisoners. It would:
The bill seeks to resist the demonstrated tendency to use isolated confinement as an intervention of first resort, rather than exploring other less harmful interventions, with more positive and lasting effects.
The Campaign for Alternatives to Isolated Confinement-NJ believes that isolated confinement should only be utilized in extremely rare circumstances, where safety is immediately at risk and where other alternatives do not exist.
Members of the Campaign praised Senator Lesniak’s leadership on this issue, taking note of New Jersey's persistent history of imposing long-term isolation for years and even decades; the escalating use of isolated confinement as a disciplinary measure for even minor infractions; and the growing acknowledgement among clinicians, legal professionals and human rights advocates of the harm caused by the practice of isolation to all persons, and particularly to young people and people with mental illness.
In 1890 the U.S. Supreme Court noted the damaging impact of solitary confinement, yet the practice of locking prisoners in a cell, alone or with another person, for 22-24 hours a day, continues, not only in New Jersey, but in every state.
A study by the Vera Institute of Justice reported in 2006 that more than 80,000 people in prison are in isolation at any time, not including those in jails or detention centers.
In 2011, the United Nations Special Rapporteur on torture took the position that isolated confinement beyond 15 days should be prohibited because of its devastating psychological toll.
Estimates vary, but Amy Fettig, senior staff counsel for the ACLU National Prison Project, reports that as many as 30% to 50% of all those in isolation suffer from mental illness, although these figures vary by prison and state.
If enacted, the legislation introduced by Senator Lesniak would put New Jersey among the states at the forefront of an initiative that is becoming critically important for corrections departments nationwide. It would also stimulate efforts to develop alternative interventions with less harmful implications for those who are currently incarcerated, correctional staff, families and communities throughout New Jersey to which returning citizens will one day return.
A half-dozen states have considered taking steps to ban isolated confinement completely, but few have taken such action. Last year, Colorado became only the second state to ban isolated confinement for people with serious mental illness. Nearly a year ago, New York banned solitary confinement for juveniles as a result of a class action lawsuit filed by the New York Civil Liberties Union.
NEWARK -- A federal district court judge last week rejected a second attempt by Monmouth County to block public access to a jail surveillance video that captured the last hours of Amit Bornstein, who died on July 29, 2010, after being restrained at the Monmouth County Correctional Institution. Today, that video was made available.
The video was publicly filed in court earlier this year in the course of a wrongful death lawsuit, but Monmouth County requested that the video be sealed after a news organization tried to obtain a copy. The American Civil Liberties Union of New Jersey filed a friend-of-the-court brief urging the release of the video.
In September, a federal magistrate judge ruled in favor of public access, and the county appealed.
On November 14, 2015, a federal district court judge affirmed the decision. After examining the county’s security concerns, the court determined that, in this case, those concerns were not sufficiently compelling to warrant the sealing of the video. The court noted that there is a “strong presumption in favor of public access to judicial proceedings, which is especially applicable here where the case involves a public entity and addresses matters of public concern.”
“Today’s release of the jail video is an important moment for the public. Jails are among society’s most closed institutions, with prisoners dependent on the government to provide their most basic needs," ACLU-NJ Deputy Legal Director Jeanne LoCicero said.
"Jail staff are responsible for the health and well-being of people in their custody," said LoCicero, who wrote the ACLU-NJ’s amicus brief in the case. "When someone dies in their care, the public should have access to as much information as possible in order to properly evaluate the actions of correctional staff involved and the work of those who investigate the death.”
NEWARK – American Civil Liberties Union of New Jersey Executive Director Udi Ofer offered the following statement on the passage of Ballot Question 1:
“This is truly a historic day for New Jersey, one in which the people of our state recognized injustice and demanded that it change. A bipartisan effort in the Legislature, the governor’s signature and tonight’s overwhelming support at the polls puts New Jersey on the path toward greater justice.
“Within a few years, we will no longer see thousands of people languishing in New Jersey jails simply because they cannot afford to post bail. Society does not benefit when people are made to await trial behind bars for months or even years simply because they cannot afford a few thousand dollars in bail. These debtors’ prisons must end. We will also see, for the first time, meaningful speedy trial protections in New Jersey.
“New Jersey civil rights, public safety, and criminal justice reform organizations, including the Drug Policy Alliance, came together in an unprecedented way to make these critical reforms happen. The ACLU-NJ is grateful to all who worked so hard to make tonight's victory a reality.
“Our criminal justice system today is plagued with grave inequities, especially for poor people and people of color. The passage of this amendment is an important step toward creating a criminal justice system that treats people equitably regardless of their wealth. More reforms are needed and we have work ahead of us to achieve them, but, today, we celebrate the remarkable milestone of true bail reform in the state of New Jersey.”
NEWARK – The ACLU-NJ will hold a conference call tomorrow, Wednesday Oct. 29 at 12:30 p.m., geared toward members of the public but open to members of the press to explain why it’s imperative for New Jerseyans to vote yes on Ballot Question 1. The public and press may ask questions via Twitter, Facebook, or email.
Conference call for the public to discuss why NJ should vote yes on Ballot Question 1
Call in Number: 862-234-4800
Access Code: 17372476#
Webinar URL: http://join.onstreammedia.com/go/56598110/Question1
Wednesday, Oct. 29, at 12:30 p.m.
Ballot Question 1 is a key part of creating real bail reform that focuses on a defendant’s risk to society rather than a defendant’s ability to afford bail. When implemented, this will result in thousands fewer people being detained pretrial.
The reforms also give New Jersey real speedy-trial protection for the first time in its history.
The passage of Ballot Question 1 would allow a historic, bi-partisan bail reform package signed into law this summer by Governor Christie to go into effect, which is why the ACLU-NJ supports the question.
The ACLU-NJ saw a victory for transparency in a federal court decision issued last week (PDF) that rejected Monmouth County’s rationale for trying to seal a video recording of a man who died after being restrained at Monmouth County Correctional Institution. The United States District Court for the District of New Jersey sided with the position the ACLU-NJ put forth in an amicus brief for the case, Bornstein v. County of Monmouth.
“The court was correct to recognize that when a person dies while in the care of a public agency, the public deserves an explanation, not secrecy,” said ACLU-NJ Deputy Legal Director Jeanne LoCicero, who wrote the ACLU-NJ’s amicus brief (PDF) in the case. “The public’s interest in understanding the circumstances surrounding a person’s death in county custody far outweighs what the court identified as vague speculation about the potential harms that could come from releasing the footage.”
In July 2010, Amit Bornstein died in Monmouth County Jail after having been booked for failure to appear in court. In the course of a wrongful death lawsuit following his death, Monmouth County sought to seal the previously publicly available security camera footage from the incident only after a third party tried to obtain copies. The footage showed the jail’s booking area and constant-watch area. In his ruling, U.S. Magistrate Judge Douglas E. Arpert pointed out the insufficiency of Monmouth County’s arguments that releasing the tape would jeopardize public safety generally, especially in contrast to the many arguments in favor of leaning toward public disclosure.
“Here, defendants have failed to identify the particularized harm that would result from the public disclosure of the security footage,” said Judge Arpert’s Aug. 27 opinion, which also mentioned less restrictive alternatives Monmouth County could have sought to sealing the entire tape.
NEWARK – Union County has become the first New Jersey county to formally adopt a policy declining to hold (PDF) individuals in its jail based on requests issued by Immigration and Customs Enforcement (ICE). The move comes in response to a July 15, 2014, request (PDF) from the American Civil Liberties Union of New Jersey (ACLU-NJ).
ICE routinely issues requests to jails and law enforcement agencies to hold people detained in their facilities for up to 48 hours (excluding weekends and holidays) longer than they would otherwise be released because of suspected civil immigration offenses. Until recently, all New Jersey’s county jails routinely honored those requests although they are not legally binding.
Union County’s new practice, in effect as of August 4, 2014, requires the Union County Department of Corrections to release individuals on their scheduled release date unless county officials receive a warrant, court order or other legally sufficient proof of probable cause from ICE. According to ICE data reported by the Transactional Records Access Clearinghouse at Syracuse University, between October 2011 and August 2013, Union County received at least 326 detainer requests, sixty percent of which were aimed at individuals who had not been convicted of any criminal offense.
“We applaud Union County officials for recognizing the critical importance of fostering trust between immigrant communities and local law enforcement,” said Ari Rosmarin, Public Policy Director at the ACLU-NJ. “The county has discontinued a practice that seriously undermined public safety, posed significant constitutional concerns, and exposed the county to significant liability. We hope and expect other New Jersey counties will follow Union’s lead in adopting similar policies.”
At least two other New Jersey counties have also indicated that they will limit the practice of honoring detainer requests. Both Ocean (PDF) and Middlesex (PDF) Counties will now follow a policy to honor detainer requests only for individuals charged with certain crimes. While these policies represent progress, they both fail at insulating the counties from liability and at sending a clear message to immigrant communities that the counties are not in the business of enforcing immigration law for the federal government. The ACLU-NJ has also been made aware that Camden County has formally changed its policy with regard to honoring immigration detainer requests. However, the ACLU-NJ has not received a copy of Camden’s policy and therefore its contours remain uncertain at this time.
“It is an improvement when even one fewer person is unlawfully held in jail,” said ACLU-NJ Senior Staff Attorney Alexander Shalom. “Even so, counties that honor any detainer requests not only ignore the constitutional rights of detainees, but they also shortchange community trust and public safety, all while risking enormous financial consequences. Union County’s approach serves all of the county’s residents and serves as a model for the state and nation.”
Immigration detainers transfer the costs and responsibilities of immigration enforcement from the federal government to local jurisdictions, which lack the resources and authority to enforce immigration law. New Jersey jails have no authority under New Jersey law to deprive people of their liberty based solely on an immigration detainer request. In Galarza v. Szalczyk, a 2014 Third Circuit case brought by the ACLU of Pennsylvania and the ACLU Immigrants' Rights Project involving the detention of a Perth Amboy-born man at the request of ICE, Lehigh County, Pa., paid out a nearly $100,000 settlement for unlawfully keeping him in custody. As a result, the Lehigh County Board of Commissions voted unanimously to end the county’s policy of imprisoning people based on ICE detainer requests.
Recent months have given rise to a national wave of local jurisdictions issuing policies refusing to honor ICE detainer requests. To date, over 160 jurisdictions outside of New Jersey have decided to stop automatically honoring detainer requests, including Philadelphia, New York City, Chicago, and the states of California and Connecticut.
Recently, several federal courts have made clear that detainer requests are non-binding and that local authorities, and not ICE, are ultimately liable for violations of constitutional rights that result from honoring immigration detainer requests. The ACLU-NJ letter made clear that the organization is prepared to take legal action should a prisoner in New Jersey custody be held unconstitutionally as a result of an ICE detainer request. The ACLU-NJ also warned counties that unless they decline to honor any ICE detainer requests without judicial findings of probable cause or warrant, they expose themselves to unnecessary liability.
The ACLU-NJ, in partnership with immigrants’ rights, community, and faith organizations across New Jersey, will continue to urge counties statewide to follow Union County’s lead and end their policies of choosing to honor ICE detainer requests.
Trenton – In a unanimous decision today, the New Jersey Supreme Court held that individuals have a statutory right to self-representation when facing civil commitment proceedings after serving a criminal sentence for a sexual offense. Following initial briefing and oral argument, the Supreme Court asked Lowenstein Sandler to submit a supplemental, friend-of-the-court brief to elucidate the novel substantive due process issues raised by this appeal. Lowenstein, as pro bono counsel for Amici Curiae the American Civil Liberties Union of New Jersey Foundation (ACLU) and Disability Rights New Jersey, Inc., submitted a brief and participated in reargument, contending that individuals facing involuntary civil commitment should be constitutionally entitled to represent themselves.
The Court ruled instead on statutory grounds. The Court read the relevant provision, which prevents a person subject to involuntary commitment because of a sexual disorder from appearing at the hearing “without counsel,” to permit self-representation so long as standby counsel is present to advise the individual and help manage the proceedings. In reaching this conclusion, the Court relied on the nation’s, and New Jersey’s, long history of permitting individuals to represent themselves so long as they are competent to make the decision to waive the right to counsel.
“The U.S. Supreme Court recognized decades ago that the Constitution’s guarantee of the right to counsel in criminal prosecutions should not prevent competent individuals from choosing to present their own defense,” said Alexander Shalom, Senior Staff Attorney at the ACLU. “Civil commitment carries the potential for even more severe consequences, with potentially indefinite confinement.”
Joseph Young, executive director of Disability Rights New Jersey, adds, “Many people facing civil commitment, especially those who may be confined because of a sexual disorder, have the capacity to represent themselves. While most will choose to be represented by counsel, there is no justification for forcing that choice on unwilling, competent individuals.”
“We are gratified to work in a state where the Supreme Court’s high regard for individual rights leads it to request additional briefing and argument on significant issues that implicate these rights,” said Lawrence Bluestone, associate at Lowenstein. “Today, the Court agreed that the autonomy interests enshrined in our country’s and state’s history should be honored when the state seeks to deprive someone of his or her liberty under this civil commitment statute.”
In re Civil Commitment of D.Y.: http://www.judiciary.state.nj.us/opinions/index.htm.
NEWARK - The American Civil Liberties Union of New Jersey (ACLU-NJ) sent letters to officials in all 21 New Jersey counties (PDF) urging them to stop honoring warrantless immigration detainer requests issued by Immigration and Customs Enforcement (ICE). ICE routinely issues these requests to jails and law enforcement agencies to hold people detained in their facilities for up to 48 hours (excluding weekends and holidays) longer than they would otherwise be released because of suspected civil immigration offenses. New Jersey’s county jails routinely honor these requests although they are not legally binding.
“New Jersey’s county jails should be on notice that immigration detainer requests do not give license to wrongfully hold someone without probable cause or a warrant,” said ACLU-NJ Public Policy Director Ari Rosmarin. “By choosing to honor these optional requests, New Jersey counties undermine public safety by diminishing immigrant communities’ trust in local law enforcement and raise the prospect of significant constitutional violations.”
According to ICE data reported by the Transactional Records Access Clearinghouse at Syracuse University, New Jersey county jails received at least 5,844 such detainer requests from ICE between October 2011 and August 2013. Nearly two-thirds of those requests were lodged against individuals who had not been convicted of any offense.
Recently, several federal courts have made clear that detainer requests are non-binding and that local authorities, and not ICE, are ultimately liable for violations of constitutional rights that result from honoring immigration detainer requests. The ACLU-NJ letter makes clear that the organization is prepared to take legal action should a prisoner in New Jersey custody be held unconstitutionally as a result of an ICE detainer request.
“If county officials are not moved to stop honoring detainer requests out of respect for the constitutional rights of detainees or the desire to build community trust and public safety, they should still act out of economic self-interest,” said ACLU-NJ Senior Staff Attorney Alexander Shalom. “Looking at the settlements that counties around the country have paid out for unlawfully holding prisoners at ICE’s request makes clear that honoring immigration detainer requests simply doesn’t pay.”
In August 2013, the ACLU-NJ and its partners worked with former Newark Mayor Cory Booker and Police Director Samuel DeMaio to make Newark the first New Jersey jurisdiction to adopt a formal policy of rejecting warrantless immigration detainers. Princeton followed suit with its own limited detainer policy in November 2013. In July 2014, Middlesex County became the first New Jersey county to acknowledge that ICE detainer requests are not mandatory and amend its detainer request policy.
Recent months have given rise to a national wave of local jurisdictions issuing policies refusing to honor ICE detainer requests. To date, 153 jurisdictions outside of New Jersey have decided they would no longer automatically honor detainer requests, including Philadelphia, New York City, Chicago, and the states of California and Connecticut.
Detainer requests are not legally binding warrants and ICE regularly issues them without probable cause, the legal standard required for an arrest. Such requests are not approved by a judge and they do not mean there has been an official finding that the subject of the request is undocumented or deportable. Indeed, ICE has wrongfully issued detainer requests against hundreds of United States citizens. The ACLU-NJ letter warns counties that to avoid liability they should decline to honor ICE detainer requests without a judicial finding of probable cause or a warrant.
Immigration detainers transfer the costs and responsibilities of immigration enforcement from the federal government to local jurisdictions, which lack the resources and authority to enforce immigration law. New Jersey jails have no authority under New Jersey law to deprive people of their liberty based solely on an immigration detainer request. In Galarza v. Szalczyk, a 2014 Third Circuit case brought by the ACLU of Pennsylvania and the ACLU Immigrants Rights’ Project involving the detention of a Perth Amboy-born man at the request of ICE, Lehigh County, Pa., paid out a nearly $100,000 settlement for unlawfully keeping him in custody. As a result, the Lehigh County Board of Commissions voted unanimously to end the county’s policy of imprisoning people based on ICE detainer requests.
Immigrant community advocates and leaders throughout New Jersey echo the call for New Jersey’s counties to stop honoring ICE detainer requests:
View a more detailed breakdown of ICE detainer requests issued in New Jersey by county and facility in this Syracuse University report about ICE detainer trends nationwide.
NEW BRUNSWICK – The ACLU-NJ filed suit against Middlesex County, (PDF) challenging the use of solitary confinement for a pre-trial detainee who is mentally ill. The filing asks the court to order county jail officials to move the detainee from prolonged isolation, where he has been housed for at least 23 hours per day without opportunities for interaction with other people, and into a less restrictive environment. A hearing is scheduled for 10:30 a.m. on Monday, July 7, 2014, before Middlesex County Assignment Judge Travis L. Francis.
The ACLU-NJ represents P.D., a pretrial detainee with mental illness who has been at the jail since October 2013, when he was charged with a crime and unable to make bail. Because of disciplinary infractions, he has been held in solitary confinement for more than four months. Since his transfer to “Lower-C Pod,” as the solitary unit is called, P.D. has been let out of his cell for only one hour per day, five days per week. In that hour he either showers or paces in a ten-foot-by-ten-foot chain-linked cage in the center of his housing unit. He eats meals and receives medication through a slot in the door, never going outside or interacting with other prisoners.
“It’s unconstitutional to subject anyone to conditions of confinement that will cause long-term damage to his or her health. This risk is only increased when people with existing mental health conditions, like our client, are forced to endure prolonged isolation. These policies not only intensify a prisoner’s own frailties, but also create conditions that increase risks to public safety,” said Alexander Shalom, ACLU-NJ Senior Staff Attorney.
Courts throughout the country have held that exposing vulnerable populations, like the mentally ill, to solitary confinement constitutes cruel and unusual punishment. One court described the practice as “the mental equivalent of putting an asthmatic in a place with little air to breathe.”
The ACLU-NJ’s lawsuit asks the court to find that the jail’s practice violates the state constitution. Prison officials from around the country acknowledge the need for its reduction or even outright elimination of solitary confinement, particularly when applied to prisoners who are mentally ill. Indeed, prison officials and legislators recognize the cruelty in the overuse of solitary confinement as well as its risks to public safety by returning prisoners to our communities with more acute mental health problems than they had before entering jail.
“Mental health professionals agree that subjecting someone like P.D. to well more than one hundred days in isolation can do serious, long-term damage to his mental health,” said Shalom. “To do that to anyone is cruel; to do it to a mentally ill and cognitively impaired person who is presumed innocent is inhuman. Given that solitary confinement increases prisoners’ feelings of rage, it is also incredibly risky.”
The lawsuit, captioned P.D. v. Middlesex County, was filed June 24, 2014, in Middlesex County Superior Court.
NEWARK - The American Civil Liberties Union of New Jersey (ACLU-NJ) has given Gov. Chris Christie a D+ (PDF) for his overall record on civil liberties and civil rights during his first term in office. The ACLU-NJ examined the governor’s record in 12 issue areas and gave him his lowest grades in the areas of separation of church and state, transparency, and separation of powers.
The governor earned higher marks in other areas, such as freedom of religion and voting rights. The report card examines the Christie administration from January 19, 2010 when Gov. Christie was sworn into office, to January 20, 2014 when his first term ended.
“Gov. Christie’s overall record on civil liberties and civil rights has been poor, ranging mostly from mediocre to failing,” said ACLU-NJ Executive Director Udi Ofer. “The Christie administration’s first-term record on civil liberties will be remembered for its assaults on judicial independence and the separation of church and state, as well as for its disdain for transparency. Some of Governor Christie’s most frustrating civil liberties moments have been those instances where he has failed to back up bold words with substantive actions, such as in the areas of LGBT rights and the failed war on drugs.”
The first-term report card graded the governor on 12 crucial civil rights and liberties issues: freedom of expression, freedom of religion, separation of church and state, voting rights, women’s rights, immigrants’ rights, privacy, LGBT rights, criminal justice and drug policy, transparency, separation of powers, and economic justice. This report card expanded on the categories of the ACLU-NJ’s 2012 interim report card, which graded him in eight categories.
“The real concern here is not what these grades mean for Gov. Christie and his administration, but what they’ve meant for everyday New Jerseyans,” said ACLU-NJ Public Policy Director Ari Rosmarin. “From loving couples seeking to get married, to sick patients in need of medical marijuana, to poor New Jerseyans struggling to find an affordable place to live, many of us have not had a friend in the Governor’s office. While there still remains time to improve, as of now, this administration’s legacy on civil rights and liberties is not a proud one.”
Christie’s highest grade came in the area of freedom of religion, the category in which he also earned his highest marks in the ACLU-NJ’s interim report card. Christie deservedly received praise for supporting a developer’s decision to construct a mosque and Muslim community center near the World Trade Center during the height of the controversy in 2011. Soon after, Christie garnered national attention for excoriating a faction that railed against the appointment of a Muslim lawyer to serve as a Superior Court judge.
Christie’s appreciation for freedom of religion swung too far in the other direction when it came down to state involvement in religion. In the category of separation of church and state, Christie received the lowest score – an F. Especially damning was his administration’s decision to give away millions in state funds to two sectarian religious institutions: Beth Medrash Govoha, a school that trains Orthodox rabbis, and Princeton Theological Seminary, which trains Christian clergy.
The ACLU-NJ recognized his administration’s support for voting rights, especially in the wake of Superstorm Sandy, with a B-. In transparency, separation of powers and economic justice, Christie earned solid Fs for his abysmal record on all three issues across the board. The Bridgegate scandal exposed how frequently the administration attempted to keep government business out of the public eye, but it hardly stands in isolation.
Christie’s protracted fight against marriage equality, which ended only when it became clear that he would lose, cast a long shadow over some of his gestures of good will toward the LGBT community, resulting in his final grade of a D in LGBT rights. When it comes to immigrants’ rights, Gov. Christie supported giving undocumented immigrants a chance at a higher education by signing the NJ Dream Act, but he removed an important provision that would have fully opened the doors of opportunity by allowing them to apply for state financial aid, earning him an overall grade of a C in immigrants’ rights. Gov. Christie earned Cs in a plurality of other subjects as well, including freedom of expression, women’s rights, privacy, and criminal justice and drug policy, although even those grades ranged from C- to C+.
“The Christie administration deserves credit where credit is due, especially in taking a stand for religious expression and being responsive to voting concerns in the wake of Superstorm Sandy,” said ACLU-NJ Legal Director Edward Barocas. “But where Gov. Christie stumbles, such as when it comes to the separation of powers and to transparency, the bottom falls out. We hope the governor learned his civil liberties lesson from numerous court actions that were successfully brought against his administration during his first term, but if not, we’re ready to compel him to act as if he were an A student.”