The National  Memo Logo

Smart. Sharp. Funny. Fearless.

Monday, December 09, 2019 {{ new Date().getDay() }}

Tag: death penalty

Why The Supreme Court's Catholic Conservatives Should Be Denied Communion, Too

This week, Speaker of the House Nancy Pelosi just flouted an order of the Catholic Church by receiving communion from a priest in Vatican City. Last month, the archbishop of the San Francisco Archdiocese put Pelosi on the “do not serve” list when he informed her that “should [she] not publicly repudiate [her] advocacy for abortion ‘rights’” he would declare that she cannot partake in the sacrament of Holy Communion.

Since then, other bishops have voiced their support for that decision. "The church clearly teaches that abortion is a grave evil, and that public advocacy for — and support of — abortion is, objectively speaking, such a manifest grave sin," Portland, Oregon Archbishop Alexander Sample posted on Facebook.

It’s not a new issue. A South Carolina parish priest denied then-candidate Joseph Biden the Eucharist in 2019 because of his pro-choice position during his presidential campaign. Last year, a conference of Bishops deliberated making it official church policy to keep him from Communion. They ultimately didn’t enact the ban.

Even to debate whether President Biden, Speaker Pelosi or any other pro-choice person should receive communion in the Catholic Church while doing nothing to hold Catholic jurists and lawyers accountable for violating other church teachings is enough for me to consider leaving the faith. To wit, no churches have announced that they would withhold the sacrament from Supreme Court Justices who have approved the death penalty, as recently as last week.

When I was incarcerated from 2007 to 2014, I rediscovered my Catholic faith and started attending the weekly masses held on Saturday mornings in the chairs assembled in the prison school hallway. It’s not that I am so pious or good; someone sentenced to years in prison can’t survive without belief in things unseen.

Of course I leaned on the fact that faith supports my redemption — the Bible codifies my visiting rights. But the entire time I was there, the same Church that sustained me would have allowed — indeed, even supported — the state’s taking of the lives of two women who lived in my housing unit. Former nurse Chasity West barely escaped a death sentence for a capital murder conviction and Irish authorities refused to extradite former attorney Beth Ann Carpenter unless the State of Connecticut promised not to pursue such a penalty.

Now they’re both serving life without parole, also known as LWOP, which Pope Francis has condemned.

It was only after I had been home for almost 4 years that the Vatican announced a revision to the official Catechism of the Catholic Church in August 2018. The death penalty, it said, was “an attack on the inviolability and dignity of the person” and “inadmissible” in all cases.
Yet, approximately one year after the change in the Catechism, then-Attorney General William P. Barr — and former board member at the Catholic Information Center, an Opus Dei-affiliated bookstore and chapel — resurrected the federal death penalty and oversaw the Justice Department that put 13 people to death. One of them was the first woman to be killed by the federal government, altogether more than had been executed in the previous 56 years combined.

Yet no priest or archbishop called for yanking the wafer from his mouth.

Nor has anyone removed Justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh or Clarence Thomas from the communion lines at their Beltway churches.

Since the Catholic Church changed its position in 2018, the Supreme Court has involved itself in a total of 44 capital punishment cases (24 in the 2018-19 term, 14 in the 2019-20 term, 0 in the 2020-21 term, 6 in the 2021-22 term) over four separate court terms. Of those 44, only two decisions ended up protecting the life of the prisoner: the 2019 decision in Flowers v. Mississippi and the 2020 opinion in Sharp v. Murphy. Notably, Catholic justices Clarence Thomas and Neil Gorsuch dissented in the Flowers case and Justices Alito and Thomas dissented in the Sharp decision.

Many Supreme Court decisions turn on very specific legal questions, and deciding those issues often seems to have nothing to do with the punishment at the end of the case. That’s what happened with the case of Nance v. Ward, decided last week. It was actually the more conservative justices who dissented in approving execution by firing squad. At issue was the legal proceeding that a condemned man could use to challenge his method of execution. But it bears mentioning that in their dissents, the Catholic justices approved of a method of execution — lethal injection — that would likely amount to cruel and unusual punishment for Nance, who has compromised veins.

I can’t say whether writing a judicial opinion is different from active advocacy, which is what the bishops complain of in their communion bans. The actions of Catholic Supreme Court justices may not count as advocacy, but they do amount to complicity. Gorsuch recused himself from a capital case before the country’s highest court, not on the basis of the subject matter; but because he had been involved in the lower courts’ decisions. For the most part, the justices engaged with these cases. They touched them. Their fingerprints remain on the death warrants.

Justice Amy Coney Barrett wrote article about this very issue in the Marquette Law Review in 2008, arguing that if a judge’s moral conviction would have prevented her from imposing the death penalty, then she needs to recuse herself from a case involving capital punishment. Coney Barrett noted the difference between being the judge who imposed the sentence and an appellate judge who is once removed from the penalty, but she didn’t follow her own advice. She failed to recuse herself in the case of Orlando Hall, a man convicted of the rape and murder of the sister of rival drug dealers, but instead noted a dissent to allowing Hall’s execution to proceed.

Conspicuously, though, Coney Barrett didn’t dissent in dismissing a stay order based on the fact that Hall, who is Black, was convicted by an all-white jury. And, just last month, she joined the majority opinion in Shinn v. Ramirez in deciding that potentially innocent men sentenced to die shouldn’t have a chance to prove that their post-conviction attorneys didn’t provide them with adequate representation. The Court’s decision in Shinn v. Ramirez is the least Christian attitude anyone can take toward someone who’s challenging a criminal conviction.

The prohibition on abortion is about 120 years older than the Catechism rule so perhaps it’s an issue of marination in the idea for bishops and judges. But the difference in attitudes toward abortion and death penalty is obvious: one life isn’t culpable, at least not yet. That’s why, before 2018, church leaders operated in “virtually unanimous agreement” that “civil authority, as guardian of the public good, has been given by God the right to inflict punishments on evildoers, including the punishment of death.”

I was baptized as an infant so I never chose the Church. The reason why I came back and stayed is that the Catholic Church is the temple of do-overs. God doesn’t want sacrifice; he wants mercy. And the church’s disparate treatment of reproductive rights supporters and death penalty proponents doesn’t square with that core value.

A healthcare provider can reevaluate their actions and behave differently; they often get a second chance to bring a child to term. Those who carry out death sentences have no such opportunity, unless they prevent the next execution — and not one Catholic with the power to do so was brave or responsible enough to take that stand.

Pelosi and other lawmakers have supported the now-overturned Roe v. Wade precedent out of a moral conviction that women deserve to be protected. It’s a position my God would allow and permit her to participate in the sacrament.

I understand that rules are rules. If public support for abortion services disqualifies someone from receiving communion, then I need to step out of line myself and join the lawmakers sidelined by bishops.

But if rules are rules, then Catholic bishops should impose similar bans on Justices Alito, Coney Barrett, Gorsuch, Kavanaugh, and Thomas. That would be equal treatment under church law.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.

How America Made The Death Penalty Into A Rigged And Barbaric Game

This is the ninth column in a series about Melissa Lucio and the State of Texas’ capital case against her. Read the first column here, the second here, the third here, the fourth here, the fifth here, the sixth here, the seventh here and the eighth here.

The “War of Currents” started as any public battle does. Thomas Edison and George Westinghouse were selling their own electrical systems around the country in typical commercial competition.

Then in 1888 the New York State Assembly decided that the electric chair would be the most humane way to carry out death sentences. Hanging, the legislators thought, was an inexact science in that it resulted in either immediate decapitation or drawn out strangulation.

The new statute amped up the conflict. Edison recommended that the state of New York utilize the electric chair for the country’s first execution and employ Westinghouse’s alternating current system to power it. Edison was hardly ceding ground to a competitor; on the contrary, he wanted the public to associate alternating current systems with killing and view his direct current as clean, contained, and directed toward the preservation of life. He electrocuted dogs to advertise just what he meant.

First up to the chair was William Kemmler; he’d killed his common law wife with a hatchet. His capital trial lasted four days and he was sentenced to death three days after that - only once the state elicited expert testimony from the Wizard of Menlo Park himself, who promised that his own direct current system wouldn’t affect a condemned man’s nerves enough to dispatch him.

Kemmler endured years of appeals, his representation financed by Westinghouse in the hopes that reversal of the death warrant would forestop the marketing of his alternating current in the worst way. But alas Kemmler lost and prepared for the electric gallows, issuing this salvo:

"Gentlemen, I wish everyone all the good luck in the world. I believe I am going to a good place. The papers have been saying a lot of stuff that ain't so. That's all I have to say."

The first jolt, a 17-second long banger, didn’t kill him, though. The next one lasted over a minute and cooked Kemmler. The smell of roasting human flesh drove the prosecutor from the room.

The Edison-Westinghouse feud tells us most of what we need to know about the death penalty; there’s something more important than the souls condemned to die: competitive advantage. The contest between two parties invests them in winning so much that they’ll descend to any moral depths to prevail.

Sentenced to die for the murder of five people at a Wendy’s restaurant where he once worked, John Taylor was the last person on New York’s death row in 2007.

New York had executed exactly 695 people by that point, the last one 44 years earlier, in 1963. From 1972 to 1995, the state lacked a capital punishment scheme; former Gov. George Pataki resurrected it. In 2004, the New York Court of Appeals ruled the state’s death penalty statute was unconstitutional. The State Assembly, the same body that insisted that frying someone could be humane 100 years earlier, couldn’t agree on a capital punishment statute. The law knocked off the books by the seven member Court of Appeals has never been replaced.

And on September 10, 2007, before New York’s highest court in Albany, Attorney Kevin M. Doyle, head of the state Capital Defender Office, and Queens County District Attorney Richard Brown argued over whether the facts of Taylor’s case could cure the statute of its unconstitutionality. The Court of Appeals eventually decided it couldn’t and converted Taylor’s death to life about a month after oral argument.

But the most important issue presented in the Taylor briefs didn’t get aired that September Monday. Among the reasons to keep Taylor on death row, the Queens County District Attorney had claimed that a sanction of death “is not so different that the state courts should . . . suddenly discard the presumptions of good faith that apply to the actions of prosecutors . . . .

To Brown, extermination wasn’t a big enough deal not to take the state’s attorneys at their word.

“And no wonder,” Attorney Doyle, Susan H. Salomon and Barry J. Fisher wrote in their Reply brief. “Better to invoke a deep, presumptive, and usually well-founded respect for New York’s prosecutors than to examine just how often the death penalty, under the 1995 statute, has displaced their sound judgment.

The attorney trio spent the next 40 pages of their 254 page brief demonstrating how district attorneys say a lot that ain’t so. They dissected the fourteen capital prosecutions that had commenced in New York between the death penalty’s return in 1995 to its demise at jurists’ hands in 2004.

In one case, a prosecutor tried to turn the mitigating factor of a lack of a criminal record into an aggravating one, telling jurors: “in fact that the opposite is true. If the defendant had been convicted of crimes in the past, perhaps we can see some sort of explanation for the premeditated killing of [his victims].”

In another, the district attorney soured the fact that the defendant had saved a fellow corrections officer’s life by arguing that it should have made him more sensitive to people who don’t want to die.

In a third, the district attorney ignored a judicial order to bring in evidence that the comparative ballistic lead analysis on a bullet would prove what he intended to prove prior to bringing in the witness to the said analysis. But there was no such hearing on the bullet evidence; the district attorney charged ahead and presented the witness with a quickness. It was wise as she would be charged for perjuring herself in this same type of analysis four years later.

All too convincing is the attorneys’ example of Fox News Host Janine Pirro, Westchester County’s former district attorney, jumping in front of a news camera to declare the shooting of two local police officers a capital crime before she knew what had happened.

The same force that caused former Cameron County, Texas District Attorney Armando Villalobos to misrepresent Melissa Lucio’s life to the jury to assure she died acted on these New York prosecutors. Lucio is first Hispanic woman sentenced to death in Texas in a highly publicized murder trial where her counsel and supporters contend not just that she’s innocent but that no crime ocurred at all.

At this point, it’s probably not possible to cleave professional misconduct from the pursuit of the death penalty. The late Supreme Court Justice Felix Frankfurter predicted this. “I am strongly against capital punishment. . . . When life is at hazard in a trial, it sensationalizes the whole thing almost unwittingly,” he said.

None of the New York prosecutors took false evidence and inserted it into the trial file contravening a judge’s order the way Villalobos did; they likely didn’t have such a decoy to carry out their dishonesty. Instead, they turned the mitigating factors into aggravating ones, inverting the evidence capable of keeping these defendants among the living, all the while courting public support. They turned any advantage into a liability, even if through a lie.

The only solution to legal skullduggery in death-eligible cases is to abolish capital punishment. The death penalty can go out with a bang, be legislatively discarded like it was in Connecticut 10 years ago this month. Or it can leak out of the state’s prisons like New York, where one by one, the condemned vacate their cell-tombs, and walk into the assurance that, if someone takes their lives unnaturally, no judge pre-approved the hit.

Either way it goes, remember that neither bloodlust nor vengeance corrupted capital punishment; those dark thirsts started our nation’s tradition of court-sanctioned barbarism but they didn’t make it what it is. The nature of the public battle did that.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.

The Contrived Disciplinary Records That Sent Melissa Lucio To Death Row

This is the third column in a series about Melissa Lucio and the state of Texas’ capital case against her. Read the first column here and the second column here.

Determining whether death row inmate Melissa Lucio had a disciplinary record is of the utmost importance in deciding whether her life should be spared. Without a disciplinary record, there’s no indication of her future dangerousness at all, as all of the other state’s witnesses in the penalty phase of her trial testified that they never saw Lucio harm anyone. To be clear, the State of Texas’ witnesses didn’t exculpate Lucio either, but it’s crucial to note that despite this woman allegedly being irredeemably malevolent, no one’s ever eyeballed her hurting another person.

Without a disciplinary record for Lucio, a capital sentence remains unsupported — and the execution scheduled for April 27, 2022 should be halted immediately.

Seeing how Lucio doesn’t have a disciplinary record requires a greater understanding of correctional discipline than most people need or want.

Since the 1970’s, a movement towards more informal dispositions of inmate misconduct has gained traction in prisons and jails. It’s rooted in restorative justice principles but really it’s just a practical management strategy for overcrowded and undermanned correctional spaces. Vernon Fox, a former assistant deputy warden, wrote that informal discipline is necessary because guards and administrators “must be prepared to understand human behavior, rather than trying to judge the amount of pressure necessary to keep a man in line.”

As researchers have noted, it’s really hard to study the effects of informal discipline, usually because there’s a lack of record to study; informal discipline dispositions are supposed to be deleted from an inmate’s file — as long as the inmate agrees to its imposition. Basically, if a prisoner agrees to a puny penalty — even if they haven’t misbehaved — it's possible to short circuit the formal discipline process where they’d likely be held responsible and develop a record within the facility. That’s how it worked when I was incarcerated in Connecticut and the Bureau of Prisons does the same for federal facilities across the country.

In a system dedicated to harsh punishment, informal discipline seems almost progressive, a penological “no harm, no foul.” That’s one way to appreciate it. Or it could be that these procedures bypass the minimal — virtually non existent — protections built into the formal disciplinary process to extract a bit of punishment, a pinch of pain, from an inmate and place her in a situation where she acquiesces to mild sanctions so that she doesn’t eventually develop a disciplinary record to be held against her.

In the penalty phase of Lucio’s trial, the state of Texas entered into evidence a total of ten disciplinary report forms. According to the rules of the jail, though, just the presence of these forms does not a disciplinary record make. According to Discipline Plan, Section T of the Cameron County Jail’s Inmate Handbook, there’s a prescribed way of dispensing discipline:

“Inmates accused of violating the rules of conduct shall be written up on a Notice of Rules Violation form and on an Incident Report. The incident report shall document the incident and must be completed before jailer leaves shift of duty. These reports shall be forwarded to the shift supervisor for initial action. The shift supervisor will determine if the infraction merits a warning to the inmate or if the incident report will be forwarded to the Disciplinary Committee.”

In the Cameron County Jail, there can be no disciplinary report without an incident report. A formal disciplinary record would require the “Disciplinary Board Process” box on the incident report to be checked. Only two incident reports in Lucio’s jail file have the Disciplinary Board Process box checked — and they’re the two reports where Lucio is actively cleared of wrongdoing by staff in the papers themselves.

Although it doesn’t call it an “informal” process per se, the handbook for Lucio’s jail clearly allows an inmate to avoid the formal discipline process by accepting an informal disposition by signing the report. Direct comparison between facilities isn’t always possible, but each of the 4416 state prisons and local jails in the United States has its own specific procedures. The Cameron County Jail doesn’t call theirs an informal disciplinary process but it mirrors those in other jurisdictions that do.

Taking the disciplinary report forms in chronological order (they don’t appear that way in the record) reveals the following:
For a December 1, 2007 disciplinary report for possessing tattoo paraphernalia, the corresponding incident report has the “No Action Taken” box checked. It was not referred for discipline.

A December 12, 2007 disciplinary report doesn’t list a rule violation and instead just says “verbal warning” where the officer should write the rules she violated. There’s no incident report from that same date, but an incident report from the day before details a scenario where a guard said Lucio “kept or used too much cleaning fluid," which the guard didn’t like. Lucio protested that another staff member directed her to clean her area that way. The guard writes in the incident report that she thought Lucio was disrespecting and intimidating her. If there were a rule violation an officer would have written it on the disciplinary form. No one did.

A disciplinary report from February 15, 2008 for alleged fighting is thrown out; a lieutenant voided it out and wrote “no action” on the bottom of it. An incident report from the same date reads: “No action taken due to investigation. Inmate not involved.”

Then there’s an April 16, 2008 disciplinary report for "possession of contraband." The corresponding incident report, the only one dated April 16, accuses her of "unauthorized communication" and details that an officer found notes from Lucio to another inmate in the other inmate’s possession — which, incidentally, means the other inmate possessed contraband, not Lucio. At the bottom, it’s clear that the matter was not referred to the disciplinary board as the box that would show that isn’t checked.

Moreover, the possession of contraband and unauthorized communication actions would be reconciled in the paperwork, but they’re not.

That leaves five reports. Among those are four identical copies of a December 11, 2007 disciplinary report for allegedly disrespecting other inmates and yelling at them. The corresponding incident reports describing these situations indicate that no disciplinary action was taken.

That leaves one last disciplinary report in Lucio’s file. And it’s blank.

According to Daniel E. Manville, author of the Disciplinary Self-Help Litigation Manual and a clinical professor at the Michigan State University College of Law, guilty findings on disciplinary reports usually find their way into electronic records, if a jail utilizes such a system. A public records request filed with Cameron County, Texas unearthed two of them with a note from Dylbia Jefferies Vega, the Cameron County public information officer, that read: “Attached is all they have.”

One of the electronic records is for the tattoo paraphernalia and the other for "unauthorized communications." These two entries don't mean that Lucio has a disciplinary record; if she did, they would have been reflected under the "Hearings" or "Incidents" headings in her electronic file, but they’re not. Instead they’re under the “Special Custody” portion of Lucio’s file, meaning where she was housed in the jail. These are two instances where supervisors moved Lucio because of an incident.

Jail life is inherently chaotic and paperwork is bound to hit some snags. But the fact remains that the two entries in Lucio’s electronic files weren’t referred to the Disciplinary Board as required by the facility’s own rules.

I can see why the uninitiated might think there’s too much smoke in Lucio’s file to conclude it contains no fire. These informals weren’t supposed to remain in her file; it’s not clear why they did.

But even if a formal “guilty” finding had been entered for every situation, writing a note to someone, possessing tattoo paraphernalia (essentially an electric razor or motor from a radio paired with a paperclip) and raising one’s voice hardly make an inmate so dangerous that they need to be killed.

More than that, the facts recounted in the incident reports offer a lot of insight into Lucio’s behavior and she’s no scofflaw. Stitching these reports into one narrative depicts a woman whose existence is determined less by action than by circumstance. A woman who seems destined to be in the same place as someone else’s misdeeds; the alleged fighting scenario describes her as “blocking ‘defensive punches’” to protect another prisoner. One who gets caught up in scenarios over which she has no ultimate control: The tattoo paraphernalia turns up in a light fixture that can be accessed by a number of people.

The reports tell the story of a woman who will take responsibility for things she hasn’t done, just to avoid conflict. A close read of what’s happening in these informal, should-have-been-deleted reports only enhances our understanding of Lucio’s factual innocence claims.

Ultimately, the question isn’t whether Lucio had a discipline record while she was in jail awaiting trial. She doesn’t. The question is whether the then-District Attorney for Cameron County, Texas, Armando Villalobos, knew she didn’t -- and sold a false story to the jury for no other reason than to extinguish her life.

How The State Of Texas Fabricated Disciplinary Charges To Execute Lucio

This is the second column in a series about Melissa Lucio and the State of Texas’ capital case against her. Read the first column here.

What drives the daily functioning of a prison isn’t a goal of public safety or internal security. It’s not a punitive or rehabilitative principle. The lifeblood of a prison isn’t liquid; it’s paper. Documentation is so important in a prison or jail that one of my work supervisors once told me that in prisons “If it isn’t written down, then it didn’t happen.”

Paper tells the story of a prison, of the people within it. These records are hardly exhaustive narratives and sometimes they aren’t accurate, but the constitutional dimensions of holding a person in custody require some annotation that wards are fed and housed. For example, prison kitchen supervisors have to log that a meal was served so prisoners can’t allege that they were denied sustenance.

Melissa Lucio, the first Latina woman sentenced to death by the state of Texas, is scheduled to be executed at the end of this month, on April 27, and the only reason her life’s in limbo is that district attorneys somehow convinced jurors she has a past of violence and flagrant disobedience.

In Lucio’s case, the paperwork tells a different story. The jury’s finding that Melissa Lucio posed a future danger — a requirement for the imposition of the death penalty in Texas — springs from virtually no evidence whatsoever.

In fact, attorney Sandra Babcock, clinical professor at Cornell Law School and faculty director of the Cornell Center on the Death Penalty Worldwide who is also representing her, said Lucio’s “is the weakest death case I've ever seen in my life.”

The transcripts reveal the state’s case for death wasn’t just weak. It was a sleazy snow job, bordering on fraudulence.
To demonstrate to the jury why the state of Texas should be free and clear to kill a woman, prosecutors called a total of seven witnesses. Up first was A.P. Merrillat, a criminal investigator for the State of Texas Special Prosecution. Merrillat investigates “free world crimes” committed within Texas state facilities.

There’s no record that Lucio was ever suspected of, much less committed, a crime in custody. Merrilat doesn’t have any paperwork to refer to regarding Lucio. He admits that he can’t predict who’s dangerous and who’s not, even though, in his opening statement the district attorney promised Merrilat would “come in and testify as to [Lucio’s] future dangerousness to society.”.

Instead prosecutors asked Merillat whether other women had fled the clutches of the Texas Department of Criminal Justice. Escaping custody is not only a crime but also a scary prospect for jurors -- and using it was legally and ethically out of bounds. A prosecutor in Arizona saw his law license suspended for a similar sin and the murder conviction he secured was overturned because of it. In overturning a murder conviction in Georgia, the Eleventh Circuit Court of Appeals called another prosector’s exhorting the jury that the defendant might escape and thus sentencing him to death would count them as soldiers in the war on crime “constitutionally intolerable.”

Unfortunately, Lucio’s attorneys never raised this violation as an issue in post-conviction review. It’s not even mentioned in her petition for commutation of her sentence.

Later the state of Texas called Carlos Javier Borrego, an officer for the Cameron County Jail Sheriff's Department; Lucio was detained at the Cameron County Jail where Borrego oversaw the discipline system. In his testimony, Borrego outlines the contours of correctional discipline. Lucio’s defense attorney Peter Gilman asked Borrego who gave him Lucio’s file.

Borrego answered: “They told me that there (sic) going to have -- need me to refer to the file for any disciplinary actions or any of the reports.”

Paperwork in the hands of a witness should grab the attention of any attorney; generally, a witness shouldn’t refer to or look at anything, including notes or reports, unless they’re directed to do so or otherwise have permission to refresh their memory. It has to do with discovery rules and what documents should be disclosed to opposing parties.

Borrego authenticates and testifies about an observation log for Lucio from the day before, after the jury returned the guilty verdict. It’s common for correctional facilities to put people who are facing the most devastating sentences — death or life without parole — in observation to prevent their attempting suicide. They did it to R&B singer R. Kelly last year when the jury found him guilty of multiple sex offenses. Nurses and guards observe those detainees – they check on the inmate in five to 15 minute intervals — and, of course, note whatever the watched person does.

Borrego testifies that observation log for Lucio includes her engaging in the following behaviors: beating on door or wall, yelling and screaming, crying, laughing, singing, mumbling, talking to herself, talking to others, standing still, walking, sitting, lying down, being quiet, sleeping, awakening, taking a shower, sitting on the toilet, recreating, watching TV, receiving medication, receiving meals and fluids and attending visitation. That was Lucio’s response on a day she learned it was in the plans that she would never leave state confinement for the rest of her life.

And that’s it. That’s all Lucio is doing in the notes. Borrego admits she broke no rules. Yet currently incarcerated District Attorney Armando Villalobos uses it against Lucio later, asking jurors in closing argument: “But when she's not in front of you, what does she do? She sleeps like a baby. She doesn't show sadness,” a patently false statement.

Here is the most important part: in the penalty phase, no one testified that Lucio ever broke a rule in prison. The transcript is devoid of any witness testifying that “Melissa Lucio broke the rules.” And Lucio’s jail file was present and admitted into evidence. Officer Borrego, the correct witness — and perhaps the only truly qualified one to enter Lucio’s record into evidence — was present and sworn to validate and explain those records.

But he didn’t because no one — neither a prosecutor nor Lucio’s defense counsel — asked Officer Borrego whether Lucio had a disciplinary record. The closest they get is when the defense’s own expert witness said he was told about disciplinary records but never saw them.

If it’s not written down, it didn’t happen.

How The Prison Discipline System Takes Lives

This is the first column in a series about Melissa Lucio and the State of Texas’ capital case against her.

A Texas jury sentenced Melissa Lucio to death on July 22, 2008. Just this week, lawyers filed a petition for Commutation of Death Sentence to a Lesser Penalty or, in the Alternative, a 120-Reprieve from Execution, arguing that Lucio is factually innocent of taking her daughter, Mariah’s, life. Cameron County District Attorney Armando Villalobos — who is now serving a 13-year federal sentence for taking bribes for favorable outcomes in criminal cases — called what was essentially acquiescence by Melissa a “confession” to murder.

Melissa Lucio may not even be guilty, but in any case the State of Texas never should have sought the death penalty against her.

It used to be that two states, Oregon and Texas, required jurors in capital cases to find that a defendant posed a continuing threat to society to impose a sentence of death, but then Oregon placed a moratorium on capital punishment in 2011. Now the Lone Star State is alone in insisting that jurors assess a defendant’s “future dangerousness.”

Part of me sees the logic and the efficiency in future dangerousness standard. If a state is going to murder someone and invest $1.26 million — the latest overall median cost, calculated by Amnesty International — in doing so, they might as well get some public safety buck out of it, save some lives while barbarically taking another.

The screwy logic and amoral efficiency may be there for future dangerousness but the certainty isn’t. The Texas Defender’s Service studied 155 capital cases and found that expert witnesses in 95 percent of the cases wrongly predicted dangerousness. It’s not that difficult to track. Researchers found 155 cases where an expert guessed that a defendant would act violently in the future and then examined their discipline records to see if they had any “assaultive behavior” after the expert testified.

Incarceration’s ability to incapacitate people doesn’t explain the lack of violence. Remember that death penalty jurors choose between life without parole and death. The reason why they vote for execution is that they’re convinced that no matter the type and severity of custody, it can’t cure the person’s propensity for violence.

No one can predict the future actions of another person. Villalobos admitted that himself in the closing argument: “No expert here and no one here can predict what this woman will do.”

If such forecasts were possible, there would be no January 6ths, no 9/11’s, no mass shootings.That’s the scariest part of crime: No one has no idea who’s going to what, or when they’ll do it.

Yet Texas clings to this future dangerousness indicator for when even though the way it’s plied proves pretty racist. In the case of Buck v. Davis, Buck’s own defense attorney called an expert witness, Dr. Walter Quijano, who testified that Black people are more likely to be violent. Quijano slid this inside his opinion that Buck wasn’t violent but the testimony was there for jurors. The Supreme Court of the United States ordered Buck re-sentenced and he’s alive in Beauford H. Jester Complex in Harlem, Texas today. Notably, though, Buck never had a disciplinary infraction.

For Lucio, the finding of her future dangerousness came from her past, not future, alleged disciplinary record in jail. During her sentencing hearing or penalty phase trial, everyone in the courtroom — prosecutors, defense attorneys and the judge — acted on the assumption that correctional discipline systems are reliable. They aren’t. In fact, they’re so unreliable that they shouldn’t be used in any court proceeding as evidence of misconduct.

To start, the evidentiary bar is too low to commence a discipline case and it stays low throughout the proceeding; officers only need “some evidence” to prove a prisoner broke the rules. Officers don’t even need an actual offense to occur. Between 40 and 50 percent of all disciplinary reports are bogus, according to Daniel E. Manville, clinical professor of law and director of the Civil Rights Clinic at Michigan State University College of Law, who is also formerly incarcerated.

Whether the accusation is accurate or not, inmates can’t win disciplinary hearings. The same power differential that makes it impossible for inmates to consent to sexual activity exists throughout a prison. That powerlessness makes officers and staff more credible to discipline officers even when they’re lying.

Besides, inmates can’t go around and collect statements from witnesses or get the evidence tested the way a typical defense would proceed, which is why 1600 New York State inmates underwent punishment — solitary confinement for 140 of them — when they were falsely found to have used drugs while incarcerated. The tests from private company Microgenics were both faulty and not designed for final drug analysis, solely for screening.

The New York inmates were lucky. The only reason why any of them were cleared of drug use was that a critical mass of complaints reached the Office of the Inspector General and too many people who had no drug history were popping positive for synthetic cannabinoids and buprenorphine. It was too hinky for authorities to ignore. Individually, though, none of them had much chance to overturn the decisions against them.

Sometimes inmates misbehave. The problem with the current disciplinary landscape in modern corrections is that no one knows how to pick out those inmates; there’s too many false allegations mixed in. And some infractions hardly indicate dangerousness. One woman I was incarcerated with received a disciplinary report for contraband because her duly prescribed asthma inhaler had expired.
For most inmates, the consequences of prison discipline are steep — they include time in solitary confinement, torpedoed parole prospects, “good time credits” gone (although in certain circumstances, courts have held that a liberty interest resides in good time credits) — and stable; it’s virtually hopeless to remedy a wrongful finding of misconduct. “Unless you’re going to solitary for more than six months, you basically don’t have any rights at all,” says Manville of the prison discipline process.

The faulty products of this system — one that supports false allegations, affords the accused essentially no rights, and is so fixed that there’s virtually no way to undo its effects — clinched a capital sentence for prosecutors in the case of State of Texas v. Maria Elizabeth “Melissa” Lucio. It shouldn’t be that easy to slip pentobarbital into someone’s bloodstream but that’s exactly what’s scheduled to happen to Lucio on April 27.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.

Inside Trump And Barr’s Last-Minute Killing Spree

Reprinted with permission from ProPublica

In its hurry to use its final days in power to execute federal prisoners, the administration of President Donald Trump has trampled over an array of barriers, both legal and practical, according to court records that have not been previously reported.

Officials gave public explanations for their choice of which prisoners should die that misstated key facts from the cases. They moved ahead with executions in the middle of the night. They left one prisoner strapped to the gurney while lawyers worked to remove a court order. They executed a second prisoner while an appeal was still pending, leaving the court to then dismiss the appeal as “moot" because the man was already dead. They bought drugs from a secret pharmacy that failed a quality test. They hired private executioners and paid them in cash.

Read Now Show less

The Folly Of Federal Executions

In recent decades, the United States has gone through a vast experiment in crime and punishment to answer the question: “What would happen if you began phasing out the death penalty?” We have an answer, not that the Trump administration cares.

At Donald Trump’s campaign rallies, you could see people in T-shirts with the message: “Trump 2016. F—- your feelings.” But when it comes to capital punishment, the president and his supporters put their visceral impulses above real-world experience.

In July, Attorney General William Barr announced that the federal government would resume executing inmates who have been given death sentences, something it hasn’t done since 2003. The Justice Department says this will serve the purpose of “bringing justice to victims of the most horrific crimes.”

In Barr’s mind and many others, that may be true. But while the thirst for vengeance may be understandable, it is a weak basis for criminal justice. It offers no more protection for society at large than a sentence of life without parole.

Death sentences are handed out in an unpredictable and arbitrary manner. Among the factors are the preference of the prosecuting office, the location of the crime, the race of the killer and the race of the victim.

When it comes to whether the death penalty will be sought, says Robert Dunham, executive director of the Death Penalty Information Center, “the biggest factor is not what you did, but who the prosecutor is who makes the decision.”

A murder that might be deemed to warrant the death penalty in one county might not be in the adjacent one, and likewise with one state versus another. In the case of the federal death penalty, the key may be whether it takes place on federal land. The border between life and death can be a literal border.

Race takes a leading role. Studies of different states have found that those who kill white people are far more likely to get death sentences than those who kill African Americans. Dunham says the data indicate that in the capital punishment process, “black lives don’t matter as much.”

The Supreme Court struck down all death penalty laws in 1972 and established standards for restoring them. Most states rushed to make the needed changes, and executions became increasingly frequent, rising from one in 1981 to 23 in 1990. But the murder rate barely budged over that period.

During the 1990s, supporters could claim a turnaround. As the number of executions rose to a peak in 1999, the murder rate dropped by more than a third. But the improvement can’t be attributed to capital punishment, because it was part of a broad drop in crime. Aggravated assaults, which aren’t subject to the death penalty, declined even more than murders.

As dozens of death row inmates were exonerated and public support for capital punishment ebbed, the number of death sentences carried out has plunged by 74 percent, from 98 at the peak to 25 last year. Today, reports the DPIC, 21 states have abolished it, and four others have moratoria declared by their governors.

Barr said in 1991, “We need a death penalty to deter and punish the most heinous federal crimes such as terrorist killings.” Oh? Where is the evidence that it deters anyone? As executions became far less common after 1999, the national murder rate didn’t climb, as you might expect. It declined slightly.

The idea that al-Qaida confederates would be scared straight is especially ludicrous. People who contemplate terrorism are not the sort who buy annuities to provide for their old age.

The 9/11 hijackers were at no risk of a lethal injection, because their own deaths were part of the plan. Suicide bombers don’t worry about prosecution. Mass shooters face a higher risk of dying at the scene than in a prison execution chamber.

The administration’s insistence on pursuing the death penalty makes anger a higher priority than fiscal economy. Seeking and imposing it is far more expensive than settling for life imprisonment for killers.

A study found that Louisiana spent $200 million over the past 15 years on the death penalty system that yielded one execution. In 2008, a California commission figured the state could save about $125 million a year by abandoning capital punishment.

The Trump administration and its supporters, however, don’t care that the death penalty wastes money and fails to deter crime. All that matters is how it makes them feel.