The ACLU of New Jersey, joined by eight civil rights groups, submitted arguments in a landmark case to define the limits of transparency when it comes to police accountability in New Jersey.
The Association of Black Women Lawyers of New Jersey, Black Lives Matter NJ, the Garden State Bar Association, Garden State Equality, Latino Action Network, LatinoJustice PRLDF, the Latino Leadership Alliance, and People’s Organization for Progress joined the ACLU-NJ in a friend of the court brief before the New Jersey Supreme Court in the case North Jersey Media Group v. Lyndhurst.
“It would not be an exaggeration to say that our state’s access to police records as a whole hangs in the balance,” said ACLU-NJ Transparency Law Fellow Iris Bromberg. “The lower court’s ruling is so broad that it would give law enforcement agencies in New Jersey license to deny almost any public records request dealing with police matters. The public has an enormous interest in understanding how law enforcement operates, from the local police department to the Office of the Attorney General.”
The case centers on requests the North Jersey Media Group (NJMG) made for records concerning a car chase that ended with a police officer fatally shooting the driver, Kashad Ashford. The Appellate Division in June 2015 drastically limited public access to law enforcement records when it reversed a lower court decision that had upheld the right of NJMG to access the requested police records under the Open Public Records Act (OPRA).
North Jersey Media Group, which owns The Record and Herald News newspapers, sought arrest reports, police logs, use of force reports and motor vehicle accident reports, among other records, shortly after the shooting of Ashford in September of 2014. Crucially, the request sought audio and video footage recorded during the incident. These recordings have become a powerful force for holding police accountable nationally, as evidenced throughout the brief with references to several high-profile police-involved deaths recorded on video. These incidents have sparked a national conversation regarding police abuse of power.
“This case is about so much more than access to records, in the same way that the videos of Rodney King, Eric Garner or Laquan McDonald are about so much more than just interactions captured on camera,” said ACLU-NJ Senior Staff Attorney Alexander Shalom. “The proliferation of video has irrevocably changed the landscape of policing for the better, but if police recordings have a blanket exemption from our records laws, much of that progress we see on the horizon will come to a sudden halt.”
“Police accountability, and the promise of video, has captured the national dialogue,” Shalom added. “What a shame it would be for New Jersey to head in the opposite direction of history.”
The defendants in the case — which include government representatives and law enforcement agencies in Lyndhurst, North Arlington, Rutherford and Bergen County, where the car chase happened, as well as the State Police — claimed the records sought were exempt from OPRA based on exemptions for criminal investigatory records and ongoing investigatory records.
The ACLU-NJ and its fellow amici argued that several important facts disqualify these records from the exemptions. First, the records sought here would be non-investigatory in nature, and they are required by law to be made, both of which invalidate any criminal investigatory exemption. Second, the ongoing investigatory exemption applies if the release of the records would be “inimical to the public interest,” which itself calls for a record-by-record analysis rather than the blanket rejection that was given. Further, the brief argues, given the current climate of policing it would be harmful to the public not to release the records, as it would sow even more distrust between community members and the officers sworn to protect them at a time when even law enforcement leaders lament the shortage of data within the profession.
“Our laws are clear: in our state, we err on the side of openness and transparency, and that principle doesn’t change when the information at issue involves law enforcement,” said ACLU-NJ Legal Director Ed Barocas. “The government is asking for powers of secrecy that the law does not grant. At a time when the law enforcement community readily acknowledges its shortcomings in collecting data, we should be tearing down the barriers that cast a shadow of secrecy over law enforcement, not erecting more.”
The amicus brief (PDF) and additional materials in the case, captioned North Jersey Media Group v. Township of Lyndhurst, can be read online. It will be argued before the New Jersey Supreme Court later this year.
NEWARK – Black people were 9.6 times more likely to be arrested than White people in Jersey City in 2013 for low-level offenses such as loitering, possession of small amounts of marijuana, trespassing, and disorderly conduct, according to a study (PDF) released today by the ACLU of New Jersey.
This extreme racial disparity was not unique to the state’s second largest city. Data for the most recent years available revealed disparities in low-level arrests in the three other municipalities studied – Millville, where Blacks were 6.3 times more likely to be arrested; Elizabeth, 3.4 times; and New Brunswick, 2.6 times. Disparities in the number of arrests between Hispanics/Latinos and Whites also were significant, where data were available. Not all of the departments tracked ethnicity in their arrest data.
“The data reveal a clear pattern of communities of color disproportionately bearing the brunt of police practices that target low-level offenses,” said ACLU-NJ Executive Director Udi Ofer.
“In Black and Latino communities, New Jerseyans are arrested for minor misbehavior at a much greater rate than in White communities. Unlike more serious crime, where there is a victim or some form of property damage, low-level offenses rest primarily on a police officer’s discretion to arrest for behavior that poses little or no harm to the community. The discretionary nature of these arrests creates ample opportunity for arbitrary and unfair enforcement of the law.”
The origins of this report stem from a 2013 national report by the ACLU that showed Black people in New Jersey were 2.8 times more likely to be arrested for marijuana possession than White people, despite similar rates of marijuana use – a clear indicator of selective enforcement.
“New Jersey’s shameful racial disparities in arrests for minor offenses mirror what we’re seeing across the country,” said Ezekiel Edwards, Director of the ACLU’s Criminal Law Reform Project. “Just as in Ferguson, Minneapolis, Maryland, and beyond, New Jersey police must end this unequal treatment and the harm caused to communities of color.”
The ACLU of NJ, supported by the national ACLU, further examined those findings by taking a closer look at arrest data from four municipalities in New Jersey – Jersey City, Elizabeth, New Brunswick and Millville – that reflected the diversity of the state in population density, demographics and geography.
In the report, the ACLU-NJ examined 10 years of data on the enforcement of four low-level offenses: loitering; marijuana possession of 50 grams or less; defiant trespass; and disorderly conduct. The report chose to examine those arrests because police officers exercise so much discretion in the enforcement of these types of offenses.
The report relied on departmental data for arrests obtained through the Open Public Records Act. The report originally sought to include Asbury Park in the analysis but the Asbury Park Police Department, despite the existence of a data management system and electronic database, was unable to produce records that could be properly analyzed and was dropped from the study.
The report documented widespread and extreme racial disparities in all four locations studied. Among the findings of the report:
The human cost of all of these low-level arrests can be devastating.
“Even though these are low-level offenses, arrests and convictions can impose heavy burdens on the person involved, including payment of court costs and fines; criminal records that will follow them the rest of their lives; and loss of income, housing, child custody, or immigration status,” said Alexander Shalom, Senior Staff Attorney for the ACLU-NJ. “In extreme cases, a confrontation with police over a low-level offense can escalate into an episode of deadly violence.”
The report recommends remedies at the local and state level that include changing the policies and practices of police in enforcing the law; improving recordkeeping; and creating greater accountability by police to the civilian population they serve. Among the specific reforms:
The report also calls on the Attorney General to investigate racial disparities in low-level offenses in municipalities throughout the state.
"This study serves as a glimpse into the racial disparities in low-level arrests for only four law-enforcement agencies. But it's clear: Black and Latino communities bear the disproportionate impact of enforcement in New Jersey,” said Ari Rosmarin, Public Policy Director of the ACLU-NJ. “The Attorney General should investigate whether such disparities exist throughout the state, determine the causes of the disparities, and take steps to eliminate them. It's time for action.”
NEWARK - Upon President Obama’s visit to Newark to announce initiatives to reform the criminal justice system in the United States, the ACLU-NJ issues a statement praising these efforts and recommending proposals to make the criminal justice system fairer. During his trip to Newark, President Obama will focus primarily on easing prisoners’ reentry into society after incarceration as one part of larger plans to make the criminal justice system more humane.
The following statement is attributable to ACLU-NJ Executive Director Udi Ofer:
“The ACLU of New Jersey welcomes President Barack Obama to Newark, and applauds the leadership of the president, United States Senator Cory Booker, and Newark Mayor Ras Baraka in fixing our nation's broken criminal justice system. The United States currently holds 2.2 million people in prison, up from fewer than 350,000 in 1972. With five percent of the world’s population, the United States has 25 percent of the world’s prisoners.
“While New Jersey has worked to reduce its prison population, the state still imprisons far too many people; and they are disproportionately from low-income communities of color. If New Jersey were its own country, it would have the second highest incarceration rate in the world, just behind Cuba. Beyond the high number of prisoners, New Jersey still suffers under the tremendous racial disparity that plagues the criminal justice system across the nation. People from communities of color make up more than three quarters of all prisoners in New Jersey.
“In order to replace this broken system of mass incarceration with a smarter system of criminal justice, transformative change must happen. Our leaders need to tackle every aspect of the criminal justice system, from arrest to reentry. Reforms must include:
“These solutions will ensure that we create a smart justice system, one that is fair and humane, emphasizes prevention, and uses incarceration only as a last resort. We thank President Obama, Senator Booker, and Mayor Baraka for their vision and bold leadership on this vital civil rights issue.”
NEWARK - On the most important civil liberties issues facing the 216th Legislature, a majority in the General Assembly voted with the ACLU of New Jersey at least 90 percent of the time.
The first-ever ACLU-NJ legislative scorecard tracks the records of Assembly members on 13 key issues votes during the legislative session that began Jan. 2014. In the run-up to the Nov. 3 election, in which Assembly members are at the top of the ticket, the ACLU-NJ is releasing a scorecard of those votes to educate the public at large as well as its 20,000 members and donors who live in every single legislative district in the state. The information can be found online at https://www.aclu-nj.org/scorecard. It includes a table showing how every Assembly member voted on the issues and allows users to learn details about the scored bills, compare Assembly members’ voting records, find out who made the Honor Roll, and look up scores for legislative districts and an interactive map of New Jersey.
“The good news is that most Assembly members vote for civil liberties and civil rights most of the time. The bad news is that our elected officials aren’t always there when it counts, like with the bill to allow transgender New Jerseyans access to birth certificates that reflect their true gender,” said Ari Rosmarin, ACLU-NJ Public Policy Director. “With this kind of sound information, civil rights voters can hold elected officials accountable because they know where their representatives stand on the key issues of the day when they go to the polls.”
Of the hundreds of bills the Legislature considered, the ACLU-NJ identified 13 votes as the most central to civil rights and civil liberties, including legislation to:
Out of New Jersey’s 80 Assembly members, 32 – or 40 percent – made the ACLU-NJ’s Honor Roll, with ratings of 100 percent.
The lowest rating belonged to Assemblyman Gregory McGuckin (R-Brick) at 38 percent. Eight other members of the Assembly scored below 50 percent and also earned a spot on the ACLU-NJ’s less-than 50 percent list.
“Above all, this scorecard is a tool for public accountability. We created it to allow New Jerseyans to learn where their lawmakers stand on key issues involving our rights and freedoms,” said ACLU-NJ Executive Director Udi Ofer. “We’re here to ensure those who have taken a stand for our fundamental civil rights continue to act in defense of our rights and liberties, and we’re here to put pressure on those who need a refresher in what it means to defend the rights of the people. Our goal is for every elected official to achieve a 100 percent rating. Even more importantly, our goal is for every resident of New Jersey to know where their representatives stand.”
The ACLU-NJ will continue to monitor important votes as the Legislature returns for its biennial lame-duck session after the election and before the 217th Legislature is convened in January. An updated scorecard, including scores for the Senate, will mark the end of the legislative term.
Visit https://www.aclu-nj.org/scorecard to read the scorecard online, look up legislative districts, compare Assembly members on an interactive map of New Jersey, and learn about the details of the scored bills in more detail.
TRENTON -- Governor Christie’s signature of S2003/A4299 will implement significant and much needed reforms to New Jersey’s juvenile justice system. The bill, sponsored by Senators Nellie Pou and Raymond Lesniak, and Assembly Members Shavonda Sumter, Charles Mainor, Benjie Wimberly, and Maria Rodriguez-Gregg, recognizes the critical need for age-appropriate treatment and access to rehabilitation for juveniles who intersect with the criminal justice system. The new law:
“These reforms to the waiver laws are consistent with the substantial body of research establishing that adolescents’ developmental immaturity renders them less culpable than adults”
The New Jersey Juvenile Justice Reform Coalition is pursuing system-wide reforms of New Jersey’s juvenile justice system, including promoting alternatives to incarceration for youth and improving conditions of confinement for those who are incarcerated. Members of the Coalition’s Steering Committee include Advocates for Children of New Jersey, the American Civil Liberties Union of New Jersey, the Lowenstein Center for the Public Interest at Lowenstein Sandler, the New Jersey Institute for Social Justice, and Rutgers Law School Children’s Justice Clinic in Camden and Criminal and Youth Justice Clinic in Newark.
Through legislative advocacy on this bill, as well as executive advocacy and litigation, the Coalition has sought to reform the process and circumstances under which youth may be placed in an adult prison, and to eliminate the practice of solitary confinement of juveniles. The Coalition applauds the extraordinary leadership of Senator Pou, who more than two years ago, began bringing together advocates (including members of the Coalition), retired judges, county prosecutors, the Attorney General's Office, and other stakeholders to discuss New Jersey’s juvenile justice system and how to improve it through these substantial reforms.
“The historic reforms to New Jersey's juvenile justice system just signed into law will make us fairer, smarter, and safer. While there remains more work to do, these changes are a significant step towards making the ‘justice’ in our juvenile justice system a reality,” says Alexander Shalom, Senior Staff Attorney at the ACLU of New Jersey.
“New Jersey will become the twenty-first state to prohibit the use of punitive solitary confinement by either law or practice, in line with a growing national trend. This is a first and significant step towards reducing the risk of serious harm to juveniles in secure facilities, but we still have a long way to go,” explains Natalie Kraner, Pro Bono Counsel at Lowenstein Sandler. “The new law’s data collection requirement is critical because it will afford transparency to the Juvenile Justice Commission’s continued use of solitary confinement and protect against an overbroad and prolonged use of non-punitive solitary confinement,” adds Kraner.
“Serving time in an adult facility has enormous and lifelong consequences,” remarks Laura Cohen, Director, Criminal and Youth Justice Clinic at Rutgers School of Law. In another important change, youth who have been waived for adult prosecution presumptively will be held in local juvenile detention centers, rather than county jails, while awaiting trial; similarly, any young person who is sentenced to a term of incarceration will be committed to the state's Juvenile Justice Commission until the age of 21 and may remain there beyond that time at the discretion of the Commission. “These reforms to the waiver laws are consistent with the substantial body of research establishing that adolescents’ developmental immaturity renders them less culpable than adults,” explains Cohen.
“While we agree that juveniles should be held accountable for their actions, we must treat juveniles who commit crimes differently than adults. These youth will return to their communities and we must equip them with the skills they need to stay out of trouble and mature into productive adults,” says Mary Cogan, Assistant Director, Advocates for Children of NJ.
“This legislation represents a much-needed paradigm shift in how New Jersey addresses juvenile delinquency issues," adds LaShawn Warren, Vice President and General Counsel of the New Jersey Institute for Social Justice. "It moves the state closer to a rehabilitative model that appropriately factors in developmental considerations of youth and ensures progress toward racial fairness in the state juvenile justice system.”
The following is attributable to Alexander Shalom, Senior Staff Attorney at the ACLU of New Jersey. The ACLU of New Jersey is a member of the New Jersey Juvenile Justice Reform Coalition.
The historic reforms to New Jersey's juvenile justice system signed into law today will make us fairer, smarter, and safer. Solitary confinement of juveniles is a practice that has no place in our state and should only be used as a very last resort. Collecting data on the use of solitary confinement and the practice of trying children as adults will only serve to improve our juvenile justice system. While there remains more work to do, these changes are a significant step towards making the "justice" in our juvenile justice system a reality. The ACLU of NJ thanks Senator Pou, Assemblywoman Sumter for their leadership, and Governor Christie for signing this legislation into law today.
Image: © Richard Ross, www.juvenile-in-justice.com
NEWARK – ACLU-NJ Executive Director Udi Ofer is scheduled to testify before the U.S. Senate Committee on Homeland Security and Government Oversight in Washington, DC, this morning from 10 a.m. until 1 p.m.
Ofer’s testimony (PDF) will focus on the over-use of solitary confinement in federal and state prisons, reforms that federal prisons may implement to reduce their incarcerated populations, as well as the significant and successful effort going on in New Jersey to reduce prison populations.
Ofer will be part of a panel of witnesses that includes Charles E. Samuels, Jr., Director of the Federal Bureau of Prisons; the Honorable Michael E. Horowitz, Inspector General of the Department of Justice; Jerome Dillard, Reentry Coordinator for Dane County, Wis.; and Piper Kerman, author of the best-selling book, Orange is the New Black. Ofer will testify at the invitation of New Jersey Senator Cory Booker.
The panel is expected to deliver first-hand accounts of the challenges facing the federal prison system as part of the hearing on oversight of the Bureau of Prisons.
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.”