Supreme Court Takes the “Radical” Stance That Prisoners Are Human Beings

May 31, 2011 By 7 Comments

Supreme Court Justice Antonin Scalia, in his dissenting opinion to last week’s Brown v. Plata decision, called the ruling “perhaps the most radical injunction issued by a court in our nation’s history.”  Since Scalia is the ultimate legal literalist, we presumably ought to take his written opinions literally. So what is this decision that the Court’s most conservative justice finds more “radical” even than Roe v. Wade or Brown v. Board of Education? It is no less than the notion that prisoners are human beings, entitled to the most basic human rights even while incarcerated.

In rendering the majority opinion in the Plata case, Justice Anthony Kennedy wrote: “Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.” And cruel and unusual punishment is what California prisoners are receiving, according to the Supreme Court’s 5-4 ruling, in a prison system so overcrowded that it cannot provide anything close to adequate mental health care or medical care to its 147,000 inmates. To comply with the Court’s ruling California must remedy the situation by reducing its prison population to a mere 137.5 percent of capacity, rather than the current 175.5 percent.

It’s a decision that runs counter to the federal courts’ take on prisoners’ rights over at least three decades, especially since the passage of the 1996 Prison Litigation Reform Act, which severely limited the ability of prisoners to file civil lawsuits and of courts to intervene on their behalf. In citing the “essence of human dignity” inherent even in the nation’s 2.3 million prison inmates, the decision also runs counter to the mentality of mass incarceration, by which prisoners have been so effectively dehumanized that otherwise decent people condone treating them in ways that often approach–and sometimes constitute–torture. Kennedy actually references torture in insisting that a “prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.”

To show that California’s prisons have in fact reached this level of inhumanity, Justice Kennedy cites just a handful of examples from the voluminous documentation submitted on behalf of the plaintiffs by the Prison Law Office and others. (Solitary Watch readers will be particularly interested to note that Kennedy singles out the solitary confinement of prisoners with mental illness for a special dose of approbation.)

Prisoners in California with serious mental illness do not receive minimal, adequate care. Because of a shortage of treatment beds, suicidal inmates may be held for prolonged periods in telephone-booth sized cages without toilets. A psychiatric expert reported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic. Prison officials explained they had “ ‘no place to put him.’ ” Other inmates awaiting care may be held for months in administrative segregation, where they endure harsh and isolated conditions and receive only limited mental health services. Wait times for mental health care range as high as 12 months. In 2006, the suicide rate in California’s prisons was nearly 80% higher than the national average for prison populations; and a court-appointed Special Master found that 72.1% of suicides involved “some measure of inadequate assessment, treatment, or intervention, and were therefore most probably foreseeable and/or preventable.”

Prisoners suffering from physical illness also receive severely deficient care. California’s prisons were designed to meet the medical needs of a population at 100% of design capacity and so have only half the clinical space needed to treat the current population. A correctional officer testified that, in one prison, up to 50 sick inmates may be held together in a 12- by 20-foot cage for up to five hours awaiting treatment. The number of staff is inadequate, and prisoners face significant delays in access to care. A prisoner with severe abdominal pain died after a 5-week delay in referral to a specialist; a prisoner with “constant and extreme” chest pain died after an 8-hour delay in evaluation by a doctor; and a prisoner died of testicular cancer after a “failure of MDs to work up for cancer in a young man with 17 months of testicular pain.”…Many prisoners, suffering from severe but not life-threatening conditions, experience prolonged illness and unnecessary pain.

Kennedy also takes the unusual step of appending photographs to his opinion. (These can be viewed in Mother Jones.com’s powerful montage, here.) Together with the written descriptions, they depict California prisons as something akin to Hieronymus Bosch’s paintings of an overcrowded Hell. Berkeley Law professor Jonathan Simon believes that the photographs forced the Court to confront “the sheer magnitude of California’s penal depravity,” and goes so far as to compare the images to another notorious set of photos: “Like the pictures from Abu Ghraib,” he writes, “these photos locate California’s penal practices in a place of inhumanity, degradation, and torture that cannot be tolerated (even by judges disciplined by decades of punitive populism and crime fear).”

Simon is among the many commentators who believe that the Plata decision has far-reaching implications, and even “represents a turning point. The system of mass incarceration depends deeply and irretrievably on a simple condition, the denial of the humanity of prisoners. Yesterday the Supreme Court overturned that denial.” If this is true, it may someday affect the host of other human right violations that take place every day in prisons across the country–from the tolerance for prison rape to the widespread use of solitary confinement. But it will take more than a single Supreme Court decision to wean the incarceration nation off of its 30-year addiction to prisons.

Triple-bunked human beings at the California Institution for Men, Chino, 2006.

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Filed Under: California, civil liberties/civil rights, Constitution, Eighth Amendment, human rights, lawsuits/litigation, legislation, mental illness, physical effects, politics of punishment, prison health care, psychological effects, solitary confinement, torture Tagged With: , , , , , ,

Prisoner Sent to Solitary for Reporting Rape Takes Her Case to the Supreme Court

November 2, 2010 By 3 Comments

Back in May, we wrote about the case of a woman prisoner named Michelle Ortiz, who was first chastised and then shackled and sent to solitary confinement as punishment for reporting her molestation and subsequent rape by a male guard. As the Columbus Dispatch reported:

When Ortiz reported the first assault to prison official Paula Jordan, the official told the inmate that the male guard was being transferred from the facility and was “just a dirty old man.” That same evening, the male guard assaulted her again. 

Rebecca Bright, another prison official who launched an investigation, ordered Ortiz placed in solitary confinement, where she was handcuffed. Bright reportedly argued that Ortiz was talking about the incident with other inmates. 

Michelle Ortiz’s case will be heard today by the Supreme Court. Here is a summary provided by Just Detention International, the organization dedicated to ending prison rape.

For survivors of prisoner rape, seeking justice for the abuses they have endured is exceptionally difficult.Today, when the U.S. Supreme Court considers the case of Ortiz v. Jordan, it is only the second prisoner rape case ever to be heard by the Court. In the landmark 1994 case Farmer v. Brennan, the Court acknowledged that rape in detention may amount to cruel and unusual punishment, in violation of the Eighth Amendment of the Constitution.

Michelle Ortiz was sexually assaulted by an officer while incarcerated at the Ohio Reformatory for Women. After courageously reporting the abuse, Michelle suffered repeated retaliation by other corrections officials. A jury found that the retaliating officers violated Michelle’s civil rights and awarded her monetary damages. An appeals court overturned the jury’s award, concluding that the officers were immune to being sued. The Supreme Court will review whether this reversal of a jury verdict was proper.

Michelle’s case is extraordinary in that she was able to get into court at all. The Prison Litigation Reform Act (PLRA) of 1996 makes it enormously difficult for incarcerated individuals to have constitutional violations heard in court, even in the most egregious cases of rape by prison officials. The PLRA imposes harsh procedural requirements on incarcerated rape survivors, such as obliging them to complain to a specific officer even if that officer was involved in the abuse. Many corrections systems also demand that rape victims file complaints within days of an assault, ignoring the fact that emotional trauma — and, in many cases, physical injuries — make such deadlines entirely unrealistic. Worse still, the PLRA requires proof of a physical injury in order to seek monetary damages and, shockingly, courts have held that some forms of sexual abuse do not amount to a physical injury.

Here’s more on the case from the SCOTUS blog.

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John Thompson Takes a Louisiana Injustice from Death Row to the Supreme Court

October 5, 2010 By 4 Comments

The model electric chair sitting on the desk of New Orleans prosecutor JimWilliams was like a piece of stranger-than-fiction Louisiana Gothic. But for John Thompson, it was all too real. “Seated” in the electric chair were photographs of five African American men that the Orleans Parish District Attorney’s office had proudly sent to death row. Thompson’s picture was dead center. “They were trying to kill me,” he said last week.

That plan was thwarted, but not until Thompson had spent 14 years on death row at Louisiana’s notorious Angola prison. His appeals were exhausted and his execution just weeks away before his legal team uncovered evidence that had been intentionally suppressed by the prosecution. Granted a retrial, Thompson was exonerated.  So was another of the men in the prosecutor’s model electric chair. Of the remaining three, one was granted a new trial, while two others had their sentences commuted to life in prison. 

All in all, the prosecutor’s bloodthirsty desk ornament has become an emblem of the faulty prosecutions that took place under the 28-year reign of Orleans Parish District Attorney Harry Connick, Sr., the father of the singer-actor and a Louisiana icon in his own right. In the past decade, fully a quarter of the men sentenced to death during Connick’s tenure have had their convictions overturned—every one of them based on evidence that cast doubt on their guilt, but was hidden from the defense by prosecutors.

Thompson is determined that the prosecutors’ conduct, which nearly cost him his life, should not go unpunished. “I am not going to let those motherfuckers get away with it,” he declares. It’s been a long haul, but on Wednesday, Thompson will be sitting in the Supreme Court, watching his lawyers argue that the New Orleans DA’s office must pay millions of dollars in restitution for railroading John Thompson into what they thought would be certain death in Angola’s lethal injection chamber.

At 11 a.m. on October 6, two days into its new session, the U.S. Supreme Court will hear oral arguments in Connick v. Thompson. After they hear from lawyers representing Thompson, the justices will listen to representatives of the District Attorney’s office, who will argue that the office can’t be blamed for Thompson’s faulty conviction, and shouldn’t have to pay the unprecedented $14 million in damages awarded to him by a New Orleans jury in a civil case–one million for each year he spent on death row.

Thompson’s story—which involves deathbed revelations and last-minute stays of execution—is compelling enough that Matt Damon and Ben Affleck at one time had plans to make it into a feature film, in which they would play his lawyers. (The project is currently in limbo.) There’s also a new book out on Thompson’s experience, called Killing Time.  But the implications of Connick v. Thompson reach far beyond John Thompson’s life and even beyond New Orleans. The justices’ decision in the case will determine how far a district attorney’s office can be held responsible for the misconduct of its own prosecutors. In other words, they will decide whether local governments are legally and publicly accountable for certain miscarriages of justice committed by their employees and in their name.

In person, John Thompson, now 48, has a steady, intense gaze behind wire-rimmed glasses. Interviewed by Mother Jones last spring in New Orleans and again last week by phone, Thompson, who goes by JT, speaks in a calm, measured way. But flashes of anger break through from time to time, when he talks about how close he came to being killed at the hands of the state. He has called what New Orleans prosecutors tried to do to him an attempt at “premeditated murder.”

Thompson was 22 years old and the father of two young sons when he was convicted of murdering a white New Orleans hotel executive. Because he had previously been convicted of attempted armed robbery—a crime in which he also contended his innocence—JT was advised not to testify on his own behalf at his murder trial. The jury found him guilty and sentenced him to death.

In 1985, JT arrived on death row at the notorious Louisiana State Penitentiary at Angola and set about the business of trying to survive. He was helped by his faith and by his friendship with the members of the Angola 3—three former Black Panthers who had been placed in solitary confinement. “I was like baby-sitted by them. They took me on like a big son or something…Who I am now was molded by them,” he said. “I was blessed to be on the tier around them.”

Thompson also believes that he was blessed in finding the lawyers who would eventually represent him on appeal. Like many condemned inmates, he began writing letters to attorneys, and received what he told us were about a hundred rejections. Then help came through the Capital Defense Project at Loyola University in New Orleans. In 1998, lawyers from the project began working on his case, together with two pro bono attorneys, Michael Banks and Gordon Cooney, from Morgan, Lewis & Bockius, a venerable old Philadelphia firm that had become a huge international powerhouse in corporate law.

Thompson’s lawyers stuck with his case through 11 years of appeals and seven execution dates. In April 1999, the Supreme Court rejected Thompson’s case, and they had to tell their client that the appeals process had been exhausted. An eighth execution date was set for the following month.  

“We had to get back into court” said Nick Trenticosta, who worked on JT’s case as director of the Louisiana Capital Defense Project (now renamed the Center for Equal Justice). “So we got an investigator and she was able to spend days at the police department going through all kinds of old records. Through that painstaking research she finally found documents showing the state had the [perpetrator’s] blood type as the result of an analysis of the victim’s pants, and clearly showing it was not John’s,” Trenticosta explained in an interview last week.”

“This was a couple of weeks before the date for his execution,” Trenticosta continues. “We moved for a stay of execution.” The Louisiana Supreme Court vacated Thompson’s robbery conviction, and a state district court changed his death sentence to life in prison because the armed robbery evidence was not reliable. Four years later, his murder conviction was overturned as well. At his retrial in 2003, Thompson testified in his own defense. The jury took 15 minutes to find him not guilty. After 18 years, JT was a free man at the age of 40.

But the story was far from over, because the “exculpatory evidence”—the blood test clearly favorable to Thompson’s defense—had been hidden not by any simple mistake or oversight. Prosecutor Gerry Deegan had deliberately suppressed the blood evidence that could have cleared Thompson of the robbery charge, and profoundly affected his murder trial as well. “We found the prosecutor in the armed robbery case had taken the bloody pants out of the evidence property room and never returned them,” said Trenticosta. “It was an intentional hiding of the evidence.” The law requires prosecutors to turn over to the defense any evidence that might be favorable to the accused; instead, Deegan had buried it.

John Thompson had been on death row for more than a decade when Gerry Deegan, dying of liver cancer, finally confessed to his transgression. But instead of making his misconduct public, he told a colleague in the DA’s office, Mike Riehlmann. Riehlmann himself sat on the knowledge for almost five more years, until the private investigator came across the telling lab report. Then Riehlmann came forward with Deegan’s revelation, and signed an affidavit describing what the dying prosecutor had told him. JT’s convictions began to unravel.

At the time, District Attorney Harry Connick, Sr. told the Associated Press that the Thompson case was an isolated example of prosecutorial misconduct. “We follow the rules,” Connick said. “We have an ongoing and continuing obligation to turn over exculpatory evidence and we do.” But in fact, many other convictions have also been overturned, “all due to suppression of evidence,” said Nick Trenticosta. “They all try to portray it as rogue prosecutor; a fluke,” he continues, but “Harry Connick used to give awards to prosecutors for successfully convicting people.” Connick, Trenticosta said, created a culture where convictions were won “at any cost.” Like Thompson, Trenticosta has called the prosectors’ actions “calculated measures to take people’s lives away.” 

Findings by the Innocence Project of New Orleans back up this assessment. In a 2008 report, the Project reviewed the record of Connick’s 28-year-tenure, and found that the practice of suppressing evidence was so prevalent that it could be called “a legacy in New Orleans.”

According to available records, favorable evidence was withheld from 9 of the 36 (25%) men sentenced to death in Orleans Parish from 1973-2002. Four of those men were eventually exonerated, having been released only after serving a collective 43 years on death row. In other words, one in every four men sent to death row by the New Orleans District Attorney’s office from 1973-2002 was convicted after evidence that could have cast doubt on their guilt was withheld from them at trial. Four men, about 11%, were completely innocent.

One of those innocent men was 16-year-old Shareef Cousin, sent to death row for murder in 1995. He stayed there until the prosecutor in the case was shown to have both encouraged witnesses to lie on the stand and withheld a videotape that proved Cousin was playing basketball at the time of the murder.  

The following year, another New Orleans jury sentenced Dan Bright to death for murder. Attorneys later discovered a statement from the FBI, suppressed by prosecutors at the time of Bright’s trial, indicating that a confidential informant had identified another man as the killer. “These guys were perpetrating a fraud on the public,” the forewoman of Bright’s jury said of the prosecutors, “and let me sentence an innocent man to death.” 

Yet there have been few, if any, consequences for the New Orleans prosecutors who transgressed professional ethics, broke the law, and sent innocent men to death row. In 2005, a prosecutor in the Cousin case was found guilty of withholding evidence; the Louisiana State Supreme Court gave him a three month suspended sentence. Jim Williams is now in private practice. Thompson’s prosecutor, Gerry Deegan, died of cancer. Mike Riehlmann, who sat on the deathbed confession, was also briefly suspended by the Louisiana Supreme Court; he is now a defense attorney. Harry Connick Sr. rests on his laurels and his son’s fame and fortune.

What “really angers me,” Thompson said after his exoneration, is “when these people, [the prosecutors] are found out. When those on death row are found to be innocent, nobody in the prosecutor’s office ever faces charges, nobody has to pay. A slap on the wrist for ‘malfeasance’ and then they’re back at work doing the same old thing.” Nick Trenticosta agrees. “As it stands, there are no deterrents to these prosecutors,” he said. “If they get caught withholding evidence so what? Nothing happens to them.”

But with the help of his lawyers, Thompson has sought to achieve justice through a different route. In 2005, they sued the Connick, Williams, current District Attorney Leon Cannizzaro, and the office of the DA. The state refused to settle the case, so it went to a jury, which awarded JT a record $14 million in damages. The state of Louisiana quickly appealed the verdict, which it claims will bankrupt the DA’s office. State and federal appeals courts ruled in Thompson’s favor, up to the federal Fifth Circuit Court of Appeals, which handed down a split decision. Last spring, the U.S. Supreme Court agreed to hear Connick v. Thompson in its fall 2010 session.

According to the brief filed by Thompson’s lawyers, the Court will have to decide whether there is “sufficient evidence to find that the district attorney was deliberately indifferent to the need to train, monitor, or supervise his prosecutors regarding their obligations” to hand over evidence favorable to the defense. In simple terms, the justices will have to determine whether the DA’s office can be held liable for illegal and unethical conduct by one of its prosecutors, on the theory that the office failed to adequately train its employees.

A 1963 Supreme Court case called Brady v. Maryland found that the suppression of exculpatory evidence by the prosecution violates the defendant’s Constitutional right to due process. But Connick v. Thompson could determine what kind of recourse defendants have when their established rights under Brady are violated. Individual prosecutors already enjoy immunity from lawsuits in most instances; this week, the Court might effectively give local DA’s offices immunity as well.

It’s not surprising, then, that Connick v. Thompson has brought in a slew of amicus briefs in support of Thompson’s position. A joint brief from the ACLU and the Southern Poverty Law Center describes what was done to John Thompson as “a shocking and grievous Constitutional injury.” If municipal DA’s offices are not held liable, it argues, “innocent victims” of this type of prosecutorial misconduct “would have no remedy whatsoever.”

“If Connick wins on the ground that the DA’s office is not responsible when its prosecutors withhold evidence, than it will be impossible to recover damages, because the prosecutors are entitled to absolute immunity under Supreme Court precedent,” said Katie Schwartzmann, who is legal director of the ACLU of Louisiana and one of the signatories of the amicus brief, in an email to us last week.

Because the Court is only considering the facts in the Thompson case, and not the full record of the Orleans Parish DA’s office, it may also find that there is insufficient proof of negligence. “If Connick wins on the ground that one incident is not enough to establish the office’s liability–although we think there was more of a record than that in this case–then future litigation will be difficult but not impossible,” said Schwartzmann. 

So while the stakes in this case are high for John Thompson, they are higher still for the next accused person to be tried and convicted by a prosecutor who is hiding evidence that might have freed him. A ruling in Connick’s favor would deny him any recourse, and send a message to DAs that there are no consequences, even for framing an innocent man.

Thompson is already thinking about the predicament of that next innocent man. When he was freed from prison, he said, he was more fortunate than most. “I had a wife, I had a house, I had a job” as an assistant at the Center for Equal Justice, working with clients on death row. “I worked for two years,” said Thompson. “I had a solid foundation…Most guys did not have that. Guys were coming home struggling.”  In Louisiana, prisoners “lucky” enough to be exonerated are released with nothing more than $10 and a bus ticket, and no support dealing with the material and psychological legacy of wrongful imprisonment.

Following his release, Thompson founded Resurrection After Exoneration (RAE), a group that tries to provide this missing support. At first, RAE focused on providing skills that would help them find jobs. Then, said JT, “I decided to have living quarters—a residential area where they live for 6 months to get readjusted to society, to help them to take the time and figure things out. Downstairs we have computers, workshops. We try to bring in as much education as we can.” Thompson also wants RAE to represent the “voice of innocence”—to be a place where the exonerated “can tell their stories. It’s amazing how powerful these stories are.”

Thompson wants some of RAE’s programs to be open to anyone coming home from prison. A settlement of $14 million would finance his ambitious plans, and then some. But he’s gotten some modest grant funding, and is confident that RAE—and he—will carry on with or without the money that’s at stake in Connick v. Thompson. 

“Whatever the Supreme Court rules,” said Thompson, “I’ll be straight with that.” But he intends to complete the journey that began on Angola’s death row. When the Court hears oral arguments for an hour on Wednesday morning, he said, “I’ll be there.”

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Supreme Court Decision Limits Juvenile Life Without Parole (Within Limits)

May 17, 2010 By 8 Comments

CHILDREN IN LOCKDOWN

The U.S. Supreme Court today barred a practice that is already considered unconscionable in the rest of the world. In a 6-3 decision, the Court ruled that sentencing juveniles to life without the possibility of parole for any crime short of murder violates the Constitution’s 8th Amendment ban on cruel and unusual punishment.

In Graham v. Florida, the Supreme Court ordered a parole hearing for Terence Graham, who was sentenced to LWOP forcrimes committed when he was 17. Graham was convicted of taking part in an armed robbery and home invasion in which no one was killed. The Court also struck down laws in 37 states that allow sentences of LWOP terms for non-homicides by juveniles. Currently, 129 inmates nationwide are serving such terms; 77 of them are in Florida. 

According to the Los Angeles Times, “Justice Anthony M. Kennedy, speaking for the court, said a life prison term with no chance for parole is too extreme for a juvenile criminal whose offenses involve robbery or assault. He also noted that prior to today, ‘The United States is the only nation that imposes life without parole sentences on juvenile non-homicide offenders.’ Kennedy said these young criminals are not entitled to a ‘guarantee’ of eventual release, but they do deserve ‘some realistic opportunity to obtain release’ if they can show they are no longer a danger to the community.

The issue of juvenile LWOP is closely tied to solitary confinement, since as we have written before, a large number of young offenders end up in long-term isolation in adult prisons, either because they are considered disciplinary problems, because they feel compelled to join prison gangs, or because they have to be isolated from adult offenders “for their own protection.”

The ruling will help a small group of prisoners, including Ian Manuel, who was given LWOP for a botched robbery attempt in Tampa, in which a woman suffered a non-fatal gunshot wound. According to one of several pieces on his case by Meg Laughlin in the St. Petersburg Times, when Ian Manuel ”arrived at the prison processing center in Central Florida [in 1991], he was so small no one could find a prison uniform to fit him…Someone cut 6 inches off the boy’s pant legs so he would have something to wear.” An assistant warden told Laughlin that Manuel was “scared of everything and acting like a tough guy as a defense mechanism…He didn’t stand a chance in an adult prison.” Within months, Manuel was placed in solitary, where he has remained ever since.

Laughlin wrote a new piece about Manuel last week, as he awaited the Supreme Court decision that would determine how he spends the rest of his life. 

Manuel, now 33, has spent nearly all of his time in prison in solitary confinement, caught in an endless cycle of misbehavior and punishment. As Florida’s longest-serving inmate in solitary, he has no work skills, no formal education and so much psychological damage that he once set himself on fire.

People always assumed — whether he killed himself or died of old age — that Ian Manuel’s death would happen behind bars. Not anymore. He may walk out of prison in the next year…

Confronted with the possibility of his release, prison officials, who had kept Manuel as far away from civilization as they could, are scrambling to prepare him for life outside. And his attorneys are laying out a plan that will attempt to protect Manuel from a world he fears will present him with more choices than he can handle. ”The uncertainty out there makes me nervous,” he says, “but I’m determined to succeed.”

When he began his sentence in a tough adult prison at age 14, he was small and defensive. Afraid to appear vulnerable, he got into trouble immediately. He’d veer into the grass instead of walking on the path in the prison yard. When guards yelled at him, he’d yell back. When they came at him, he’d make obscene gestures. In less than a year, he was in solitary.

From there, the disciplinary infractions multiplied — for storing aspirin, for sticking his hand through the food flap, for standing at his cell door, for masturbating and for cursing. He would go six months at a time lying on his bed in what he called “a state of hibernation” to stay out of trouble. But it didn’t matter. Each infraction added months and after a while the hole was so deep he couldn’t get out.

Recently, he received a visit from someone not on his legal team. It was his first in 15 years. Leaning forward toward the glass separating him from his visitor, he tried to explain what kept him there: “I’d tell myself to keep quiet and behave. But I was so desperate I couldn’t control my impulses.”

The result has been a life stripped of life. No programs or education. No visitors, phone calls or human touch. No books, magazines, TV or radio. No talking. No standing at the cell door and looking out. Three 10-minute showers a week. Meals pushed through a flap in the door. Enforced idleness in a concrete box, year after year.

According to corrections reports, Manuel became a cutter at 17 — slicing his arms with tiny fragments of glass and metal and watching the blood flow. “It gave me relief from the intolerable numbness,” he said.

At different times over the years he went on a hunger strike, overdosed on pills and even set himself on fire with a smuggled match and newspaper he tied to his legs with strips of bedsheet. The result wasn’t therapy, it was harsher solitary: No clothes, no mattress, no sheet. A bare cell with 24-hour lights, 60-degree temperatures and no view out. “It’s a miracle I haven’t totally lost my mind,” he said.

In 2007, he testified by video from solitary confinement at a hearing before Jacksonville federal judge Henry Adams. Manuel described a life of “complete hopelessness.” When he finished talking about trying to kill himself “to end the pain,” Adams called a recess because Manuel’s circumstances so upset him he had to leave the courtroom.

University of California psychologist Craig Haney evaluated solitary confinement at three prisons where Manuel has been held, as part of a case filed by a group of inmates. “Glaringly inhumane,” wrote Haney in his report, citing “harsh treatment, deprived conditions and excessive punitiveness.”

“Ian learned to live under extraordinary control and deprivation,” Haney said recently. “He can’t undo the effects of almost 20 years on his own. He’s facing enormous psychological challenges if he’s released.”

Keep in mind, however, that the Supreme Courts decision affects on a fraction of the inmates serving life without parole for crime committed as juveniles. These number more than 2,500 in all, victims of an explosion in adult sentencing of children  in the final decades of the 20th century. The Heritage Foundation marked the Supreme Court’s decision today in a blog post titled “Court Upholds Life Without Parole for Juvenile Killers.” Any child convicted of a homicide can still be sentenced to die in prison. This includes the estimated 26 percent serving LWOP “for felony or ‘accomplice’ murder, in which the juvenile was not the person who killed the victim,” according to a report by Amnesty International and Human Rights Watch.  

Research by the Equal Justice Initiative, which issued the 2007 report Cruel and Unusual: Sentencing 13- and 14-Year-Old Children to Die in Prison, found ”73 cases where children 13 and 14 years of age have been condemned to death in prison,” nearly two-thirds of them children of color. In most of the cases, “the propriety and constitutionality of their extreme sentences have never been reviewed” because the children don’t have lawyers to mount such challenges. Most of the sentences were mandatory, and “the court could not give any consideration to the child’s age or life history.” Even among homicides, many were “offenses where older teenagers or adults were involved and primarily responsible.”

Finally, as Sara Mayeux points out on her Prison Law Blog, being eligible for parole by no means guarantees that these inmates will ever actually see the light of day: ”[I]nsofar as juveniles have now won a right to a parole hearing,” Mayeux writes, “we might question how meaningful of a right that really is (notwithstanding the “some meaningful opportunity” language [in Kennedy's opinion]) given that in many states, parole hearings have become a sort of charade in which the prisoner can never actually win release, because the parole board routinely denies parole eligbility based solely upon the facts of the underlying crime, which is the one thing that the prisoner, of course, can never change.”

In other words, for thousands of child offenders, the Supreme Court’s decision today offers no hope.

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Woman Prisoner Sent to Solitary for Reporting Rape by Guard

May 3, 2010 By 6 Comments

Michelle Ortiz was serving one year at the Ohio Reformatory for Women, a state prison in Marysville, when she was molested by a male guard. A recent article in the Columbus Dispatch describes what happened next: 

When Ortiz reported the first assault to prison official Paula Jordan, the official told the inmate that the male guard was being transferred from the facility and was “just a dirty old man.” That same evening, the male guard assaulted her again. 

Rebecca Bright, another prison official who launched an investigation, ordered Ortiz placed in solitary confinement, where she was handcuffed. Bright reportedly argued that Ortiz was talking about the incident with other inmates. 

Other accounts were more specific: In the first assault, Ortiz was “fondled” by the guard, who then told her “I’ll get you tomorrow, watch.” In the second, which took place after she had appealed for help, the guard returned while Ortiz was asleep and raped her. The assaults took place back in 1996. Subsequently, Ortiz sued both prison officials in federal court for doing nothing to protect her from the guard and punishing her instead. A jury awarded her $625,000 in damages. 

But Bright and Jordan appealed the verdict, and the U.S. 6th Circuit Court of Appeals “ruled 2-1 that the prison officials had qualified immunity, shielding them from paying damages” to Ortiz. The third judge, however, issued an outraged dissent. As the AP reported: 

It is extremely rare for a prison inmate’s civil rights complaint to overcome preliminary legal obstacles and persuade a jury there was a violation, said Judge Martha Craig Daughtrey, the dissenting appeals court judge. Given the statistics, Daughtrey said, “I view this result as a legal travesty.” 

The evidence against Bright and Jordan was strong, she said. “The majority’s decision to overturn the jury’s verdict strikes me not just as an unfortunate result in this case, but as one that is thoroughly senseless.” 

Against the objections of Ohio Attorney General Richard Cordray, the U.S. Supreme Court–also not known for its sympathy to “prison inmate’s civil rights complaints”–has now agreed to review the case, and will hear arguments in the fall. 

The wheels of justice move slowly, when they move at all. Back in 2003, the organization Stop Prisoner Rape–now renamed Just Detention International–published a report on the sexual abuse of prisoners by guards at the Ohio Reformatory for Women (ORW) Alerted to the problem by a prison psychiatrist, Stop Prisoner Rape (SPR) interviewed several staff whistleblowers, as well as prisoners, and discovered a “climate of abuse.”

Inmates described a range of incidents, including violent encounters, threats and pressure to submit to sexual advances, trading sex for goods and favors, and relationships that were seemingly consensual. However, for women under near-total control of prison staff, the concept of “consenting” to sex is virtually meaningless (and Ohio law reflects this). The problems arising from this power imbalance are compounded by the past history of sexual abuse that many female inmates have endured.

SPR learned that women who report sexual misconduct are routinely sent to solitary confinement, unusually harsh conditions in the hole at ORW may compound the trauma. This use of isolation emboldens perpetrators who know that the practice discourages women from reporting abuse.

SPR concluded that the problem was compounded by the Ohio prison system’s “instututional response”–or lack of it. They found a “culture of silence and denial” at the Ohio Department of Rehabilitation and Correction that began its director, Reginald Wilkinson. Head of the sixth-largest prison system in the country,  Wilkinson ”repeatedly made public statements denying that any problem exists and discouraging suggestions for reform,” including the Prison Rape Elimination Act (PREA), which was passed unanimously by Congress in 2003. In an op-ed opposing the legislation, Wilkinson argued that the data on prison sexual assaults was “highly exaggerated” and based on “disingenuous data (self reporting).”

While investigating allegations at the Ohio Reformatory for Women, SPR interviewed Warden Deborah Timmerman. According to SPR’s report:

Timmerman-Cooper confirmed that prisoners who complained of sexual abuse were transferred to segregation, losing their privileges while there. She justified this policy by saying that it was necessary in order to protect the inmate while officials investigated the incident, but could not explain why those inmates should be stripped of basic privileges and locked in isolation for 23 hours a day….

In summary, SPR has found extensive and credible evidence that an environment consistently conducive to sexual abuse exists at the Ohio Reformatory for Women and that a pattern of abuse may exist at other Ohio women’s facilities…

The isolation and punishment of inmates who report sexual assault is a practice that punishes victims and encourages staff misconduct. In Ohio, it is a policy that has fostered a climate of abuse and intimidation and undercut respect for human rights.

This happens to be a pivotal moment in the effort to combat the epidemic of sexual assaults in detention. The National Prison Rape Elimination Commission, which was created by the PREA in 2003, has issued recommendations for a new set of national standards to address the problem. As David Kaiser and Lovisa Stannow wrote earlier this year in their two excellent articles in the New York Review of Books on prison rape and how it can be stopped:

One of the most pernicious myths about prisoner rape is that it is an inevitable part of life behind bars. This is simply wrong…In well-run facilities across the country it is being prevented—and this shouldn’t be surprising.the government has extraordinary control over the lives of those it locks up. Stopping sexual abuse in detention is a matter of using sound policies and practices, and passing laws that require them.

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Filed Under: civil liberties/civil rights, corrections industry, gender/sexual orientation, human rights, lawsuits/litigation, legislation, Ohio, sexual assault, solitary confinement Tagged With: , , , , , , , , , ,

Punishment for Possessing One Joint = Jail, Solitary Confinement, and Deportation

March 31, 2010 By 1 Comment

Continuing her incisive reporting on the travesty of immigrant detention in the United States, the New York Times‘s Nina Bernstein  yesterday documented the three-year nightmare of a legal immigrant from Haiti. Bernstein describes what happened to the young man after he was convicted of a non-criminal drug offense, considered so minor in the state of New York that it carries a fine smaller than some parking tickets. 

When a police officer in this Long Island suburb found a marijuana cigarette in Jerry Lemaine’s pocket one night in January 2007, a Legal Aid lawyer counseled him to plead guilty. Under state statutes, the penalty was only a $100 fine, and though Mr. Lemaine had been caught with a small amount of marijuana years earlier as a teenager, that case had been dismissed.

But Mr. Lemaine, a legal permanent resident, soon discovered that his quick guilty plea had dire consequences. Immigration authorities flew him in shackles to Texas, where he spent three years behind bars, including 10 months in solitary confinement, as he fought deportation to Haiti, the country he had left at age 3.

Under federal rulings that prevailed in Texas, Mr. Lemaine had lost the legal opportunity that rulings in New York would have allowed: to have an immigration judge weigh his offenses, including earlier misdemeanors resolved without jail time, against other aspects of his life, like his nursing studies at Hunter Business School; his care for his little sister, a United States citizen with a brain disorder; and the help he gave his divorced mother, who had worked double shifts to move the family out of a dangerous Brooklyn neighborhood.

Now Mr. Lemaine, 28, is among thousands of noncitizens whose fate may hinge on a case to be argued on Wednesday before the United States Supreme Court, in a challenge to the way the government interprets immigration laws about drug-related convictions. The government maintains that for deportation purposes, two convictions for drug possession add up to the equivalent of drug trafficking, an “aggravated felony” that requires expulsion and prohibits immigration courts from granting exceptions based on individual life circumstances.

Lemaine’s nightmare began when he was transferred–as tens of thousands of detainees are every year–to Texas, where the federal Court of Appeals for the Fifth Circuit has upheld this interpretation of the law. In the criminal justice system, defendants have to be tried where their alleged offenses took place, immigration authorities “can send detainees anywhere in the country, without notice or legal counsel, and start deportation proceedings wherever they choose,” Bernstein writes. The fallout from this practice has only increased in the past year, since “the Obama administration has stepped up detention and deportation of so-called criminal aliens, including many legal immigrants with low-level drug convictions.”

Lemaine was fortunate enough to secure pro-bono legal counsel from a large New York law firm. (Some 86 percent of detainees who facing deportation in Texas, Berstein reports, have no lawyers at all.) His lawyer–who described the case as “surreal”–has had to contend with an absurd system “that requires immigration authorities to match the elements of a variety of state criminal statutes with federal criminal laws, and proceed as though the noncitizen had been convicted of the federal crime.”

In the meantime, Lemaine was transferred from a government-run detention center to private prisons run by the notorious GEO Group–where he eventually landed in the hole by no fault of his own. 

His lowest point, he said, came in the private Karnes County Correctional Center, which houses a mix of immigration detainees and federal prisoners. As he tells it, guards there let inmate gangs impose their own pecking order, and as the only black detainee in his dormitory, he seemed especially vulnerable. In the first days, the guards refused him utensils at mealtime, he said, leaving him alone eating stew and cereal with his hands. Later, half a dozen inmates beat him up in a racially motivated attack, he and his lawyers said.

Early on, after he wrote the medical staff that he was depressed, he was placed on a 10-day suicide watch in a filthy segregation unit where he did not see a psychiatrist for a week, he said. “They just break you down so much,” Mr. Lemaine said. “They just forget about you. Basically, you fend for yourself.”

He was returned to isolation for his own protection after being beaten up, and chose to stay there, he said, locked in a tiny cell 23 hours a day, rather than go back to the same dorm.

On January 11, officials abruptly decided to grant Lemaine supervised release, and “let him make his way back to New York on a Greyhound bus” where he rejoined his family. It was the same day that the earthquake devastated his country of birth. The White House has suspended deportations to Haiti–but if his case goes the wrong way, Lemoine could still be shipped back to Texas

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Filed Under: federal prisons, human rights, New York, private prisons, solitary confinement, Texas Tagged With: , , , , , ,

Ask Shamu: The U.S. Tortures Both Human and Animal Prisoners

March 16, 2010 By 4 Comments

Photo: PDPhoto.org / Creative Commons License

The terms “torture” and ”solitary confinement” have surfaced over and over again in articles and commentaries about Tilikum, the captive killer whale who drowned his trainer at Florida’s SeaWorld last month. For the most part, the authors of these pieces have sought mercy for Tilikum. While the six-ton orca had been implicated in two previous human deaths, they argue, Tilikum’s torturous life in capitivity rendered his behavior understandable, however horrific its results may have been.  

Many of Tilikum’s defenders highlight the rare intelligence and sensitivity of orcas and other dolphin species. And by way of mitigating circumstances, they point to his tragic youth, in which he was forcibly ripped from his family and community, and to the lonely and restricted life he has lived ever since, released from isolation in his tank only to perform or to breed.  

While the FAQ section on SeaWorld’s web site, called “Ask Shamu,” emphasizes that the theme park often “rescue[s] sick, orphaned, or injured animals,” Tilikum’s history is far less benign. In the Harrisburg Patriot News, Karen Steinrock wrote: 

Tilikum’s idyllic life came to an abrupt halt in November 1983 at the age of 2, when he was snatched from his mother and siblings off the coast of Iceland—a traumatic experience for any young orca. For the next 28 years, he learned to perform tricks for food in a confined “ocean” measured in feet instead of fathoms, circling endlessly with an artificial family… Holding a highly social creature in solitary confinement for decades and asking him to perform repetitious stunts in unnatural surroundings seems cruel. 

One of the more compelling opinions of the SeaWorld tragedy came from Psychology Today contributing writer Gay Bradshaw, Ph.D. She specializes in human-animal relationships and trauma recovery… Bradshaw believes after suffering a violent and premature separation from his mother, Tilikum’s diagnosis conforms to post-traumatic stress disorder (PTSD). “Tilikum suffered shock and relational trauma from the capture, disrupted development and chronic stress during imprisonment for three decades,” she writes. 

Even legendary marine explorer Jacques Cousteau weighed in years ago, stating “There’s about as much educational benefit studying dolphins in captivity as there would be studying mankind by only observing prisoners held in solitary.” 

The solitary confinement metaphor was also used by John Crisp in a piece for Scripps Howard news service. “Since killer whales live in intergenerational matriarchal pods,” Crisp wrote, Tilikum’s capture “removed him from ‘family’ and confined him with ‘strangers.’ Since he’s an instinctual swimmer, hunter, and breeder, designed for traveling great distances at sea, even his 3.2-million gallon tank must take on the approximate proportions of a solitary confinement cell.” 

Photo: Washington Dept. of Fish and Wildlife

Some commentators took thinks a step further, suggesting that Tilikum’s environment, rather than his nature, led to the recent tragedy.  In Britain’s Daily Mail, marine biologist and filmmaker Martha Holmes, who has filmed orcas in the wild, wrote that they are “extraordinarily social creatures; like human beings they need company. You normally find them swimming in close-knit family groups…Take away that vital social network…and you’re taking away one of the absolute cornerstones of a killer whale’s life. It’s like placing a human being in solitary confinement–for life. It probably has the same consequences, too.” One Canadian blogger concurred: “If a human being was put in solitary confinement for nearly 20 years,” Charlie Smith wrote, “he or she might feel a little homicidal toward the guards.”   

The Orlando Sun-Sentinal pointed out that “researchers have yet to find evidence that an orca in the wild has ever killed a person. But they aren’t surprised that the world’s biggest, most powerful and possibly smartest predator, captured and kept for years in a tank, cut off from the influences of an extended family, could have a fatal encounter with a human.” The article quoted Lori Marino, a neuroscientist who has studied orcas: “Living in a tank and having to splash people with your tail every day for 27 years would make anyone go nuts,” she said. 

Certainly, solitary confinement constitutes abject cruelty for killer whales (or chimps, or elephants, or any wild animals), and might well drive them to erratic or destructive behavior. But it’s rare to hear such expressions of sympathy or absolution for the tens of thousands of human beings who live in solitary confinement in the United States. Like Tilikum, many of these human prisoners did not kill until they were incarcerated; many more have not killed at all, and are held in isolation for   disciplinary infractions, because they are mentally ill, or because they need “protective” custody.  They can remain there for years or even decades. And the devastating psychological effects of long-term lockdown–which is deemed to be torture by virtually everyone who has experienced it–are well documented. 

Among all the pieces we read about Tilikum, only Kieko Matteson’s on Counterpunch pointed to the plight of other “violent offenders” in the state of Florida, which has a large and punitive prison system even by U.S. standards. In the cleverly titled ”Habeas Porpoise,” Matteson, an environmental historian at the University of Hawai’i, writes that many observers “have highlighted the cruelty of spending one’s lifetime in a cramped pen and suggested that in light of its incarceration, the cetacean’s actions were ‘only natural.’” She continues: 

Strikingly absent in the outpouring of public compassion for Tilikum…is acknowledgement of the comparable effects of lifelong incarceration for Florida’s unfree human denizens. According to a 2009 report by the Sentencing Project, more than 140,000 people in the U.S. are serving life sentences without parole. Over 6,000 of them are in Florida. And, perhaps most striking of all for the state that serves as home to some of the nation’s most widely revered family-friendly attractions–the land of Disney World, Epcot Center and, yes, SeaWorld–the Sunshine State leads the country in the number of juveniles serving life without parole (LWOP) for crimes in which no one was killed. Like Tilikum, these young offenders–77 in all, out of the 100 LWOP juveniles serving time nationwide–live in cramped, stressful conditions, are regularly subject to pressure for unconsensual sex, and face the likelihood of permanently severed ties from their families. 

To be sure, their actions, including rape and armed robbery, were reprehensible. But neither were they murderous. In contrast to the benefit of the doubt shown Tilikum…who was given second and third chances to interact with humans long after even his corporate managers recognized him as dangerous, the state’s non–lethal juvenile offenders are imprisoned without hope of release on the basis of their potential threat to society.  

The U.S. Supreme Court is expected to rule this spring on whether LWOP for juveniles violates the Constitution’s ban on cruel and unusual punishment. But whether they are serving life or not, children in adult prisons–some of them as young as 12 or 13–very often end up living in effectively permanent solitary confinement. 

Like Tilikum, many of these child offenders suffered terrible abuse and trauma in their earlier lives. Unlike Tilikum, they are more likely to respond to their miserable situations by killing themselves than by killing others. And in contrast to the widespread sympathy expressed for the captive orca, the public doesn’t seem to care much about them at all.

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Filed Under: Constitution, Eighth Amendment, Florida, juveniles, media, physical effects, popular culture, psychological effects, solitary confinement, torture Tagged With: , , , , , , , ,

Cruel Punishment Is Not Unusual for Clarence Thomas

March 12, 2010 By 3 Comments

Veteran New York Times Supreme Court reporter Linda Greenhouse has an opinion piece today on Clarence Thomas’s “silent but sure” stance on prisons, and ”specifically the meaning of the Eighth Amendment’s prohibition against ‘cruel and unusual punishment.’” Thomas’s position is highly relevant to the issue of solitary confinement, since critics of long-term lockdown argue that it violates the Eighth Amendment. But Thomas does not believe that any kind of prisoner abuse qualifies as “cruel and unusual.” Greenhouse writes:  

In February 1992, the Supreme Court ruled in Hudson v. McMillian that a prisoner need not have suffered a “significant injury” in order to pursue a lawsuit against prison officials for the use of excessive force. Keith Hudson, the Louisiana inmate who brought that case, had been kicked and punched by three guards while he was handcuffed and shackled. He suffered bruises, swelling and loosened teeth, injuries that a federal appeals court, in dismissing his lawsuit, deemed so minor as to be beneath the notice of the Eighth Amendment.  

Mr. Hudson’s appeal to the Supreme Court was supported by the George H.W. Bush administration, and John G. Roberts Jr., then a deputy solicitor general, argued on the inmate’s behalf. In an opinion by Justice Sandra Day O’Connor, the court reinstated the lawsuit. What mattered in such a situation, the court held, was not the extent of the injury, but the nature of the force that was applied. “When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated,” Justice O’Connor wrote.  

Justice Thomas dissented. He had been on the court for four months. During his Senate confirmation hearing, he had claimed a certain empathy for prisoners. He described looking out the window of his chambers at the Court of Appeals and watching prisoners being loaded into buses to be taken back to their cells. “I say to myself every day, but for the grace of God there go I,” he told the members of the Senate Judiciary Committee.  

In his dissenting opinion in the Hudson case — which Justice Antonin Scalia joined, making the vote 7 to 2 — the new justice said that the Constitution’s framers “simply did not conceive of the Eighth Amendment as protecting inmates from harsh treatment.” The Eighth Amendment dealt with only the actual sentence, he maintained, and not with conditions inside a prison or deprivations that were not a formal aspect of the sentence. He said the Supreme Court had taken a wrong turn in the 1970’s when it adopted a more expansive view, and he added, “The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.”  

Last month, Thomas demonstrated his grim “consistency” on this subject when the court considered “another excessive-force case, a prisoner’s appeal that was so clearly meritorious that the justices ruled in the inmate’s favor without bothering to call for briefs or hear argument.” This time, a North Carolina state prisoner claimed that “a guard had responded to his request for a grievance form by slamming him onto the concrete floor and then punching, kicking and choking him until another guard pulled the attacker off.” A lower court found that the prisoners’ injuries weren’t all that bad, and dismissed the case.  

Because of the precedent set by the Hudson v. McMillian decision, Greenhouse writes, “The vote was 9 to 0, but it was not a happy 9 to 0. Justice Thomas, joined by Justice Scalia, concurred only in the judgment, not the court’s opinion. ‘I continue to believe that Hudson was wrongly decided,’ he said.” Thomas also noted that “no party to this case asks us to overrule Hudson”–suggesting that he would welcome the opportunity to do so. Greenhouse continues:  

Justice Thomas has been trying and failing repeatedly to get someone to bring the court a vehicle for revisiting its prisoners’-rights jurisprudence. Dissenting from a 2002 decision, Hope v. Pelzer, he objected to reinstating a lawsuit brought by an Alabama inmate who had been handcuffed to a hitching post and left to stand shirtless in the sun for seven hours without water or bathroom breaks. “I remain open to overruling our dubious expansion of the Eighth Amendment in an appropriate case,” Justice Thomas wrote hopefully.  

Greenhouse writes that there have been “no takers yet.” This is not surprising, since so many potential prisoner abuse claims are now effectively barred from the courts under the Prison Litigation Reform Act. As described by the SAVE Coalition, which advocates for a change to the PLRA:  

In the past decade, individuals who have been physically and sexually abused, subjected to life-threatening medical mistreatment, denied the ability to practice their religion, and severely mistreated as children have been denied access to relief from federal courts. Why? These individuals were in prison when these violations occurred and the Prison Litigation Reform Act (PLRA) imposed insurmountable obstacles to judicial relief. In 1996, Congress enacted the PLRA, which was intended to stem frivolous lawsuits by prisoners, but too often denies justice to victims of rape, assault, religious restrictions, and other rights violations.  

Because the PLRA demands that prisoners must suffer serious “physical injury” in order to sue in federal court, solitary confinement does not qualify–nor do a host of other abuses that cause physical and psychological suffering, but not “physical injury” in the eyes of the law. The law also demands that prisoners jump through a series of nearly impossible procedural hoops before their cases can be heard in even the lowest federal court, much less the Supreme Court.  

Although she does not reference the PLRA, Greenhouse writes that “it could be a long wait” before the Supreme Court gets another Eighth Amendment case–but if it does, she says, “Justice Thomas will be ready.”  

  

Photo from flickr by wwarby

Filed Under: Constitution, Eighth Amendment, lawsuits/litigation, Louisiana, physical effects, psychological effects, solitary confinement, torture Tagged With: , , , , , , , ,

Children Sentenced to Die in Prison

January 31, 2010 By 3 Comments

CHILDREN IN LOCKDOWN

In the process of researching a post on children in lockdown, we read several recent reports on children sentenced to life without the possibility of parole (LWOP). The topic warrants a post of its own, especially since the practice is currently under review by the Supreme Court of the United States.

According to the web site for 2007 PBS “Frontline” documentary When Kids Get Life:

The United States is one of the only countries in the world that allows children under 18 to be sentenced to life without parole. Human Rights Watch and Amnesty International report that more than 2,000 inmates are currently serving life without parole in the United States for crimes committed when they were juveniles; in the rest of the world, there are only 12 juveniles serving the same sentence, according to figures reported to the United Nations’ Convention on the Rights of the Child.

The United States, of course, remains one of only two UN member nations which has yet to ratify the Convention on the Rights of the Child. (The other is Somalia). The U.S. did ratify the International Covenant on Civil and Political Rights, which demands that juvenile imprisonment focus on rehabilitation–but it did so only after ”reserving the right” to sentence children to death, or to life without parole.

The 2005 Amnesty International/Human Rights Watch report For the Rest of Their Lives: Life Without Parole for Child Offenders in the United States, traces the rise of harsh sentencing for juveniles, and summarizes the arguments against it:

The dramatic increase in the imposition of life without parole sentences on child offenders in the United States is, at least in part, a consequence of widespread changes in U.S. criminal justice policies that gathered momentum in the last decades of the twentieth century. Responding to increases in crime and realizing the political advantages of promoting tough law and order policies, state and federal legislators steadily increased the length of prison sentences for different crimes and expanded the types of offenders facing prison sentences. They also promoted adult trials for child offenders by lowering the minimum age for criminal court jurisdiction, authorizing automatic transfers from juvenile to adult courts, and increasing the authority of prosecutors to file charges against children directly in criminal court rather than proceeding in the juvenile justice system. The United States thus abandoned its commitment to a juvenile justice system and the youth rehabilitation principles embedded in it.

“Adult time for adult crime” may be a catchy phrase, but it reflects a poor understanding of criminal justice principles. If the punishment is to fit the crime, both the nature of the offense and the culpability or moral responsibility of the offender must be taken into account. As the U.S. Supreme Court has repeatedly recognized, the blameworthiness of children cannot be equated with that of adults, even when they commit the same crime. Most recently, in Roper v. Simmons in 2005, the Court ruled that the execution of child offenders was unconstitutional, finding that juveniles are “categorically less culpable” than adult criminals. The ruling noted that juveniles lack the “well-formed” identities of adults, are susceptible to “immature and irresponsible behavior,” and vulnerable to “negative influences and outside pressures.” Neuroscientists have recently identified anatomical bases for these differences between juveniles and adults, establishing the behavioral significance of the less developed brains of children.

Life without parole sentences for child offenders—meaning there is no possibility of release during the prisoner’s lifetime—effectively reject the well-established principle of criminal justice that children are less culpable than adults for crimes they commit. As the father of a teen offender serving life without parole pointed out to us: “I’m a former cop. I’m a true believer in law and order. But my son was a child when this happened. He wasn’t thinking like an adult, and he wasn’t an adult . . . how is it that the law can treat him as if he is one?”

Although juvenile crime has decreased sharply since the mid-1990s, sentencing laws and policies have remained largely unchanged. In some states, judges are actually required to impose a life without parole sentence for certain crimes, regardless of age. Children as young as seven could receive a mandatory sentence of LWOP in Florida and Pennsylvania.

Research by the Equal Justice Initiative, which issued the 2007 report Cruel and Unusual: Sentencing 13- and 14-Year-Old Children to Die in Prison, found ”73 cases where children 13 and 14 years of age have been condemned to death in prison,” nearly two-thirds of them children of color. In most of the cases, “the propriety and constitutionality of their extreme sentences have never been reviewed” because the children don’t have lawyers to mount such challenges. Most of the sentences were mandatory, and “the court could not give any consideration to the child’s age or life history.” Some of their crimes were not homicides, and many were “offenses where older teenagers or adults were involved and primarily responsible.”

In November of 2009, the Supreme Court heard arguments on two cases of children sentenced to LWOP; it has yet to issue a ruling. The cases contend that sentencing children to live and die in prison is cruel and unusual punishment, in violation of the Eighth Amendment of the Constitution. According to the Equal Justice Initiative, “Both cases ask the Court to address whether the differences between children and adults that led the Court [in 2005] to strike down the death penalty for children also make permanent imprisonment a constitutionally impermissible punishment for a child.”

Warren Richey of the Christian Science Monitor provided this account of the Supreme Courts review of the two cases on November 9, 2009:

A sharply divided US Supreme Court on Monday debated whether to invalidate state laws that permit juveniles to be sentenced to life in prison without parole for nonhomicide crimes. It is a potential watershed decision. But after two hours of arguments in two different cases, it was unclear whether a majority of the high court’s nine justices were in agreement on the issue.

The two cases, Graham v. Florida and Sullivan v. Florida, ask the justices to consider whether sentencing a juvenile to spend the rest of his or her life in prison is cruel and unusual punishment in violation of the Constitution’s Eighth Amendment. “It is unquestionably unusual,” said Bryan Stevenson, whose client went to prison for life at age 13. “To state to a child of 13 that you will die in prison is cruel,” he told the justices.

Joe Sullivan was sentenced to life without parole after being convicted of beating, raping, and robbing a 72-year-old woman. He was 13 at the time of the crime. Terrance Graham was sentenced to life without parole after pleading guilty to armed burglary and assault and after having his probation revoked for participating in a series of armed home invasion robberies. He was 17 at the time.  Florida Solicitor General Scott Makar defended the sentences, saying they reflected a balance struck by state lawmakers and Florida judges. “It goes to the core of state sovereignty,” he said, for a state to develop and administer its own justice system.

The heart of the argument is that because juveniles are more impulsive, less mature, and less able to appreciate the full magnitude of their wrongdoing, they are less morally culpable for their crimes. If they are less culpable, the argument goes, they should not be punished as harshly as adults. A second, parallel argument is that because a juvenile’s character is not yet fully formed, it is impossible for experts to accurately predict which young offenders will grow out of their violent, unlawful behaviors and which will not.

Mr. Graham’s lawyer Bryan Gowdy argued that this uncertainty about which juvenile offenders are capable of reform justifies a categorical ban on life without parole sentences for juveniles in nonhomicide crimes….Mr. Gowdy and Bryan Stevenson, Mr. Sullivan’s lawyer, are asking the high court to extend the reasoning of a 2005 decision in which the Supreme Court ruled 5-to-4 that the juvenile death penalty violated the Eighth Amendment….

Chief Justice Roberts repeatedly questioned why harsh juvenile sentences like those of Sullivan and Graham couldn’t be reviewed case by case to determine if they were out of proportion to the underlying crime. He said that approach – rather than a categorical ban – fit neatly with the high court’s existing approach in Eighth Amendment challenges.

Gowdy countered that the high court, in the 2005 juvenile death penalty decision, drew a categorical line at age 18.

“That is because ‘death is different,’ ” Roberts shot back, referring to the frequently cited justification for imposing special rules in capital punishment cases. The chief justice wondered aloud why the court shouldn’t follow a less disruptive path toward case-by-case review.

“It just comes down to ‘adolescents are different,’ your honor,” Gowdy replied.

After reading the transcripts of oral arguments in the two cases, Ohio State law professor Douglas A. Berman, on his excellent Sentencing Law and Policy blog, wrote:

I am largely underwhelmed and not especially hopeful that these cases will produce a profound set of opinions.  All the Justices are understandably struggling with the standard ”where do we draw a line” challenge; but I got the nagging feeling that many Justices are more worried about the risk of drawing lines that would help juvenile defendants than worried about the risk that some states may regularly impose excessive punishments on certain juve offenders.

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Filed Under: Eighth Amendment, Florida, human rights, juveniles, lawsuits/litigation, life without parole, sentencing, solitary confinement Tagged With: , , , , , , , ,