Monday, January 28, 2013
Pleading With Satan
By William Fisher
President Obama is fond of waxing eloquent about “the majesty of the rule of law.” A prosecutor reminds us that we’re the only country in the world where a defendant’s innocence is defended with at least as much passion as his guilt is attacked. A judge rolls out all his Sunday adjectives to extol the blessings of the jury system.
This is, of course, rhetoric, and talk is cheap. Bottom Line: It’s not true. Or it’s only partly true. Or it’s true only a tiny fraction of the time. Whatever.
But when I hear pronouncements like these, I am invariably reminded of some of the tawdry practices that threaten to shatter our criminal justice system.
Tim Lynch, who runs the Cato Institute’s Criminal Justice portfolio, has written an article he calls “The Devil's Bargain: How Plea Agreements, Never Contemplated by the Framers, Undermine Justice.” The article appeared in the July 2011 issue of Reason.
Lynch writes that the point of the article is that” most Americans are under the mistaken impression that when the government accuses someone of a crime, the case typically proceeds to trial, where a jury of laypeople hears arguments from the prosecution and the defense, then deliberates over the evidence before deciding on the defendant’s guilt or innocence.”
Well, according to Tim Lynch, me, and just about everyone associated with the criminal justice system except prosecutors and bookkeepers, this image of American justice is “wildly off the mark,” as Tim puts it.
He says, “Criminal cases rarely go to trial, because about 95 percent are resolved by plea bargains. In a plea bargain, the prosecutor usually offers a reduced prison sentence if the
defendant agrees to waive his right to a jury trial and admit guilt in a summary proceeding before a judge.”
This procedure was not contemplated by the Framers. The Constitution simply says, “the Trial of all Crimes, except in Cases of Impeachment; shall be by Jury.”
So it’s not as if one of our storied forefathers corralled his colleagues and said, Hey, Colleagues, let’s come up with a system that’s better and cheaper than juries and would also relieve any doubt about guilt or innocence and, that “would replace jury trials with a supposedly superior system of charge-and-sentence bargaining,” as Tim Lynch puts it.
Tim Lynch likens the growth of the plea deal to the growth of government in general. “Plea bargaining slowly crept into and eventually grew to dominate the system,” he says..
He goes on: “From the government’s perspective, plea bargaining has two advantages. First, its less expensive and time-consuming than jury trials, which means prosecutors can haul more people into court and legislators can add more offenses to the criminal code.
“Second, by cutting the jury out of the picture, prosecutors and judges acquire more influence over case outcomes.’ Once a defendant pleads guilty as part of a plea deal, he’s guilty. No one has to sweat it out while the Law and Order-type jury comes to its decision.”
Supporters of plea deals also point out that a plea agreement, requiring only the approval of the judge, saves the court endless hours of litigation.
From a defendant’s perspective, writes Tim Lynch, “plea bargaining extorts guilty pleas. People who have never been prosecuted may think there is no way they would plead guilty to a crime they did not commit. But when the government has a ‘witness’ who is willing to lie, and your own attorney urges you to accept one year in prison rather than risk a ten-year jury sentence, the decision becomes harder.”
But not always. To begin with, what if the defendants are innocent? Such things have been known to happen with frequency in courtrooms all across the county. In this situation, innocent people are getting locked up for crimes they did not commit.
And sometimes the choice of plea or no plea seems like no choice at all. Four men from upstate New York were arrested for “material support of terrorism” a few years ago. The prosecutor’s deal was “confess or you will find yourself in Guantanamo Bay forever.” The four confessed and are serving time in the US.
Or how about a plea when the defendants are guilty? Why should guilty men get reduced sentences when they know they’re guilty. The answer is: Because they Can.
By signing on with the DA, the guilty party absolves him/herself of guilt for the crime he was to be charged with (more serious) and accepts the one he’s plead to (less serious). Which could mean the criminal would be out on the street and doing what he does while those charged with the original crime are still serving their time.
Why has this happened? There are a number of reasons but the primary one is cost. The costs of preparing a case, empanelling a jury, and conducting an average trial, tends to vary somewhat depending on location, complexity, time required, and other factors. But a recent Wyoming murder trial believed to be at the low end of the cost scale cost $111,000.
Later, if the defendant is found guilty, it will cost $55.09 on average per day or $20,108 per year to keep an inmate in prison (FY0708),
The impact on the courts’ caseloads is immediate. The 1,195 jury trials conducted in 2011 are one-third the number held in 1996, according to the Texas Administrative Office of Courts. During the same period, the number of lawsuits filed rose 25 percent. In 1996, juries decided one out of every 48 lawsuits filed. Last year, only one in 183 new complaints.
Says Houston trial lawyer David Beck, “We are seeing our rights to trial by jury disappear before our eyes.” To which many other lawyers, judges and defendants argue that justice should never be held hostage to the mountain of unprocessed paper work that might one day become the organized basis of a real jury trial.
Someone – a lot of someones – ought to be reminding our President that justice is not simply a cost-benefit analysis. Some of our sentencing rules may well be demented, but we do have rules. They should be changed, then followed.
Saturday, January 26, 2013
Rights Erosion - An Analysis
By LAWRENCE DAVIDSON
Lawrence Davidson is a professor of History at West Chester University. This is a guest article.
PART I - What Is Important When It Comes to Rights?
Question: Why is it that so many Americans are more angry over the prospect of relatively minor adjustments to the gun laws, than they are over the serious erosion of Constitutional rights to due process in the courts?
Despite the fact that proposed changes to the gun laws would leave the Second Amendment’s* alleged basic right of ownership intact, thousands of Americans rallied in state capitals across the nation last week to demand their “right” to own all manner of automatic weapons and multiple round ammunition clips. The rationale for this ranged from “the Second Amendment comes from God,” a popular claim with protesters in Austin Texas, to the equally absurd notion that the Obama administration is obsessed with controlling all our lives. “It is not about guns, it is about control” proclaimed the folks rallying in Annapolis, Maryland. All this took place on the nation’s first impromptu “gun appreciation day” (Saturday, 19 January 2013) during which five accidental shooting occurred at celebratory gun shows and three others took place elsewhere. Nonetheless, as one protester in Maine put it, the right to “bear arms” is “a constitutional right no one can take away.”
Actually, the last twelve years have proved this fellow from Maine quite wrong. There has been an erosion of constitutional rights that are much more important than his so-called inalienable right to own weapons with thirty round clips. For instance, the federal government has been steadily eroding the Fifth, Sixth and Fourteenth Amendments which guarantee one’s access to fair procedures in the courts. These are the ones that say your life, liberty and property cannot be taken away without your being charged with a crime and tried by a jury of your peers and/or a judge following due process rules. There are multiple examples of such deterioration:
--The federal government now asserts that it has the authority to hold Americans, as well as others, indefinitely without charge or trial. It does so on the assertion that we are in a perennial state of war. This allows for the perversion of the Fifth Amendment which allows for the suspension of Habeas Corpus in the special cases of war and rebellion. The government’s claim to this authority has been challenged in court but the U.S. Court of Appeals has sided with the Feds and the issue will probably end up in the Supreme Court. In the meantime, to fall into this black hole in American jurisprudence all you have to do is be is labeled a “terrorist” by the president. This, of course, can happen based on alleged evidence never made public.
-- Another weird but relevant point. If you do happen to meet someone who is a member of a “designated terrorist group,” don’t you dare try to talk them out of being violent. That is illegal as well. Our very own Supreme Court told us so in the 2010 case of Holder v. Humanitarian Law Project. In what may well call into question the rationality of a majority of the justices (the decision was decided 6 for the government position and 3 against), the Court declared that trying to persuade members of such an organization give up violence is the equivalent of rendering “material aid” to the bad guys. Try to save their souls in this fashion and you will end up in some special hell-hole of an American prison where all communications with your lawyer will be taped for the benefit of the prosecution.
--The president can also put anyone, including American citizens, on a list of folks to be murdered at the first suitable opportunity. The government often uses drones to do this. Here is one of the ways this works: some Air Force officer living in Las Vegas gets up in the morning, has his breakfast, kisses the wife goodbye and tells the kids to behave at school. He gets in his four door sedan and drives to Creech Air Force base in the desert outside of town. He passes through the security checks and finally gets to his “office.” The office is a video studio affair from which he controls a UAV (unmanned aerial vehicle) full of explosives. The UAV in question is actually sitting at an another air base in Afghanistan, Yemen or some such location. Our man's job is to remotely fly this thing into somebody’s house half-a-world away. Doing so usually kills another man, his wife, his kids, and maybe the neighbors too. All this happens without any due process establishing the victims' guilt or innocence.
-- Then there is the case of the Holy Land Foundation in which five American citizens who ran the largest Muslim charity in the nation were convicted of “material support of terrorism” and sentenced to up to 65 years in jail on the basis of an anonymous witness whose credibility could not be challenged. This is a prima facie violation of the Sixth Amendment which guarantees (or used to guarantee) the accused his or her right to confront the accuser. You would think the Supreme Court would have something to say about this, particularly considering that all the real evidence in the case showed that the Holy Land Foundation was simply supporting institutions such as Palestinian hospitals, and that its directors had repeatedly consulted the State Department to assure the legality of their activities. But no, in a miscarriage of justice not rivaled since Dread Scott, our present Court refused to hear the Holy Land Five’s appeal.
PART II -- Why the Apathy?
Alas, with the exception of a handful of citizens, no one has hit the streets in protest over any of these horrid legal precedents. No one has dreamt up a “due process appreciation day” and called for commemorative rallies. How come? The answer has to do with how basic communal impulses play out. These include natural localism and the power of custom and tradition.
Natural localness is my term for the fact that most people live their lives according to the precepts of their immediate local communities. Therefore, local customs and traditions are usually taken quite seriously. In the United States, gun ownership is widespread enough to be an issue for self-conscious subsets of most local populations. In other words, for millions it is an important local custom which helps shape their self-images. Gun ownership has also been tied to a Constitutional right allegedly enshrined in the Second Amendment. Support for this claim links these subsets into a powerful “special interest” that translates local custom into a national tradition. So, you can get thousands protesting on the same day in state capitals across the U.S.
What about due process? Is it not a local practice of major importance representing a national tradition enshrined in law through the Constitution? Yes, that is correct, but psychologically, due process rights have completely different personae. Due process laws protect the rights of those accused of wrong doing. They try to assure, among other things, that the accused is assumed innocent until proven guilty. Yet among the public this assumption is almost never held. If you end up in court, the public assumption is that you must have done something wrong. This is particularly true if you can be tagged with a label that suggests danger to or betrayal of community values. The media uses such labels all the time, for instance, terms such as terrorist or whistle blower. So, those who are in need of due process protections are almost always assumed by the public to have acted outside the parameters of acceptable behavior.
The other side of this coin is that ordinary individuals, the mass who make up “the people,” naively feel that due process protections are not important to them. This is because they rarely trespass against the customs and traditions they themselves have, over time, established. In other words, the “people” define what is acceptable. Carrying guns or, in the local lingo, to “go packin,” is sufficiently within the bounds of acceptable behavior to be “normal” in much of the U.S. As long as you register all the weapons in your arsenal (even if you have enough of them to wage a small war), you are still a “law abiding” citizen. However, give charity to the Palestinians or try to tell the Kurdish PKK (a group on the State Department’s Terrorism List) how to pursue their goals non-violently, and you are a danger to the American way of life and on an obscenely fast track to indefinite detention. And very few law abiding citizens are going to care, because if they notice your fate at all, they will assume you are guilty and getting what you deserve.
PART III - Conclusion
"The people” simply do not like those who think outside the box. They never have and probably never will. Non-conformists (in this case those in need of due-process and not those "packin") make the majority feel uneasy and fearful.
In relatively peaceful times such “others’ can be tolerated if they don’t make too much noise and, with the American Civil Liberties Union watching, they can demand their due process rights when needed. However, since the September 11, 2001 attacks things have changed. We are being told that there are no more peaceful times. Crisis is, supposedly, perpetual and that leads to the erosion of the rights of those assumed guilty of something endangering the majority--even if there is no real evidence or logic to the claim. This is a awful slippery slope.
There is a passage in the 1957 play A Man For All Seasons, by Robert Bolt, that speaks to this present predicament. The play tells the story of Sir Thomas More, the singularly principled Chancellor of England under King Henry VIII. The passage we are concerned with is about the importance making the law available to all, even the Devil.
“William Roper (More’s son-in-law): So, now you give the Devil the benefit of law!
Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”
So that is the crux of the matter. As long as the law is denied to some, we are all at risk. The majority does not understand this. They do not understand that for democracy to be worth its salt, it must defend the rights of everyone, and particularly those who disagree with, live differently from, and think differently than the majority. The United States as we know it can easily survive without everyone having assess to assault rifles. It cannot survive without everyone having assess to due process. Thus, as goes due process rights, so goes our democracy.
_________________________________________________________________________________
* The origin of the Second Amendment lies, at least in good part, with the Founders' perceived need to give local jurisdictions control of militias in slave holding sections of the young United States. See Thom Hartmann piece on this issue at: http://truth-out.org/news/item/13890-the-second-amendment-was-ratified-to-preserve-slavery.
Lawrence Davidson is a professor of History at West Chester University. This is a guest article.
PART I - What Is Important When It Comes to Rights?
Question: Why is it that so many Americans are more angry over the prospect of relatively minor adjustments to the gun laws, than they are over the serious erosion of Constitutional rights to due process in the courts?
Despite the fact that proposed changes to the gun laws would leave the Second Amendment’s* alleged basic right of ownership intact, thousands of Americans rallied in state capitals across the nation last week to demand their “right” to own all manner of automatic weapons and multiple round ammunition clips. The rationale for this ranged from “the Second Amendment comes from God,” a popular claim with protesters in Austin Texas, to the equally absurd notion that the Obama administration is obsessed with controlling all our lives. “It is not about guns, it is about control” proclaimed the folks rallying in Annapolis, Maryland. All this took place on the nation’s first impromptu “gun appreciation day” (Saturday, 19 January 2013) during which five accidental shooting occurred at celebratory gun shows and three others took place elsewhere. Nonetheless, as one protester in Maine put it, the right to “bear arms” is “a constitutional right no one can take away.”
Actually, the last twelve years have proved this fellow from Maine quite wrong. There has been an erosion of constitutional rights that are much more important than his so-called inalienable right to own weapons with thirty round clips. For instance, the federal government has been steadily eroding the Fifth, Sixth and Fourteenth Amendments which guarantee one’s access to fair procedures in the courts. These are the ones that say your life, liberty and property cannot be taken away without your being charged with a crime and tried by a jury of your peers and/or a judge following due process rules. There are multiple examples of such deterioration:
--The federal government now asserts that it has the authority to hold Americans, as well as others, indefinitely without charge or trial. It does so on the assertion that we are in a perennial state of war. This allows for the perversion of the Fifth Amendment which allows for the suspension of Habeas Corpus in the special cases of war and rebellion. The government’s claim to this authority has been challenged in court but the U.S. Court of Appeals has sided with the Feds and the issue will probably end up in the Supreme Court. In the meantime, to fall into this black hole in American jurisprudence all you have to do is be is labeled a “terrorist” by the president. This, of course, can happen based on alleged evidence never made public.
-- Another weird but relevant point. If you do happen to meet someone who is a member of a “designated terrorist group,” don’t you dare try to talk them out of being violent. That is illegal as well. Our very own Supreme Court told us so in the 2010 case of Holder v. Humanitarian Law Project. In what may well call into question the rationality of a majority of the justices (the decision was decided 6 for the government position and 3 against), the Court declared that trying to persuade members of such an organization give up violence is the equivalent of rendering “material aid” to the bad guys. Try to save their souls in this fashion and you will end up in some special hell-hole of an American prison where all communications with your lawyer will be taped for the benefit of the prosecution.
--The president can also put anyone, including American citizens, on a list of folks to be murdered at the first suitable opportunity. The government often uses drones to do this. Here is one of the ways this works: some Air Force officer living in Las Vegas gets up in the morning, has his breakfast, kisses the wife goodbye and tells the kids to behave at school. He gets in his four door sedan and drives to Creech Air Force base in the desert outside of town. He passes through the security checks and finally gets to his “office.” The office is a video studio affair from which he controls a UAV (unmanned aerial vehicle) full of explosives. The UAV in question is actually sitting at an another air base in Afghanistan, Yemen or some such location. Our man's job is to remotely fly this thing into somebody’s house half-a-world away. Doing so usually kills another man, his wife, his kids, and maybe the neighbors too. All this happens without any due process establishing the victims' guilt or innocence.
-- Then there is the case of the Holy Land Foundation in which five American citizens who ran the largest Muslim charity in the nation were convicted of “material support of terrorism” and sentenced to up to 65 years in jail on the basis of an anonymous witness whose credibility could not be challenged. This is a prima facie violation of the Sixth Amendment which guarantees (or used to guarantee) the accused his or her right to confront the accuser. You would think the Supreme Court would have something to say about this, particularly considering that all the real evidence in the case showed that the Holy Land Foundation was simply supporting institutions such as Palestinian hospitals, and that its directors had repeatedly consulted the State Department to assure the legality of their activities. But no, in a miscarriage of justice not rivaled since Dread Scott, our present Court refused to hear the Holy Land Five’s appeal.
PART II -- Why the Apathy?
Alas, with the exception of a handful of citizens, no one has hit the streets in protest over any of these horrid legal precedents. No one has dreamt up a “due process appreciation day” and called for commemorative rallies. How come? The answer has to do with how basic communal impulses play out. These include natural localism and the power of custom and tradition.
Natural localness is my term for the fact that most people live their lives according to the precepts of their immediate local communities. Therefore, local customs and traditions are usually taken quite seriously. In the United States, gun ownership is widespread enough to be an issue for self-conscious subsets of most local populations. In other words, for millions it is an important local custom which helps shape their self-images. Gun ownership has also been tied to a Constitutional right allegedly enshrined in the Second Amendment. Support for this claim links these subsets into a powerful “special interest” that translates local custom into a national tradition. So, you can get thousands protesting on the same day in state capitals across the U.S.
What about due process? Is it not a local practice of major importance representing a national tradition enshrined in law through the Constitution? Yes, that is correct, but psychologically, due process rights have completely different personae. Due process laws protect the rights of those accused of wrong doing. They try to assure, among other things, that the accused is assumed innocent until proven guilty. Yet among the public this assumption is almost never held. If you end up in court, the public assumption is that you must have done something wrong. This is particularly true if you can be tagged with a label that suggests danger to or betrayal of community values. The media uses such labels all the time, for instance, terms such as terrorist or whistle blower. So, those who are in need of due process protections are almost always assumed by the public to have acted outside the parameters of acceptable behavior.
The other side of this coin is that ordinary individuals, the mass who make up “the people,” naively feel that due process protections are not important to them. This is because they rarely trespass against the customs and traditions they themselves have, over time, established. In other words, the “people” define what is acceptable. Carrying guns or, in the local lingo, to “go packin,” is sufficiently within the bounds of acceptable behavior to be “normal” in much of the U.S. As long as you register all the weapons in your arsenal (even if you have enough of them to wage a small war), you are still a “law abiding” citizen. However, give charity to the Palestinians or try to tell the Kurdish PKK (a group on the State Department’s Terrorism List) how to pursue their goals non-violently, and you are a danger to the American way of life and on an obscenely fast track to indefinite detention. And very few law abiding citizens are going to care, because if they notice your fate at all, they will assume you are guilty and getting what you deserve.
PART III - Conclusion
"The people” simply do not like those who think outside the box. They never have and probably never will. Non-conformists (in this case those in need of due-process and not those "packin") make the majority feel uneasy and fearful.
In relatively peaceful times such “others’ can be tolerated if they don’t make too much noise and, with the American Civil Liberties Union watching, they can demand their due process rights when needed. However, since the September 11, 2001 attacks things have changed. We are being told that there are no more peaceful times. Crisis is, supposedly, perpetual and that leads to the erosion of the rights of those assumed guilty of something endangering the majority--even if there is no real evidence or logic to the claim. This is a awful slippery slope.
There is a passage in the 1957 play A Man For All Seasons, by Robert Bolt, that speaks to this present predicament. The play tells the story of Sir Thomas More, the singularly principled Chancellor of England under King Henry VIII. The passage we are concerned with is about the importance making the law available to all, even the Devil.
“William Roper (More’s son-in-law): So, now you give the Devil the benefit of law!
Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”
So that is the crux of the matter. As long as the law is denied to some, we are all at risk. The majority does not understand this. They do not understand that for democracy to be worth its salt, it must defend the rights of everyone, and particularly those who disagree with, live differently from, and think differently than the majority. The United States as we know it can easily survive without everyone having assess to assault rifles. It cannot survive without everyone having assess to due process. Thus, as goes due process rights, so goes our democracy.
_________________________________________________________________________________
* The origin of the Second Amendment lies, at least in good part, with the Founders' perceived need to give local jurisdictions control of militias in slave holding sections of the young United States. See Thom Hartmann piece on this issue at: http://truth-out.org/news/item/13890-the-second-amendment-was-ratified-to-preserve-slavery.
The Expendables
By William Fisher
Three years ago, the twenty-something grandson of one of my colleagues was arrested for murder. A confirmed, long-standing, well-diagnosed victim of paranoid schizophrenia, he had been off his meds.
Now he was in full flight on a classic schizophrenic tear. He was angry. He was delusional. He was hearing voices that didn’t exist, and they were threatening to persecute him. He was Merlin, a legendary figure best known as the wizard in the Arthurian legend.
Though there were the usual character testimonials submitted to the Court at sentencing, and professional pleas to place him not in prison but in a psychiatric hospital treatment program, he was tried, convicted and sentenced to life in prison. Before his trial, he was incarcerated in a County jail, afterward in a larger state prison.
Even though his correct medication was recorded in the documents that accompanied him to his lock-up sites, during the entire first year of his incarcarceration, the only medication he received were tranquilizers, not usually given to paranoid schizophrenics except for short periods to calm them down... Nobody looked. Nobody cared.
While some of the facts in this introduction have been edited to protect the inmate’s privacy, with that predicate it may not surprise you to learn that the treatment of this seriously sick inmate is not the exception; it is, with few exceptions, the rule.
More Americans receive mental health treatment in prisons and jails than in hospitals or treatment centers. In fact, the three largest inpatient psychiatric facilities in the country are jails: Los Angeles County Jail, Rikers Island Jail in New York City and Cook County Jail in Illinois.
In a ground-breaking 2006 report, Human Rights Watch said new federal statistics revealed that the number of mentally ill inmates in U.S. prisons and jails had quadrupled since 2000. And, as is true of inmates all across the U.S., the numbers of African American and Latino prisoners have grown out of all proportion to the size of their respective racial/ethnic groups.
The Bureau of Justice Satistics (BJS), part of the Department of Justice (DOJ), reported that more than half of all state inmates now report mental health problems. These included symptoms of major depression, mania and psychotic disorders..
In 1998, the BJS reported there were an estimated 283,000 prison and jail inmates who suffered from mental health problems. That number is now estimated to be 1.25 million. The rate of reported mental health disorders in the state prison population is five times greater (56.2 percent) than in the general adult population (11 percent).
In its 2006 Report, the BJS estimated that 705,600 mentally ill adults were incarcerated in State prisons, 78,800 in Federal prisons and 479,900 in local jails.
In addition, research suggests, "people with mental illnesses are over-represented in probation and parole populations at estimated rates ranging from two to four times the general population,"
The 2006 report compiled by the Bureau of Justice also reported that 73% of all women in state prisons, 75% of women in local jails, and 55% and 63%, respectively, among men, have mental health problems. In addition, nearly a quarter of women in state prisons and jails have been diagnosed with a psychiatric disorder by a mental health professional.
So here you have an impaired prison population growing exponentially, composed largely of people who should be in hospital treatment programs and not prison in the first place, under the care of workers untrained to handle sick people whose illness can only get worse in prison, and who would much prefer not having to do so, but who can find no alternative to jail.
How did we get here? Why are so many of the mentally ill homeless, living under bridges or in makeshift shelters? Why haven’t they been admitted to hospital-based treatment programs before they get into petty trouble with the law that eventually escalates them into jail.
There is a sharp division of opinion among different segments of the US population regarding who’s to blame. Many fault the prisoners, others think the police and prison authorities simply want to accrue more power..
The fact is the fault is with neither and both. Prisoners with mental illnesses can’t simply will away their sickness. And some do try to exploit their illnesses to secure greater comforts for themselves. Prison staff has its job to do as well. It’s true that they are often needlessly cruel in getting their work done – like the prison guard who made a bitter joke out of denying sanitary napkins, or offering soiled ones, to mentally disturbed inmates. This is not acceptable behavior; guards need to do whatever is reasonable and legal to maintain order. What do they do?
In recent years, prison officials have increasingly turned to solitary confinement as a way to manage difficult or dangerous prisoners. Many of the prisoners subjected to isolation, which can extend for years, have serious mental illness, and the conditions of solitary confinement can exacerbate their symptoms or provoke recurrence.
“Yet, the Bureau of Justice freely admits that among those incarcerated with mental health problems, only one in three state prisoners, and one in six jail inmates, has received treatment since admission,” Sadhbh Walshe writes in The Guardian newspaper, adding:
“There is no mention in the report about what happens to the majority of mentally ill prisoners who go untreated, but the evidence suggests that they are not just ignored, but actually brutalized by a system that has failed them at every turn.”
According to Human Rights Watch, deficient mental health services in prisons and jails leave prisoners under-treated or not treated at all. Across the country, prisoners with mental health problems face a shortage of qualified staff, lack of facilities and prison rules that interfere with treatment.
“While the number of mentally ill inmates surges, prisons remain dangerous and damaging places for them,” says Jamie Fellner, director of Human Rights Watch’s U.S. Program and author of the 2006 report.
The repoprt s ays prison staff often punish mentally ill offenders for showing symptoms of their illness, such as being noisy, refusing orders, self- mutilating or attempting suicide. Mentally ill prisoners are thus more likely than others to end up housed in especially harsh conditions, including isolation, that can push them over the edge into acute psychosis.
Mentally ill inmates without their meds often spell trouble for prison staff. Typically, there are no doctors on the premises and no inventory of medicines the guards are authorized to access. The prisoner is yelling, screaming, fighting with other prisoners, generally making life difficult for prison staff. So they turn to what appears to be the weapon of choice: solitary confinement.
Jamie Fellner of HRW quotes a federal judge who called the practice of putting mentally ill prisoners in solitary confinement the equivalent of putting an asthmatic in a room with no air.
Since then, lawsuits against corrections departments in at least 10 states have obtained court orders or settlements...have a criminal justice system which has a very clear purpose: You get arrested. We want justice. We try you, and justice hopefully prevails. It was never built to handle people that were very, very ill, at least with mental illness," says Steve Leifman, the Florida judge who has campaigned tirelessly to professionalize the care of mental illness in prison or move the entire operation to a far more appropriate setting.
Read some of the heart-breaking testimonies of solitary confinement victims here. If the victims of this cruel treatment weren’t very sick when they entered solitary, no one would be surprised if they were dangerously mentally ill when they were released – sometimes after years of segregation and abuse.
Here is the testimony of Anthony Graves, freed from a Texas death row with the help of The Innocence Project. It was presented recently at the first hearing ever held in the U.S. Senate on the subject of solitary confinement. The hearing was convened by Sen. Dick Durban, Democrat of Illinois.
My name is Anthony Graves and I am death row exoneree number 138. I was wrongfully convicted and sentenced to death in Texas back in 1992, where my nightmare began. Like all death row inmates, I was kept in solitary confinement. I lived under some of the worst conditions imaginable with the filth, the food, the total disrespect of human dignity. I lived under the rules of a system that is literally driving men out of their minds. I was one week away from my 27th birthday when I was arrested, and this emotional torture took place for the next 18.5 years. I survived the torture by believing in my innocence and hoping that they would make it right. My life was saved, but those 18.5 years were no way to live.
I lived in a small 8 by 12 foot cage. I had a steel bunk bed, with a very thin plastic mattress and pillow that you could only trade out once a year. By the time a year comes around, you’ve been virtually sleeping on the steel itself. I have back problems as a result. I had a steel toilet and sink that were connected together, and it was positioned in the sight of male and female officers. They would walk the runs and I would be in plain view while using the toilet.
I had a small shelf that I was able to use as a desk to write on. This was the same shelf that I ate at. There was a very small window up at the top of the back wall. In order to see the sky or the back of the building you would have to roll your plastic mattress up to stand on. I had concrete walls that were always peeling with old dull paint. It’s the image of an old abandoned one-room project apartment.
I lived behind a steel door that had two small slits in it, the space replaced with iron mesh wire, which was dirty and filthy. Those slits were cut out to communicate with the officers that were right outside your door. There was a slot that’s called a pan hole and that’s how you would receive your food. I had to sit on my steel bunk like a trained dog while the officer delivered my food tray. He would take a steel crow bar and stick it into the metal lock on the pan hole, it would fall open, which then allowed the officer to place your tray in the slot. Afterward, he then steps back, which was the signal for me to get off the bunk and retrieve my food. This is no different from the way we train our pets.
The food lacks the proper nutrition, because it is either dehydrated when served to you or perhaps you’ll find things like rat feces or a small piece of broken glass. There is no real medical care. I had no television, no telephone, and most importantly, I had no physical contact with another human being for at least 10 of the 18 years I was incarcerated.
I was subjected to sleep deprivation. I would hear the clanging of metal doors throughout the night, an officer walking the runs and shining his flashlight in your eyes, or an inmate kicking and screaming because he’s losing his mind.
Solitary confinement does one thing, it breaks a man’s will to live and he ends up deteriorating. He’s never the same person again.
Then his mother comes to see her son sitting behind Plexiglass, whom she hasn’t been able to touch in years, and she has to watch as her child deteriorates right in front of her eyes. This madness has a ripple effect. It doesn’t just affect the inmate; it also affects his family, his children, his siblings and most importantly his mother.
Another tragic story of the impact of solitary can be found here.
The Sad Story of Armando Cruz, from the Journal of the American Academy of Psychiatry and the Law
On a dozen Post-It notes he scribbled his final words, telling his family he loved them. His final ge was “REMEMBER ME!”
The death of Armando Cruz was the culmination of years suffering from hallucinations, engaging in self-harm and escalating problems. It also exemplifies what can and does happen to people with severe mental health problems when they are locked into the prison system.
Entering the California prison system on February 25, 2003 following three years of legal wrangling, he would spend at least four years in solitary confinement units, including the final year of his life. Housed alone, his hallucinations and delusions would fester as he ruminated in cells no larger than a bathroom to the point where, in the final months of his life, he invented a family that lived with him. For a vulnerable young man with a fear of “being alone in a cell,” the protracted isolation amounted to psychological torture. Ultimately, he became one of 33 California prisoners who would commit suicide in 2011.
In order to understand Armando Cruz’s death, it is important to understand the tumultuous life that he led.
Armando Emmanuel Cruz, Jr. was born on April 23, 1983 to Armando and Yolanda Cruz in Fontana, California. He was a relatively quiet child who enjoyed playing sports, participated in karate, and was well liked by his peers. He was a decent student in elementary school.
Says his mother, Yolanda, of her son, “What I want the broken system to know and the State of California is, that Armando…was a sensitive son who worried about the less fortunate and the injustices in our world.
Things began to change when he entered adolescence. When he was thirteen, he began to use marijuana and methamphetamine and engaged in inhalant abuse (“huffing”). He began experimenting with cocaine and LSD and also began to drink alcohol, which he reportedly did to the point of losing consciousness.
In August 1997 at the age of 14, he was arrested for possessing marijuana at school. The following month he was arrested for burglary. He had stolen several thousand dollars worth of tools.
In 1998, he began to exhibit early psychotic symptoms, yelling at his mother that he was feeling forgetful, that he “felt out of place” and that he was “losing his language.”
In January 1998, according to legal documents, he was examined at County Mental Health and diagnosed as suffering from Inhalant Dependency. Two months later,”[Cruz] had a juvenile forensic evaluation and was diagnosed as suffering from a psychotic disorder, probably a hallucinogen induced psychosis, and also suffering from Borderline Intellectual Functioning.”
Though he was placed in various diversionary programs to keep him out of juvenile detention facilities, his problems continued to escalate.
Friends commented that they felt that the various psychiatric drug combinations Cruz was on “made him slower,” “made him seem more dazed” and that “it felt like Cruz was getting farther away.”
In July 1999, records indicate that he threatened: “I’ll kill a cop and cut off his hand” while in a mental health facility for young people and was seen by a psychiatrist. One doctor thought that he suffered from a psychotic disorder, while another thought that he suffered from a paranoid schizophrenia. Others still claimed it was schizophrenic form disorder.
In January 2000, a drunken Cruz got into a yelling and shoving match with his mother. At the time, he was medicated with Zyprexa, Welbutrin and Tenax. He told officers “he doesn’t have anything to live for and he wanted to die.”
On April 30, 2000, California Highway Patrol Officer was conducting a routine traffic stop in Lakeside, California, an unincorporated area of San Diego County. Suddenly, an individual wearing only underwear ran behind the officer and with a large knife, sliced the throat of the officer and ran away.
Cruz, medicated with Zyprexa, Guanfacine, Wellbutrin, and also drinking alcohol that night stated that he recalled the lead up of events as follows: “I was in my house…listening to a song by Sublime about the riots in LA which suggested committing 187 (Murder) on a cop. I was depressed; I looked across the street and saw the CHP officer writing a ticket. I wanted to save the world. I went across the street and hid behind a stop sign. I sliced the guy’s throat with a kitchen knife. I just wanted to be a demon…I felt dead on the inside.”
Neither the officer who sustained a superficial injury required tape stitches, nor were there witnesses in either the stopped vehicle or the surrounding area able to immediately identify the suspect. However, in the subsequent weeks Cruz began to speak about his actions to a friend, who told his father, who notified the police about what Cruz had said. Cruz was arrested on May 24, 2000 and quickly admitted to the attack on the officer.
Nearly three years of legal wrangling would be a very difficult time for Cruz.
Following his arrest, he would be held at a University of California San Diego psychiatric unit for evaluation. He is noted to have “jumped off a balcony” in an apparent suicide attempt. Upon being transferred to another psychiatric unit, an examining psychiatrist would tell his mother: “Armando’s schizophrenia has gotten worse.”
In the next years, his father would die of a terminal illness that had ailed him for many years. Cruz, then being held in the county jail was allowed to attend a service for his father. He was brought in arm and leg restraints and was constantly under guard and was not allowed to embrace family.
He would be incarcerated at the San Diego County jail from April 2001 until being sentenced in 2003. At some point in this period he would attempt suicide by hanging at the jail, something that only came to his mother’s attention after his death.
While in jail he was kept in segregation for periods of time for his own protection. He had reported being taken advantage of by inmates who, as his mother said, took advantage of his kindness and naïveté.
The legal battle that culminated with his pleading guilty in January 2003 and being sentenced to life in prison with the possibility of parole after eight years for the Attempted Murder of a Police Officer.
Says Cruz’s mother of the legal proceedings, “The system took complete advantage of a young, naive, scared, incompetent schizophrenic teenager, who in his mind was trying to protect himself and his family. Starting from the sheriff’s department that questioned him without my permission in order to get a statement and confession from him in his mental incompetence. My son was declared at the 707 hearing as severely mentally ill suffering from schizophrenia. He was talked into a plea deal of 8 minimum to life which would after all the legal wrangling, send my naïve son into a level 4 adult prison setting.“
Cruz was among the first juveniles to be charged and sentenced as an adult under the overwhelmingly passed Proposition 21 in California, which had been approved by California voters just one month before the April 2000 attack on the CHP officer.
At this point, 17-year old Cruz would become one of the countless numbers of prisoners in the United States suffering from debilitating mental health problems.
“Asking prisons to treat people with serious mental illness is pushing round pegs into square holes,” says Fellner. “People who suffer from mental illness need mental health interventions, not punishment for behavior that may be motivated by delusions and hallucinations.”
According to Human Rights Watch, the staggering rate of incarceration of the mentally ill is a consequence of under-funded, disorganized and fragmented community mental health services. Many people with mental illness, particularly those who are poor, homeless, or struggling with substance abuse – cannot get mental health treatment. If they commit a crime, even low-level nonviolent offenses, punitive sentencing laws mandate imprisonment.
The apex of self-delusion came in the form of The Community Mental Health Act of 1963 (CMHA), which was also known as the Community Mental Health Centers Construction Act, Mental Retardation Facilities and Construction Act, Public Law 88-164, or the Mental Retardation and Community Mental Health Centers Construction Act of 1963.
It was an act billed to solve these intractable problems by providing federal funding for community mental health centers throughout the United States. These centers would replace state psychiatric hospitals, thus optimizing the use of tranquillizers – which had been in steady development during the 1950s and 60s, and “preparing the ground” for the array of “miracle” drugs that most of the psychiatric community sincerely believed was just around the corner.
This legislation was passed as part of President John F. Kennedy's New Frontier. It introduced a new piece of psycho-speak into the jargon of psychiatric public policy and led to one of the genuine public health disasters of the second half of the 20th Century.
It was called deinstitutionalization.
Under the legislation, The CMHA provided grants to states for the establishment of local mental health centers, subject to the overview of the National Institute of Mental Health. The NIH also conducted a study involving adequacy in mental health issues. The purpose of the CMHA was to provide for community-based care, as an alternative to institutionalization. However, some states saw this as an excuse to close expensive state hospitals without spending some of the money on community-based care.
Under the CMHA, many patients, formerly warehoused in institutions, were released into the community. However, not all communities had the facilities or expertise to deal with them. In many cases, patients wound up in adult homes or with their families, or homeless in large cities but without the mental health care they needed,
The 2006 BJS report reveals that state prisoners with mental health problems were twice as likely to have been homeless and twice as likely to have lived in a foster home, agency or institution while growing up as those without mental health problems. Prisoners with mental health problems were also significantly more likely to have reported being physically or sexually abused in the past, to have had family members who had substance abuse problems, and to have a family member who had been incarcerated in the past. An estimated 42 percent of state inmates had both a mental health problem and substance dependence or abuse.
Yet, even with meager resources, law enforcement and psychiatric professionals continue to struggle in hundreds of communities throughout the US to create conditions that will improve the lives of the mentally ill who find themselves locked up. They do so knowing that practical public servants typically will assign a zero priorority to spending tax dollars on an idea framed to improve life for the very convicts that turn our jails into noisy, disorganized, expensive, crime-ridden killing fields.
Thus advocates for even the most fundamental mental illness management programs must must be perceived by their colleagues as Sancho Panza, tilting at windmills . One of those warriors is Miami-Dade County Judge Steven Leifman, who has worked for many years to get justice system to do more for the mentally ill than incarcerate them.
Judge Leifman is trying to prevent individuals with mental illnesses who have committed minor crimes from ending up in jail. He's creating a novel facility in Miami-Dade that will serve as what's known as a "forensic diversion facility."
The program provides a sentencing alternative in cases where the offender has mental health issues. Those entering will begin in a higher-security area, more like a jail, and once stabilized move to a different part of the building for treatment.
Leifman is working to get justice system to do more for the mentally ill than simply lock them up. His ideas, and to a great extent, the ideas of others who are working on this problem, are centered around trying to ensure that offenders suspected of committing minor non-violent crimes never make it into the prison system to begin with,
All over the US, one can find such pilot or model programs. But few have shown the resources – or the interest – to scale up these experiments.
For the broader community and its political leadership, improving care for mentally ill prisoners has to be among the lowest priorities. Long gone are the euphoric days when local psychiatrists and their political leaderhip could brag about vastly improving medicines for the care of the mentally ill while saving huge amounts of tax dollars on state hospitals no longer needed.
That’s how we got here. In the 1980s, under the directives of three California Governors, including Ronald Reagan, most state-run mental hospitals were shut down – with the promise that mentally ill patients would receive better, more humane care in community-based facilities.
But that left people with mental illness with nowhere to turn, and many ended up in jail. The cause, in psychospeak, was deinstitutionalization.
What is “deinstitutionalization?” It is the process through which state-owned-and-run psychiatric hospitals were systematically closed down beginning in the early 1980s and their patients encouraged to use “community health centers” (which, for the most part, had not yet been built) and rely for medication on new psychiatric drugs (most not yet developed for clinical testing). Meanwhile, they would make use of existing medications, mostly tranquillizers that are generally not used on patients with, for example, schizophrenia except for short periods of time to calm the patient down.
As early as 1984, the policy that led to the release of most of the nation's mentally ill patients from the hospital to the community is now widely regarded as a major failure. Thousands of people with mental illnesses had no place to live except under bridges or in makeshift shelters. Many were Vietnam vets. They had no treatment, no medicines other than tranquillizers that worked, no support systems, and few who cared whether they lived or died.
Who was responsible? Sweeping critiques of the policy, notably the American Psychiatric Association, spread the blame everywhere, faulting politicians, civil libertarian lawyers and psychiatrist
Many in the psychiatric community felt optimistic that they would soon develop medications analogous to penicillin – but it would be penicillin for schizophrenia and depression and bipolar disease and all the other awful demons and goblins that nature unleashed. Many convinced themselves that these psychiatric wonder drugs had already arrived.
The shrinks weren’t conning anyone, except perhaps themselves. They believed their own story. And their enthusiasm was so overwhelming that before long they managed to convince the politicians in California that they were standing on the brink of a new day: Soon they would be able to tell their constituents that they were able to be tough on crime and save large sums of money at the same time.
Eventually, very powerful people bought into the myth. Topping the list were the three California Governors, and Governors of other states, and the Federal Government to which the “good news” had traveled quickly.
Richard Lyons wrote in the New York Times in 1984, “the politicians were dogged by the image and financial problems posed by the state hospitals and that the scientific and medical establishment sold Congress and the state legislatures a quick fix for a complicated problem that was bought sight unseen.”
He added: “In California, for example, the number of patients in state mental hospitals reached a peak of 37,500 in 1959 when Edmund G. Brown was Governor, fell to 22,000 when Ronald Reagan attained that office in 1967, and continued to decline under his administration and that of his successor, Edmund G. Brown Jr. The senior Mr. Brown now expresses regret about the way the policy started and ultimately evolved. ''They've gone far, too far, in letting people out,'' he said in an interview.”
Lyons quotes Dr. Robert H. Felix, who was then director of the National Institute of Mental Health and a major figure in the shift to community centers, who says now on reflection: ''Many of those patients who left the state hospitals never should have done so. We psychiatrists saw too much of the old snake pit, saw too many people who shouldn't have been there and we overreacted. The result is not what we intended, and perhaps we didn't ask the questions that should have been asked when developing a new concept, but psychiatrists are human, too, and we tried our damnedest.''
The original policy changes were backed by scores of national professional and philanthropic organizations and several hundred people prominent in medicine, academia and politics. The belief then was widespread that the same scientific researchers who had conjured up antibiotics and vaccines during the outburst of medical discovery in the 50s and 60s had also developed penicillins to cure psychoses and thus revolutionize the treatment of the mentally ill.
One of the most influential groups in bringing about the new national policy was the Joint Commission on Mental Illness and Health, an independent body set up by Congress in 1955. One of its two surviving members, Dr. M. Brewster Smith, a University of California psychologist who served as vice president, said the commission took the direction it did because of ''the sort of overselling that happens in almost every interchange between science and government.''
''Extravagant claims were made for the benefits of shifting from state hospitals to community clinics,'' Dr. Smith said. ''The professional community made mistakes and was overly optimistic, but the political community wanted to save money.''
Charles Schlaifer, a New York advertising executive who served as secretary-treasurer of the group, said he was now disgusted with the advice presented by leading psychiatrists of that day.
''Tranquilizers became the panacea for the mentally ill,'' he said. ''The state programs were buying them by the carload, sending the drugged patients back to the community and the psychiatrists never tried to stop this. Local mental health centers were going to be the greatest thing going, but no one wanted to think it through.''
In restrospect it does seem clear that questions were not asked that might have been asked. In the thousands of pages of testimony before Congressional committees in the late 1950's and early 1960's, little doubt was expressed about the wisdom of deinstitutionalization. And the development of tranquilizing drugs was regarded as an unqualified ''godsend,'' as one of the nation's leading psychiatrists, Dr. Francis J. Braceland, described it when he testified before a Senate subcommittee in 1963.
Dr. Braceland, a former president of the American Psychiatric Association who is a retired professor of psychiatry at Yale University, still maintains, however, that under the circumstances the widespread prescription of drugs for the mentally ill was and is a wise policy.
''We had no alternative to the use of drugs for schizophrenia and depression,'' Dr. Braceland said. ''Before the introduction of drugs like Thorazine we never had drugs that worked. These are wonderful drugs and they kept a lot of people out of the hospitals.''
The consensus seems to be that the more intelligent approach to the overall problem is to realize both the limitations and value of the drugs, the importance of combining drug treatment with proper care - either in hospitals or local clinics, depending on the individual case - and that mental illness is a sociological fact that cannot be ignored simply out of a desire to save tax dollars.
Jack R. Ewalt, who directed the staff of the Joint Commission when it was founded in 1955, says now that he remains ''a great believer in the use of drugs, but they are just another treatment, not a magic.''
''Drugs can help people get back to the community,'' he said, ''but they have to have medical care, a place to live and someone to relate to. They can't just float around aimlessly.''
Dr. Ewalt said the 1963 act was supposed to have the states continue to take care of the mentally ill but that many states simply gave up and ceded most of their responsibility to the Federal Government.
''The result was like proposing a plan to build a new airplane and ending up only with a wing and a tail,'' Dr. Ewalt said. ''Congress and the state governments didn't buy the whole program of centers, plus adequate staffing, plus long-term financial supports.''
With the patchwork implementation of President Kennedy’s Community Mental Health Act of 1963 (CMHA) (also known as the Community Mental Health Centers Construction Act, Mental Retardation Facilities and Construction Act, Public Law 88-164, or the Mental Retardation and Community Mental Health Centers Construction Act of 1963) was an act to provide federal funding for community mental health centers in the United States. This legislation was passed as part of John F. Kennedy's New Frontier. It led to considerable deinstitutionalization.
In 1955, Congress passed the Mental Health Study Act, leading to the establishment of the Joint Commission on Mental Illness and Mental Health. That Commission issued a report in 1961,[1] which would become the basis of the 1963 Act.[2]
The CMHA provided grants to states for the establishment of local mental health centers, under the aegis of the National Institute of Mental Health. The NIH also conducted a study involving adequacy in mental health issues. The purpose of the CMHA was to provide for community-based care, as an alternative to institutionalization. However, some states saw this as an excuse to close expensive state hospitals without spending some of the money on community-based care.
Under the CMHA many patients, formerly warehoused in institutions, were released into the community. However, not all communities had the facilities or expertise to deal with them. In many cases, patients wound up in adult homes or with their families, or homeless in large cities but without the mental health care they needed
Here then we have the perfect storm: A collection of well-intentioned but seriously flawed assumptions used as the basis for a new national public health policy that won the uncritical favor of politicians, drug companies, psychiatrists – even property developers who would build the network of community health centers and lawyers who drew up the deeds and transfers -- but which instead resulted in unspeakable pain and suffering for millions of people with mental illnesses, in and out of prison.
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Editor’s Note: Sadhbh Walshe writes a weekly column for The Guardian newspaper on the mentally ill in US prisons and jails. Her series is called “Inside Story: The U.S. Prison System.
(http://www.guardian.co.uk/commentisfree/series/inside-story).
Three years ago, the twenty-something grandson of one of my colleagues was arrested for murder. A confirmed, long-standing, well-diagnosed victim of paranoid schizophrenia, he had been off his meds.
Now he was in full flight on a classic schizophrenic tear. He was angry. He was delusional. He was hearing voices that didn’t exist, and they were threatening to persecute him. He was Merlin, a legendary figure best known as the wizard in the Arthurian legend.
Though there were the usual character testimonials submitted to the Court at sentencing, and professional pleas to place him not in prison but in a psychiatric hospital treatment program, he was tried, convicted and sentenced to life in prison. Before his trial, he was incarcerated in a County jail, afterward in a larger state prison.
Even though his correct medication was recorded in the documents that accompanied him to his lock-up sites, during the entire first year of his incarcarceration, the only medication he received were tranquilizers, not usually given to paranoid schizophrenics except for short periods to calm them down... Nobody looked. Nobody cared.
While some of the facts in this introduction have been edited to protect the inmate’s privacy, with that predicate it may not surprise you to learn that the treatment of this seriously sick inmate is not the exception; it is, with few exceptions, the rule.
More Americans receive mental health treatment in prisons and jails than in hospitals or treatment centers. In fact, the three largest inpatient psychiatric facilities in the country are jails: Los Angeles County Jail, Rikers Island Jail in New York City and Cook County Jail in Illinois.
In a ground-breaking 2006 report, Human Rights Watch said new federal statistics revealed that the number of mentally ill inmates in U.S. prisons and jails had quadrupled since 2000. And, as is true of inmates all across the U.S., the numbers of African American and Latino prisoners have grown out of all proportion to the size of their respective racial/ethnic groups.
The Bureau of Justice Satistics (BJS), part of the Department of Justice (DOJ), reported that more than half of all state inmates now report mental health problems. These included symptoms of major depression, mania and psychotic disorders..
In 1998, the BJS reported there were an estimated 283,000 prison and jail inmates who suffered from mental health problems. That number is now estimated to be 1.25 million. The rate of reported mental health disorders in the state prison population is five times greater (56.2 percent) than in the general adult population (11 percent).
In its 2006 Report, the BJS estimated that 705,600 mentally ill adults were incarcerated in State prisons, 78,800 in Federal prisons and 479,900 in local jails.
In addition, research suggests, "people with mental illnesses are over-represented in probation and parole populations at estimated rates ranging from two to four times the general population,"
The 2006 report compiled by the Bureau of Justice also reported that 73% of all women in state prisons, 75% of women in local jails, and 55% and 63%, respectively, among men, have mental health problems. In addition, nearly a quarter of women in state prisons and jails have been diagnosed with a psychiatric disorder by a mental health professional.
So here you have an impaired prison population growing exponentially, composed largely of people who should be in hospital treatment programs and not prison in the first place, under the care of workers untrained to handle sick people whose illness can only get worse in prison, and who would much prefer not having to do so, but who can find no alternative to jail.
How did we get here? Why are so many of the mentally ill homeless, living under bridges or in makeshift shelters? Why haven’t they been admitted to hospital-based treatment programs before they get into petty trouble with the law that eventually escalates them into jail.
There is a sharp division of opinion among different segments of the US population regarding who’s to blame. Many fault the prisoners, others think the police and prison authorities simply want to accrue more power..
The fact is the fault is with neither and both. Prisoners with mental illnesses can’t simply will away their sickness. And some do try to exploit their illnesses to secure greater comforts for themselves. Prison staff has its job to do as well. It’s true that they are often needlessly cruel in getting their work done – like the prison guard who made a bitter joke out of denying sanitary napkins, or offering soiled ones, to mentally disturbed inmates. This is not acceptable behavior; guards need to do whatever is reasonable and legal to maintain order. What do they do?
In recent years, prison officials have increasingly turned to solitary confinement as a way to manage difficult or dangerous prisoners. Many of the prisoners subjected to isolation, which can extend for years, have serious mental illness, and the conditions of solitary confinement can exacerbate their symptoms or provoke recurrence.
“Yet, the Bureau of Justice freely admits that among those incarcerated with mental health problems, only one in three state prisoners, and one in six jail inmates, has received treatment since admission,” Sadhbh Walshe writes in The Guardian newspaper, adding:
“There is no mention in the report about what happens to the majority of mentally ill prisoners who go untreated, but the evidence suggests that they are not just ignored, but actually brutalized by a system that has failed them at every turn.”
According to Human Rights Watch, deficient mental health services in prisons and jails leave prisoners under-treated or not treated at all. Across the country, prisoners with mental health problems face a shortage of qualified staff, lack of facilities and prison rules that interfere with treatment.
“While the number of mentally ill inmates surges, prisons remain dangerous and damaging places for them,” says Jamie Fellner, director of Human Rights Watch’s U.S. Program and author of the 2006 report.
The repoprt s ays prison staff often punish mentally ill offenders for showing symptoms of their illness, such as being noisy, refusing orders, self- mutilating or attempting suicide. Mentally ill prisoners are thus more likely than others to end up housed in especially harsh conditions, including isolation, that can push them over the edge into acute psychosis.
Mentally ill inmates without their meds often spell trouble for prison staff. Typically, there are no doctors on the premises and no inventory of medicines the guards are authorized to access. The prisoner is yelling, screaming, fighting with other prisoners, generally making life difficult for prison staff. So they turn to what appears to be the weapon of choice: solitary confinement.
Jamie Fellner of HRW quotes a federal judge who called the practice of putting mentally ill prisoners in solitary confinement the equivalent of putting an asthmatic in a room with no air.
Since then, lawsuits against corrections departments in at least 10 states have obtained court orders or settlements...have a criminal justice system which has a very clear purpose: You get arrested. We want justice. We try you, and justice hopefully prevails. It was never built to handle people that were very, very ill, at least with mental illness," says Steve Leifman, the Florida judge who has campaigned tirelessly to professionalize the care of mental illness in prison or move the entire operation to a far more appropriate setting.
Read some of the heart-breaking testimonies of solitary confinement victims here. If the victims of this cruel treatment weren’t very sick when they entered solitary, no one would be surprised if they were dangerously mentally ill when they were released – sometimes after years of segregation and abuse.
Here is the testimony of Anthony Graves, freed from a Texas death row with the help of The Innocence Project. It was presented recently at the first hearing ever held in the U.S. Senate on the subject of solitary confinement. The hearing was convened by Sen. Dick Durban, Democrat of Illinois.
My name is Anthony Graves and I am death row exoneree number 138. I was wrongfully convicted and sentenced to death in Texas back in 1992, where my nightmare began. Like all death row inmates, I was kept in solitary confinement. I lived under some of the worst conditions imaginable with the filth, the food, the total disrespect of human dignity. I lived under the rules of a system that is literally driving men out of their minds. I was one week away from my 27th birthday when I was arrested, and this emotional torture took place for the next 18.5 years. I survived the torture by believing in my innocence and hoping that they would make it right. My life was saved, but those 18.5 years were no way to live.
I lived in a small 8 by 12 foot cage. I had a steel bunk bed, with a very thin plastic mattress and pillow that you could only trade out once a year. By the time a year comes around, you’ve been virtually sleeping on the steel itself. I have back problems as a result. I had a steel toilet and sink that were connected together, and it was positioned in the sight of male and female officers. They would walk the runs and I would be in plain view while using the toilet.
I had a small shelf that I was able to use as a desk to write on. This was the same shelf that I ate at. There was a very small window up at the top of the back wall. In order to see the sky or the back of the building you would have to roll your plastic mattress up to stand on. I had concrete walls that were always peeling with old dull paint. It’s the image of an old abandoned one-room project apartment.
I lived behind a steel door that had two small slits in it, the space replaced with iron mesh wire, which was dirty and filthy. Those slits were cut out to communicate with the officers that were right outside your door. There was a slot that’s called a pan hole and that’s how you would receive your food. I had to sit on my steel bunk like a trained dog while the officer delivered my food tray. He would take a steel crow bar and stick it into the metal lock on the pan hole, it would fall open, which then allowed the officer to place your tray in the slot. Afterward, he then steps back, which was the signal for me to get off the bunk and retrieve my food. This is no different from the way we train our pets.
The food lacks the proper nutrition, because it is either dehydrated when served to you or perhaps you’ll find things like rat feces or a small piece of broken glass. There is no real medical care. I had no television, no telephone, and most importantly, I had no physical contact with another human being for at least 10 of the 18 years I was incarcerated.
I was subjected to sleep deprivation. I would hear the clanging of metal doors throughout the night, an officer walking the runs and shining his flashlight in your eyes, or an inmate kicking and screaming because he’s losing his mind.
Solitary confinement does one thing, it breaks a man’s will to live and he ends up deteriorating. He’s never the same person again.
Then his mother comes to see her son sitting behind Plexiglass, whom she hasn’t been able to touch in years, and she has to watch as her child deteriorates right in front of her eyes. This madness has a ripple effect. It doesn’t just affect the inmate; it also affects his family, his children, his siblings and most importantly his mother.
Another tragic story of the impact of solitary can be found here.
The Sad Story of Armando Cruz, from the Journal of the American Academy of Psychiatry and the Law
On a dozen Post-It notes he scribbled his final words, telling his family he loved them. His final ge was “REMEMBER ME!”
The death of Armando Cruz was the culmination of years suffering from hallucinations, engaging in self-harm and escalating problems. It also exemplifies what can and does happen to people with severe mental health problems when they are locked into the prison system.
Entering the California prison system on February 25, 2003 following three years of legal wrangling, he would spend at least four years in solitary confinement units, including the final year of his life. Housed alone, his hallucinations and delusions would fester as he ruminated in cells no larger than a bathroom to the point where, in the final months of his life, he invented a family that lived with him. For a vulnerable young man with a fear of “being alone in a cell,” the protracted isolation amounted to psychological torture. Ultimately, he became one of 33 California prisoners who would commit suicide in 2011.
In order to understand Armando Cruz’s death, it is important to understand the tumultuous life that he led.
Armando Emmanuel Cruz, Jr. was born on April 23, 1983 to Armando and Yolanda Cruz in Fontana, California. He was a relatively quiet child who enjoyed playing sports, participated in karate, and was well liked by his peers. He was a decent student in elementary school.
Says his mother, Yolanda, of her son, “What I want the broken system to know and the State of California is, that Armando…was a sensitive son who worried about the less fortunate and the injustices in our world.
Things began to change when he entered adolescence. When he was thirteen, he began to use marijuana and methamphetamine and engaged in inhalant abuse (“huffing”). He began experimenting with cocaine and LSD and also began to drink alcohol, which he reportedly did to the point of losing consciousness.
In August 1997 at the age of 14, he was arrested for possessing marijuana at school. The following month he was arrested for burglary. He had stolen several thousand dollars worth of tools.
In 1998, he began to exhibit early psychotic symptoms, yelling at his mother that he was feeling forgetful, that he “felt out of place” and that he was “losing his language.”
In January 1998, according to legal documents, he was examined at County Mental Health and diagnosed as suffering from Inhalant Dependency. Two months later,”[Cruz] had a juvenile forensic evaluation and was diagnosed as suffering from a psychotic disorder, probably a hallucinogen induced psychosis, and also suffering from Borderline Intellectual Functioning.”
Though he was placed in various diversionary programs to keep him out of juvenile detention facilities, his problems continued to escalate.
Friends commented that they felt that the various psychiatric drug combinations Cruz was on “made him slower,” “made him seem more dazed” and that “it felt like Cruz was getting farther away.”
In July 1999, records indicate that he threatened: “I’ll kill a cop and cut off his hand” while in a mental health facility for young people and was seen by a psychiatrist. One doctor thought that he suffered from a psychotic disorder, while another thought that he suffered from a paranoid schizophrenia. Others still claimed it was schizophrenic form disorder.
In January 2000, a drunken Cruz got into a yelling and shoving match with his mother. At the time, he was medicated with Zyprexa, Welbutrin and Tenax. He told officers “he doesn’t have anything to live for and he wanted to die.”
On April 30, 2000, California Highway Patrol Officer was conducting a routine traffic stop in Lakeside, California, an unincorporated area of San Diego County. Suddenly, an individual wearing only underwear ran behind the officer and with a large knife, sliced the throat of the officer and ran away.
Cruz, medicated with Zyprexa, Guanfacine, Wellbutrin, and also drinking alcohol that night stated that he recalled the lead up of events as follows: “I was in my house…listening to a song by Sublime about the riots in LA which suggested committing 187 (Murder) on a cop. I was depressed; I looked across the street and saw the CHP officer writing a ticket. I wanted to save the world. I went across the street and hid behind a stop sign. I sliced the guy’s throat with a kitchen knife. I just wanted to be a demon…I felt dead on the inside.”
Neither the officer who sustained a superficial injury required tape stitches, nor were there witnesses in either the stopped vehicle or the surrounding area able to immediately identify the suspect. However, in the subsequent weeks Cruz began to speak about his actions to a friend, who told his father, who notified the police about what Cruz had said. Cruz was arrested on May 24, 2000 and quickly admitted to the attack on the officer.
Nearly three years of legal wrangling would be a very difficult time for Cruz.
Following his arrest, he would be held at a University of California San Diego psychiatric unit for evaluation. He is noted to have “jumped off a balcony” in an apparent suicide attempt. Upon being transferred to another psychiatric unit, an examining psychiatrist would tell his mother: “Armando’s schizophrenia has gotten worse.”
In the next years, his father would die of a terminal illness that had ailed him for many years. Cruz, then being held in the county jail was allowed to attend a service for his father. He was brought in arm and leg restraints and was constantly under guard and was not allowed to embrace family.
He would be incarcerated at the San Diego County jail from April 2001 until being sentenced in 2003. At some point in this period he would attempt suicide by hanging at the jail, something that only came to his mother’s attention after his death.
While in jail he was kept in segregation for periods of time for his own protection. He had reported being taken advantage of by inmates who, as his mother said, took advantage of his kindness and naïveté.
The legal battle that culminated with his pleading guilty in January 2003 and being sentenced to life in prison with the possibility of parole after eight years for the Attempted Murder of a Police Officer.
Says Cruz’s mother of the legal proceedings, “The system took complete advantage of a young, naive, scared, incompetent schizophrenic teenager, who in his mind was trying to protect himself and his family. Starting from the sheriff’s department that questioned him without my permission in order to get a statement and confession from him in his mental incompetence. My son was declared at the 707 hearing as severely mentally ill suffering from schizophrenia. He was talked into a plea deal of 8 minimum to life which would after all the legal wrangling, send my naïve son into a level 4 adult prison setting.“
Cruz was among the first juveniles to be charged and sentenced as an adult under the overwhelmingly passed Proposition 21 in California, which had been approved by California voters just one month before the April 2000 attack on the CHP officer.
At this point, 17-year old Cruz would become one of the countless numbers of prisoners in the United States suffering from debilitating mental health problems.
“Asking prisons to treat people with serious mental illness is pushing round pegs into square holes,” says Fellner. “People who suffer from mental illness need mental health interventions, not punishment for behavior that may be motivated by delusions and hallucinations.”
According to Human Rights Watch, the staggering rate of incarceration of the mentally ill is a consequence of under-funded, disorganized and fragmented community mental health services. Many people with mental illness, particularly those who are poor, homeless, or struggling with substance abuse – cannot get mental health treatment. If they commit a crime, even low-level nonviolent offenses, punitive sentencing laws mandate imprisonment.
The apex of self-delusion came in the form of The Community Mental Health Act of 1963 (CMHA), which was also known as the Community Mental Health Centers Construction Act, Mental Retardation Facilities and Construction Act, Public Law 88-164, or the Mental Retardation and Community Mental Health Centers Construction Act of 1963.
It was an act billed to solve these intractable problems by providing federal funding for community mental health centers throughout the United States. These centers would replace state psychiatric hospitals, thus optimizing the use of tranquillizers – which had been in steady development during the 1950s and 60s, and “preparing the ground” for the array of “miracle” drugs that most of the psychiatric community sincerely believed was just around the corner.
This legislation was passed as part of President John F. Kennedy's New Frontier. It introduced a new piece of psycho-speak into the jargon of psychiatric public policy and led to one of the genuine public health disasters of the second half of the 20th Century.
It was called deinstitutionalization.
Under the legislation, The CMHA provided grants to states for the establishment of local mental health centers, subject to the overview of the National Institute of Mental Health. The NIH also conducted a study involving adequacy in mental health issues. The purpose of the CMHA was to provide for community-based care, as an alternative to institutionalization. However, some states saw this as an excuse to close expensive state hospitals without spending some of the money on community-based care.
Under the CMHA, many patients, formerly warehoused in institutions, were released into the community. However, not all communities had the facilities or expertise to deal with them. In many cases, patients wound up in adult homes or with their families, or homeless in large cities but without the mental health care they needed,
The 2006 BJS report reveals that state prisoners with mental health problems were twice as likely to have been homeless and twice as likely to have lived in a foster home, agency or institution while growing up as those without mental health problems. Prisoners with mental health problems were also significantly more likely to have reported being physically or sexually abused in the past, to have had family members who had substance abuse problems, and to have a family member who had been incarcerated in the past. An estimated 42 percent of state inmates had both a mental health problem and substance dependence or abuse.
Yet, even with meager resources, law enforcement and psychiatric professionals continue to struggle in hundreds of communities throughout the US to create conditions that will improve the lives of the mentally ill who find themselves locked up. They do so knowing that practical public servants typically will assign a zero priorority to spending tax dollars on an idea framed to improve life for the very convicts that turn our jails into noisy, disorganized, expensive, crime-ridden killing fields.
Thus advocates for even the most fundamental mental illness management programs must must be perceived by their colleagues as Sancho Panza, tilting at windmills . One of those warriors is Miami-Dade County Judge Steven Leifman, who has worked for many years to get justice system to do more for the mentally ill than incarcerate them.
Judge Leifman is trying to prevent individuals with mental illnesses who have committed minor crimes from ending up in jail. He's creating a novel facility in Miami-Dade that will serve as what's known as a "forensic diversion facility."
The program provides a sentencing alternative in cases where the offender has mental health issues. Those entering will begin in a higher-security area, more like a jail, and once stabilized move to a different part of the building for treatment.
Leifman is working to get justice system to do more for the mentally ill than simply lock them up. His ideas, and to a great extent, the ideas of others who are working on this problem, are centered around trying to ensure that offenders suspected of committing minor non-violent crimes never make it into the prison system to begin with,
All over the US, one can find such pilot or model programs. But few have shown the resources – or the interest – to scale up these experiments.
For the broader community and its political leadership, improving care for mentally ill prisoners has to be among the lowest priorities. Long gone are the euphoric days when local psychiatrists and their political leaderhip could brag about vastly improving medicines for the care of the mentally ill while saving huge amounts of tax dollars on state hospitals no longer needed.
That’s how we got here. In the 1980s, under the directives of three California Governors, including Ronald Reagan, most state-run mental hospitals were shut down – with the promise that mentally ill patients would receive better, more humane care in community-based facilities.
But that left people with mental illness with nowhere to turn, and many ended up in jail. The cause, in psychospeak, was deinstitutionalization.
What is “deinstitutionalization?” It is the process through which state-owned-and-run psychiatric hospitals were systematically closed down beginning in the early 1980s and their patients encouraged to use “community health centers” (which, for the most part, had not yet been built) and rely for medication on new psychiatric drugs (most not yet developed for clinical testing). Meanwhile, they would make use of existing medications, mostly tranquillizers that are generally not used on patients with, for example, schizophrenia except for short periods of time to calm the patient down.
As early as 1984, the policy that led to the release of most of the nation's mentally ill patients from the hospital to the community is now widely regarded as a major failure. Thousands of people with mental illnesses had no place to live except under bridges or in makeshift shelters. Many were Vietnam vets. They had no treatment, no medicines other than tranquillizers that worked, no support systems, and few who cared whether they lived or died.
Who was responsible? Sweeping critiques of the policy, notably the American Psychiatric Association, spread the blame everywhere, faulting politicians, civil libertarian lawyers and psychiatrist
Many in the psychiatric community felt optimistic that they would soon develop medications analogous to penicillin – but it would be penicillin for schizophrenia and depression and bipolar disease and all the other awful demons and goblins that nature unleashed. Many convinced themselves that these psychiatric wonder drugs had already arrived.
The shrinks weren’t conning anyone, except perhaps themselves. They believed their own story. And their enthusiasm was so overwhelming that before long they managed to convince the politicians in California that they were standing on the brink of a new day: Soon they would be able to tell their constituents that they were able to be tough on crime and save large sums of money at the same time.
Eventually, very powerful people bought into the myth. Topping the list were the three California Governors, and Governors of other states, and the Federal Government to which the “good news” had traveled quickly.
Richard Lyons wrote in the New York Times in 1984, “the politicians were dogged by the image and financial problems posed by the state hospitals and that the scientific and medical establishment sold Congress and the state legislatures a quick fix for a complicated problem that was bought sight unseen.”
He added: “In California, for example, the number of patients in state mental hospitals reached a peak of 37,500 in 1959 when Edmund G. Brown was Governor, fell to 22,000 when Ronald Reagan attained that office in 1967, and continued to decline under his administration and that of his successor, Edmund G. Brown Jr. The senior Mr. Brown now expresses regret about the way the policy started and ultimately evolved. ''They've gone far, too far, in letting people out,'' he said in an interview.”
Lyons quotes Dr. Robert H. Felix, who was then director of the National Institute of Mental Health and a major figure in the shift to community centers, who says now on reflection: ''Many of those patients who left the state hospitals never should have done so. We psychiatrists saw too much of the old snake pit, saw too many people who shouldn't have been there and we overreacted. The result is not what we intended, and perhaps we didn't ask the questions that should have been asked when developing a new concept, but psychiatrists are human, too, and we tried our damnedest.''
The original policy changes were backed by scores of national professional and philanthropic organizations and several hundred people prominent in medicine, academia and politics. The belief then was widespread that the same scientific researchers who had conjured up antibiotics and vaccines during the outburst of medical discovery in the 50s and 60s had also developed penicillins to cure psychoses and thus revolutionize the treatment of the mentally ill.
One of the most influential groups in bringing about the new national policy was the Joint Commission on Mental Illness and Health, an independent body set up by Congress in 1955. One of its two surviving members, Dr. M. Brewster Smith, a University of California psychologist who served as vice president, said the commission took the direction it did because of ''the sort of overselling that happens in almost every interchange between science and government.''
''Extravagant claims were made for the benefits of shifting from state hospitals to community clinics,'' Dr. Smith said. ''The professional community made mistakes and was overly optimistic, but the political community wanted to save money.''
Charles Schlaifer, a New York advertising executive who served as secretary-treasurer of the group, said he was now disgusted with the advice presented by leading psychiatrists of that day.
''Tranquilizers became the panacea for the mentally ill,'' he said. ''The state programs were buying them by the carload, sending the drugged patients back to the community and the psychiatrists never tried to stop this. Local mental health centers were going to be the greatest thing going, but no one wanted to think it through.''
In restrospect it does seem clear that questions were not asked that might have been asked. In the thousands of pages of testimony before Congressional committees in the late 1950's and early 1960's, little doubt was expressed about the wisdom of deinstitutionalization. And the development of tranquilizing drugs was regarded as an unqualified ''godsend,'' as one of the nation's leading psychiatrists, Dr. Francis J. Braceland, described it when he testified before a Senate subcommittee in 1963.
Dr. Braceland, a former president of the American Psychiatric Association who is a retired professor of psychiatry at Yale University, still maintains, however, that under the circumstances the widespread prescription of drugs for the mentally ill was and is a wise policy.
''We had no alternative to the use of drugs for schizophrenia and depression,'' Dr. Braceland said. ''Before the introduction of drugs like Thorazine we never had drugs that worked. These are wonderful drugs and they kept a lot of people out of the hospitals.''
The consensus seems to be that the more intelligent approach to the overall problem is to realize both the limitations and value of the drugs, the importance of combining drug treatment with proper care - either in hospitals or local clinics, depending on the individual case - and that mental illness is a sociological fact that cannot be ignored simply out of a desire to save tax dollars.
Jack R. Ewalt, who directed the staff of the Joint Commission when it was founded in 1955, says now that he remains ''a great believer in the use of drugs, but they are just another treatment, not a magic.''
''Drugs can help people get back to the community,'' he said, ''but they have to have medical care, a place to live and someone to relate to. They can't just float around aimlessly.''
Dr. Ewalt said the 1963 act was supposed to have the states continue to take care of the mentally ill but that many states simply gave up and ceded most of their responsibility to the Federal Government.
''The result was like proposing a plan to build a new airplane and ending up only with a wing and a tail,'' Dr. Ewalt said. ''Congress and the state governments didn't buy the whole program of centers, plus adequate staffing, plus long-term financial supports.''
With the patchwork implementation of President Kennedy’s Community Mental Health Act of 1963 (CMHA) (also known as the Community Mental Health Centers Construction Act, Mental Retardation Facilities and Construction Act, Public Law 88-164, or the Mental Retardation and Community Mental Health Centers Construction Act of 1963) was an act to provide federal funding for community mental health centers in the United States. This legislation was passed as part of John F. Kennedy's New Frontier. It led to considerable deinstitutionalization.
In 1955, Congress passed the Mental Health Study Act, leading to the establishment of the Joint Commission on Mental Illness and Mental Health. That Commission issued a report in 1961,[1] which would become the basis of the 1963 Act.[2]
The CMHA provided grants to states for the establishment of local mental health centers, under the aegis of the National Institute of Mental Health. The NIH also conducted a study involving adequacy in mental health issues. The purpose of the CMHA was to provide for community-based care, as an alternative to institutionalization. However, some states saw this as an excuse to close expensive state hospitals without spending some of the money on community-based care.
Under the CMHA many patients, formerly warehoused in institutions, were released into the community. However, not all communities had the facilities or expertise to deal with them. In many cases, patients wound up in adult homes or with their families, or homeless in large cities but without the mental health care they needed
Here then we have the perfect storm: A collection of well-intentioned but seriously flawed assumptions used as the basis for a new national public health policy that won the uncritical favor of politicians, drug companies, psychiatrists – even property developers who would build the network of community health centers and lawyers who drew up the deeds and transfers -- but which instead resulted in unspeakable pain and suffering for millions of people with mental illnesses, in and out of prison.
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Editor’s Note: Sadhbh Walshe writes a weekly column for The Guardian newspaper on the mentally ill in US prisons and jails. Her series is called “Inside Story: The U.S. Prison System.
(http://www.guardian.co.uk/commentisfree/series/inside-story).
Monday, January 21, 2013
Afghanistan: The Abyss Deepens
By William Fisher
Speaking to the press just before Christmas, President Obama confidently predicted that the US would achieve its goals in the Afghan War effort.
Following the release of the US annual strategy review which noted an increase in attacks by the Taliban and groups with which it is allied, the review said that al-Qaeda's leadership was at its weakest since 2001.
The President has said on numerous occasions that US-NATO strategy is working, despite the view of many senior US diplomats and journalists that Afghanistan’s President Hamid Karzai is “increasingly erratic and even paranoid.” The Karzai government has done little to stem years of charges of financial corruption and election misconduct.
Among those US senior diplomats is Anthony H. Cordesman, the Arleigh A. Burke Chair in Strategy at the prestigious Center for Strategic and International Studies (CSIS). He has been visiting and lecturing in Asia since the 1960s, and is a Senior Advisor to the US-Asia Institute.
Cordesman has emerged as one of the harshest critics of the Afghan operation. In a report entitled “Going in Transition: US Military and Aid Spending: FY2002-2013,” he has estimated that at the end of 2013 – the announced date for the completion of the US and NATO – these Afghan allies will have spent $641.7 billion.
Cordesman says, “This is an incredible amount of money to have spent with so few controls, so few plans, so little auditing, and almost no credible measures of effectiveness.”
It is surprisingly difficult to get a meaningful estimate of the total cost of the Afghan conflict, total spending on Afghan forces and total spending on various forms of aid, he adds.
The Cordesman report addresses the cost to the US of the Afghan War from FY2000-FY2013. It provides estimates of total cost, cost to the Department of Defense, and aid costs to State, USAID, and other federal agencies. It also reports on the total cost of international aid when this takes the form of integrated aid to Afghan development and Afghan forces – a fraction of total aid spending.
No reliable estimate exists of total international aid to Afghanistan, since so much of this aid has been direct and has not passed through the Afghan Central government.
The resulting figures show that:
· The vast majority of aid went to the Afghan security forces and not development. President Obama has consistently stressed the importance of economic development in Afghanistan, while denying that “nation-building” was a major US objective.
· Most aid was very erratic in annual levels of effort, making it extremely difficult to plan the most effective use of the money and ensuring that program continuity was not possible.
· The bulk of the total spending and aid has been allocated since FY2009, and came after the insurgency had reached high levels. It is a clear case of too much, too late.
· The surge in aid spending creates the irony that the maximum actual cash flow – “disbursements” – is only occurring now that transition is in place and major cuts are coming between 2012 and 2014.
· The data only tell the amount of money made available on a total category basis. They do not tell how much money actually reached Afghanistan, they do not tie spending to any clear objectives, they do not reflect any effective contracting and auditing system, and there are no measures of effectiveness or success.
· Not only did the money come far too late to prevent the rise of a major insurgency, when it did come, it came in areas where there were no effective overall planning, management, and contacting systems. No adequate fiscal controls, and no real measures of effectiveness. The system virtually invited waste, fraud, and abuse.
Cordesman cautions that it is important to note that reforms have taken place in many areas of contracting, and there is now better auditing. The Afghan government has also promised important reforms in its control of spending and efforts to reduce corruption.
A total of $641.7 billion, of which $198.2 billion – or over 30% – will be spent in FY2012 and FY2013. Cordesnman says, “This is an incredible amount of money to have spent with so few controls, so few plans, so little auditing, and almost no credible measures of effectiveness.”
He also charges that “the end effect has been to sharply raise the threshold of corruption in Afghanistan, to make transition planning far more difficult, and raise the risk that sudden funding cuts will undermine the Afghan government’s ability to maintain a viable economy and effective security forces.”
Cordesman explains that four sets of funds are involved with a total value of $58.6 billion in appropriations and pledges as of March 2012. The largest is the US Afghanistan Security Forces Fund (ASFF) that provides the ANSF with equipment, supplies, services, and training, as well as facility and infrastructure repair, renovation, and construction.
Meantime, a separate audit by the State Department's Special Inspector General for Afghanistan Reconstruction (SIGAR), reported little change in the cavalcade of management disasters that has plagued the Afghan operation since its inception.
SIGAR reported that “almost $13 million in equipment designed to upgrade Afghanistan's creaking power grid has been left mothballed in storage for lack of an installation plan.”
In addition, the agency discovered that a contractor was paid $5.76 million to help the Afghan national power utility, but most of the work was never carried out.
"Almost $12.8 million in equipment purchased to meet urgent needs in support of the counterinsurgency strategy is sitting unused in storage... without a clear plan for installation," said the report by Inspector General John Sopko.
The equipment was dispatched in March, but has been stored at a US Army Corps of Engineers base in the southern city of Kandahar on wooden palettes as they ponder what to do with it, pending a clear installation plan.
A further concern is that the manufacturer's two-year warranty on the electricity meters could run out before the equipment is installed.
Sopko said in a letter to General John Allen, the top US and NATO commander in Afghanistan, that he had audited US efforts to help the Afghan power utility.
He also highlighted that millions of dollars were paid to contractor Louis Berger Group Inc/Black & Veatch to provide training and technical assistance to the utility.
But 76 percent of the work was never completed, including "a draft and final meter installation plan, procurement and installation of 231 boundary meters, and a transition manual and handover plan."
The two findings "warrant immediate attention prior to issuing a final report in early 2013," Sopko wrote.
Since 2009, the US has spent some $88 million to help improve and modernize the Afghan power grid, and a further $157 million are pledged between 2013-2016.
Afghanistan, which never had a fully developed power grid, is trying to rebuild after more than three decades of war.
The SIGAR report recommended that US commanders determine whether the equipment can be used in Kandahar, and draw up a plan.
It said the head of the US Agency for International Development mission in Afghanistan should assess the work done by the contractor LBG/BV and seek any reimbursement of funds due.
Finally, Paul D. Shinkman, a national security reporter at U.S. News & World Report, predicted that the facilities for security in Afghanistan will not last after (the) allied drawdown. Afghanistan won't be ready to maintain the infrastructure for its security forces following the kind of drawdown that both candidates for president prescribed (during the recent campaign,) his report finds.
He writes that “a low hiring rate, few technical skills, an inefficient procurement process and a lack of preparedness are among the reasons the U.S. Special Inspector General for Afghanistan Reconstruction believes that country won't be able to operate and maintain its own security forces' facilities after the U.S. and coalition troops begin withdrawing in 2014.”
Shinkman writes that his report follows up on the $800 million the U.S. Army Corps of Engineers gave a firm named Exelis, a Virginia-based contractor, in 2010, to ensure (that) Afghan security forces in both the northern and southern parts of the country would be able to maintain their facilities.
In a memo included in the report, the corps officials state Exelis was not performing sufficient quality control on the services it was contracted to supply.
The Afghan government has hired far less than 40 percent of its positions for operations and management, or O&M, of security facilities, according to the report. Apparently a discrepancy in salary between these positions and those in the private sector (is) are to blame for the lack of interest.
There are also very few people who have the technical skills necessary to maintain these facilities, such as managing drinking water, wastewater and power generation.
The government's Ministry of Defense has been dragging its feet on providing its army with supplies, the report states, and the Ministry of the Interior did not allocate O&M money for police facilities until March of this year.
Exelis was hiring a project operations manager in support of this project in Afghanistan as of Oct. 16 to oversee 258 separate contract locations in the northern region of Afghanistan, as well as 2,400 employees and subcontractors.
The stability of Afghanistan's security forces is a central tenet of American hopes to withdraw its troops within two years. The current condition of those forces leaves some worried for the future.
"There are police who don't even know the meaning of the word 'police,'" said the National Police Academy's director Mullah Dad Pazoish in a recent interview with the Associated Press. "We have generals who have no training. They are the jihadi commanders."
Many worry that the police force, which is largely illiterate, will fall apart if Western forces leave, Shinkman reports.
All of which brings to mind the probably apocryphal question said to have been raised by a Russian soldier as his forces withdrew from Afghanistan in 1988-89.”
“What,” he asked, “were we supposed to be doing here anyway?”
Our New Double-Standard for Justice
By William Fisher
I received an urgent email last week from Khalil Meek, the Executive Director of the Muslim Legal Fund of America (MLFA).
What Khalil was busting out to tell me (and hopefully several thousand others) was Glenn Greenwald’s conclusion that a New York Court of Appeals case containing “a fascinating new ruling (that) unwittingly illustrates the separate system of 'justice' invented for Muslims in the US after 9/11."
Intriguing, right? Read on!
The case involved a “gang-related murder trial in which prosecutors charged the defendant with terrorism. The alleged gang member was convicted, but the New York Court of Appeals completely threw out the terrorism and non-terrorism convictions because, they said:
· Terrorism charges do not apply because the defendant and his acts do not meet the ‘collective understanding’ of what terrorism is (in other words "violence committed by Arabs or Muslims against the west"), and
· Trials that involve terrorism charges allow for otherwise inadmissible evidence that prejudices juries in favor of the prosecution (in other words, terrorism trials are rigged to be unfair, to deny Muslims their legal rights, and to ease the way for convictions).”
Got that? Once more, with feeling:
“We now have it on the books: terrorism charges are reserved primarily for Muslims, and the rules of trials involving terrorism charges are different than non-terrorism trials -- the main difference being that terrorism trials are designed to be unfair so that prosecutors can easily get convictions.”
Is this true? Most non-lawyers – and many lawyers – remain unaware that this metamorphosis is taking place “in plain sight.” Here’s proof:
Listen to the editorial page editor of The New York Times, Andrew Rosenthal, writing about Liberty and Justice.
He says, "It's rarely acknowledged that the 9/11 attacks have also led to what's essentially a separate justice system for Muslims. In this system, the principle of due process is twisted and selectively applied, if it is applied at all."
In order to understand the significance of this case, it’s necessary to get down in the weeds a bit. Here’s how the New York Times presented it:
“Last month, New York State’s highest court ruled that the Bronx district attorney’s office erred in "trying to use a state terrorism charge to prosecute street gangs."
The Bronx district attorney, had “argued that Mr. Morales’s gang, the St. James Boys, met the somewhat vague definition of ‘terror’ in the state statute because it sought to intimidate or coerce the entire Mexican-American population" around St. James Park.
“In a unanimous decision, the six judges on the top court ruled that adopting the prosecution’s broad definition would allow other prosecutors to ‘invoke the specter of terrorism’ every time a Blood assaults a Crip or an organized crime family orchestrates the murder of a rival syndicate’s soldier.
But the judges ruled that the concept of terrorism “has a unique meaning and its implications risk being trivialized if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act.”
So what definition of ‘terrorism’is this court using? Well, it never does say. It simply says, ‘we have looked at the crime and it is not terrorism.”
Which tracks the never-to-be-forgotten words of Supreme Court Justice Potter Stewart in 1978. When asked in an obscenity case, ‘What is porn?’ Justice Potter simply said, ‘I know it when I see it.”
Gabor Rona, the International Legal Director of advocacy group
Human Rights First, provides another nail in the coffin of due process.
He says, “One pernicious aspect of prosecutions these days is that terrorism charges are increasingly being used for things that are not terrorism, in order to inflame juries. What makes this easy is the flexible definition of terrorism used in the criminal justice system.
“It takes a garden variety crime, say assault or murder, and turns it into something even more frightening by reference to the motive of the accused, rather than the act, itself. Even more attenuated from a balanced view of reality and justice is the leverage prosecutors have to charge conspiracy to commit terrorism, which, like all conspiracy charges, does not require any underlying crime to have been committed at all.
“This phenomenon is not limited to Muslim and Arab targets. Indeed, the ever-expansive use of terrorism in the prosecutor's toolbox, be it in the form of terrorism itself, conspiracy to commit terrorism, or "material support" to terrorism, puts virtually any political activism in the crosshairs of law enforcement.
“Fear of Muslims and Arabs may have given rise to this phenomenon, but authorities have successfully capitalized on it to take down tree huggers and to justify intrusive investigations of Occupy Movement activists.
“But another, equally disturbing manifestation of the creeping security state does involve mostly Muslims and Arabs. It's the disintegration of constitutional protections against entrapment.
“In theory, the law has not changed and the successful entrapment defense has always been rare. The government can supply virtually everything -- encouragement, incentives, materials, training, facilities -- to facilitate the crime, and still get a conviction. But it does have to prove that the accused was ‘pre-disposed’ to commit the crime. Even more than ‘motive’, predisposition is an amorphous concept, easily manipulated to prey on the fears and prejudices of juries who most certainly are not the ‘peers’ of the accused.
His conclusion is that ”prejudice does play an important role in the disintegration of due process, but once prosecutors hit upon a shiny new tool, they will naturally seek to expand its use wherever and whenever they can. To dial back this trend is virtually impossible at any time, let alone one where few judges or legislators can expect to survive the accusation: ‘soft on terrorism’."
Kathy Manley is an Albany (NY) Criminal defense attorney and the VP of the Capital Region Chapter of the NYCLU.
“By saying, as the NY court did, that ‘we know terrorism when we see it’, and then giving as examples cases involving Muslims, the decision shows this very clearly,” she says. “I think the court reached the right result here, but unintentionally made the double standard in the Muslim cases extremely clear,” she added.
“The case of my client, Yassin Aref, is a similar story but like so many other Muslim cases, it involved a sting operation,” she said. “A Kurdish Iraqi imam, Yassin came to Albany, NY as a UN refugee, and was soon targeted by the FBI for some reason. (As he discovered through a recent FOIA request, it appears they had him mixed up with an Al Qaeda operative who was later killed in 2010, after which Yassin was moved to a low security prison for the first time.)
“They sent a criminal con artist – Shahed Hussain, also used in the Newburgh 4 case - to befriend a co-founder of the mosque where Yassin was imam. This man, Mohammed Hossain, ran a struggling pizza business and needed money, so he was happy to be offered a loan by the provocateur, who said he was a rich importer who wanted to help his Muslim brothers. At one point he showed Mohammed a missile tube and said this was one of the things he imported. Mohammed was shocked and refused to help transport the missile, but he didn’t think it was connected to his loan, and he still wanted the money.
“Yassin was only brought in to witness the loan transaction as set forth in the Quran, something he often did for mosque members, who couldn’t use banks because their religious beliefs forbade them from paying or charging interest.
“Yassin never saw the missile, and had no idea the loan he was witnessing was connected to terrorism. The government recorded 50 hours of conversations between the three men, and Yassin never said anything showing he understood this. Yet, because he was charged with material support for terrorism, the government was able to bring into his 2006 trial Yassin’s 1999 diary and some speeches he made in Iraq in 1994, both of which showed Yassin’s Islamist beliefs and contained criticisms of the West as immoral.
’While nothing there connected Yassin to terrorism, the evidence was damning in the post-911 environment of Islamophobia. Worse, there was a mountain of secret evidence (likely the erroneous FBI reports alleging Yassin was a member of Al Qaeda) which was all given to the judge, but which even the security cleared defense attorneys were not permitted to see. This resulted in the judge telling the jury that the government had “good and valid reasons” for targeting Yassin. While acquitting him of most of the charges, I believe the jury was afraid to let him go completely, and convicted him of a few charges.
“As for what can be done, there needs to be much more awareness of all this, and how it is destroying innocent families and terrorizing the Muslim community. The government strategy is spreading beyond Muslims too, as we have seen sting operations used against Occupy and peace activists, who have also been targeted in material support for terrorism investigations.
“Such abuses always begin by targeting the most vulnerable and, if not stopped there, they are applied to others and eventually to everyone. Professor Francis A. Boyle, the firebrand law professor from the University of Illinois, summed up the situation this way:
In post 9/11 America, if you are an Arab or a Muslim facing a terrorism charge, the American legal system functionally presumes you to be guilty as charged instead of innocent as constitutionally required.
The Law Strikes Out!
By William Fisher
One could just about hear the loud low anguished cry of Ohoooooooooooooo from the folks who sat through the trial as the judge read out the sentence.
The sentence: 70 years in prison without the possibility of parole under the so-called “3-Strikes” law. In other words, Life.
The Crimes: Two break-ins counted as his third and fourth strike (his priors were also burglary and coming into possession of stolen goods) stealing jewelry.
The Prisoner: Jeremy Stewart, 25, father of two small children.
Why? Sadhbh Walshe of the Guardian Newspaper explains:
“In January of this year, I wrote about Jeremy Stewart. In his case, the normal 25-to-life sentence was doubled to 50-to-life, and the judge threw in an extra 20 years for no reason anyone can explain to me – apparently, just to make absolutely sure this young man (who was struggling with drug addiction) never gets to see his children outside a prison visiting room again.”
Since Stewart’s conviction, Californians have finally amended their Draconian 3-strikes law. With the change voted in by referendum 36 – 18 years in coming – the “third strike” will result in a life-without-parole sentence only when that strike is a violent crime and/or when the third felony offense is serious or violent, as defined in state law. It also authorizes the courts to resentence thousands of people who were sent away for low-level third offenses and who present no danger to the public.
Listen to Walshe, “Jeremy's mother tells me that his 70-year sentence was upheld recently in an appeals hearing, and Jeremy will not be eligible for any reduction of his sentence under Prop 36 because burglary counts as a serious felony.”
One of the results of Prop 36 will be the re-sentencing of thousands of prisoners. The Stanford Innocence Project says the resentencing process “is shaping up as a kind of referendum on the state’s barbaric treatment of mentally ill defendants, who make up a substantial number of those with life sentences under the three-strikes rule. It is likely that many were too mentally impaired to assist their lawyers at the time of trial. Mentally ill inmates are nearly always jailed for behaviors related to their illness. Nationally, they account for about one-sixth of the prison population.”
The introduction of mental illness adds a serious new dimension to sentencing – with the ratio of mentally ill prisoners apparently higher among three-strike lifers in California. According to a 2011 analysis of state data by Stanford Law School’s Three Strikes Project, nearly 40 percent of these inmates qualify as mentally ill and are receiving psychiatric services behind bars.
Even before the recent ballot initiative, “the clinic’s law students had overturned the life sentences of 26 people, based on newly discovered evidence or inadequate assistance of counsel, as when defense lawyers failed to present evidence of a client’s mental illness.”
Michael Romano, director of the Stanford project, said, “In my experience, every person who has been sentenced to life in prison for a nonserious, nonviolent crime like petty theft suffers from some kind of mental illness or impairment — from organic brain disorders, to schizophrenia, to mental retardation, to severe P.T.S.D.,” or post-traumatic stress disorder. Nearly all had been abused as children, he pointed out.” All had been homeless for extended periods, and many were illiterate. None had graduated from high school.”
He added, “In other words, these were discarded people who could be made to bear the brunt of this brutal law without risk of public backlash.”
The Stanford Three Strikes Project is the only legal organization in the country devoted to representing individuals serving life sentences under California's Three Strikes law. The Project represents defendants charged under the Three Strikes law with minor, non-violent felonies at every stage of the criminal process: at trial, on appeal, and in state and federal post-conviction habeas corpus proceedings. The Project also works, on behalf of its clients in collaboration with the NAACP Legal Defense Fund, to reform the harshest aspects of the Three Strikes law.
The history of California’s 3-Strikes law is a nightmare of prison mismanagement. The Stanford Three Strikes Project is the only legal organization in the country devoted to representing individuals serving life sentences under California's Three Strikes law.
The Project represents defendants charged under the Three Strikes law with minor, non-violent felonies at every stage of the criminal process: at trial, on appeal, and in state and federal post-conviction habeas corpus proceedings. The Project also works, on behalf of its clients in collaboration with the NAACP Legal Defense Fund, to reform the harshest aspects of the Three Strikes law.
Brent Staples wrote in the New York Times: “Among the more horrifying cases investigated by the Three Strikes Project is that of 55-year-old Dale Curtis Gaines, who suffers from both mental retardation and mental illness. He has never committed a violent crime, but is serving a life sentence for receiving stolen property. His first two strikes, daytime burglaries of empty homes during which he was unarmed, appear to have involved thefts valued at little more than pocket change.”
Staples says, “According to court documents, Mr. Gaines’s early childhood was a nightmare, filled with the most savage forms of abuse. His grandmother, a primary care giver, is said to have beaten him when he urinated or defecated in bed — and forced him to eat his feces as punishment. Later, as often happens with mentally impaired adolescents, he began to skip school because he was ashamed that he could not keep up with his classmates. He was often homeless. While serving time for his second crime, he was diagnosed by the prison system itself as both mentally disabled and schizophrenic.”
Staples adds: “He was clearly too impaired to help with his defense, and at one point simply put a blanket over his head and declined to speak to a doctor who was questioning him. His ability to read is comparable to that of a kindergartner.”
The Times concludes: At the time of his third strike, for receiving stolen computer equipment, Mr. Gaines was getting Social Security and disability benefits because of mental illness and retardation. His mental health history, readily available in the prison record, would probably have been recognized as a mitigating factor and prevented him from being so harshly sentenced.
But, according to court documents, his public defender presented no evidence about his disability. In 2010, 12 years after Mr. Gaines was convicted, the prosecutor who handled the case but by then had left the district attorney’s office wrote to him in prison, expressing regret and offering help if he wished to appeal. The Stanford students also noticed his case and are now trying to free him.
Mr. Gaines’s story is not unique. The Times’ Staples says, “As more cases unfold in court, judges, lawyers and Californians should look back with shame at the injustice the state inflicted on a vulnerable population that often presented little or no danger to the public.”
Nor is California’s 3-strikes story unique. According to FindLaw.com, beginning in the early 1990s, states began to enact mandatory sentencing laws for repeat criminal offenders. These statutes came to be known as "three strikes laws," because they were invoked when offenders committed their third offense.
By 2003 over half the states and the federal government had enacted three strikes laws. The belief behind the laws was that getting career criminals off the streets was good public policy. However, the laws have their critics, who charge that sentences are often disproportionate to the crimes committed and that incarceration of three strikes inmates for 25 years to life would drive up correctional costs. Nevertheless, the U.S. Supreme Court has upheld three strikes laws and has rejected the argument that they amount to Cruel and Unusual Punishment.”
Washington state's legislature was the first to respond, passing its 3-strike legislation in 1993. The law mandates life in prison after conviction on any three of about 40 felonies, ranging from murder to robbery and vehicular assault. Defendants convicted under this law are not eligible for parole, nor may their sentence be suspended or shortened.
California and 11 other states passed similar laws in 1994. Nine more states were added to the list a year later. By the year 2000 more than 24 states had adopted laws of their own.
Georgia took matters a step further, enacting a "Two Strikes and You're Out" law. Felons convicted of the state's most serious crimes only twice are sentenced to life in prison without parole. Known as "the seven deadly sins," these crimes are murder, armed robbery, rape, kidnapping, aggravated Sodomy, aggravated Child Molestation, and aggravated sexual Battery.
Despite their popularity in the early 1990s, the laws came under severe attack in the late 1990s. Four studies were largely responsible for driving the debate: one by the Rand Institute, one by the National Institute of Justice, one by the Justice Policy Institute, and one by the Campaign for Effective Crime Policy, a nonpartisan group comprised of wardens, prosecutors, and law enforcement officials.
The studies revealed two kinds of results. In most states, little had changed. Washington had convicted 66 people under its 3-strike law. Arkansas had 12 convictions and Alaska, Connecticut, Louisiana, Maryland, North Carolina, Pennsylvania, Vermont, and New Jersey had no more than six. Wisconsin had invoked its law only once, while no one in Utah, Virginia, Montana, Tennessee, New Mexico, or Colorado had ever been prosecuted for a third-strike offense.
The results were vastly different in California and Georgia. Over 4,000 inmates in California are serving life sentences under the Three Strikes law for non-violent crimes. Past and current project clients have been given life sentences for minor offenses including stealing one dollar in loose change from a parked car, possessing less than a gram of narcotics, and attempting to break into a soup kitchen.
In addition the state also identified more than 40,000 second-strike offenders who would await such a sentence were they subsequently convicted for any one of roughly 500 crimes.
Georgia had sent approximately 1,000 defendants to prison for life without parole under its two strikes law and identified another 1,000 offenders eligible for that fate were they to subsequently commit one of the "seven deadly sins."
And according to new research, California's controversial and costly three-strikes law has done nothing to deter crime despite expanding the state's prison population, according to a new study. In fact, violent crime began falling almost two years before the law was enacted in 1994, statistics show. The study pegs that the decrease in crime to lower alcohol consumption and unemployment, which was largely in decline before the current economic downturn.
These studies did more than arm opponents of 3-strike laws with evidence of disparate results. They suggested that the laws had been enforced more often against minority offenders than against white offenders. In California only 1,237 of the more than 4,800 defendants sentenced for a third strike were white; 2,138 were African American, 1,262 were Latino, and 201 were classified as "other."
The studies further indicated that these minority offenders were mostly being punished for nonviolent third strikes. Statistics demonstrated that more than twice as many defendants' third-strike offenses were for drug possession or petty theft as for murder, rape, or kidnapping. Some of these nonviolent third strikes included seemingly innocuous offenses, such as shoplifting, stealing packages of steak, and drinking alcohol at a liquor store without paying for it.
Though critics of the law were disappointed by the findings, they argued that the economic cost of incarcerating three strikes inmates may ultimately lead to the repeal of such laws. In California it will cost an estimated $700 million per year to incarcerate these offenders, and over a billion dollars to construct new prisons to house the escalating number of inmates. As the state contends with caring for an aging prison population it will be forced to decide whether it wants to allocate limited resources to maintain the three strikes law.
Michael Romano, the Stanford University law professor who founded the Three Strikes Project, says many of the people sentenced to life are the homeless, guilty of petty theft or drug use. These convicts take up precious jail space and cost taxpayers millions, when their third strike might involve something as minor as stealing $20 worth of gloves from Home Depot or breaking into a parked car.
The nation’s 3-Strike laws are still with us. A few have undergone minor modifications over time. But as more research is completed, it appears clear is that they have helped drive prison costs off the charts, produced dangerous overcrowding, and continued to convict African Americans at a rate out of all proportion to the size of their race.
Friday, January 11, 2013
John Brennan: The New Normal
By William Fisher
I remember very clearly President Obama’s second full day in office in 2009, when he signed the executive order calling for the closure of the detention camp at the United States Naval Station at Guantánamo Bay, Cuba,
The excitement was palpable. It was a huge first step toward the ending of what the New York Times called “the grim emblem of President George W. Bush’s lawless policies of torture and detention.”
Those policies were our response to the terrorist attacks of 9/11. At home, “middle-Eastern-looking men” were swept up and jailed with no charges and no access to lawyers. Abroad, in a dozen countries, “suspected terrorists” were tagged ‘the worst of the worst’, captured or kidnapped and shipped to GITMO. “High value suspects” were disappeared to a network of secret overseas prisons run by the CIA, where they were held incommunicado and subjected to so-called “enhanced interrogation” techniques, i.e. waterboarding and other forms of torture.
The administration of George W. Bush found a seemingly endless trove of abuses. The abused found the courthouse doors locked. By invoking the so- called State Secrets Privilege, the government found a way to kill lawsuits brought by alleged victims of Bush’s anti-terrorism campaign. To date, not a single plaintiff in any of these lawsuits has had his day in a U.S. court.
Congress, too, did its part. It passed the USA Patriot Act, giving the government a wide range of new legal tools to use against those the government suspected of providing support to terrorist organizations. Secretly, President Bush authorized U.S. intelligence agencies to carry out ongoing surveillance of phone calls and emails originating in the U.S.
The effect was to create a second-tier justice system for Muslims only.
Now, with Obama in the White House, our country would pull itself out of its historic train wreck and back on the rails of law and justice. The world would once again respect America for its confidence in the rule of law.
Well, guess what happened to American civil liberties as we moved from Bush to Obama?
Things got worse.
First, those courageous men and women we elect to represent us in Congress decided that if the Obama Administration was allowed to bring Guantanamo prisoners to Federal Court in New York for trial, the city would be overrun with terrorists eating at McDonald’s or shopping at The Mall. Completely overlooked by our brave Representatives is the fact that dozens of men have been tried, convicted and sentenced as terrorists at that exact court in lower Manhattan.
No alleged victim of government counter-terror programs has yet to see his lawsuit survive.
A second tier of justice has been fashioned by those charged with providing material support to terrorists. So bizarre has this become that an organization that has been trying to teach peaceful reconciliation techniques to Iraqi Kurds was convicted of providing material support to terrorists.
And today, the use of drone unmanned aircraft has been dramatically expanded. Targets may be citizens of anywhere or nowhere, including the U.S. Civilian deaths from drone strikes are categorized as collateral damage. A drone kill list has been put together for targeted assassinations. John Brennan runs this program.
Asked why no one was being held accountable for abuses committed by the U.S., Obama said he would rather look forward than backward and from that point on, we all knew that he (as they like to say in Washington) had doubled-down on a very bad bet.
What does all this have to do with John Brennan? Back in 2008, before Obama had taken office, the scuttlebutt around Washington was that Brennan was Obama’s choice to run the CIA.
As Glenn Greenwald noted in The Guardian, the pushback in 2008 “centered around the fact that Brennan, as a Bush-era CIA official, had expressly endorsed Bush's programs of torture, [with the exception of waterboarding] and rendition and also was a vocal advocate of immunizing lawbreaking telecoms for their role in the illegal Bush NSA eavesdropping program.”
“As a result, Greenwald writes, Brennan withdrew his name from consideration, issuing a bitter letter blaming ‘strong criticism in some quarters prompted by [his] previous service with the’ CIA.”
Obama then appointed him as his top counter-terrorism adviser, the job he has now. That job does not require Senate confirmation.
The point is that through the years of the Bush Administration and the first term of the Obama Administration, John Brennan was the White House ringmaster for the so-called war on terror. Today, his influence is even greater, since he is believed to be in charge of the drone “kill list” – identifying those slated for assassination.
And yet, the vast preponderance of Congressional and press comment on these two nominations has centered, not on Brennan, but on Chuck Hegel, the former Republican Senator, who is said by some to be anti-Israel, even anti-Semitic, principally because of his reference to “the Jewish lobby.”
Israelis must find this amusing. “Jewish lobby” is a phrase frequently used by the lobby itself. And the words used by the U.S. press to describe Hegel’s attitudes toward Israel must seem to the Israelis and their American Diaspora as children’s games. Israelis say much worse things about other Israelis than non-Israelis would ever dream of saying. But most of the U.S. Congress, perpetually running for reelection and running after campaign contributions, would likely be worried into silence by fear of retaliation.
So the paradox is that the political environment that was so hostile for Brennan in 2008, now makes him a valued defender of the Republic, while a far more practical defender takes all the heat.
Those of us who take this view are not naïve. We understand that intelligence agencies get involved in the darkest side of the world community. We understand that some secrets need to remain secret. But we also believe that “state secrets protected in the name of national security are the easiest to hide and hardest to question.
The ACLU believes that the Senate should not proceed with John Brennan's nomination to head the CIA "until it assesses the legality of his actions in past leadership positions in the CIA during the early years of the George W. Bush administration and in his current role in the ongoing targeted killing program".
But, unfortunately, that would not be an assessment of John Brennan. It would be an assessment of the civil rights and civil liberties records of two presidents. And in these fields, both men would have been found to be abject failures.
Monday, January 07, 2013
Our New Double-Standard for Justice
By Bill Fisher
I received an urgent email last week from Khalil Meek, the Executive Director of the Muslim Legal Fund of America (MLFA).
What Khalil was busting out to tell me (and hopefully several thousand others) was Glenn Greenwald’s conclusion that a New York Court of Appeals case containing “a fascinating new ruling (that) unwittingly illustrates the separate system of 'justice' invented for Muslims in the US after 9/11."
Intriguing, right? Read on!
The case involved a “gang-related murder trial in which prosecutors charged the defendant with terrorism. The alleged gang member was convicted, but the New York Court of Appeals completely threw out the terrorism and non-terrorism convictions because, they said:
· Terrorism charges do not apply because the defendant and his acts do not meet the ‘collective understanding’ of what terrorism is (in other words "violence committed by Arabs or Muslims against the west"), and
· Trials that involve terrorism charges allow for otherwise inadmissible evidence that prejudices juries in favor of the prosecution (in other words, terrorism trials are rigged to be unfair, to deny Muslims their legal rights, and to ease the way for convictions).”
Got that? Once more, with feeling:
“We now have it on the books: terrorism charges are reserved primarily for Muslims, and the rules of trials involving terrorism charges are different than non-terrorism trials -- the main difference being that terrorism trials are designed to be unfair so that prosecutors can easily get convictions.”
Is this true? Most non-lawyers – and many lawyers – remain unaware that this metamorphosis is taking place “in plain sight.” Here’s proof:
Listen to the editorial page editor of The New York Times, Andrew Rosenthal, writing about Liberty and Justice.
He says, "It's rarely acknowledged that the 9/11 attacks have also led to what's essentially a separate justice system for Muslims. In this system, the principle of due process is twisted and selectively applied, if it is applied at all."
In order to understand the significance of this case, it’s necessary to get down in the weeds a bit. Here’s how the New York Times presented it:
“Last month, New York State’s highest court ruled that the Bronx district attorney’s office erred in trying to use a state terrorism charge to prosecute street gangs.
The Bronx district attorney, had “argued that Mr. Morales’s gang, the St. James Boys, met the somewhat vague definition of ‘terror’ in the state statute because it sought to intimidate or coerce the entire Mexican-American population around St. James Park.
“In a unanimous decision, the six judges on the top court ruled that adopting the prosecution’s broad definition would allow other prosecutors to ‘invoke the specter of terrorism’ every time a Blood assaults a Crip or an organized crime family orchestrates the murder of a rival syndicate’s soldier.
But the judges ruled that the concept of terrorism “has a unique meaning and its implications risk being trivialized if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act.”
So what definition of ‘terrorism’is this court using? Well, it never does say. It simply says, ‘we have looked at the crime and it is not terrorism.”
Which tracks the never-to-be-forgotten words of Supreme Court Justice Potter Stewart in 1978. When asked in an obscenity case, ‘What is porn?’ Justice Potter simply said, ‘I know it when I see it.”
Gabor Rona, the International Legal Director of advocacy group Human Rights First, provides another nail in the coffin of due process. He says, “One pernicious aspect of prosecutions these days is that terrorism charges are increasingly being used for things that are not terrorism, in order to inflame juries. What makes this easy is the flexible definition of terrorism used in the criminal justice system.
“It takes a garden variety crime, say assault or murder, and turns it into something even more frightening by reference to the motive of the accused, rather than the act, itself. Even more attenuated from a balanced view of reality and justice is the leverage prosecutors have to charge conspiracy to commit terrorism, which, like all conspiracy charges, does not require any underlying crime to have been committed at all.
“This phenomenon is not limited to Muslim and Arab targets. Indeed, the ever-expansive use of terrorism in the prosecutor's toolbox, be it in the form of terrorism itself, conspiracy to commit terrorism, or "material support" to terrorism, puts virtually any political activism in the crosshairs of law enforcement.
“Fear of Muslims and Arabs may have given rise to this phenomenon, but authorities have successfully capitalized on it to take down tree huggers and to justify intrusive investigations of Occupy Movement activists.
“But another, equally disturbing manifestation of the creeping security state does involve mostly Muslims and Arabs. It's the disintegration of constitutional protections against entrapment.
“In theory, the law has not changed and the successful entrapment defense has always been rare. The government can supply virtually everything -- encouragement, incentives, materials, training, facilities -- to facilitate the crime, and still get a conviction. But it does have to prove that the accused was ‘pre-disposed’ to commit the crime. Even more than ‘motive’, predisposition is an amorphous concept, easily manipulated to prey on the fears and prejudices of juries who most certainly are not the ‘peers’ of the accused.
His conclusion is that ”prejudice does play an important role in the disintegration of due process, but once prosecutors hit upon a shiny new tool, they will naturally seek to expand its use wherever and whenever they can. To dial back this trend is virtually impossible at any time, let alone one where few judges or legislators can expect to survive the accusation: ‘soft on terrorism’."
Kathy Manley is an Albany (NY) Criminal defense attorney and the VP of the Capital Region Chapter of the NYCLU.
“By saying, as the NY court did, that ‘we know terrorism when we see it’, and then giving as examples cases involving Muslims, the decision shows this very clearly,” she says.
“I think the court reached the right result here, but unintentionally made the double standard in the Muslim cases extremely clear,” she added.
“The case of my client, Yassin Aref, is a similar story but like so many other Muslim cases, it involved a sting operation,” she said. “A Kurdish Iraqi imam, Yassin came to Albany, NY as a UN refugee, and was soon targeted by the FBI for some reason. (As he discovered through a recent FOIA request, it appears they had him mixed up with an Al Qaeda operative who was later killed in 2010, after which Yassin was moved to a low security prison for the first time.)
“They sent a criminal con artist – Shahed Hussain, also used in the Newburgh 4 case - to befriend a co-founder of the mosque where Yassin was imam. This man, Mohammed Hossain, ran a struggling pizza business and needed money, so he was happy to be offered a loan by the provocateur, who said he was a rich importer who wanted to help his Muslim brothers. At one point he showed Mohammed a missile tube and said this was one of the things he imported. Mohammed was shocked and refused to help transport the missile, but he didn’t think it was connected to his loan, and he still wanted the money.
“Yassin was only brought in to witness the loan transaction as set forth in the Quran, something he often did for mosque members, who couldn’t use banks because their religious beliefs forbade them from paying or charging interest.
“Yassin never saw the missile, and had no idea the loan he was witnessing was connected to terrorism. The government recorded 50 hours of conversations between the three men, and Yassin never said anything showing he understood this. Yet, because he was charged with material support for terrorism, the government was able to bring into his 2006 trial Yassin’s 1999 diary and some speeches he made in Iraq in 1994, both of which showed Yassin’s Islamist beliefs and contained criticisms of the West as immoral.
’While nothing there connected Yassin to terrorism, the evidence was damning in the post-911 environment of Islamophobia. Worse, there was a mountain of secret evidence (likely the erroneous FBI reports alleging Yassin was a member of Al Qaeda) which was all given to the judge, but which even the security cleared defense attorneys were not permitted to see. This resulted in the judge telling the jury that the government had “good and valid reasons” for targeting Yassin. While acquitting him of most of the charges, I believe the jury was afraid to let him go completely, and convicted him of a few charges.
“As for what can be done, there needs to be much more awareness of all this, and how it is destroying innocent families and terrorizing the Muslim community. The government strategy is spreading beyond Muslims too, as we have seen sting operations used against Occupy and peace activists, who have also been targeted in material support for terrorism investigations.
“Such abuses always begin by targeting the most vulnerable and, if not stopped there, they are applied to others and eventually to everyone. Professor Francis A. Boyle, the firebrand law professor from the University of Illinois, summed up the situation this way:
In post 9/11 America, if you are an Arab or a Muslim facing a terrorism charge, the American legal system functionally presumes you to be guilty as charged instead of innocent as constitutionally required.
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