That's the sound of the men working on the chain gang

Driving to work a few days ago in Tallahassee, I passed not one, but two separate chain gangs picking up litter along the street. It was the first time in a long while that I had seen them.

It must have been a special day, because there they were, in their black-and-white striped Hamburglar outfits with reflective orange roadwork vests, picking up trash. Several of those temporary orange diamond signs warned drivers, "Inmates Working." Governor Charlie Crist earned his nickname "Chain Gang Charlie" this way. Here's a good recap, from the Chicago Tribune:

[Under Attorney General Charlie Crist, Florida] in recent years has resurrected the chain gang, built an additional 21 prisons and passed a law that requires prisoners to serve 85 percent of their sentences. In January, Gov. Jeb Bush called for the closing of state legal offices that represent inmates awaiting execution, a move that critics fear would speed the walk to death.

And from the St. Petersburg Times:

When Crist ran for attorney general in 2002, rivals called him unqualified and unethical. He was derided as a vacuous "Chain Gang Charlie" who advocated a return to roadside prison labor gangs, hitched free rides on corporate jets, flunked the Bar exam twice and practiced little law.

It got me to thinking, the armchair ethicist that I am. I might concede that people surrender certain rights when they commit crimes. (I'll ignore the possibility that these people are innocent, though it's a distinct possibility, as we know.) But the question is whether they surrender the right to a certain basic dignity.

We might seek a comparison with setting prisoners to work, say, making license plates. What makes that different? Well, here are some considerations. Prisoners are being held in private, they are not being made a spectacle of. They are contributing to the public good just the same, though I would argue in a more meaningful way by contributing government labor versus menial, bottom-rung tasks like picking up garbage. As well, singling out a handful of prisoners, as chain gangs do, adds a unique – and therefore unfairly apportioned – stigma to the experience of those few inmates, whereas making license plates was, as I understand, something a larger percentage of prisoners participated in.

There is something about being singled out, in public, to perform a menial and degrading task that all entails a singularly inhumane treatment of people that, while we might say are "bad people," are people nonetheless. Instead, the proposers and enforcers of such policies come off as degrading, barbarian and inexcusably insensitive.

Speaking for me only.

Economy forces tough-on-crime legislatures to temper their rhetoric

That is the subject of an excellent post on Change.org's Criminal Justice blog titled, "A Shift Away From 'Tough on Crime' in Florida." Because the economic downturn is even being felt by state governments – a falling tide lowers all boats, as it were – policymakers around the country are turning their attention to the massive costs America's out-of-control prison population. What are some fair and just ways to reduce the prison population? Is it focusing on rehabilitation for drug crimes, as Obama has signaled? Is it focusing on re-entry programs for ex-offenders, or perhaps lowering ridiculous sentences for non-violent crimes? Perhaps it is all of the above:

On Friday, Florida lawmakers passed a budget including an expansion of drug courts and rejected proposals to stiffen sentences for sex crimes and drug crimes. When Florida legislators pass on a chance for long sentences, something is going on... This year's cutbacks are hopefully the beginning of something bigger in Florida, where the expanding prison population has led to estimates of opening 20 prisons in the next five years.

We can certainly hope that this is the beginning of something good, that legislators won't turn around and re-think their sensible decisions just because they have the money to throw at private prison contractors again. Florida's prison population just passed 100,000 inmates, not counting those on parole or probation, or otherwise under the control of the Department of Corrections. With a number that astronomical, and with a gigantic budget hole to fill, it's time to think about starting to institute more fiscally – and morally – responsible sentencing policies.

Criminal justice and Obama White House

We blogged earlier, on the day of the inauguration, about Obama's plans to reform the criminal justice system.

Today, SentLaw noticed that the text of the White House's page on civil rights – where only a bulleted list containing one or two mentions of criminal justice reform were mentioned – has changed.

Though perhaps this is old news, I just noticed that the discussion of criminal justice issues has changed over at the Civil Rights webpage on WhiteHouse.gov... this webpage used to take a bullet-point approach to describing agenda items, and the key bullet points were "Reduce Crime Recidivism by Providing Ex-Offender Support"; "Eliminate Sentencing Disparities"; "Expand Use of Drug Courts."

Now the President's web site reads:

The President will lead the fight to build a more fair and equitable criminal justice system. He will seek to strengthen federal hate crime legislation and will work to ensure that federal law enforcement agencies do not resort to racial profiling. He supports funding for drug courts, giving first-time, non-violent offenders a chance to serve their sentence, if appropriate, in drug rehabilitation programs that have proven to work better than prison terms in changing behavior. President Obama will also improve ex-offender employment and job retention strategies, substance abuse treatment, and mental health counseling so ex-offenders can successfully re-join society.

Supreme Court set to decide on life without parole for juvies

On May 4, the Supreme Court granted certiorari in two cases out of Florida. Both cases deal with the Constitutionality of a life-without-parole sentence imposed on a minor.

TalkLeft gives a tentative assessment of the way the court may rule given their 2005 ruling in Roper v. Simmons, when they ruled that the death penalty for juveniles was unconstitutional, "because children are 'immature, unformed, irresponsible and susceptible to negative influences, including peer pressure.'" Life without parole, a similarly damning and permanent punishment, is also flawed because "assumes that a child, whose intellectual and emotional development is incomplete, will never change, even after reaching adulthood, and therefore deserves no chance of parole."

I saw the article is tentative because the author quickly hedges his bets:

That the reasoning is parallel does not guarantee that the Supreme Court will apply a death penalty precedent to a lesser punishment than death. The Supreme Court has often declared that "death is different," and the finality associated with death might be viewed as having a different character than the finality of life without parole.

It's a good article.

Meanwhile, Change.org does a characteristically excellent job of putting things in perspective:

There are currently 2,225 people in U.S. prisons in 45 states for crimes committed when they were under 18, and the U.S. is nearly alone in sentencing kids to die in prison. In 2006, the U.S. was the only country to vote against a proclamation condemning juvenile LWOP - 186 counties voted for it. Human Rights Watch has found that only three other countries have prisoners who were sentenced to life without parole as juveniles.

A Late Friday Roundup

Witch Hunt airs this weekend on MSNBC. Set a reminder for Sunday at 10 PM!

Public defenders in Chicago, their coffers depleted, are now asking a judge to dismiss a death case. TalkLeft relays, "Without money to retain expert witnesses for their client who has serious mental issues and is facing the death penalty for a double homicide, they can't provide an adequate defense and comply with the Sixth Amendment's requirement of a fair trial."

I once heard an argument from a public defender against cutting the budgets of their office. More specifically, they were protesting the cuts to the PD's office as part of "across the board" budget cuts. Across the board cuts seem fair on their face, except for when the lawyer pointed out that endangering the accused's right to defense challenges his Constitutional rights in a way that cutting his access to education or healthcare doesn't. Although it's an uneasy conclusion, I find it hard to argue with.

GenPop.org tells us about the job cuts that corrections officers around the country are facing:

It seems like every State is laying off or cutting the wages of corrections workers. This is bad not just for the workers themselves, but for inmates and inmates' families. If the prison population remains the same but the number of correctional officers is cut, the remaining officers are going to have a harder job and be under more stress and stressed out cops running a prison is a very bad thing. Article after article keeps popping up about these layoffs and wage cuts.

Kudos to the C.I.A. for closing its secret prisons and kicking out contractors. Operating black sites hidden from public scrutiny and entirely unaccountable – not to mention the activities that allegedly went on inside – represents a staggering effacement of American values.

Finally, the 13th Texas Court of Appeals upheld a $42 million judgment against a private prison company for failing to protect a prisoner who was murdered while in their custody.

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Two more criminal justice documentaries

In response to my previous post about two documentaries about the prison system in America and in Argentina, my colleague Matt Kelley from Change.org's Criminal Justice blog pointed me to two more recent documentaries.

One is Witch Hunt, which has been popping up quite a bit in my Google Reader lately. The documentary tells the stories of regular people who were wrongfully accused, convicted, and sentenced to prison for horrific sexual crimes that they never committed:

Executive Producer Sean Penn presents "Witch Hunt," the story of John Stoll and dozens of other men and women who found themselves ensnared in a spiral of fear, ignorance and hysteria. These working-class moms and dads were rounded up with little or no evidence, charged and convicted of almost unimaginable crimes. Years later, they would find freedom again, but their lives would be changed forever.

Witch Hunt will air on MSNBC this Sunday, April 12, at 10 PM.

The second documentary is Dhamma Brothers. Dhamma Brothers follows the inmates of Donaldson Correctional Institution near Birmingham, Alabama. Donaldson became the first prison in the nation to conduct an extended Vipassana retreat, which entailed physically and emotionally demanding Buddhist meditation for ten days. It bears some striking similarities to Unit 25 (Unidad 25), which I blogged about before, about a prisoner who trades the "customary horrors" of prison for embracing Christianity while on the inside. It's fascinating to see these stories told about a spiritual awakening that takes place inside prison, and the profound effects it can have on inmates.

At least, these stories are a variation on the trite tale of the convict who "finds Jesus" or converts to Islam inside prison: spirituality in the big house is nothing new, except for when it's told in a whole new way in these films.

Monday Roundup

That has a strange ring to it.

You'll have to forgive me, I was in Durham, North Carolina this last weekend for the Full Frame documentary film festival. There were scores of intensely beautiful and moving films there, several that focused on human rights concerns around the world. But there were two in particular that are appropriate fodder for the blog:

• The Visitors follows a bus-full of women who travel from New York city upstate to visit their loved ones in prison every weekend. It was a powerful portrayal of love, devotion, and loneliness, as one of the women remarks, "I'm doing my time, too."
• Unit 25 (Unidad 25) follows Simon Pedro, an Argentinian convicted of stabbing a man. What makes Simon's story interesting is that he has the right to choose where he will serve out his sentence. His family convinces him to choose Unit 25, which gives prisoners "relief from customary prison horrors" in exchange for their embrace of Christianity while in prison.

I just discovered the website www.thousandkites.org, a dialogue project dedicated to reforming the criminal justice system, thanks to Twitter user @prettytoes.

Miguel Roman was exonerated in Connecticut after serving 20 years for a murder DNA now proves he didn't commit. He's the 235th person exonerated by DNA testing nationwide.

The Connecticut legislature's judicial committee voted to approve a bill to abolish the death penalty in that state. The bill will be sent to the floor for a vote. Connecticut and New Hampshire are the only two states in New England that still have the death penalty.

SentLaw reports that Ohio's death row is getting smaller, noting that the row shrunk by 15 people last year, either through executions or successful appeals. Related to that, Brett Hartmann was scheduled to die tomorrow in Ohio for a murder, but his execution was stayed. The three-judge panel that granted his reprieve specifically mentioned that they were awaiting the outcome of Osborne in the Supreme Court, which will determine whether inmates have the right to post-conviction DNA testing.

Finally, as you probably already know, Iowa's Supreme Court struck down the state's ban on gay marriage as unconstitutional. (File this loosely under Constitution and it's okay to blog about it here.)

Jim Webb takes courageous stand on prison reform

In my Friday roundup, I mentioned Jim Webb's introduction of the National Criminal Justice Commission Act of 2009, which seeks to establish a commission "made up of recognized criminal justice experts, and charged with examining a range of policies that have emerged haphazardly across the country and recommending reforms. In addition to obvious problems like sentencing, the commission would bring much-needed scrutiny to issues like the special obstacles faced by the mentally ill in the system, as well as the shameful problem of prison violence." (NYT)

The bill represents a tremendously courageous act on his part. Glen Greenwald over at Salon.com explains why that is in a lengthy post that is well worth a read:

It's hard to overstate how politically thankless, and risky, is Webb's pursuit of this issue -- both in general and particularly for Webb. Though there has been some evolution of public opinion on some drug policy issues, there is virtually no meaningful organized constituency for prison reform. To the contrary, leaving oneself vulnerable to accusations of being "soft on crime" has, for decades, been one of the most toxic vulnerabilities a politician can suffer (ask Michael Dukakis). Moreover, the privatized Prison State is a booming and highly profitable industry, with an army of lobbyists, donations, and other well-funded weapons for targeting candidates who threaten its interests.

Adds Greenwald,

After decades of mindless "tough-on-crime" hysteria, an increasingly irrational "drug war," and a sprawling, privatized prison state as brutal as it is counter-productive, America has... become what Brown University Professor Glenn Loury recently described as a "a nation of jailers" whose "prison system has grown into a leviathan unmatched in human history."

It is the existence of this detestable myriad of reasons that brings the cause of criminal justice reform into higher relief. We have been supporters of criminal justice commissions for some time, but it is the realization of our wildest dream that a national reform commission should be formed under the leadership of an intrepid first-term Senator.

The New York Times has thrown their unequivocal support behind the bill with an editorial on Sunday. Ryan Grim authored a piece at the Huffington Post that lays out the bipartisan support that has quickly formed behind the bill, including that from senior Democrats, libertarian pundits, and traditional conservatives as well. Observes the New York Times, "Judging by the bipartisan support in the Senate, a national consensus has emerged that the criminal justice system is broken."

To visit Senator Webb's official page on the National Criminal Justice Commission Act of 2009, click here.

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Friday Roundup

A few good items in today's news.

For one, I've been blogging a lot lately about nascent death penalty reforms around the country and around the world. A Maryland bill I blogged about earlier harshly restricting the application of the state's death penalty has passed the state's House. Governor O'Malley has indicated he will sign the bill.

GenPop has a pretty outrageous post about the unfortunate citizens of tiny Parke County, Illinois, population approximately 17,000. The county was forced to raise taxes on its citizens in order to try a death case, costing in excess of $500,000. As Courtney points out,

Imagine being anti-death penalty in that county. Imagine being anti-death penalty and someone who's already suffering financially because of the state of today's economy, and having your taxes raised to put someone to death. That is so backward, barbaric and wrong.

A study by the ACLU of Northern California has concluded that "The 11 new additions to [California's] death row add almost $1 million to the annual cost of housing people on death row, now totaling $61.2 million more each year than the cost of housing in the general population." Speaking of an unfair burden levied iniquitously on the citizens of California, "of California’s 58 counties, only 10 counties accounted for nearly 83% of death sentences for 2000 to 2007, and 30 counties had not had a single death sentence since 2000." That means one half of the counties are forced to pay into a system they haven't used in almost 10 years, so that a minority of the counties can put their convicts to death.

Senator Jim Webb of Virginia introduced landmark legislation yesterday to create a blue-ribbon commission tasked with comprehensively examining every aspect of the criminal justice system. SentLaw and Change.org have more. Kudos to Senator Webb. Adds Change.org, "Calling our prison system a 'national disgrace,' Webb says 'we are wasting billions of dollars and diminishing million of lives.' Amen."

Finally, congratulations to Innocence Project founders Barry Scheck and Peter Neufeld. They are being awarded the 2009 Thomas Jefferson Foundation Medal in Law this April.

The Thomas Jefferson Medal in Law and its counterparts in architecture and civic leadership are the highest external honors bestowed by the University [of Virginia], which grants no honorary degrees. The awards recognize the achievements of those who embrace endeavors that Jefferson — author of the Declaration of Independence, third U.S. president and founder of the University of Virginia — excelled in and held in high regard.

American Violet

Grits for Breakfasts posts a press release about the feature film American Violet, on the IMDB here.

On April 17, Samuel Goldwyn Films will release AMERICAN VIOLET, a new film based on true events that occurred in a small Texas town. The film examines how drug laws and enforcement practices target African-Americans, and, how the justice system uses threats and intimidation to steer them towards guilty pleas, regardless of their innocence or the evidence against them. As the film points out, more than 95% of criminal convictions in this country are the result of plea-bargains, not jury trials. While the film is based on a specific case, the story it represents is hardly unique or isolated, and, the film’s release presents an exceptional opportunity to explore how the drug war has become the new Jim Crow.

AMERICAN VIOLET is inspired by the real life story of Regina Kelly, an African-American, single mother of four girls who was arrested in 2000 in a military-style drug raid. The raid resulted in the arrest of nearly 15% of the town’s young black male population for felony cocaine distribution. Kelly was innocent. Her name, along with the names of many others arrested (nearly all African-American), were given to police by a single, highly unreliable informant with personal reasons to antagonize her. Despite Kelly’s innocence, she was urged to plead guilty by her family and even her public defender so that she could return to her children and receive a minimal sentence. A felony conviction, however, would have resulted in the loss of her right to vote and the public assistance programs on which her family depended, not to mention the tainting of her personal reputation and her ability to obtain employment. She chose to maintain her plea of not guilty. The ACLU Drug Law Reform Project came on board to represent her.

In AMERICAN VIOLET, Kelly’s on-screen character is named Dee Roberts (played by newcomer Nicole Beharie) and the ACLU lawyer in the film is played by Tim Blake Nelson. Alfre Woodard, Charles Dutton, Will Patton, Michael O’Keefe and Xzibit also star. The town of Melody and certain other characters and events are fictitious.

Eventually, the charges against Kelly were dropped (as were the charges against most of the others arrested in the same drug raid due to the same informant’s lack of credibility). Yet, she was separated from her children while she was incarcerated, shamed in her small community by being labeled a drug dealer, fired from her job, and had difficulty obtaining employment thereafter; in short, her life was torn apart due to her arrest and her time in jail. Graham Boyd, Director of the ACLU Drug Reform Project represented her in a lawsuit against the county and the District Attorney (among other parties), for damages, which resulted in a settlement.

More importantly, the case resulted in a change in Texas law, whereby now, cases cannot be prosecuted based solely on the claims of a single informant.

In other news, there is still time to call (505-476-2225) or email New Mexico Governor Bill Richardson. He has until tomorrow to sign the bill. Matt Kelley at Change.org provides a sample email:

Dear Gov. Richardson,

I'm writing to urge you to do the right thing and sign HB285, repealing the death penalty in New Mexico. You are at a crucial point in history today, in which the practice of capital punishment is in decline in the United States - one of the last democracies on earth to apply this cruel and unusual punishment. You have an opportunity to become a national leader on this issue by signing the bill and taking a stand in support of human life. I hope you will be remembered as the man who ended this inhuman practice in New Mexico.

I was one of the 6,000 who left a phone message yesterday. I encourage all of our readers to take the time to send an email, or the 30 seconds to make a call and do your part to help abolish the death penalty in New Mexico.

Friday Roundup

A busy week in the world of criminal justice. Let's see if we can cover the highlights succinctly.

• Today, New Mexico's Senate is discussing HB 825, which would abolish the death penalty in the state. The National Coalition to Abolish the Death Penalty (NCADP) will be liveblogging the event.
  
• Yesterday, South Dakota became the 45th state to enact legislation giving inmates the right to post-conviction DNA testing... And then there were five. (Alabama, Mississippi, Oklahoma, Massachusetts and Alaska remain.)
  
• The Obama administration for the first time in Federal court opposed the claims of torture victims at Guantanamo Bay in Cuba, claiming that aliens held at the camp had no due process rights. Not the move we would like to see from the President of Hope™ and Change™.
  
• Joeseph Fears became the eighth person in Ohio to be exonerated by DNA evidence and the 234th nationwhide. "[Ohio] State Sen. David Goodman introduced a bill yesterday seeking improved access to DNA testing, a requirement to record all interrogations and reforms to eyewitness identification procedures."
  
• From the Sentencing Project, Congressmen Steve Cohen (TN-09) and John Conyers (MI-14) have introduced legislation to study the racial disparities in the legal system:
  

  The advisory group would be responsible for gathering data on the presence, cause, and extent of racial and ethnic disparities at each stage of the criminal justice system. Each of the advisory groups would recommend a plan, specific to each district, to ensure progress towards racial and ethnic equality. The U.S. Attorney will consider the advisory group's recommendations, adopt a plan, and submit a report to the Attorney General. The Act requires the Attorney General to submit a comprehensive report to Congress at the end of the pilot program, outlining the results from all ten [pilot] districts and recommending best practices.

  
  
• In a laudable move, the DA in Harris County, Texas (which contains Houston), has ordered DNA testing in every case where biological evidence is available. A solid step toward the prevention of wrongful convictions, even if there is still much to be done.
  
• Finally, Bernie Madoff is, as you know, going directly to jail without passing GO.

From a friend of Tompkins

Michael Lambrix has been on death row in Florida for 26 years. Today one of his journals is posted on the Death Row Journals blog here. He expresses sadness and disbelief over Wayne Tompkins' execution on February 11 of this year. Having known Tompkins personally, and referring to him by his Native American name "Grey Cloud," Lambrix explains that Tompkins' conviction was based entirely on circumstantial evidence, and he explains his more general misgivings over death sentences that are obtained all the time with such scant evidence. This was a particularly well-written section:

But nobody can deny that our judicial system is far less then perfect. In recent years at least 25 prisoners on Florida’s death row alone have been found to have been wrongfully convicted and then judicially exonerated and released from prison. Recently the ‘Innocence Project” has announced that just in the last decade they have proven the innocence of at least 200 men through DNA evidence. This undeniable virtual epidemic of injustice should compel any person of moral conscience to question the validity of any conviction based upon wholly circumstantial evidence. The fact is that as a civilized society we owe it to ourselves to insist that if we are going to put a person to death, there can not be any question of guilt. To allow any execution of a person whose guilt [is] in question will inevidently [sic] result in the execution of an innocent person.

The Maryland Senate took hesitant steps recently to assure that death sentences could only be handed down in cases where there was biological evidence, a taped confession, or a taped crime. That is a meaningful step, but it does not go far enough.

Pew Study: 1 in 31 Americans under control of Department of Corrections

In their Friday roundup, Change.org's Criminal Justice blog relates the results of a recent Pew study that found that 1 in 31 Americans are "under the control" of the corrections system – which means they are either in prison, on parole, or on probation. When we cut across different demographics, the numbers are more startling.

One in 89 women are under correctional control, while the number for men is 1 in 18. The numbers by race are: 1 in 45 whites, 1 in 27 hispanics, and, shockingly, 1 in 11 blacks. Florida ranks in the second quintile among states in the percentage of its citizens under correctional control.

The report can be found online here.

LA Times against the death penalty

I wrote before about how the death sentence in Florida, according to the Orlando Sentinel, "might as well be a life sentence." Today the Los Angeles Times editorial page says that a death sentence in California is actually a life sentence three quarters of the time.

Today, a death row inmate is more likely to die of old age than to be put to death by the state. Since 1978, when California reinstated capital punishment, 43 have died of natural causes, five more of "other causes," 16 by suicide -- and 14 have been executed, according to the Department of Corrections and Rehabilitation.

And the page publishes a succinct version of the arguments against capital punishment.

...This page has steadfastly opposed the death penalty. We question the morality of state-sponsored killing. We think capital punishment strikes disproportionately at disadvantaged groups, and capriciously at others. We doubt its deterrent effect as well.

The editorial goes on to report the conclusions of the California Commission on the Fair Administration of Justice, which found that it costs an extra $63 million per year to house California's death row inmates (that is, $63 million above and beyond housing them as life without parole).

Inefficiency and costliness are obviously only a small part of what's wrong with the death penalty. But as the commission noted, they create cynicism and disrespect for the rule of law, and increase the emotional trauma of victims' families. Let's end this brutal, anachronistic practice.

Death by Detention

Good Magazine has a revealing article called "Death by Detention," about the worsening crisis in the nation's immigration and deportation detention facilities. They profile the case of Guido Newbrough, who moved to America from Germany when he was two-years-old.

Guido took an Alford plea – denying any guilt but admitting prosecutors could probably obtain a conviction – to sexually assaulting his girlfriend's daughter in 2003. Then, when it turned out his green card did not afford him the citizenship status he thought it did, he was rounded up by ICE as part of an increasingly strict program of detaining and deporting sexual offenders.

Taken to Piedmont Regional Jail in Farmville, three hours away, Guido was one of the roughly 300 immigrants indefinitely detained there, without the rights or protections he had as a criminal inmate. [Guido's father] Jack hired an attorney. “He told us right off this is a tough one. But we kept saying to ourselves it will work out. Because why wouldn’t it work out?” he says...

After several months in the jail, Guido began to complain about pain in his stomach and back. His mother told him to tell the doctors. “Yeah, I told them,” he replied. “But they don’t care.”

Guido was eventually moved to a hospital, but by then, it was likely his heart had begun to fail, and he had experienced multiple organ failures.

Two hours after his family arrived, his mother sobbing beside him, Guido’s heart stopped. “There was an officer there with a gun waiting for him to expire,” says Jack. “He couldn’t leave there until he died.”

But, amid increased scrutiny from lawmakers and the media, a broad array of rights groups is calling for changes in a system that operates with little oversight and detains people indefinitely—often for months, sometimes for years— without entitlement to a lawyer, or the protections afforded criminal inmates...

Last spring, after being denied access three times to a private detention center, Jorge Bustamante, the U.N. special rapporteur on migrants’ rights, issued a stinging report that claimed the detention system violates international and human rights law. He called for an end to mandatory detention and for officials to issue codified regulations about how detainees are treated—a move long advocated by the American Bar Association. Immigration officials released a new set of “performance-based” standards that govern the conditions of detainees last fall, but have resisted the call for enforceable regulations.

In addition to the several-hundred inmates in prison at the better-known Guantanamo Bay, nearly a half million are detained indefinitely in centers like the one Guido was taken to, on American soil. Said a Washington Post exposé, "The detainees have less access to lawyers than convicted murderers in maximum-security prisons and some have fewer comforts than al-Qaeda terrorism suspects held at Guantanamo Bay."

The article is long, but it is a must-read. It is especially timely given a recent piece in the Orlando Sentinel about how a death sentence in Florida might as well be a life sentence, seeing as how so many prisoners die on death row while awaiting their execution.

Between March 1998 and November 2008, the Department of Corrections executed 26 prisoners. During that same period, another 26 death-row inmates died of other causes [like heart disease, fatal ailments and suicide], the Orlando Sentinel found.

These two stories paint a sad picture of the systemic violation of human rights in the detention facilities throughout the country, violations committed through neglect and disdain, but also causes by overcrowded, overburdened, and underfunded institutions. I didn't hear much in President Obama's speech last night about reforming the prison system – in fact, I heard nothing besides his mention of closing Guantanamo – but I continue to hope that it will become a priority of his.

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Executive order hints at prisoner re-entry

I mentioned before the ambiguity surrounding how far Obama is willing to go to take reforms in criminal justice and prisoner's rights.

Today, Sentencing Law and Policy notices a single clause in a recent executive order by President Obama:

Faith-based and other neighborhood organizations are vital to our Nation's ability to address the needs of low-income and other underserved persons and communities. The American people are key drivers of fundamental change in our country, and few institutions are closer to the people than our faith-based and other neighborhood organizations. It is critical that the Federal Government strengthen the ability of such organizations and other nonprofit providers in our neighborhoods to deliver services effectively in partnership with Federal, State, and local governments and with other private organizations, while preserving our fundamental constitutional commitments guaranteeing the equal protection of the laws and the free exercise of religion and forbidding the establishment of religion. The Federal Government can preserve these fundamental commitments while empowering faith-based and neighborhood organizations to deliver vital services in our communities, from providing mentors and tutors to school children to giving ex-offenders a second chance at work and a responsible life to ensuring that families are fed. [emphasis added]

Those cleared by DNA tests struggle to be free

Media coverage of exonerations is usually pretty good. There are newspaper articles, television clips, interviews and most often an editorial or two about the horrors of wrongful incarceration. But what happens after the cameras stop rolling and the reporters move on to new stories?

As the following USA TODAY story by Kevin Johnson points out, for many exonerees, the nightmare of their wrongful incarceration doesn't end when they walk out of prison.

ST. LOUIS — Johnny Briscoe thought his nightmare was over in the summer of 2006 when, after 23 years of proclaiming his innocence, he finally walked out of a Missouri prison.

DNA evidence lifted from a cigarette butt should have stripped away any doubt that another man — not Briscoe — had raped and robbed a woman in her suburban St. Louis apartment on Oct. 21, 1982. Yet Briscoe's exoneration, featured by national news organizations, did not fully free him from the persistent doubts of acquaintances and family members about his innocence, or from the emotional scars seared by more than two decades in prison.

That's one of the problems. There will always be people who wonder, or worse who insist, despite DNA evidence to the contrary, that the exonerated person was guilty. Thankfully, these misguided individuals are few, but their affect on an innocent person who has spent decades in prison can be devastating.

Nearly 90% of the 227 people cleared by DNA evidence since 1989 were convicted of some of the most heinous sex crimes, according to the Innocence Project, which helps inmates prove their innocence through DNA testing. DNA — present in blood, semen and body cells — can be particularly useful in solving sex crimes and often is the most definitive way of determining innocence.

Yet not even DNA washes away the lasting stigma that shadows once-convicted sex offenders who are cleared by genetic testing, and the criminal justice system that wrongly jailed them offers little help. Briscoe's plight is part of a silent struggle for a rising number of exonerees. After high-profile releases from prison, they often fend for themselves.

Add to the stigma a financial wall that most exonerees encounter as soon as they are released.

Most states did not account for the exonerated when officials started re-entry programs for the hundreds of thousands of offenders released in the U.S. each year. Most are ineligible for basic benefits, such as counseling and job training, that states give guilty offenders when they re-enter society.

So exonerees have no money (almost all are indigent by the time they’re released) and no job. They have no place to live, no driver’s license, and sadly, by the time they get out, some have no family or friends. From an exoneree's talk in 2003:

Financially I was broke. No family. Occupationally I was 44 years old. Nobody was going to hire me. Nothing was available when I walked out of prison. Absolutely nothing.

The transition is never easy. And for those without an intact supportive family, it can be lonely as well as stressful.

At least in Florida we are fortunate to have a full-time social worker on staff to help our exonerees with their transition. (The paperwork alone can be daunting.) Our social worker coordinates an array of transitional services to meet their immediate and long-term needs including medical, psychological, and social support; occupational training and assistance; housing assistance; family support; and education.

And although we do have a compensation law on the books in Florida, it can still take one to two years to receive payment, if the individual even qualifies. (Florida's law prohibits compensation for any exoneree who has a previous felony conviction, or a conviction incurred while wrongfully incarcerated.) Most of Florida's exonerees would not be eligible under the bill as it now stands. Their only recourse has been, and continues to be, seeking compensation through a personal claims bill, a long and arduous process whose outcome is entirely dependent on the whim (and political makeup) of that particular legislative session.

So, in 2007 we established the Exoneree Emergency Fund to provide financial assistance for basic necessities during their transition. The fund, which is entirely dependent on contributions from the public, helps our clients buy groceries and gas, pay bills, purchase clothes for work, and secure job training. Each individual's needs vary, as does the length of time they require assistance, but we are thankful that, so far, we've received enough contributions to enable the Fund to continue.

Read the complete article.

Visit IPF's Website here; sign up to volunteer here; contribute to our work here. (If you want your donation to go directly to the Exoneree Emergency Fund, please include a note with that request.)

If 1 in 100 American adults are in prison, how many are innocent?

The United States has passed a milestone with, apparently, very little fanfare. We now incarcerate more than 1 in 100 adults in this country -- 1 in 99.1 to be exact. Let's repeat that. 1 in 99.1 American adults are currently in prison or jail.

The numbers were released last week in a report by The Public Safety Performance Project:

Launched in 2006 as an operating project of the Pew Center on the States, the Public Safety Performance Project helps states advance fiscally sound, data-driven sentencing and corrections policies and practices that protect public safety, hold offenders accountable and control costs. The Project currently collaborates with the Pew Center on the States and five external partners to provide expert, nonpartisan information and assistance to 13 states that want a better return on their public safety investments.

Why isn't the media all over this report? Yes, there have been the obligatory stories on the data, but that flurry of attention was over in a day or two. Am I the only one who thinks this is one of the scariest pieces of news to hit the media (albeit briefly) in a long time? The United States, "land of the free, and the home of the brave," incarcerates a much higher percentage of our population than any other country in the world.

The sheer numbers alone are staggering:

At the start of the new year, the American penal system held more than 2.3 million adults. China was second, with 1.5 million people behind bars, and Russia was a distant third with 890,000 inmates, according to the latest available figures.

When you break the numbers down into demographics, they look even worse (if possible). While "one in 30 men between the ages of 20 and 34 is behind bars, the figure is one in nine for black males in that age group... In addition, one in every 53 adults in their 20s is behind bars...."

This "lock 'em up" mentality doesn't come cheap. We're currently spending about $55 billion a year to house the 2.3 million people currently behind bars in this country. And ironically, it's not necessarily making us any safer.

"For all the money spent on corrections today, there hasn’t been a clear and convincing return for public safety,” said Adam Gelb, director of the Public Safety Performance Project. “More and more states are beginning to rethink their reliance on prisons for lower-level offenders and finding strategies that are tough on crime without being so tough on taxpayers.”

One can only hope that "more and more states are beginning to rethink their reliance on prisons." You don't get that sense from the report's numbers, however. Thirty-six states and the federal government saw an increase in their prison populations in 2007, including Florida, whose incarcerated population grew by more than 4,000 inmates. According to the state's Department of Corrections web site, "On June 30, 2007, 493 of every 100,000 Floridians were incarcerated compared to 453 in 2003." (That figure is for prisons only, and does not include those behind bars in local jails around the state.)

Florida currently spends 9.3% of its general fund on the state's correctional system. Only three other states' percentages are that high or more. To put these numbers in perspective, consider this: for every dollar Florida spent on higher education in 2007, the state spent $.66 on corrections. Contrast that figure with 1987, when the ratio was $.34 per $1.00.

Between 1993 and 2007, the state’s inmate population has increased from 53,000 to over 97,000. While crime and a growing resident population play a role, most of the growth, analysts agree, stemmed from a host of correctional policies and practices adopted by the state.

One of the first came in 1995, when the legislature abolished “good time” credits and discretionary release by the parole board, and required that all prisoners—regardless of their crime, prior record, or risk to recidivate—serve 85 percent of their sentence. Next came a “zero tolerance” policy and other measures mandating that probation officers report every offender who violated any condition of supervision and increasing prison time for these “technical violations.” As a result, the number of violators in Florida prisons has jumped by an estimated 12,000.

Crime in Florida has dropped substantially during this period, but it has fallen as much or more in some states that have not grown their prison systems, or even have shrunk them, such as New York. Without a change of direction, Florida is expected to reach a peak of nearly 125,000 inmates by 2013. Based on that projection, the state will run out of prison capacity by early 2009 and will need to add another 16,500 beds to keep pace.

So what does all of this have to do with the Innocence Project of Florida? Well the first thing I thought of is how many of these incarcerated people are innocent?

If Florida currently houses over 97,000 inmates, then we have to assume that, at the very least (one percent), 970 of them are innocent. On the high end (an estimated ten percent), that number jumps to 9,700. Since 2000, Florida has released just nine innocent people due to DNA testing.

One thing this work has taught me is that there is a critical need to investigate claims of innocence in this state, indeed in this country. I'm well aware that a lot of people will be quick to say, "Oh, yeah, everybody in prison is innocent," but the hard truth is that there are innocent people in prison and a very real need for more people working to do something about it. According to Samuel R. Gross, a law professor at the University of Michigan:

The good news is that the great majority of convicted defendants in the United States are guilty; the bad news is that a substantial number are not. Is an error rate of 2% or 3% or 5% high or low? That depends on your point of view and your purpose.

If 1% of commercial airliners crashed on takeoff, we'd shut down every airline in the country. That would be nearly 300 crashes a day. If as few as 1% of criminal convictions are erroneous, right now there are more than 20,000 innocent defendants behind bars.

Another thing I've learned is that wrongful incarceration is still not on everyone's radar. Innocence projects haven't been around long enough to lay claim to a colored ribbon to increase awareness of our cause, like breast cancer's pink one or the Heart Association's red. And criminal justice issues, like prison reform and innocence projects, don't generate the same warm, fuzzy response as a homeless child or an abused puppy, but that doesn't make the work any less important. We communicate daily with real people, perhaps someone's teacher, or neighbor, or son or brother, whose lives, and the lives of their families, have been devastated by a wrongful conviction and its resulting incarceration. The damage can endure for generations.

Unfortunately, Florida does not yet have statewide remedies in place, changes to "the old way of doing things" that have proven to be effective in protecting innocent citizens from falling victim to the horrors of wrongful incarceration. I remain hopeful that the situation will change as more people become aware of this nightmare that can truly happen to anyone.

Florida, like most of the country, has its work cut out for it as it seeks to right some of the wrongs within its criminal justice system. Protecting innocent Floridians from wrongful imprisonment should be high on that list.

Link to the complete report.

NEWS REPORT: DNA Testing Granted in Pasco County Death Case

On December 19, 2007, a Pasco County judge granted Samuel Jason Derrick post-conviction DNA testing on evidence in this case. From the December 28, 2007, St. Petersburg Times story:

Derrick, his family and his lawyers hope the latest advances in forensic technology will exonerate the 40-year-old Moon Lake man in the 1987 murder of storekeeper Rama Sharma.

"I'm just thankful that the truth is going to come to light," said Derrick's former wife, Cherie.

A bloody remnant of a white T-shirt, a partially eaten hot dog, blood found under a picnic table and scrapings from the victim's fingernails will all be tested, the judge ordered Dec. 19. The defense's hope is that viable DNA can be recovered from the evidence that will implicate someone other than Derrick in the stabbing murder of Sharma.

Derrick has maintained his innocence since he was arrested for this 1987 murder and has spent half of his 40 years on this planet in prison, on death row. Previous DNA testing on fingernail scrapings was performed in 2002 but didn't yield a result. Derrick's attorneys hope that the more exacting Y-STR DNA testing now used will yield an excluding result this time around:

The fingernail scrapings were tested in 2002 but gleaned no DNA profiles, the defense motion said. But they could still yield something to a more sensitive DNA test called Y-STR now available, according to the defense motion, that "targets genetic markers found on the Y-chromosome, which only males possess."

"It's really vital that we use Y-STR or one of the really cutting- edge tests that have been developed," said Alba Morales, Derrick's Innocence Project attorney. "Because it really improves the chance of getting a result from what is by now a fairly degraded sample."

Mr. Derrick is represented pro bono by Alba Morales of the New York Innocence Project and appointed attorney Harry Brody.

NEWS REPORT: DNA Testing on Hair Could Have Proved Innocence But Trial Attorney Refused Testing Due to . . . Cost?

Esdras Cardona was recently convicted of sexual battery for the April 2006 rape of a pastry chef at the exclusive Everglades Club in Palm Beach, Florida. The evidence central to the prosecution's case was the witness ID of Cardona, the perpetrator's t-shirt found at the scene which was the same brand and type of shirt found in Cardona's bedroom, and a toothbrush found at the scene that did not belong to the victim and contained DNA which was miraculously consistent with that of Cardona. The case is chronocoled in this Palm Beach Post story.

One would expect prosecutors, eager to obtain a conviction, to want to skip over additional scientific testing that could yield probative evidence of guilt or innocence. The prosecutors went to trial thinking (and were correct) that they had enough evidence to score a conviction of Mr. Cardona without testing the two hairs with roots collected from the perpetrator's t-shirt:

Former Assistant State Attorney Ron Herman handled the case in the months before Cardona's trial. Herman said he was confident in the evidence he had: a rape victim's strong eyewitness ID of Cardona and his toothbrush found at the scene. "I thought it was solid to support a conviction," Herman said. Hairs from the bed and T-shirt - they were a gamble. If none belonged to Cardona, it would not point-blank exonerate him, Herman says. And it may have mucked up the prosecution's case against him. Besides, Herman knew Cardona's defense team had asked to have the hairs tested at a private DNA lab - an effort he did not oppose.

So if the prosecutor doesn't DNA test the hairs and his rationalization is that a result excluding Cardona as the contributor of those hairs would seriously muck up the prosecution's case, possibly raising enough reasonable doubt to support an acquittal, any defense attorney, paid in excess of $25,000 to represent Cardona, would surely obtain the testing? Right?:

In the months after Cardona's arrest in April 2006, the attorneys began their work, deposing witnesses, Amezaga's flying to Maine to take the victim's statement. In January 2007, Amezaga asked Circuit Judge William Berger to allow the defense to test the hairs at a private lab in Broward County, which the judge did. Amezaga said then Cardona's family would pay for the testing. Then their money ran out.

When a person who has paid a private lawyer runs out of money, he can have the state cover some basic costs by being declared "indigent for due process." Taxpayers then pay for the critical elements every defense deserves, including forensic testing and experts. The money is paid by the Justice Administrative Commission, an agency in Tallahassee that monitors requests.

. . .

In February, Amezaga received an invoice from the private Broward lab for the DNA testing. It cost a small fortune - $575 per hair, $350 per hour to review a case and $2,800 per day for expert testimony. Way in excess of what the JAC was willing to pay. In late April, Cardona's attorney returned to court and told [the judge] . . . that testing cost much more than the caps on costs allowed. . . . The commission, though, follows court orders from judges. And at that two-minute hearing in late April, Berger gave Cardona a critical ruling: "I find extraordinary circumstances and a need to have this particular lab engaged," the judge said. "Therefore the cap ... this will exceed it if necessary."

It seems that Mr. Cardona is in a great position to get his testing. What's more, is that these hairs have roots which makes DNA testing easier and implies that the hairs were forcefully removed (i.e. through a struggle), rather than deposited on the white t-shirt through casual contact or transference. So Mr. Zealous Defense Attorney took the judge's order for extraordinary costs to the JAC, right?

Well not so much:

Yet no test on the hairs in Cardona's case was ever done. Amezaga said it was not a strategic decision not to test the hairs; it was a financial one. He was unable to square the $6,000 cost of tests with what the state was willing to pay, he said.

But why was that? Berger had ruled Amezaga could exceed caps and spend more to get the hairs tested. The attorney looks taken aback when asked about this and refuses to say why. "You can draw your own conclusions about that," Amezaga said.

Just before Cardona's trial began in June, he met with Amezaga. That's when Cardona learned the hair evidence in his case had not been tested. Amezaga said the best legal advice he could give was for Cardona to fire him and get the public defender's office to represent him. That office, presumably, would be able to pay for the testing. Then the tens of thousands of dollars Cardona and his family had paid the attorney might all be for naught.

So Cardona went to trial [without the DNA testing and was convicted].

No one can truly know whether the toothbrush was planted at the crime scene or whether Esdras Cardona is innocent. But there is little question whether he deserved a better, more zealous, defense. His case is now in the hands of the West Palm Beach public defender and it is likely he gets his testing on appeal or in post-conviction.

As for Mr. Amezaga, he will likely be the subject of a non-frivolous claim of ineffective assistance of counsel, where he won't be able to sidestep the question of why he didn't get the DNA testing, when he had a judge's order allowing for the full expense of that testing to be paid by the State.