Dillon won't be paid for time spent in prison

That is the title of this article from Florida Today that was just published. The gist of the article is this: because Flrodia's Victims of Wrongful Incarceration statute, passed last year, has a "clean hands" provision, barring anyone with prior felonies from being awarded compensation, William Dillon will not be paid by the state for his 27 years of wrongful incarceration. If it sounds obviously unjust to you, that's because it is.

What the state is in essence saying is that Dillon is not entitled to, or does not deserve, the money because of his prior felony conviction, which was a DUI and possession of a controlled substance in 1979. Dillon plead to that crime, did his time and paid the fine. He ought to stand redeemed in the eyes of the state vis-à-vis that crime.

"It's a shame that a nonviolent drug conviction from when Mr. Dillon was 19 years old would bar him from being compensated under the new Victims of Wrongful Incarceration statute," attorney Melissa Montle of the Innocence Project of Florida said. "He now has to file a claims bill during a recession in order to be rightfully compensated for the 27 years he spent in prison for a crime he did not commit."

Several of the comments on the article make good points, albeit blunt and somewhat inelegant. Most are rightfully angry at the state for what is clearly an injustice. Most say things like, "The state made a mistake, time to pay up." That's a sentiment I can get behind 100%, mostly because it's absolutely correct. I like this one from Augnoz especially, because it sounds like something I would exclaim when not speaking in an official capacity for this organization: "Dillon got the shaft, correct this travesty."

But one comment is so dangerously false that it merits my correction. earthwateruser says, among other things, that "A compensation bill for wrongful imprisonment for 27 years shouldn't be a difficult thing to accomplish [this legislative session]," and points to the number of compensation bills that get passed each year. This is simply not true. Out of Florida's 10 DNA exonerees, only two have been compensated. Under this new bill, the Victims of Wrongful Incarceration statute, it is not clear that a single person has been awarded compensation. It is not easy. It is not common.

GenPop also chimes in and Courtney makes a good point when she asks, "Is [this] not then a continuation of the punishment for a minor drug offense 30 years after the fact?" It could easily be seen as a punishment in the philosophical sense, since it is an adverse treatment or harm – treatment that would not otherwise be acceptable – in light of some transgression. You might also think that, by letting his wrongful incarceration go unremedied, the state is refusing to admit wrongdoing, and letting it stand as an acceptable act of punishment against his previous offense.

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.

Florida passes snitching reforms

On Thursday, Charlie Crist signed Rachel's Law, requiring law enforcement agencies to "create guidelines for the use of confidential informants." The eponymous Rachel Hoffman was a Florida State University grad arrested for possession of marijuana and ecstasy who, rather than face jail time, agreed instead to serve as an informant in a drug buy. While attempting to purchase drugs and a handgun in an undercover sting, Rachel was murdered.

Her death sparked increased scrutiny into the use of police informants. Several bills were introduced into the Florida Legislature in an attempt to regulate and oversee the use of wired informants by Florida police departments. From the St. Petersburg Times:

"Rachel's Law" calls on agencies to take into account a person's age and maturity, emotional state and the level of risk a mission would entail. Police also would be barred from promising an informer more lenient treatment; only prosecutors and judges can do that.

Not included are several provisions Hoffman's parents said could have prevented their daughter's death, including barring anyone in a drug treatment program, as 23-year-old Rachel was, from going on undercover drug buys.

Grits for Breakfast has more, including this highlight:

My favorite part: Law enforcement must "Provide a person who is requested to serve as a confidential informant with an opportunity to consult with legal counsel upon request before the person agrees to perform any activities as a confidential informant."

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.

Destroyed evidence in Manatee County, Florida raises eyebrows

Let's play a game called Count the Outrages.

Derrick Williams is serving a life sentence for a rape he says he didn't commit. The Innocence Project of Florida has taken an interest in his case and was in the process of investigating further about the possibility of testing a crucial hair when they were notified that the evidence has been destroyed. In fact, it was destroyed several years ago along with the evidence for as many as 4,000 other cases.

The reason? One of the evidence vaults for the Manatee County Sheriff's Office suffered a flood that led to an infestation of mold. Several thousand cases' worth of evidence was destroyed in 2003 – without the knowledge of the public defender's office or the lawyers for those inmates whose cases were affected. Now that the Sheriff's Office is moving the remaining evidence to a new storage facility, they are taking the opportunity to destroy as much surviving evidence "as legally possible."

Sheriff's Office spokesman Dave Bristow blew off any concerns about the impact this might have on those cases at issue. He said, "These were cases that had already gone through the system, or ones where the chances of solving them were slim and none."

I count three outrages.

First, why is evidence in Manatee County being stored in a place where it is even possible to be flooded? It's not often that the Gulf of Mexico lurches inland several hundred feet. If this were the result of a hurricane, it might be understandable, but it apparently wasn't. Store vital biological evidence inland. Store it in a cool, dry place. Store it in a waterproof chamber. Store it off the ground level. Or face justified accusations of negligence.

Second, it took the Sheriff's Office six years to come clean about the destruction of this evidence. That, in itself, is reason to believe that if the Innocence Project of Florida had never made an inquiry into Williams' case, we would never know what happened to his – or the other – evidence. When did they plan to tell the lawyers for these inmates, or the inmates themselves? Since they let it lapse for six years, it doesn't seem like the loss of evidence in 4,000 cases was a big deal for them.

Third, it's crassly irresponsible to ignore the post-conviction possibility of exoneration for these affected cases. Frankly, it's unacceptable to write them off as if the book has been closed on them and then destroy evidence that you are, by law, required to preserve. We know in at least one of the cases that Manatee County might have had an exoneration on its hands. And on top of that, it appears it was flat out not true that these were all case-closed: "Some of the destroyed evidence was also from unsolved cases, including homicides. Sarasota Police recently made an arrest in a murder from 30 years ago based on DNA and fingerprints from evidence collected at the crime scene."

See these articles for more:

• Destroyed evidence surprises Manatee lawyers in the Sarasota Herald-Tribune
  
• Flood damage to evidence being assessed in the Bradenton Herald

Update from Seth Miller: I count a fourth outrage. It appears that they are destroying more evidence as they move to a new storage facility. In 2006, the Florida Legislature amended the post-conviction DNA testing law to require evidence-holding agencies to preserve physical evidence that may contain DNA for the length of the sentence or for at least sixty days after an execution in a death penalty case. Are they destroying evidence that could still have biological evidence on it despite the mold? Are they destroying evidence that they deem not to matter anymore that wasn't damaged by the flood? These key questions need be answered.

Take, for example, the case of the court and police evidence rooms for Orleans Parish, which were completely flooded and left to mold in the summer heat of New Orleans after Hurricane Katrina. New Orleans is under sea level to begin with and practically the only thing that was kept under ground were the evidence rooms at the court and the police department. The rising waters affected both old and new evidence.

There are major problems with the way the local authorities handled the evidence as the New Orleans police removed evidence from that room, let it dry out in a dry place, and then simply put it back in the once moldy room. But the court, at least, removed the evidence, did not destroy any of it, and now stores the evidence in a climate-controlled facility well above ground. Additionally, defense, prosecutor, law enforcement, and court officials have come together to think about better ways to preserve evidence so it can maintain its integrity for future use and be easier to locate. As messed up as New Orleans is today, over three years since Katrina, the Manatee Sheriffs could learn a thing or two about how handle natural disasters and avoid destruction of evidence in the future.

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Footage from Wayne Tompkins' Vigil

We were sent this video by Unicorn 8 Productions of the vigil held outside the correctional institution in Raiford, Florida, on February 11, 2009, as Wayne Tompkins was executed. We posted extensively about Tompkins back in early February of this year. He was found guilty of murdering Lisa DeCarr in 1983, though serious doubts regarding his innocence persisted up to and after the day of his execution. The Innocence Project of Florida is working to obtain DNA testing in his case. Test results could show Tompkins to be the first person ever executed and then conclusively exonerated posthumously.

Ecuador Seeks Return of Florida Death Row Inmate

The Death Penalty Information Center relates this interesting article from the AP:

Ecuador is demanding the return of one of their citizens from Florida’s death row because they maintain he was taken from Ecuador illegally. The inmate, Nelson Serrano Saenz, is a dual citizen of the U.S. and Ecuador. Ecuador says he should have never been taken from their country by Florida officials, calling the arrest a “kidnapping” and accusing the U.S. government of physical maltreatment of Serrano as well. Ecuador does not have the death penalty and will not extradite fugitives who face the punishment in other countries. ''The issue is not his guilt or innocence,'' said Deputy Ecuadorean Interior Minister Franco Sanchez. ''This is called a kidnapping, not an arrest.'' U.S. authorities maintain that they did nothing improper and that Serrano’s dual citizenship status allowed them to bring him back. The Organization of American States, to which both countries belong, has since recommended the case to the Inter-American Court of Human Rights in Costa Rica, after first finding that Ecuador had illegally detained and deported Serrano.

Ecuador has not received an official response from the U.S. State Department to their letter and announced they plan to present the letter to the Florida Supreme Court, where Serrano's appeal will likely be heard later this year. The Ecuadorean government also has hired a Miami-based immigration attorney to replace Serrano's court-appointed lawyer.

Innocence Project of Florida helps free 7 wrongly convicted men

Allow us to give ourselves a pat on the back this morning as we received some coverage in the Orlando Sentinel this morning, a paper with a hefty circulation of 230,000 people. The article is located here.

"Depending on whether you talk to people who are prosecution-oriented or defense-oriented, you're going to get widely divergent numbers," said Michael Seigel, a University of Florida law professor. "The criminal justice system does a pretty good job; there isn't widespread error. But there is error ... one person who is innocent and is in jail is one too many."

That's where the Innocence Project of Florida comes in. Since its creation, it has helped exonerate seven men who, among them, were incarcerated for 144 years.

And a good quote from our Executive Director, who points out a mistake in a common way of understanding our place in the process:

"When we exonerate someone, people say the system worked. The system did not work; the system failed," said Seth Miller, who directs the Innocence Project from Tallahassee. "These folks have been exonerated not because of the system but in spite of the system."

If "the system worked," we wouldn't have a reason for being. We exist to right the wrongs that get committed by the system – even when they are no one's fault – and to help to fix the system to prevent wrongful convictions from taking place.

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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.

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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Deep Thought

According to the 2000 Census, Florida has about 16 million residents. It's about the same size as the Netherlands. Florida currently imprisons more than 100,000 people. The Netherlands imprisons 14,968. 

Florida must be really safe. Much safer than the Netherlands. 

Jacksonville's New PD Slashes Experienced Staff

Jacksonville's newly elected Public Defender, Matt Shirk, is shaking up Duval county by firing 10 of the office's most experienced defense attorneys. The firings are ostensibly brought on by budgetary concerns, as Chief Circuit Judge Donald Moran noted in the Florida Times-Union that Shirk would likely be able to hire two or three young lawyers for the price of each seasoned professional.

But the very real concern is that Shirk might be sacrificing quality for quantity. Many of these public defenders, with over 300 years' combined experience, were "superstars," says the Times-Union. With the talent gone, "the legal community expressed concern about the quality of legal services the office will be able to provide and the appellate cost to the public." In fact, these lawyers are of such a high caliber, says the same paper, that

At first blush, the criterion for recent personnel cuts... appears to be notable success defending criminally accused people who are too poor to hire their own lawyers.

The list of 10 lawyers fired by Shirk - who defeated incumbent Bill White on Nov. 4 - reads like a who's who of the Jacksonville-based office's stars.

The JaxPolitics blog notes that the impending personnel shortage is not local to Florida:

In addition, many Public Defenders Offices throughout the nation are now overloaded with cases and have serious funding issues that must be addressed. Currently, public defenders in 7 states (including Florida) are either refusing to take on new cases or have filed lawsuits due to overburdened case loads which prevent them from providing effective assistance of counsel.

Says the Times-Union, for example "the office had eight lawyers qualified by the state to try death penalty cases; the firings leave three, and two of those are assigned to Clay and Nassau counties." The firings are making a bad situation worse, first by firing the most talented professionals employed by the county, and secondly leaving the remaining lawyers stretched too thin. Add to that that Jacksonville is the murder capital of Florida, and you've got a recipe for chronic inadequacy.

Two of the defenders who are being forced out, Ann Finnell and Patrick McGuinness, were the subjects of the 2001 Oscar-winning HBO documentary Murder on a Sunday Morning, which told how the Jacksonville Police Department had wrongly accused 15-year-old Brenton Butler of a murder and obtained a false confession by beating him senseless during an interrogation.

The Butler episode calls into higher relief the point that the work of experienced defense attorneys may be the only thing that stands in the way of innocent people being convicted. Were it not for the talents of Finnell and McGuiness, Brenton Butler may have been wrongly convicted.

It makes sense that freeing up money would mean letting go of the most experienced defenders in Duval county. But the Times-Union hypothesizes that Shirk's motives might have been in part to weaken the ability of the county to offer competent defense, or even to punish the most pugnacious defenders that the county had on its payroll. "[McGuinness] also blamed Shirk's endorsement by the police union," they report, "noting several of the lawyers let go were among the most aggressive at questioning officers in court."

Shelly Eckles, one of the "Jacksonville 10," notes she was never interviewed by Shirk, and says she was never disciplined during her tenure at the PD's office, leaving no obvious personality or professional reason for the firing. Mark Woods of the Times-Union recently wrote an article on another one of the doomed, Alan Chipperfield. Woods noted, "Some believe it's politics. Shirk has insisted the reason for the change is money. Chipperfield's salary is $134,000. And while that sounds good to most of us, one thing is certain: Chipperfield could have made more in the private sector."

Many of these defenders, like Chipperfield, took pay cuts when they moved from private practice to the PD. Odd, then, that they were summarily fired when they have previously demonstrated that they are willing to make less money if it means doing the right thing and doing it well. If budgetary concerns were Shirk's sole motivation, he could have asked some of them to take a pay cut while maintaining the viability of the Jacksonville PD's office, but the case of Shelly Eckles shows that that was not Shirk's real motive.

The JaxPolitics blog thinks the problem might be more serious than a politicized department. This situation might have implications for Florida's system of electing Public Defenders as a whole, says the author:

Let’s be honest. How many of us regular folks who aren’t involved in the justice system, are willing to support someone in an elected office who will strongly fight for the rights of an accused person? How many of us are willing to put our votes behind spending money to defend murderers and drug dealers? As evidenced by the recent election in Jacksonville, evidently not enough of us. Yet, with an elected Public Defender the integrity of our justice system requires us to do just that if we are to maintain a healthy legal system.

Meanwhile, those who will not be returning to their offices on January 6th have placed pictures of the Black Spot on their office doors, a reference to the mythical pirate code for being doomed to execution, and a gesture of defiance and unity.

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Improve compensation laws

The following editorial from a Louisiana newspaper could have been written (with only the name and case facts changed) by any of a number of papers in states across the country. Even though the federal government passed legislation in 2004 that encourages all states to have laws compensating their wrongly imprisoned citizens, only 22 have so far followed through.

The Shreveport Times, January 20, 2008 -- Rickey Johnson's release from prison after 25 years puts him in the category of nine other Louisianans who were exonerated of crimes for which they were wrongly imprisoned.

Johnson, of Leesville, was officially cleared of the aggravated rape charge of which he was convicted in 1983. The photo in which Johnson was identified was eight years old. He was convicted of the rape in January 1983 and sentenced to life without parole.

According to the Innocence Project, eyewitness misidentification is the leading cause of wrongful convictions, a factor in 75 percent of the 212 DNA exonerations nationwide.

The Innocence Project, established in 1992, uses DNA testing technology and the help of law students to review past criminal trials to determine if accused individuals were convicted under false pretenses.

But what's next for Johnson? "I can never get back what I lost and I'm not going to try. I'm just going to focus on the future," he said.

Confronting an ever-changing world after serving years in prison can be challenging at best. Social skills diminished by countless years in prison don't translate well in the outside world. And what about job skills? And education?

No amount of money can get back what was lost by serving a quarter of a century in prison for something that he didn't do. Certainly a system that robbed Johnson of a significant part of his life owes him more than a get-out-of-jail-free pass. But it's a start.

Although in Louisiana, it's happening rarely, with compensation awarded to only two of the 10 men who have been exonerated by the Innocence Project.

Continue reading.

NOTE: Although Louisiana has a compensation law on the books, it currently pays only $15,000 per year of wrongful incarceration with a cap of $150,000. That's well below the federal standard of $50,000 per year ($100,000 for death row cases).

Of course it's still better than Florida where exonerees must go to the state capitol (without benefit of a bill on the books) and beseech the legislature for compensation in the form of an individual claims bill. Ask Alan Crotzer what that's like; he's made the trip for two years straight and is set to return, hat in hand, for a third round of pleading.

It's a disgraceful and humiliating exercise that should embarrass every legislator in Tallahassee. When the State has robbed a man of more than half his life, it's rather unsettling to realize that the victim must then spend years begging said State to do the right thing. Maybe this detestable dance explains why, of Florida's nine exonerees, only Wilton Dedge has so far been paid.