Tag Archives: criminal justice

“Geezer in the Hole”: The Reality of Aging Behind Bars

Over the past few years there has been a growing interest in the increasing numbers of older prisoners. At times this interest has been accompanied by some piddling gestures to alleviate their miserable situation–for example, theoretically granting them leave to die “in the free world,” or perhaps showing sympathy for granny having to climb up three tiers of bunks to get a night’s sleep, or gramps asking for a cane (denied because it is a possible weapon) so he can get to the toilet without crawling.

Nonetheless, the dominant view from the corrections industry and most of the public is that these people did the crimes and now they have to do the time–even if the time reflects absurdly the long sentences instituted in the 1980s and 90s, and creates a new cohort of septuagenarian prisoners. In fact, most of the new interest in aging inmates actually has to do with money. According to a recent AP article:

The ACLU estimates that it costs about $72,000 to house an elderly inmate for a year, compared to $24,000 for a younger prisoner.The federal Bureau of Justice Statistics reported that the number of men and women in state and federal prisons age 55 and older grew 76 percent between 1999 and 2008, the latest year available, from 43,300 to 76,400. The growth of the entire prison population grew only 18 percent in that period.

“We’re reaping the fruits of bad public policy like Three Strikes laws and other mandatory minimum sentencing laws,” said David C. Fathi, director of the ACLU National Prison Project in Washington, D.C. “One in 11 prisoners is serving a life sentence.”

With prison costs escalating and states overwhelmed with deficits, letting granny and gramps out of the clink suddenly doesn’t sound so bad to some state officials. Old prisoners are expensive, and if we must take care of them, then why should local and state government’s foot the bill. Better to let the federal government pay instead, through Medicare and Medicaid. The leading predictor of criminal behavior is age (young), so there’s little risk involved in letting the geezers go; all that’s keeping most of them behind bars in the nation’s insatiable taste for punishment.

With all this in mind, I am reprinting an article that just appeared on Solitary Watch, another blog where I am editor along with Jean Casella. It is the story of Robert Platshorn, leader of  the “Black Tuna Gang” of marijuana smugglers in the late 1970s, an experience described in his book The Black Tuna Diaries. In 1980, he received what was then an unprecedented sentence of 64 years in federal prison. 

When Platshorn was released on parole in 2008 at the age of 65, he was the longest-serving non-violent marijuana offender in America. But as he wrote in a blog post for High Times earlier this year, that distinction ”won’t be mine for long. Many sentenced after me will soon be able to claim my title. They are serving LIFE WITHOUT PAROLE and will never get to spend another minute as a free man.” When Platshorn was convicted, he writes, “no one received a life sentence for marijuana. That changed in the early 80′s as Reagan stepped up this insane failure of a drug war.” According to Platshorn, several other non-violent marijuana offenders, including  Billy Deckle, are now in their sixties and seventies, and will likely never be released.

Here is what they have to look forward to: Surviving day to day in an environment so dangerous that a slip of the tongue often ends in death. Since the elimination of parole, federal prisons are populated mainly by young, uneducated, aggressive inmates serving absurdly long sentences. They have little hope and nothing to lose. Violence has become endemic in a system that has little or no reward for good behavior. Prison gangs find older non-violent inmates easy prey.

Inadequate medical care. It costs the taxpayers billions to provide even minimal health care for older inmates. Yet these are the people least likely to commit a crime after release. An older marijuana offender serving a long sentence is likely to die in prison for lack of medical care…

An extremely unhealthy diet. It becomes an obsession, trying find enough decent food to maintain good health. Even under the best of circumstances, it’s no longer possible. When I entered prison in 1979, the budget to feed an inmate for three meals a day was $2.62. When I left prison in 2008 it had shrunk to $2.25…This has to pay, not only for food, it has to cover repairs and replacements for kitchen equipment, civilian salaries, and eating utensils…You don’t have to be an economist to figure out, that since Bush decimated the prison food budget, the cost of inmate medical care has skyrocketed. Especially for older inmates, many of whom require a special or restricted diet…Now, the Bureau [of Prisons] will say that they provide special diets for those who require them. And it’s true. Sort of! Those diet trays usually contain so little edible food that the starving sick geezer ends up eating a piece of deep fried breaded sewer trout or a hunk of fried breaded mystery meat, just to stave off the terrible never ending hunger pangs. The results, a sick geezer who now needs expensive medications and has little or no chance of surviving a long sentence. Most of those geezers would pose no threat to society if released. It’s even worse when the geezer is serving forever for marijuana, a harmless substance, and an effective medication that is now legal in many states. How would you feel if that old pot smuggler was your Uncle Billy?

Geezer in the hole! “The Hole”! Segregation!…The Federal Bureau of Prisons thinks it sounds better if they call it the SHU (Special Housing Unit). Take my word for it, it ain’t special in any way you’d like to experience. During my almost 30 years in 11 different federal prisons, about 3 ½ years were spent in segregation. They got it right in the old movies, “the hole”. Now you might ask, why would a nice non-violent old dude wind up in the hole? Lots of reason! Someone “drops a note” saying the old dude’s life is in danger. Result many months in the hole. He gets in a fight. Doesn’t matter if it’s self-defense. Into the hole! Uncle Billy gets caught coming out of the chow hall with an apple or a cookie in his pocket. The hole! The old pot smuggler has been forced to work in the prison factory because he owes a fine. A tool disappears from his work area. Everyone who works in that area is tossed in the hole. And so on and so on. Now what happens is: he has to eat whatever shows up on the meager tray that comes through the slot, or starve. Mostly he eats all the starchy crap because he’s been flat on his back all day and night, and he’s bored to death. Meals are the only break he looks forward to. Each time he leaves his cell his hands are cuffed behind his back. This is especially painful for an older inmate. He has to be cuffed while he crouches backwards with his hands pushed out through the lower food slot. This usually means Uncle Billy will forgo his three weekly showers and exercise periods. It’s no big deal when your young and supple, but for a geezer it’s a different story. The only way I can express it is, if you are over fifty, spend 90 days in the hole and you come out two years older. Fatter, slower, more depressed, and less likely to recover physically or mentally.

Its time for all the Uncle Billys to go home…

Sotomayor for the Prosecution

Sonia Sotomayor’s all-but-certain conifirmation will be a notable victory for the Democrats, and a long-overdue victory for diversity on the nation’s highest court. Whether it will be a victory for criminal justice is another question altogether–and one that seems to matter little to most of her liberal supporters.

Long before her Senate confirmation hearings began, progressive politicians, lawyers, scholars, activists, and bloggers had joined together, as if in one voice, to sing Sotomayor’s praises. Beyond predictable paeans to her qualifications and her inspiring personal story, the focus of this chorus of accolades is not Judge Sotomayor’s passion for justice, her moral rectitude, or even her much-discussed “empathy.” Instead, Congressional Democrats and their allies have banded together to celebrate how thoroughly indistinguishable Sonia Sotomayor is from a Republican judge.

In their zeal to show that she is a “moderate,” Sotomayor’s liberal supporters are downplaying all her most compelling qualities, while lauding her most conservative decisions. She has rejected the majority of racial discrimination claims, they crow, and sent most immigrants packing. On criminal justice matters, she is somewhere to the right of the man she will replace, Daddy Bush appointee David Souter. The very facts that ought to make progressives cringe are instead being extolled as Sotomayor’s greatest virtues, since they are the things that render her eminently “confirmable.”

The most barefaced example of this rhetoric came on the eve of the hearings from New York Senator Charles Schumer, considered one of the Judiciary Committee’s most liberal members. Declaring Sotomayor a “slam dunk,” Schumer bragged

She has agreed with Republican colleagues 95 percent of the time. She has ruled for the government in 83 percent of immigration cases, against the immigration plaintiff. She has ruled for the government in 92 percent of criminal cases. She has denied race claims in 83 percent of the cases and has split evenly on employment cases between employer and employee.

 It was Schumer’s office that last month released its own study of Sotomayor’s 848 decisions in federal asylum cases, including those based on alleged violations of the Convention on Torture. Sotomayor ruled in favor of plaintiffs in these cases just 17 percent o the time. “These findings should put to rest any doubts about Judge Sotomayor’s fidelity to the rule of law,” Schumer said in a statement. “Even in immigration cases, which would most test the so-called ‘empathy factor,’ Judge Sotomayor’s record is well within the judicial mainstream.” In other words, being a Latina won’t make Sotomayor any more compassionate toward immigrants who face torture and death when we ship them back home.

On questions of criminal justice and criminal procedure, Sotomayor has a particularly substantial record—more than anyone else on the current Supreme Court, as her supporters have rightly pointed out, due to her career as a prosecutor, criminal court judge, and appellate judge. On this front, Sotomayor’s backers are promoting her as a tough-on-crime pragmatist with no soft spot for criminal defendants—even if they happen to be innocent.

Last month, the Wall Street Journal looked approvingly at Sotomayor’s record on criminal cases, in an article titled “Nominees Criminal Rulings Tilt to the Right of Souter.” The retiring Republican-appointee Souter has sometimes joined Court liberals in defending the rights of the accused and convicted—most recently in a January case concerning police searches and seizures. In a similar appellate case, Sotomayor had ruled in favor of the police. The Journal reported:

New York criminal-defense lawyers say she is surprisingly tough on crime for a Democratic-backed appointee — a byproduct, they believe, of her tenure as a prosecutor….Following recent Supreme Court precedent, Judge Sotomayor tends to see relatively few grounds to overturn criminal convictions, says John Siffert, a New York attorney who taught an appellate advocacy class with the judge at New York University School of Law from 1996 to 2006. On the trial bench, he says, “she was not viewed as a pro-defense judge.”

 Sotomayor had the opportunity to review many petitions for writs of habeas corpus–the basic Constitutional right to seek judicial relief from unlawful detention, which offers recourse to those who believe they have been unfairly or improperly tried or wrongly convicted. Progressives have for years attacked the Bush administration for denying habeas corpus rights to prisoners at Guantanamo and elsewhere. The Alliance for Justice, a 30-year-old coalition of progressive groups, has a special project called “Defend Habeas,” which states on its web site:

Without access to due process guarantees enshrined in the Constitution, people can be imprisoned indefinitely, without any hope of a fair trial or hearing, or even an opportunity to respond to the charges against them. …

Eliminating habeas turns our back on what it means to be an American, and advances a policy that makes us less secure rather than more secure. If the United States cannot guarantee rights to the citizens of other countries, what guarantee do Americans have that their rights will be respected by the rest of the world? We live in a country of laws, not of men, and in order to stand up for that tradition, due process must be restored.

 Yet for those incarcerated in U.S. prisons, the main obstacle to accessing these rights is not anything concocted during the Bush years. It is the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), introduced in the wake of the Oklahoma City bombing, passed with overwhelming bipartisan support, and signed into law by Bill Clinton in an election year. The AEDPA severely restricts the ability of federal judges to grant writs of habeas corpus and offer judicial relief to the convicted, even when there is substantial new evidence of their innocence.

Sonia Sotomayor rendered her appellate decisions under the restrictions imposed by AEDPA, and was subject to its tenets. But as a handful of defense lawyers have pointed out, mostly on personal blogs, she seemed more than content to abide by those restrictions. One blogger calls her a “dead bang loser for the defense.” The blog of the conservative, law-and-order Criminal Justice Legal Foundation, agreed, and praised Sotomayor on these very grounds:

[AEDPA] is bitterly resented by many federal judges….Many, many federal judges have attempted to evade it, and a few have gone so far as to declare it unconstitutional. All of the latter have been reversed [by the Supreme Court]….Throughout [Sotomayor’s] opinions, I do not see the hostility to AEDPA that I have seen in so many opinions in the lower federal courts. The statute is largely applied as written and as intended.

 A more surprising affirmation of Sotomayor’s record in this area came from the Alliance for Justice, sponsors of the Defend Habeas project. In a letter to Senate Judiciary Committee chair Patrick Leahy and ranking member Jeff Sessions, the AFJ wrote:

Judge Sotomayor’s criminal justice opinions reveal the temperament of a former prosecutor who understands the real-world demands of prosecuting crime and fundamentally respects the rule of law. When reviewing the constitutional rights of criminal defendants, Judge Sotomayor closely follows Second Circuit precedent and dispenses narrow rulings tailored to the particular facts of the case. Exhibiting a moderate and restrained approach to judicial review of trial process, she focuses on procedural issues, and she has resolved the overwhelming majority of her cases without reaching the merits of a defendant’s claim. Significantly, she frequently concludes that trial defects resulted in harmless rather than structural error. Her restrained anner is most evident in her habeas corpus decisions, in which she strictly adheres to the procedural requirements of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), often dismissing habeas petitions as nexhausted or time-barred under AEDPA, even when faced with potentially credible—and, in one instance, ultimately proven—claims of actual innocence. While the Alliance for Justice believes that, where possible, judges should reach the merits of a defendant’s constitutional claims and recognize the damage that a trial court error inflicts on the integrity of a criminal proceeding, we nonetheless respect Judge Sotomayor’s moderate approach and commitment to preserving the delicate balance between the government’s ability to prosecute crime and an individual’s constitutional rights.

The AFJ’s report, and its upbeat press conference on Sotomayor’s criminal rulings, were widely reported, under headlines like “Liberal Group Praises Sotomayor’s Criminal Justice Record,” and “Sotomayor ‘Tough’ on Crime, Report Says.” It all begs the question of whether habeas corpus rights warrant the most fervent and absolute defense only when they are violated by Republicans, and not when they are dismissed by Democratic court nominees under laws signed by Democratic presidents. 

The most powerful statement on this issue has come from Jeffrey Deskovic, who was wrongfully convicted of rape and murder at age 17, and spent 16 years in prison before being exonerated by DNA evidence. His earlier appeals had, in 1997, reached New York State’s highest appeals court, where his petition for a writ of habeas corpus was denied because his lawyer had filed it four days late (on the erroneous advice of a court clerk). The time restriction had been imposed by the then-new AEDPA.

Deskovic then appealed his case to the Federal Second Circuit, where he encountered Judge Sonia Sotomayor. As he described it in a piece on Alternet last week, his lawyer “gave three reasons why Judge Sotomayor and her colleague should overturn the procedural ruling: 1) Upholding such a ruling would cause a miscarriage of justice to continue; 2) Reversing the procedural ruling could open the door to more sophisticated DNA Testing; 3) The late petition was not my fault or my attorney’s.” But the judges refused to reverse the ruling. “The alleged reliance of Deskovic’s attorney on verbal misinformation from the court clerk constitutes excusable neglect that does not rise to the level of an extraordinary circumstance,” they wrote. “Similarly, we are not persuaded that … his situation is unique and his petition has substantive merit.” A second appeal to Sotomayor’s court resulted in the same decision, and the U.S. Supreme Court declined to hear his case, so Deskovic stayed in prison for six more years before DNA proved him innocent (and convicted another man). Deskovic writes:

Judge Sotomayor will appear before the Senate next week. Given that she has been nominated to a lifetime appointment that affects all of our rights, what she did in my case — condemning me to a life sentence based on procedure in the face of an airtight innocence claim — should be part of the discussion. I want my case to be a part of the national discussion. I want Senators to ask Judge Sotomayor if she stands by her ruling, and whether she would rule that way in the future. If I could I would testify at the Senate confirmation hearing, about the human impact of Judge Sotomayor’s putting procedure over innocence. Thus far, however, I have gotten no response from either side on Capitol Hill.

In fact, as Paul Wright, the editor of Prison Legal News, wrote to me in an email last week, Judge Sotomayor’s ruling against Deskovic would likely be seen as “a strong reason for her to be confirmed to the court since it shows she is outcome-oriented.” Wright continued:

No one cares about innocent people dying in prison, the Republicans and Democrats alike are fine with it….The courts do everything they can to avoid reaching the merits of prisoners’ claims and instead love to dismiss on procedural technicalities. It is the purposeful triumph of form over substance.

Indeed, it is decisions much like this one that are offered up as proof that Sotomayor is a moderate, and not an “activist” judge–which is the current term for jurists who render decisions based upon whether they actually serve the cause of justice. The fact that progressives feel they must celebrate rulings like these in order to prove their nominee is in the “mainstream” is far more a condemnation of Sotomayor’s supporters than of the judge herself.  It all goes to show how far to the right that mainstream now runs–and how willingly liberals have been borne along by the current.