Author: Jim McMasters

The current COVID-19 public health crisis has rendered the nation’s jails and prisons ticking time bombs. In the confined spaces of the carceral system the infection flourishes. At Rikers Island in New York City the rate of infection among the incarcerated population is an estimated seven times that of the free population. The Cook County Jail in Chicago boasts the highest infection rate in the country. Inmates post desperate pleas for help on their cell windows: “Help we matter2.” In other jurisdictions, the lack of testing renders rates of infection a frightening and unknowable quantity.

Even before the current health crisis, overcrowding, lack of medical care, close and shared quarters, poor air circulation, and chronic understaffing made jails and prisons the perfect environment for contagions. The rapid spread of infection should come as no surprise given a population composed of increasingly older and medically compromised individuals and policies that render hand sanitizer contraband and require marginalized inmates to pay for medical care and personal hygiene supplies.

As the nation’s jails and prisons devolve into viral epicenters and the criminal justice system struggles to respond, a stark reality emerges. Any period of detention, for any reason, can be a sentence to a slow and painful death by COVID-19. In a system characterized by high incidence of detention­—the current incarcerated population numbers 2.3 million people in the United States—and high rates of infection, the death toll among inmates could be staggering, to say nothing of the guards and medical professionals and their families who are put at risk as the infection spreads.

This reality is, in and of itself, alarming. But it is rendered more troubling by the fact that a disproportionate number in that population are held as pretrial detainees who have never been convicted of a crime but nonetheless languish in county jails across the country. They remain detained because they are too poor to make bail or have nowhere else to go. They are in jail because they have been arrested, accused of a crime, and are too marginal to gain their freedom in a system that was stacked against them from the start. We as a nation face the very real prospect that by failing to act in the face of this crisis, we are sentencing these men and women in our jails to infection and death without mercy, process, or conviction. We are sentencing them to die either because we fear their release, or because we are more indifferent to their welfare than we value their lives.

From a humanitarian and public health standpoint, the way forward is clear: releasing inmates will save not only lives but valuable medical resources by reducing infection rates. While some jurisdictions resort to lockdowns in an attempt to curb the spread of the virus, others across the nation have begun to release inmates who are close to the end of their sentences or who pose a low risk pretrial. Such releases are important first steps, but they are too timid and too few. Even in the face of such release policies, jail and prison populations remain high, as does the risk of mass infection. In this time of crisis and beyond, we as a nation need to have real and meaningful discussion about reforming a carceral system that is plagued with problems in the best of times and is broken and cruel in these, the worst of times.

I discuss these interesting issues and more in my forthcoming article with Northwestern Law Review Online, Pretrial Detention in the Time of COVID-19.

Jenny E. Carroll is a former public defender and the current Wiggins, Child, Quinn and Pantazis Professor of Law at the University of Alabama School of Law. Her work has appeared in numerous law journals, it can also be found on her SSRN site here.

On December 10, 2019, an Illinois Appellate Court, in a notable Chicago Police torture case, affirmed Cook County Judge William H. Hooks’s decision granting Jackie Wilson a new trial, finding that his 1982 confession was a result of torture by Lieutenant Jon Burge and his detectives. People v. Jackie Wilson, 2019 IL App (1st) 181486.

As I approached the courthouse at 26th and California, I saw at least a dozen police cars parked in the area. Going up in the elevator, I pictured a courtroom packed with armed FOP [Fraternal Order of Police] members, so I decided to ask the judge to order the cops to check their weapons. As I waded through the overflow crowd of hostile officers, I saw that Judge Hooks had beaten me to the punch—a handwritten order was tacked on the courtroom door, mandating that all arms be checked on the first floor.

Sammy Lacey, who was to be our first witness, told my co-counsel (John Stainthorp and Elliot Slosar) and me outside the courtroom that he feared for his family and was not going to testify. It was one thing to testify against Jon Burge, he said, but quite another to testify on behalf of convicted cop killer, Jackie Wilson. We cajoled Sammy, then invoked the power of the subpoena, and he reluctantly walked down the aisle to take the witness stand. With some prodding, he told the judge about Burge’s “asskickers,” the racism that permeated Area 2 under Burge’s command, and how he heard screaming coming from the second floor of Area 2 on the morning of February 14, 1982. The judge was most attentive and seemed to take offense when Special Prosecutor O’Rourke objected to Sammy’s testimony about the racial make-up of the “asskickers”:

Mr. O’Rourke: The racial background. That’s irrelevant, judge . . .

Judge Hooks: You are saying that the racial makeup of the particular unit that has caused us all to be here is not relevant? Overruled counsel, please, overruled.

After he completed his testimony, Sammy stepped down and motioned the courtroom bailiff to escort him through the Fraternal Order of Police gauntlet to the elevator. The FOP audience left shortly thereafter. Despite our repeated pleas, Doris Byrd had previously told us in no uncertain terms that she did not intend to get involved again and would not honor our subpoena. The former sergeant’s prior testimony was read by Christian Snow, a student intern we would later hire as an associate, including Byrd’s saying that torture was an “open secret” at Area 2 under Burge, with the black box “running rampant.” We followed this testimony with the videos of Burge and Detective McKenna taking the Fifth.

Next, Jackie was cross-examined by O’Rourke. The Sun Times headlined its article, over a picture of Jackie in his striped prison garb, “Burge and Nemesis Flint Taylor Spar in Video Depositions in Jackie Wilson Case,” and summarized Jackie’s cross-examination:

Wiping his eyes, Wilson, 57, took issue with Special Prosecutor Michael O’Rourke skipping steps in Wilson’s account of the abuse when O’Rourke jumped from Wilson being clubbed with a phone book directly to being hooked up to an electroshock box. “They beat me over the head with dictionaries, a telephone book, put guns in my mouth. Then they brought in the electric shock,” Wilson said, his face pained. “It’s just upsetting, judge, I’m reliving things.”

Chicago Sun Times

The special prosecutors’ approach, in their case, was to return to 1982, before the evidence of systemic torture had come to light, ignoring that unrebuttable evidence and mercilessly attacking Jackie as a liar. Since almost all their witnesses were either on the Fifth Amendment or had been previously found to be perjurers, they focused on two perceived weaknesses in Jackie’s story: that in his 1982 motion to suppress testimony he had not mentioned that he was electric shocked, or that Burge was involved in his torture. To emphasize these points, they called Jackie’s 1982 trial attorney, Richard Kling, to the stand in an effort to demonstrate that Jackie had never told him these important facts. I drew the assignment of cross-examining Kling, and my task was made much easier when he professed to have no specific recollection of what Jackie did or did not tell him in 1982. Kling became our witness when I elicited that he had included all the other aspects of Jackie’s torture in his written motion, and that when Kling had interviewed Donald White almost twenty years later, Donald said he had recently been visited by Detective McKenna and threatened.

The special prosecutors’ only other live witness was Michael Hartnett, the court reporter who had taken Jackie and Andrew’s confessions in 1982. On direct examination, he told of a compliant and cooperative Jackie, who showed no visible injuries and voluntarily smiled for his photo after giving his statement. Elliot quickly exposed Hartnett on cross-examination.

Hartnett was not an independent court reporter but worked for the State’s Attorney’s Office. He was friendly with Burge and his lawyer, was surprised that Burge and his men had not killed Andrew and Jackie, and “did not give a damn” about what the police did to Jackie prior to obtaining his statement. ASA Larry Hyman had not asked Jackie or Andrew if they had been abused or coerced, which was a highly unusual omission, but Hartnett did not mention this failure to Hyman. In the past, Hartnett had recorded statements from bloodied suspects but did not consider it his job to do anything about it, so he remained mum. This was the case with Andrew, whom Hartnett observed with facial injuries when taking his statement. And, as important, Hartnett was not present when Jackie and Andrew were interrogated. By the time Elliot finished, Hartnett had been exposed as a hopelessly biased and uncaring participant in the cover-up of Jackie’s and Andrew’s torture.

The final day of evidence was February 16, 2018. Bill Hampton, the brother of assassinated Black Panther leader Fred Hampton, had died the week before, and the judge excused me for a few hours to speak at Bill’s funeral. Fred’s entire nuclear family was now gone, as his mother, Iberia, had died in the fall of 2016 and his sister, Dolores, in the summer of 2017. Before I left, I re-raised an issue that had loomed throughout the hearing: the special prosecutors’ close connection to Burge, his confederates, and their lawyers, in particular Andrew Hale. I pointed out that former Assistant Special Prosecutor Brian Stefanich, previously lead counsel on Jackie’s case, had jumped ship to join Hale’s firm and had filed his appearance as counsel for Burge, Byrne, and Dignan in Alonzo Smith’s civil torture case. Judge Hooks, who was a stickler for ethics and had previously ordered the special prosecutors to present their monthly bills for attorneys’ fees for his approval, was disturbed by this revelation. As the Tribune described it:

O’Rourke defended Stefanich’s move, saying he believed that “the interests” of the special prosecutors and the defendants in the lawsuit “are aligned.” That drew a murmur from spectators in the courtroom, and Hooks raised his eyebrows and leaned back in his seat on the bench. “After hundreds of thousands of dollars of taxpayers’ [money has] been spent . . . you’re stating that convicted federal felon Jon Burge’s interests are aligned with the special prosecutors’ interest in this matter before this court?” Hooks asked.
Chicago Tribune

After O’Rourke told Judge Hooks he was talking only about the lawsuit that Stefanich joined, Hooks called Stefanich’s representation of Burge in the lawsuit “a very big complication” and sounded the same theme he had previously articulated: “What’s special about the special state’s attorneys?” The Tribune also quoted me:

Stefanich could not be reached Friday for comment, but attorney G. Flint Taylor, who represents Wilson, later scoffed at O’Rourke’s explanation. “You can parse it in this case and that case and any way you want, but that is not the role of the special prosecutor,” he told the Tribune. “It should be to do justice. . . . They’re supposed to bring an independent eye to this.”
Chicago Tribune

Amid the furor, the special prosecutors rested their case. The highlight of our rebuttal was a passage from Andrew Wilson’s 1988 deposition that undercut the special prosecutors’ argument that Jackie’s testimony about electric shock was a “recent fabrication,” first added in 2010. The passage revealed that, according to Andrew, Jackie told him he was electric-shocked the day after the torture, while they were being held together in the courtroom bullpen. This corroborated Jackie’s testimony that he had told Andrew—and lawyer Richard Kling—shortly after the torture occurred.

We also offered transcripts from the 1982 motion to suppress hearings that showed that Burge did not testify in Jackie’s case, only in Andrew’s portion of the hearing, when Jackie was not in the courtroom, thus explaining why Jackie had not named Burge as one of his torturers. We also offered the testimony of attorney Diane Panos, who said that Burge boasted about beating the Wilson brothers (plural), and of Burge’s barroom acquaintance Kenneth Caddick, who recounted how Burge’s bartender girlfriend had turned Burge’s face red by asking him to tell how he had tortured the Wilsons, while she mimed cranking a box.

Apparently concerned about the outcome and enraged by the judge’s highly publicized denunciation of their conduct, the special prosecutors retained a high-profile lawyer, Lance Northcutt, to intervene on their behalf in an attempt to remove Judge Hooks for bias. Northcutt told the Tribune,

The cynical ploy by certain attorneys in this case to suggest improper conduct on the part of the Office of the Special Prosecutor is as offensive as it is false.
Chicago Tribune

Judge Hooks was not pleased and referred to the potential conflict that was exacerbated by former Special Prosecutor Stefanich joining Andrew Hale’s firm by saying,

That smelled really bad. . . . It becomes a suspect situation at this point, to be quite honest with you.

I told the Tribune,

These men have stretched out this case for two years. Any other case, they would have agreed to a new trial . . . they’re in bed with the Fraternal Order of Police.
Chicago Tribune

*  *  *

We drafted and filed a hundred-page statement of facts that set forth our evidence. The Sun Times described the scene at the closing arguments:

A half-dozen relatives of Fahey and O’Brien, (the slain police officers) some wearing ‘Police Lives Matter’ T-shirts, sat in the tiny gallery. Across the aisle sat Darrell Cannon, who was released from prison after his confession to a 1983 murder—obtained by Burge subordinates who shocked Cannon with a cattle prod—was thrown out by a judge a decade ago.
Chicago Sun Times

Elliot and I divided our time, with Elliot focusing on Jackie’s and Andrew’s torture, while I detailed our pattern and practice evidence. Elliot argued:

Here the vigilantes with badges broke the law, the interrogation methods they used to coerce an involuntary statement from Jackie Wilson broke the law. Jon Burge was bouncing between torture chambers like the conductor of an orchestra, but the only sounds that were coming out were screams.

The new assistant special prosecutor, formerly a prosecutor in Ireland, sounded the same tired theme of fabrication:

[Jackie’s] lying. He wants to be Andrew. He wants to have you pull the wool over your eyes and for you to believe that he is Andrew and what was perpetrated on his brother . . . was perpetrated on him as well.

In our rebuttal argument, I suggested that Richard Kling’s failure to include electric shock in Jackie’s motion to suppress might have been a legal strategy to avoid the wrath of a hostile judge, who would not be disposed to believing what, at that point, would have seemed an outlandish claim. I concluded by debunking the absurd proposition that Jackie, alone, was not tortured:

 Tony Thompson was tortured because he was shooting at police, but not Jackie Wilson? Roy Brown was tortured in the manhunt because he supposedly knew something about the killing of the police, but Jackie Wilson wasn’t? Walter Johnson supposedly knew something about the killings of police. He was tortured, but Jackie Wilson wasn’t? Donald White had a gun put in his mouth and a bag put over his head and was hung out of a window because they thought he committed the murders until they didn’t have an identification to back them up. He was tortured, but Jackie Wilson wasn’t? . . . Anthony Williams. They thought he had something to do with the crimes. He was tortured, but Jackie Wilson wasn’t? By the same men, O’Hara, McKenna, Hill, and Burge. Lamont and Walter White . . . Dwight Anthony. Derrick Martin. He was beaten and tortured, but Jackie wasn’t? And Andrew Wilson, everybody agrees that he was brutally tortured because they thought he was the shooter, but they thought that Jackie was involved too. Andrew Wilson was tortured, but Jackie wasn’t?

I have nothing further, Judge.

After another round of briefing, we gathered in Judge Hooks’s courtroom on June 14, 2018, for his reading of his decision. As we were entering the courthouse, we saw a copy of that morning’s Sun Times. The editors had devoted a full page to a letter written by William Fahey’s daughter, Erin, who was four years old when her father was killed.  The headline above a photo of Jackie read, “Alleged Torture of Jackie Wilson Doesn’t Diminish His Guilt in Cops’ Murders.” Relying on evidence from Jackie’s tortured confession and the testimony of discredited witnesses, Erin Fahey (with, we suspected, the assistance of the FOP and the special prosecutors), argued in essence that Judge Hooks should ignore the evidence of torture because Jackie was guilty:

The bottom line here is that justice in this case has already been served. To grant Wilson a third trial will only serve as an injustice to these fallen police officers, their families, the two juries that convicted him and, ultimately, to the truth.
Chicago Sun Times

In spite of the Sun Times’ apparent capitulation to the FOP and its continuing defense of police torture, we entered Judge Hooks’s courtroom convinced that this emotional eleventh-hour plea would not change his decision. The judge announced that his decision was 119 pages long and he intended to read the entire document from the bench. In the company of the portraits of Sojourner Truth, Ida B. Wells, Frederick Douglass, Dred Scott, and Thurgood Marshall gracing the courtroom walls, Judge Hooks read for almost four hours, painstakingly setting forth the factual and legal bases for his decision. Relying in large part on our evidence and analysis, he adopted verbatim 270 of our proposed factual findings. He assailed the credibility of the state’s witnesses and underscored the importance of Burge, McKenna, and Hyman asserting the Fifth Amendment. On the issue of Jackie’s credibility, he found:

Jackie’s claims and credibility are not unassailable. Ordinarily, adding an allegation as significant as police using a device to give electric shocks, when not included in an original motion to suppress, would be reason to doubt. The State labels Jackie’s addition of this allegation “a fantastic story.” Such an allegation should be fantastic story. But pattern and practice evidence shows shocking suspects was common. And each witness in a position to deny it invoked the Fifth Amendment. Those considerations take the “story” out of the realm of fiction.
Judge Hooks’s Decision

After invoking the case of the Scottsboro Boys and the importance of the right to due process of law, Judge Hooks concluded his disquisition:

So, in short, all rights matter. The rights of the good; the bad; and the ugly all count. Who is good, who is bad, and who is ugly is not the job of this Court. However, there is more than enough to surmise that what happened in the investigation and interrogation of Jackie Wilson was not good—instead, very bad and ugly. The conduct of those involved in this most serious of investigations, which involved attempting to discover and ethically prosecute the murderer or murderers of two Chicago police officers required more. Much more was required of the Chicago Police Department, the office of the Cook County State’s Attorney, our courts, the private and public defense bar and, indeed, our federal government. In this matter, as well as dozens of related cases, too many postconviction tribunals and the Torture Commission have been forced to conduct post-mortem examinations of the torture and death of nothing less than our constitution at the hands of Jon Burge and his crew. The abhorrence of basic rights of suspects by Mr. Burge and his underlings has been costly to the taxpayers, the wrongfully convicted, and worst of all, the dozens of victims and their families who have suffered untold grief—in many cases, a 30-plus year horror story.
Judge Hooks’s Decision

Judge Hooks then spoke directly to Jackie:

Use of a physically coerced confession as substantive evidence of guilt is never harmless error no matter how strong the case against a particular defendant may otherwise be. Since such a confession was used against Jackie Wilson to obtain his conviction, he is entitled to a new trial where that confession may not be used.

Based on the foregoing, the Court hereby vacates the convictions in the instant matters and grants Petitioner, Jackie Wilson’s, petition for a new trial.

IT IS SO ORDERED.
Judge Hooks’s Decision (internal quotations and citations omitted)

*  *  *

At 4 p.m. on June 22, 2018, Jackie walked arm and arm with Elliot and me out of the gates of Cook County Jail and addressed the gathering of cameras and reporters. The Tribune and Sun Times recounted Jackie’s first public words:

Being a victim of one of a number of Jon Burge’s brutalities …” he said as his voice trailed off and he sighed heavily. “Oh Lord, it’s just, it’s been a rocky ride. [I’m] happy to be a member of society again after 36 years of incarceration for a crime I didn’t commit . . . I’d just like to move forward with my life barring any further complications and I’d like to make my contribution to society.

The Sun Times front-page banner headline said it all: WILSON WALKS.

The following pieces are a part of Northwestern University Law Review Online Volume 114’s “Bring Back The ‘90s” initiative, aimed at exploring the evolution of legal thinking over the past three decades. Authors who published with NULR in the 1990s were provided with an opportunity to revisit the ideas, issues, and questions in their writings, and reflect on how those notions have withstood the test of time. In an exciting dialog with their original pieces, the authors examined how their theories have evolved, stayed the same, been challenged, or are still at issue today. Links to their posts can be found below. Thank you for reading!

Susan Bitensky · Richard Booth · Steve Friedland · John Hasnas · Harold Krent · Robert Nagel · Philip Nichols · David Nimmer · Cindy Schipani · Malinda Seymore · G. Edward White

In November, the Supreme Court will hear argument in Espinoza v. Montana Department of Revenue, in which it will decide whether states with voucher-like schemes must allow those funds to be used at religious schools. Writing for SCOTUSBlog on September 17, Jim Kelly highlighted an underappreciated aspect of this debate: that private religious schools are not the only schools with moral education on the agenda. Rather, public schools across the country have been, since the 1990s, engaging in what is now called “social-emotional learning,” or SEL. The specific form of SEL varies widely by state, school district, and even by individual school, but often includes character education and curricular and disciplinary interventions aimed at building the “core competencies” of self-awareness, self-management, social awareness, relationship skills, and responsible decision-making.

Kelly argues that this “transformation of K-12 public education from a purely academic undertaking into a holistic religious naturalist model” “raises serious First Amendment and equal protection concerns.” In other words, if the state pays for moral education in the public schools, it should also subsidize the equivalent in religious private schools. He implies that this turn in K-12 schooling stems directly from the unapologetically Protestant nature of many public schools in the late nineteenth century, when many states passed “Blaine Amendments” prohibiting public support for “sectarian” (read: Catholic) schooling.

Kelly is half right and half wrong. SEL is moralizing and constitutionally problematic, but it doesn’t justify requiring states to fund religious schooling. It is not apposite to the issues the Court must decide in Espinoza.

As I argue in my Note, The Character of Law: A Normative Critique of Social-Emotional Learning Laws, 114 Nw. U. L. Rev. 193 (2019), the push for social-emotional learning in public schools should be questioned and resisted for many reasons. Despite the significant empirical evidence showing that the development of certain social and emotional skills can enhance students’ academic and long-term outcomes, mandating SEL in schools through the mechanism of legislation is often counterproductive. Further, it infringes upon longstanding constitutional protections of parental rights and familial autonomy in child-rearing. The contemporary SEL movement is rooted in a theory of social norms mismatch between the expectations of the school environment and those of low-income families and families of color; if students can be trained in the dominant social norms of the school environment, the theory goes, they will enjoy greater success in school and, later, in the workplace.* Left unsaid are the (race- and class-based) normative assumptions behind this model, assumptions which are used to justify greater state intervention into the lives of students and families whose social behaviors are thereby problematized.

Though it’s implemented through curricular standards that formally look the same as those for reading or math, SEL is qualitatively different: a child who meets all of her state’s or district’s SEL benchmarks will become a particular kind of person, a “creature of the state” in the way she carries herself through the world, rather than a person who knows particular kinds of things. For all these reasons, SEL runs afoul of the parental rights doctrine, which holds, in essence, that the government does not get to enforce its vision of ideal parenting, preserving parents’ rights to go against the grain of the state in child-rearing absent affirmative harm.

But SEL is not religion. Rather, it’s a questionable technocratic intervention into the relationships between teachers and students and between students and their families. SEL may be an overly formalized and rationalized view of the inevitable process of personal development that takes place in any educational context, but it is not equivalent to government establishment of religion. And, therefore, the fact that a governmental entity funds SEL does not require it to fund religious schooling or else risk running afoul of the Free Exercise and Equal Protection Clauses. Indeed, the best constitutional argument against SEL—the parental rights doctrine—firmly commits moral education to the sphere of the family, and not the state. Under that analysis, the divide between church and state is even more entrenched. If the merely normative SEL is improper in the public schools, then public funding certainly shouldn’t be directed toward religious schooling.

I agree with Kelly that SEL should be questioned both from policy and from constitutional perspectives. But it’s not implicated by Blaine Amendments, and it shouldn’t affect the Court’s decision in Espinoza.

*For more discussions on contemporary social-emotional learning, see Meredith R. Aska McBride, Note, The Character of Law: A Normative Critique of Social-Emotional Learning Laws, 114 Nw. U. L. Rev. 193, 203–07 (2019). See also James P. Comer, School Power: Implications of an Intervention Project (1980); James P. Comer, What I Learned in School: Reflections on Race, Child Development, And School Reform (2009); James P. Comer, Educating Poor Minority Children, 259 SCI. AM. 1, 42 (1988).