Category Archives: prisons / criminal justice

The Woodfox Judgement

Thanks to right-wing courts, the draconian sentencing guidelines passed by state and federal legislatures–and, believe it or not, the actions of Bill Clinton–the numbers of older prisoners in American prisons and jails is growing. More and more men and women have been given such long sentences that they will die in prison, and it’s become virtually impossible for most of them to mount appeals.

As one extreme case in point, yesterday the federal 5th Circuit Court of Appeals handed down a decision against Albert Woodfox, a member of the Angola 3. Woodfox, who is now 63 years old, has been at Angola since he was 34, and in solitary confinement for 38 years. Last night on Solitary Watch, Jean Casella and I posted this:

Albert Woodfox has spent nearly all of the last 38 years in solitary confinement at the Louisiana State Penitentiary at Angola. His case has brought protests from Amnesty International and Human Rights Watch, who argue that Woodfox’s decades in lockdown constitute torture, and from a growing band of supporters, who believe that he was denied a fair trial. For more than ten years, he has been fighting for his release in the courts. But yesterday, a ruling by a federal appeals court ensured that for the forseeable future, Albert Woodfox will remain right where he has been for nearly four decades: in a 6 x 9 cell in the heart of America’s largest and most notorious prison.  

Woodfox was given a life sentence–and thrown into permanent lockdown–for the 1972 murder of an Angola prison guard. He has been appealing his case for years, arguing that he was convicted in a patently unfair trial based on tainted evidence. In 2008, a federal district court judge agreed, and overturned his conviction. But the Fifth Circuit came down on the side of the state of Louisiana, ruling that Woodfox’s conviction stands.

It’s hard to believe this powerful federal court once was once a great defender of civil rights:

The Fifth Circuit Court of Appeals once had a reputation as one of the finest appellate courts in the land. In the 1960s, a small group of Fifth Circuit judges—mostly Southern-bred moderate Republicans—was known for advancing civil rights and especially school desegregation.  But today the Fifth Circuit, which covers Louisiana, Texas, and Mississippi, is seen as among the most ideologically conservative of the federal appeals courts. It is notable for its overburdened docket and for its hostility to appeals from defendants in capital cases, including claims based on faulty prosecution and suppressed evidence. The court has even been reprimanded by the U.S. Supreme Court, itself is no friend to death row inmates: In June 2004, Justice Sandra Day O’Connor wrote that the Fifth Circuit was “paying lip service to principles” of appellate law in handing down death penalty rulings.  

The Court’s rightward descent is set against a background of the unyielding Supreme Court–an institution that has clearly become an enemy of the people. But contrary to what liberals like to think, these problems did not begin with the Bush Administration. In doing their dirty work, the courts can cite legislation passed under Bill Clinton.    

I can well remember the first hint of what we could expect under President Clinton in the area of criminal justice. During the 1992 Democratic primary in New Hampshire, Hillary Clinton, in an  answer to a question  at a town meeting, suggested habeas corpus had been stretched beyond its bounds. Her husband proceeded to rectify this situation, with dire results for the rights of prisoners and the accused:

The decision in Woodfox’s case shows the crippling effect on prisoners’ rights of the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA) which was passed under Bill Clinton in the wake of the Oklahoma City bombing. That legislation has become the bane of anti-death penalty lawyers and activists, and of thousands of other prisoners seeking to challenge their convictions–a pursuit which AEDPA now renders nearly impossible.  

As the Fifth Circuit noted in its ruling, “The AEDPA requires that federal courts ’defer to a state court’s adjudication of a claim’” unless the state court decision ran “‘contrary to…clearly established Federal law, as determined by the Supreme Court,’” or was ”‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’” And as the judges pointed out, ”An unreasonable application of federal law is different from an incorrect or erroneous application of the law.” 

In other words, the state courts could be wrong, they just couldn’t be so far out as to be undeniably “unreasonable.” And in the end, the Fifth Circuit judges agreed with the State’s argument that in the case at hand, ”the district court failed to apply the AEDPA’s heightened deferential standard of review to Woodfox’s ineffective assistance claims.” Woodfox’s conviction may have been wrong, but it was not, in the eyes of the Fifth Circuit, “unreasonable”–so there will be no new trial for him. This is how justice works in post-AEDPA America.

New Orleans Jail Makes Room for BP Execs

OK, not quite. It’s true that New Orleans is floating plans to expand its local jail, the notorious Orleans Parish Prison, even though it already has the largest number of jail beds, per capita, of any city in the nation. It’s also true that most of us would like to see some BP executives there, languishing in pre-trial detention along with the hundreds of poor New Orleanians who can’t make bail after committing minor offenses. Unfortunately, we are unlikely to see this happen. But its good to know that there will be plenty of room for Tony Hayward and his entourage if it does.

Yesterday, the ACLU of Louisiana issued the following statement:

The ACLU of Louisiana calls on the New Orleans City Council to reject Sheriff Marlin Gusman’s plan to expand Orleans Parish Prison (OPP) to 5,832 beds, large enough for 1 bed for every 60 residents. OPP, currently being investigated by the U.S. Department of Justice, is already the largest per capita jail in the nation and the City’s own Planning Commission has recommended a smaller sized jail. The Sheriff’s request is scheduled to be heard by the Council this week…

[T]he Sheriff has been unable or unwilling to reveal what types of crimes people in his jail are charged with. “The scary thing is that he can’t even tell us who he is housing in the jail. Public drunkenness? Marijuana possession? He simply won’t tell us or doesn’t know,” said Katie Schwartzmann, Legal Director for the ACLU of Louisiana.

What is known is that from January 2007 until June 2009, on average just 2.24% arrests in New Orleans were for violent felonies. 86% of arrests were for misdemeanors, municipal, traffic violations, and other arrests. At the same time, roughly a third of the prisoners held at OPP are federal and state prisoners who have already been sentenced and should be held at state or federal facilities.

The expanded jail would provide one bed for every 60 residents of Orleans Parish. In comparison, the ACLU points out, the ratio in New York City is one jail bed for every 413 residents; in Los Angeles it is one for every 504; and in Chicago it is one for every 542.

Louisiana is known for its swift–if frequently unfair–justice. After Hurricane Katrina, New Orleans Mayor Ray Nagin warned “looters” that they would be sent “straight to Angola.” Instead, the warden of the Louisiana State Penitentiary, Burl Cain, hurried down to New Orleans to set up a temporary jail in the bus station, known as “Camp Greyhound.” Any people suspected of stealing a quart of milk for their starving children were summarily locked up–if they weren’t simply shot by cops or vigilantes.

Don’t expect anything of the sort for those BP execs. Eric Holder says “nothing is off the table,” but there’s little chance we’ll ever see them behind bars. Here’s what McClatchy’s Scott Hiaasen wrote on the subject last week:

U.S. Attorney General Eric Holder promises an aggressive criminal investigation of BP and its contractors for their actions leading up to the massive Gulf of Mexico oil spill, already the worst environmental disaster in U.S. history. But if history is any guide, don’t expect to see the CEO of BP in handcuffs.

Over the years, the Justice Department has repeatedly pursued criminal charges in major environmental accidents, from the Exxon Valdez oil spill in 1989 to the Three Mile Island nuclear accident a decade earlier. But in most high-profile environmental cases, criminal charges are brought mainly against the companies involved, while corporate executives typically escape punishment.

If BP is prosecuted and convicted of crimes, the company could face millions in criminal fines as well as civil penalties. But that won’t be nearly as satisfying as seeing its leaders in a cell at Angola.

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Quadriplegics and Geezers Deemed Too Dangerous to Release from Prison

A quadriplegic could be a threat to public safety if release from prison. At least, that’s what the California Board of Parole Hearings (BPH) concluded when a prisoner requested compassionate release.

Steven Martinez, convicted of several violent felonies, had served three years of a 157-year sentence when he was stabbed by another inmate. His spinal cord was severed, and he was permanently paralyzed from the neck down. Despite his physical condition, the Parole Board denied his request– citing his violent past and verbal threats he had made since he was rendered quadriplegic–and said that he must remain incarcerated indefinitely.

According to the blog Lowering the Bar (which specializes in reporting on legal absurdities) this week a California state Court of Appeals more or less agreed with the Parole Board. In Martinez v. Board of Parole Hearings, the Appeals Court decided that the case should be “returned to BPH because it did not explicitly articulate” the facts on which the Board had based its decision. Yet the Court found that such a threat was “conceivable.”

On Legal Blog Watch, Bruce Carton writes about the Court’s opinion, in which a dissenting judge faces off against the majority over what Carton dubs “the ‘dangerous quadriplegic’ doctrine.”

The majority opinion cited four cases to show that “quadriplegics can commit violent crimes.” Among these  was one case where “a quadriplegic confined to a wheelchair thought his bride of two weeks was cheating on him and killed her by firing a pistol using a string in his mouth.”

The dissenting judge responded that “with the help of a good Internet search engine, you can prove anything, including that pigs can fly.” He then proceeded to cite several stories in which they did just that (with the help of a trampoline or an airplane–but still). The judge concluded:

[T]he majority’s citation of these quadriplegic crime stories actually supports my argument. Thus the majority’s four accounts are drawn from the entire country and span a period of 38 years–from 1972 to the present. I am sure that if there were more stories of this ilk, the majority would have found them.

Four stories in the country in 38 years is darn few. Indeed, the stories are written and reported because the commission of serious crimes by quadriplegics is so rare and bizarre that they are newsworthy. Thus I am willing to take the risk that petitioner Martinez will fire a pistol with a string in his mouth. Indeed, given the hundreds of thousands of dollars that Martinez is costing the State each year, it is a risk that we all must take.

California’s compassionate release program was in large part designed to save money, in a cash-strapped state that has the nation’s largest population of prisoners, and spends $8 billion a year to incarcerate them. But the Parole Board’s response–and the Court’s–show why even crippling state budget crises do not necessarily lead to more sensible corrections policies.

The same is true when it comes to the growing numbers of old inmates languishing in U.S. prisons due to longer sentences and harsher parole policies. Jonathan Turley, who founded the Project for Older Prisoners, has written that in assessing risk factors for parole or early release, “the most reliable is age. As a general rule, people become less dangerous as they age. In males, the greatest drop in recidivism occurs around age 30 and tends to continue to fall.” At the same time, “because of maintenance and medical costs, the average cost of an older prisoner is two to three times that of a younger prisoner.”

A report on the subject released earlier this week by the Vera Institute of Justice recommends more use of early release for older prisoners who present a low risk to public safety. But if a quadriplegic is deemed dangerous, can anyone ever be “low risk”? According to an article about the Vera study on The Crime Report:

At the end of 2009, 15 states and the District of Columbia had provisions for geriatric release, but jurisdictions rarely use them. Four factors help explain the difference between the stated intent and the actual impact of geriatric release laws: political considerations and public opinion; narrow eligibility criteria; procedures that discourage inmates from applying for release; and complicated and lengthy referral and review processes.

Last year, I wrote a two-part article for The Crime Report about the “Graying of America’s Prisons,” citing many cases in which states denied early release to elderly prisoners–even ones who showed ample evidence of rehabilitation. (You can read it here and here.) In many cases, these same inmates would have been out long ago had their crimes preceded the draconian sentencing boom of the last 30 years.

The fact that so many states refuse to seriously consider releasing prisoners who are rendered virtually harmless by age, sickness, or disability suggests that our prison policies have less to do with protecting public safety, and more to do with the politics of punishment and the psychology of retribution.

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No Indictment for Granny-Tasering Cop in Texas

A grand jury in Travis County, Texas, has chosen not to indict Deputy Constable Christopher Bieze on a charge of “injury to an elderly person,” the Austin Statesman reports. Last May, Bieze used his Taser gun to zap a 72-year-old woman after a routine traffic stop.

Kathryn Winkfein initially refused to sign the speeding ticket Bieze gave her, saying “Go on, take me to jail–a 72-year-old woman.” After the cop ordered her get out of her SUV so he could arrest her, and then shoved her back toward the road shoulder–reportedly to get her out of traffic–she shouted, “Give me the fucking thing and I’ll sign it.”

Winkfein has been described as “confrontational” by many news sources. (Others used “feisty,” that catch-all condescending term for pissed off old people.) But the footage from the Bieze’s dashboard camera shows a 4′ 11″ woman doing nothing more than making some scrappy remarks and staring down a burly cop a foot taller than she is. Yet he quickly began threatening to tase her if she didn’t back away. Winkfein replied “I dare you”–and a few moments later she was writhing on the ground, with Bieze screaming at her to get her hands behind her back. She was handcuffed, jailed, and charged with resisting arrest.

As the excellent Texas criminal justice blog Grits for Breakfast sums it up: “Supposedly he violated no policies, violated no laws, and yet the officer demonstrated a complete lack of discipline and restraint, basically using force on the angry 4’11” woman because she ‘dared’ him, not because she posed a threat to him or anyone else.”

Last fall Winkfein sued Travis County and accepted a $40,000 settlement. An internal investigation cleared Bieze, who is a deputy constable–a type of minor local cop that exercises more power in Texas than in most other states. And earlier this week, the grand jury let him off as well. 

Take a look at this unedited video if you want to see what it’s all about. (FYI, after the first half nothing much happens–other than an old woman lying on the ground outside the frame, moaning intermittantly.)

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Profs to Design “Toolkit” to Help Old People Die Right in Prison

Over the last few months I have been posting articles on the graying of the U.S. prison population. Beyond the humanitarian implications, this is a cause of growing concern because of inflating costs due to treating people with arthritis, cancer, hip and knee replacement and so on behind bars. Older people fall more often, have trouble climbing into bunk beds because of arthritis, and suffer from depression and dementia. Unlike younger prisoners, they tend to be a fairly docile lot, and are more often the victim than the aggressor in prison assaults. They are obvious candidates for early release as prisons are eyed as targets for cuts in cash-strapped state budgets.

For years prison rights organizations and families have sought to persuade states and the federal government to free elderly  terminally ill inmates into the care of family or friends. But prisons and politicians have generally deemed such compassionate release programs too “high risk” because of the possible security threat to the general populace–in other words, they worry grandpa might get out and go berserk, and they’d be left holding the bag if he committed a new crime.

Places like Angola, the giant Louisiana state prison where most inmates have such long sentences that they are destined to die inside, have dealt with this situation by setting up their own hospices. Now, Penn State has received a $1.27 million grant from the National Institute of Nursing Research to develop what Susan Loeb, an assistant professor, described to the student newspaper the Daily Collegian as a “comprehensive toolkit of tailored resources for end-of-life care in prisons.” The article continues:

Leaders of the program plan to apply study findings at six different prisons state-wide in an attempt to improve care for inmates reaching the end of their lives, wrote Loeb, the principal investigator for the study.

“Since prisons are among the most restrictive, most complex organizations — prisons are the best context for this study,” Loeb wrote. “Our hope is that findings will benefit not only dying inmates but also others who spend their final days in a complex organization.”

Though the study is still in the early stages, researchers are quickly learning, said Christopher Hollenbeak, associate professor of surgery and health evaluation sciences and an investigator on the study. “The real goal of it is to come up with a tool in prisons to improve the quality-of-life care,” Hollenbeak said. “We want to provide a toolkit that would be cost-effective as well.” Current end-of-life prison programs only offer limited low-cost medications. One proposed change is the “buddy system,” where healthy inmates are paired with a terminally ill inmate to help look out for them, Hollenbeak said.

I suppose it’s a worthy effort, given the current situation. But none of it would be necessary if American society could get over its desire for punishment and revenge just enough to let these inmates die in the free world.

Drugmaker Got Kickbacks for Nursing Home Patients

There really should be a special place in hell for pharmaceutical manufacturers who make money by exploiting the weakest and most vulnerable of patients: old people with dementia.  I wrote about one such case back in April of last year:

Pharmaceutical giant Eli Lilly recently agreed to pay a record $1.4 billion dollars to settle charges that it illegally marketed the anti-psychotic drug Zyprexa as a treatment for Alzheimer’s and other forms of dementia in elderly patients. This despite the fact that the drug was not only unapproved for this “off-label” use, but had also been shown to cause obesity and diabetes.

Now, $1.4 billion might sound like a tough punishment, until you find out that Lilly’s total sales of Zyprexa have topped $37 billion. And at least some of those sales were thanks to doctors who, with guidance from Lilly drug reps, wrote thousands of prescriptions for patients with virtually no ability to defend themselves.  

The steep fine against Lilly apparently didn’t discourage another drugmaker, Johnson & Johnson, from using even sleazier tactics to promote its own lucrative antipsychotic for use on nursing home residents. As the New York Times reported on Friday:

Johnson & Johnson paid kickbacks to the nation’s largest nursing home pharmacy to increase the number of elderly patients taking the antipsychotic Risperdal and several other medications, according to a complaint filed Friday by the office of the United States attorney in Boston.

The payments violated the federal anti-kickback statute and led Omnicare, a pharmacy company specializing in dispensing drugs to nursing home residents, to submit false claims to Medicaid….The complaint charges that Johnson & Johnson and two of its subsidiaries…paid tens of millions of dollars to induce Omnicare to buy and recommend Risperdal for elderly patients as well as the drug maker’s prescription pain relievers Duragesic and Ultram, and the antibiotic Levaquin.

The complaint charges that Omnicare’s pharmacists engaged in intensive efforts to persuade physicians to prescribe the drugs from 1999 to 2004, a period in which the pharmacy’s annual purchase of Johnson & Johnson medications nearly tripled to more than $280 million, from about $100 million. During the same period, the pharmacy’s annual purchase of Risperdal rose to more than $100 million, according to the complaint filed in United States District Court in Massachusetts….

In return for Omnicare’s efforts, the drug maker allegedly paid the pharmacy company kickbacks in the form of rebates based on the market share of some Johnson & Johnson drugs, sponsorship of Omnicare meetings, grants and payments for Omnicare data, like the prescribing habits of doctors, of the kind that Omnicare had previously provided the drug maker for free, the complaint said.

Let’s recall that these are the same pharmaceutical companies who were praised for their cooperativeness last year when they cut a back room deal with the Obama administration to support health care reform. Part of the deal supposedly involved cutting costs for seniors on the Medicare Part D prescription drug program. Of course, it turned out the deal wasn’t all it was cracked up to be–and while it supposedly “gave” to seniors with one hand, Big Pharma kept on ripping them off with the other.

In the Johnson & Johnson case, the Times reports, the company seems to have conspired to circumvent government regulations specifically meant “to protect nursing home residents from medication mismanagement, like being sedated with psychiatric drugs for the purposes of discipline or convenience.” These regulations require an outside consultant pharmacist to review nursing home patients’ medications once a month, and report any irregularities.

But the government’s complaint in the Johnson & Johnson case raises the question of whether some companies have used the consultant pharmacists — the very people entrusted by the government with safeguarding the integrity of nursing home drug prescriptions — for corporate gain. In this case, according to the complaint, Omnicare’s consultant pharmacists worked to increase Risperdal’s market share….

In one company document among the court exhibits, for example, Omnicare said that its efforts generated a record market share high of 55.5 percent for Risperdal in the first quarter of 2000. “This market share represents Omnicare’s ability in persuading physicians to write Risperdal in the areas of behavioral disturbances associated with dementia,” the Omnicare document said.

But Risperdal, which is approved by the Food and Drug Administration to treat schizophrenia and bipolar disorder, is not specifically approved to treat behavioral problems in elderly people with dementia. In fact, in 2005 the F.D.A. required that the labels of certain antipsychotic drugs, including Risperdal, carry a black box label warning that elderly people with dementia-related psychosis treated with such drugs were at an increased risk of death compared with those taking a placebo.

So Johnson & Johnson knew that their drug, used in this way and on these patients, could actually increase the risk of death. But what’s the death of a few old, disoriented, defenseless, forgotten people, compared with the potential for fantastic profits? Not much, apparently. According to the Times article:

In an Omnicare letter to Johnson & Johnson in 2001, an executive wrote that the pharmacy planned to spend about $173 million on Johnson & Johnson products.

The executive wrote in capital letters, “We are selling more high-priced drugs (read Risperdal here) for the pharmaceutical industry!!”

New Site: Solitary Watch

Readers of Unsilent Generation will know that I’ve written before on prison reform issues, aging behind bars, and the case of the Angola 3, which involves men who have spent decades in solitary confinement. I’ve now launched a new web site, in collaboration with writer and editor Jean Casella, called Solitary Watch News.

Solitary Watch News site is part of an emerging project called Solitary Watch, which will serve as the first centralized source of information on solitary confinement in the United States. The full Solitary Watch web site–which will be hosted by the Virginia Capital Case Clearinghouse (VC3), a clinical program of the Washington and Lee University School of Law in Lexington, Virginia directed by veteran death penalty attorney David Bruck–will be launched in the spring of 2010.

Why Solitary Watch?

Many Americans have recoiled from the treatment of prisoners at Guantanamo Bay and Abu Ghraib, and polls show that a clear majority oppose the use of torture under any circumstances, even on foreign terrorism suspects. Yet conditions of confinement in U.S. prisons and jails that transgress the boundaries of humane treatment have produced little outcry.  

The use of solitary confinement in the United States provides the clearest example of this situtation.  Solitary confinement has grown dramatically in the past two decades. Today, at least 25,000 prisoners are being held in long-term lockdown in the nation’s ”supermax” facilities; some 50,000 to 80,000 more are held in isolation in “administrative segregation” or “special housing” units at other facilities. In other words, on any given day, as many as 100,000 people are living in solitary confinement in America’s prisons. This widespread practice has received scant media attention, and has yet to find a place in the public discourse or on political platforms.

Solitary Watch is conceived as an innovative public web site aimed at bringing this issue out of the shadows and into the light of the public square. The mission of Solitary Watch is to provide the public—as well as practicing attorneys, legal scholars, law enforcement and corrections officers, policymakers, educators, advocates, and prisoners–with the first comprehensive source of information on solitary confinement in the United States. Combining a database compiled through state-by-state research with background, analysis, and breaking news, the site will serve as an information clearinghouse, educational resource, and online community.

Why now?

This project is being launched at a pivotal moment, coinciding with several important developments in U.S. criminal justice. As Americans’ support for executions wanes in the wake of numerous exonerations and excessive costs, the alternative punishment of choice seems to be long-term solitary confinement, whether on prison death rows or in supermax lockdown units. Solitary confinement also awaits accused and convicted terrorists as they are transferred onto American soil from Guantanamo and elsewhere. Finally, in the absence of appropriate medical care, solitary confinement has increasingly been used as a way to control and warehouse mentally ill prisoners. As these trends continue, there will be an increasing need for a comprehensive, reliable source of information on this practice, and on the many practical, legal, and ethical questions it raises.

I hope you will visit the site and subscribe to Solitary Watch News at http://solitarywatch.wordpress.com/.