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Why Adnan Syed's Release Is Good News For Him -- And Bad News For Defendants

Judge Melissa M. Phinn of Baltimore City Circuit Court freed Adnan Syed, the subject of Chicago public radio station WBEZ’s hit true crime podcast, Serial, on September 19, 2022. A new episode is out. It’s a very, very good thing that Syed walked free and went home to rummage through his family’s refrigerator for a snack.

What isn’t good is the way Syed was freed. The Baltimore State’s Attorney filed a motion that questioned the integrity of Syed’s conviction and Phinn granted that motion to vacate it. That move, by a prosecutorial body, deserves respect. But it covered a multitude of judicial sins in Syed’s case and beyond, namely the appellate decisions that cemented into place the precedent that essentially authorizes attorneys to do nothing to protect their clients against criminal charges.

For years, Syed’s pleas for freedom centered around his lawyer’s performance or lack thereof. Syed remained steadfast about his innocence and his trial attorney, the late Cristina Gutierrez, refused to interview, much less present evidence from, an alibi witness and she didn’t notice that cell phone geolocation data was admittedly unreliable.

It’s entirely probable that jurors would have assessed the state’s case differently if they had heard from Asia McClain, a Woodlawn High School classmate who was with Syed at the time the state of Maryland says Hae Lee Min was murdered. And the cell phone data that attempted to show Syed’s location when he received calls was deemed unreliable by the phone service provider might have introduced some doubt for the fact-finders — if the late Attorney Gutierrez had presented them.

The Sixth Amendment enshrines the right to effective assistance of counsel, but courts determine whether a defendant received it through a law that was established 38 years ago in a United States Supreme Court case captioned Strickland v. Washington.

The facts of the Strickland case bear repeating here along with its holding, because it was a terrible fact pattern on which to decide what effective assistance looks like. A man named David Washington went against his attorney’s advice and confessed to three murders. He also rejected counsel when deciding to be sentenced by a judge instead of the jury.

This was part of grander legal scheme: his lawyer assumed that the judge would appreciate Washington’s taking responsibility for the murders and that a zealous argument at sentencing could replace mitigating evidence to keep Washington off death row. The attorney’s plan didn’t pan out and his client was sentenced to die.

Later on, appellate counsel claimed that Washington’s trial attorney, William Tunkey, failed to provide effective counsel because he hadn’t investigated Washington’s background or psychological history to present it as evidence for why Washington’s life should be spent behind bars. To be frank, Tunkey did employ some strategy and that was enough to spare him a Sixth Amendment skewering.

Washington was guilty, unsympathetic and yet at least one court agreed and reversed Washington’s conviction. The Supreme Court ended all of that for Washington, but devised a test to determine which attorney performances are so bad that they deny their clients a fair trial. It’s called a two-prong test and it requires, first, that the attorney did a janky job and second, that subpar showing prejudiced the defendant. That is, the attorney must have screwed up in a way that prevented his client from winning.

It seemed like a sensible test until lower courts started applying it. Some circuits and states subject inmates to an impossible standard in the ways they apply the Strickland test. They find the attorney fouled up, and severely, only to decide that it didn’t affect their client’s defense.

And the performances courts have approved include: The attorney who had a mental breakdown and wanted to go to an inpatient psychiatric facility right before trial; the Ninth Circuit Court of Appeals held that the lawyer “acted no differently than any other criminal defense attorney.” The attorney whose alcoholism was so advanced that he put the phone number to the local pub, Kelly’s Keg, on his business card. His client didn’t receive ineffective assistance either, according to the Supreme Court of Kentucky. The attorney who actually slept through what the appellate court described as an "insubstantial" portion of his client’s trial.

"The Supreme Court has implied that a lawyer is competent to represent poor defendants if you can pass the foggy-mirror test," Judy Clarke, a federal public defender who represented Boston Marathon bomber Dzhokar Tsarnaev told the Christian Science Monitor almost 30 years ago. "If you breathe on a mirror and it fogs up, you qualify.”

The Strickland test requires someone who seeks to overturn her conviction to prove that she would have won her case if her attorney had acted differently. That burden of proof asks any judge presiding over post-conviction proceedings to second-guess a conviction by accepting a hypothetical as fact. That’s a bad idea for any defendant, so some courts refuse to do it.

That’s what happened to Syed. After years of appellate wrangling, his lawyer’s effect on his life was finally decided by the Court of Appeals in Maryland. They agreed that Attorney Gutierriez performed abysmally but that Syed wasn’t prejudiced by it. They used the evidence at trial to make that decision, though, not the evidence that could have been used if Gutierrez had done her job.

Syed’s case, had it been accepted by the Supreme Court, would have made law on how the prejudice prong would be decided: with ‘the evidence that was’ or ‘the evidence that would have been.’ But the Supreme Court declined to hear it and the final decision of the Maryland Court of Appeals remains the law, at least in Maryland where it’s a binding authority, and a persuasive one everywhere else. That means courts outside of Maryland should follow it, even if they’re not required to do so.

The case of Texas v. Andrus might have changed things when it was decided in June 2020 by the Supreme Court. The Court decided this case using the Strickland test and reversed Andrus’ conviction because of the prejudice prong. It’s not very helpful though, because the Court’s remand — only Justices Samuel Alito, Neil Gorsuch and Clarence Thomas dissented and wanted Andrus put to death without exploring what other courts meant when they assessed his case — didn’t modify the Strickland test. It just happened to use that standard to a prisoner’s benefit, rare but not revolutionary.

The Maryland Attorney General’s Office has said that the absence of evidence doesn’t exonerate Syed. Technically, they’re right but it’s never been the facts against Adnan that have hampered his post-conviction review. It’s the law that was Syed’s — and many other criminal defendants’ —problem. And it hasn’t changed even though Syed walks free.

Incompetent attorneys aren’t an isolated problem but their scale remains unseen. Many defendants don’t receive proper representation: 841 of the convictions in the National Registry of Exonerations at the University of California Irvine Newkirk Center For Science & Society, University of Michigan Law School, and Michigan State University College of Law were complicated by grossly deficient defenses. And we only know this because the registry recorded cases in which the defendants were successful in their ineffective assistance of counsel claims. It may well be that incompetent defense was a significant factor in the 3248 or so other wrongful convictions on its books as of September 24, 2022.

And there are thousands more people whose names will never reach that law school registry. Only about one percent of federal petitioners seeking to overturn their convictions because of bad lawyering win their claims. It’s about ten percent in state courts according to legal scholars.

Despite the recent overturning Roe v. Wade and Justice Clarence Thomas’ open salivation over other precedents the justices can upend, reversing Supreme Court precedent is rare because courts think that it’s better that law is settled for good than settled right. Finality is better than fairness; Supreme Court Justice Louis Brandeis admitted as much.

So the chance that a petitioner will get to the highest court and change or improve the Strickland test for bad lawyering is low. Syed was the one great hope to shed the Supreme Court’s careless and cynical precedent on ineffective assistance of counsel. And now that he’s out of custody, that hope’s pretty much gone.

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.

Who Smuggles Drugs And Weapons Into Prisons? It's An Inside Job

Doctors at Elmhurst Hospital in Queens, New York pronounced Michael Nieves, a 40 year old detainee on Rikers Island, dead on August 31, 2022. Nieves had been suspended between life and death since an ambulance brought him from the New York City jail days before. Nieves had slit his own throat and bled out for at least 10 minutes — as jail staffers looked on and did nothing. A video camera captured the entire tragedy.

The New York City Department of Correction has suspended the staffers, two officers and a captain; accountability awaits. The most shocking aspect of what happened isn’t the disregard for life — that’s pretty commonplace — but the fact that this has become a suicide story and not a smuggling one.

A common perception of contraband and smuggling involves outsiders secretly squeezing items through tiny spaces. But that’s not the rule. Most of the time, smuggling’s an inside job, sometimes of goods that no one would identify as prohibited. Anyone who puts something banned into an inmate's hands is a smuggler.

The New York Times has reported that Nieves was actually given the razor as if that makes his possession of it lawful. A razor intended for shaving but used for suicide is contraband; in prisons and jails, anything used for a purpose that wasn’t intended bears that label.

But the larger point, which should go without saying, is that no one in the PACE Center where Nieves was housed — Rikers Island’s intensive psychiatric inpatient unit — should have been allowed to touch a blade of any type. It should be contraband even if it was used for shaving. This isn’t just a story of inaction. It’s a story of unauthorized goods.

Studying smuggling is a challenge. There’s no way to count the number of times contraband is passed — only the number of times someone is caught is numerable — so no one knows exactly how much illegal passing in prisons is initiated by employees.
But the novel coronavirus taught us that it’s a lot. The pandemic acid-tested prison security; every state and the federal Bureau of Prisons suspended in-person, full contact visits when the crisis started. The only people with contact with the outside were people who worked there.

But the flow of contraband barely stopped. The number of drug seizures in Virginia prisons dropped from 967 in 2019 to 871 in 2020. If visitors introduced contraband in a significant way, the reduction should have been more substantial since visits were stopped on March 16, 2020, canceled as a COVID-19 protection. In Connecticut a search turned up marijuana and a cell phone in February 2021 even though contact with the outside had been on hold since the previous March.

In Texas prisons, where an anti-contraband initiative had started before the prisons closed to visitors, staff found drugs 2297 times, only four fewer than the 2301 drug interdictions in 2019, and even though the number of people incarcerated decreased by about 16 percent.

Smuggling isn’t always as clandestine as it seems. Some employees just walk in with it. Department of Justice Inspector General Michael Horowitz sent Michael Carvajal, the then-Director of the federal Bureau of Prisons (BOP), an urgent memo last year stating that guards were avoiding being searched when appearing for work.

Carvajal was recently replaced by Colette Peters, the former director of Oregon’s state prisons, but the Senate Judiciary Committee plans on holding another hearing about the failures of the BOP during his tenure when Congress is back in session.
Until such an airing of the ways items land in inmate hands, the federal prison guards union is lobbying to make the number of contraband interdictions the basis for the Bureau of Prisons’ budget — without any irony. So they could bolster their own funding and salaries by bringing in more prohibited goods. An email to the union’s president, Shane Fausey, requesting comment on this position was not returned.

As Nieves' recent story shows, guards freely giving inmates what they’re not supposed to have — either items they brought in or on-site materials — isn’t without consequence. The number of non-COVID deaths in prisons and jails from 2020 to the present time is still being calculated; that data would reveal the human cost of staffer smuggling. Before the pandemic, deaths by drugs and alcohol increased 139 percent between 2016 and 2018 and not because of increased prison populations; the number of inmates barely budged while deaths shot up.

Smuggling problems will be solved only by oversight and there’s almost none of it, even though most everyone agrees it’s needed.
Last month, Families Against Mandatory Minimums, an organization dedicated to creating “a more fair and effective justice system that respects our American values of individual accountability and dignity while keeping our communities safe” released the first ever public poll on prison oversight. While the public may not be entirely sympathetic to what inmates experience, they believe that prisons are too loose. Eighty-two percent of survey respondents said we need independent oversight for prisons and jails.

The people polled by FAMM didn’t equivocate; 73 percent of them think “prisons should be inspected by professionals who are independent of the prison system they are inspecting,” 68 percent plainly reported that they don't “trust government agencies to investigate their own problems and honestly report on them,” and almost all of them think that there should be sufficient staffing, authority and access to provide the needed oversight.

Prison oversight shouldn’t be that hard to build if so much of the general public supports it. But an overarching overseer is hard to establish, mostly because such a bunker mentality grips the facilities. The inmates want to blame the guards and the guards want to see the inmates to face consequences. It doesn’t really matter why.

And that’s not oversight’s game. “The point of oversight is not to find out who did something wrong and hold them accountable, it's to prevent these problems," said FAMM’s president, Kevin Ring in an interview.

That mentality makes contraband smuggling an almost intractable problem since no one’s innocent in the contraband racket, no matter who does the smuggling. Recognizing employees as a source of dangerous contraband doesn’t absolve the incarcerated population. Staff bring in drugs and weapons because there’s a demand for it and inmates or their families are willing to pay; they’re not doing it for free.

Similarly, recognizing outsiders as purveyors of the prohibited doesn’t let prison employees off the hook, either. Contraband sneaks in when they’re not looking. And they’re always supposed to be looking. That’s why they’re paid to work there.

Indeed, looking is exactly what the two officers and a captain did while Michael Nieves lay exsanguinating. The cause of his death wasn’t so much their failure to act but their provision of the death instrument in the first place — and the fact that no one above them was watching to prevent 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.

DeSantis 'Election Police' Abuses Are Costly To Democracy -- And Florida

Earlier this month, the Florida Department of Law Enforcement arrested 20 people for election fraud. These 20 people have criminal records that made them ineligible to vote.

Gov. Ron DeSantis announced the charges to show how the first election fraud office in the country was going to work. Even for good faith efforts to participate in democracy as citizens, the defendants, DeSantis said, would “pay the price.”

Not many more will pay, and that’s a problem of DeSantis’ own design.

Back in 2018, the same Florida voters who put DeSantis into office approved a ballot measure called Amendment 4. The Republican DeSantis squeaked out a victory by four tenths of a percentage point margin but sixty-five percent of Sunshine State voters wanted people with felony records, except those convicted of murder or a felony sexual offense, to be able to vote when they completed their sentences, including prison, parole and probation.

Amendment 4 had a short life because no one had formally defined what it meant to complete one’s sentence. The Florida Legislature passed Senate Bill 7066 which formally codified the end of a defendant’s sentence; it isn’t over when it’s over. It’s done when he or she pays off all debt incurred by their criminal case and incarceration/supervision.

The law required anyone with a felony record to pay all outstanding fines and fees associated with their conviction before they could vote. Amendment 4 had re-enfranchised 1.4 million people. The imposition of this debt extinguishment requirement took 774,000 people off the list as of late October 2020; they owed money.

Experts called it a modern day poll tax, an assessment prohibited by the 24th Amendment, passed in 1964. The Florida Rights Restoration Coalition (FRRC), an organization that had worked to get Amendment 4 on the ballot for six years prior to the November 2018 election, litigated the constitutionality of the statute.

But it didn’t work. On September 11, 2020, 11th Circuit Court of Appeals ruled that it wasn’t unconstitutional; the Supreme Court of the United States had already refused to vacate the 11th Circuit judges’ stay on Amendment 4’s implementation as they finalized their opinion. The highest court’s unwillingness to get involved made the 11th Circuit’s assessment of Amendment 4 final.
There’s a little secret about the Florida Rights Restoration Coalition; the organization possibly singlehandedly saved Florida’s county court systems during the early stages of the pandemic.

“We've seen reports where, collectively, court systems in the state of Florida have been forced to either reduce the salary or lay off 57 percnt of personnel who work within the court system,” Desmond Meade, the founder of Florida Rights Restoration said at a press conference on October 5, 2020 in Tampa, Florida.

Dade County got $7 million from FRRC. Brevard County was looking for a quick fix to a $500,000 deficit when the FRRC appeared with a check for $551,000. Lee County, Florida underwent a $601,000 cash infusion. Palm Beach County recouped a cool $1 million from the voting rights campaign.

Overall, more than $25 million entered the coffers of various Florida counties in 2020. Normally, only about 20 percent of these fines and fees connected to felony cases are collected — and that’s in the good years with no lockdowns, quarantines, or mass unemployment.

During the pandemic that closed courts and caused fewer criminal charges to be filed, even less was going to be collected until the election came around and FRRC started picking up tabs.

Ultimately, FRRC wrote checks to pay people’s legal financial obligations in 60 of the 67 counties in the state of Florida. The Clerk of Hillsborough County waived the fines and fees — except for restitution orders — for anyone owing $2200 or less. Ms. Frank reduced the remaining debts by much as 40 percent. The $771,353 that FRRC delivered to Hillsborough County was expected to allow as many as 841 aspiring voters to register to cast a ballot.

How it worked is that FRRC prepaid the money which allowed anyone who came in to register to have their debts paid by the fund. They had to work that way to get as many people paid as quickly as possible. As a result, they got more money into government hands than they got voters to polls; only about 80,000 people with felony convictions registered to vote in 2020, according to reporting from The Miami Herald, Tampa Bay Times, and ProPublica.

It’s a great human interest story that some people with felony records were unsung pandemic heroes. But the story isn’t all rosy; relying on fines and fees isn’t a great way to govern. For one, collection is expensive. Some agencies spend more money chasing checks than they get from cashing them. Florida counties are required to turn unpaid balances to collection agencies after 90 days so even more fees and costs pile up — for counties.

That it’s not ideal doesn’t make state and municipal governments’ reliance on fines and fees any less real.

Nathan Link, assistant professor of criminal justice at Rutgers University and expert on the use of fines and fees in the criminal legal system, says some departments and agencies wouldn’t be able to operate without their clients’ fees supporting them

"We just got an email from a probation chief in Pennsylvania in one of the counties, and they had all of the information on how much revenue they bring in annually based on fees that apply to people on probation or parole. It's a lot. I mean, one of the counties is over $1,000,000 a year and has been $1,000,000 a year, and that is a substantial chunk of that agency's operating budget,” Link said

If the government doesn’t need to fund itself, fiscal considerations can’t cool heads. I think making the government pay for it when it wants to arrest us and take away our liberties is important because it sort of keeps a check on the government,” Link continued.

As DeSantis and his election squad proved with their opening act — perp walking people who believed they could legally register and vote — there won’t be much of a check on such abuses and, as a result, fewer people with felony convictions will even dare to consider voting. Formerly incarcerated people will be slow to visit the county clerk’s office to register and they’ll avoid polling places entirely. Many experts think that’s been the plan all along.

But there’s a secondary effect to that; they won’t be incentivized to pay off their own obligations like they may be now, if they can afford it. And FRRC isn’t likely to be the hero again and sport them the money. 2020 was different; it was the first national election after Florida residents approved Amendment 4, a particularly contentious election that happened during a public health and economic crisis.

The 2022 midterm elections and the presidential contest in two years may be just as contentious but FRRC knows that the money may have made it possible for people to register but it didn’t necessarily get them to vote. While FRRC hasn’t stopped their campaign to re-enfranchise all systems-impacted people in Florida, they’re expanding their vision for change.

Celebrating the coalition’s tenth anniversary this weekend in Orlando, breakout groups will focus on three core issues: education, employment, and housing; voting rights isn’t at the top of the discussion. They’re seeking bang for their bucks, and not the kind Gov. DeSantis wants to go out with. Those 20 arrests mean DeSantis is leaving millions on the table that could otherwise benefit the people of Florida.

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.

For Prisoners, The Benefit Of Higher Education Is Both Enormous And Intangible

The college degree is on probation.

Debate over student debt and its forgiveness — whether it will come through or not — has borrowers asking whether their degrees were good deals.

Pundits in different places have prompted these doubts. The New York Times “Your Money” columnist Ron Lieber appeared on the Detroit Today show on Detroit’s National Public Radio station on August 17 and admitted that certain degrees might not be worth it. On the June 4, 2021 episode of his HBO show, Real Time with Bill Maher, Maher’s editorial “New Rule: The College Scam” told audiences “the answer isn’t to make college free, the answer is to make it more unnecessary, which it is for most jobs." Charlie Kirk, founder of the conservative organization Turning Point USA, wrote a whole book on it, arguing that higher ed is a government-backed flim flam.

Even Congress is on the game. While it hardly accuses post-secondary schools of being a racket, the College Transparency Act would require colleges and universities to collect data on student enrollment, transfer, and completion so that applicants and their families know exactly what they’re paying for. Earlier this year, the House of Representatives amended the bill to another one that passed. The Senate version has bipartisan sponsorship.

Much of this data already exists and underwent a tough crunch by a former executive director of College Scorecard, the Department of Education’s online tool that allows prospective students to evaluate the cost and value of education at colleges and universities in the United States.

A fellow at the think tank The Third Way, Michael Itzkowitz culled an entire database from the Scorecard to demonstrate the return on investment of bachelor’s degrees using data from the College Scoreboard. Itzkowitz thinks the best way to measure college education’s value is to look at its Economic Mobility Index, or how it helps low income students to climb out of poverty. He says many schools have low Economic Mobility Indexes that compromise their value.

It may be a coincidence that we’re debating the utility of a college degree right before access to higher education is poised to expand exponentially for people who’ve been specifically excluded from it for more than a quarter of a century. It’s almost as if prisoners’ access to education diluted its value.

On December 21, 2020, Congress lifted the 26 year old ban on federal student aid for prisoners as part of an omnibus spending bill.
In less than one year, all incarcerated individuals across the country will be able to apply for Pell Grants. Experts anticipate a 27-fold increase in the number of eligible students; the Second Chance Pell Experimental Sites initiative, a pilot program instituted by President Barack Obama in 2015 has serviced about 28,119 inmates since 2016.

Congress created the Basic Educational Opportunity or Pell Grant Program in 1972 (they were renamed in 1980 after their champion, the late Rhode Island Senator Claiborne Pell) to pay tuition for students who couldn’t afford it; these grants don’t necessarily need to be repaid. From the start, the program included inmates. Within 10 years of creation, 350 post-secondary education prison programs had developed. Another 10 years later, 800 programs were at work in over 1,300 facilities.

But in 1994, the Violent Crime Control and Law Enforcement Act blocked inmates from receiving this type of aid and the number of educational programs plummeted to eight in three years. That drastic reduction in offerings was bad news for everyone; the RAND Corporation conducted the seminal study on the effect of post-secondary schooling and found that higher education lowered recidivism rates by 43 percent. Without those programs, recidivism rates didn’t decrease as prison populations ballooned 500 percent.

Before the value of higher education behind bars undergoes similar scrutiny, we should know why prison education reduces recidivism so effectively. And it has little to do with post-prison employment prospects and the American obsession with credentialism.

Higher education improves the chances of employment but not as much as it should. Some college-educated prisoners still struggle to secure employment. Often the collateral consequences of a criminal conviction effectively offset any advantage that college education provides.

Education works to keep people on the straight and narrow because it changes prisoners' identities, not in the sense of identity politics, but in the sense of understanding themselves as someone other than society’s definition of them. Enrollment in a college course turns shoplifters and solicitors into scholars and students. It’s a new descriptor that doesn’t invite shame.

The late sociologist Jack Mezirow developed a theory of transformative learning and said adult education amounts to “becoming aware that one is caught in one’s own history and is reliving it.” There’s probably no more apt way to describe rehabilitation.

A dearth of research and evidence on the transformative power of higher education in prison persists in the United States, but scholars in the United Kingdom have caught onto the reasons why prison education is effective and found that it’s the shift in self-perception that reduces reoffending.

Twenty-five years ago, Anne Marie Reuss, a prison educator, wrote her doctoral dissertation at the University of Leeds. Reuss divided inmates’ lives into periods of pre-institutional identity and institutional identity. The institutional identity will develop, Reuss wrote, sometimes as a survival mechanism. Higher education in prison can intervene in that process and assure that institutional identities aren’t more anti-social than the identities inmates rode in on.

Other researchers found similar changes. Even a distance learning course, one with no formal classroom education, helped inmates in England and Wales become “part of a wider community of learners which helped them to replace their prisoner identity.”

Just because researchers in the United States don’t concentrate on the shift in self-perception among incarcerated students doesn’t mean it’s not understood. Daniel Karpowitz, an assistant commissioner in the state of Minnesota’s Department of Correction and former director of national programs for the Bard Prison Initiative, wrote in College in Prison: Reading in an Age of Mass Incarceration:

Every student is also an “inmate”, “offender” or “prisoner” in their own eyes or in the eyes of those surrounding them. In no small part, the struggles around these contested and competing identities define the milieu of the college in prison.”

Most of the research on education and identity is ethnographic because it’s hard to assess these shifts quantitatively. That’s probably why advocates for the restoration of Pell Grant eligibility concentrated so much on recidivism; it demonstrates improvement in measurable ways and with benefits that accrue to society, not only to the students themselves.

A college degree does pay financial dividends. Someone who has graduated college will earn about $1 million more in a lifetime than someone who did not.

But focusing narrowly on education's return on investment, particularly for prisoners, eclipses its ability to reframe their lives for them and society. Even with over 700,000 inmates eligible for Pell Grants next year, prison education might not be able to prove itself; its value can’t be fully gauged -- at least not in ways we are ready to understand.

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.

MAGA Isn't Just A Cult -- It Has Become A Murder Cult

The aftermath of the August 8, 2022 search of the Mar-a-Lago club, former President Donald Trump’s Florida home, isn’t the first showdown between the FBI and a cult leader.

The Following, a 2013 Fox Pictures series, played out in similar fashion. Three seasons was enough for the producers and it’s been nine years since our introduction to Joe Carroll, English professor-novelist-serial killer, so there’s a spoiler risk -- but not enough to prevent the comparison.

Carroll (played by actor James Purefoy) breaks out of prison and meets up with his “followers” — so named because they follow him and also stalk one of Carroll’s enemies. They're basically, disaffected outsiders, obsessed fans who are willing to commit any act of violence to clear Carroll’s path - which seems directed toward reuniting with his ex-wife, Claire Matthews (played by actress Natalie Zea) and his young son — as well as establishing dominion over everyone else and indoctrinating them into his church of latter-day psychos and first-degree homicide.

After two episodes, the audience’s trust in introduced characters is limited because no one knows if the new face is a member of the cult or not. Local sheriffs, housewives, nurses, medical students, correction officers, ex-military have all enrolled in Carroll’s Following.

The man who caught Carroll the first time, retired FBI Agent Ryan Harding (played by Kevin Bacon), comes out of retirement to hunt Carroll again, somewhat ineffectively since the first season needs to last 15 episodes.

The compelling part of the show is the pre-planned nature of these attacks. The Following is organized; they wait for signals from Carroll and execute his designs pretty deftly.

His appellate lawyer, whose fingers have been cut off to persuade her to represent Carroll again, reads a poem in a press conference to incite the abduction of his wife.

In another scene, one Follower raises both of his arms and his colleagues cut the lights and start slitting people’s throats.

When Carroll’s ex-wife, Claire Matthews (played by Natalie Zea) won’t engage with him, his acolytes start killing other women with the same name. One gets pushed out a high rise window. Another one gets spear gunned in her stomach in a diner booth.

Murder cultists work in concert to protect Carroll from the FBI and impress him with their slaughters, but as the show reveals some characters’ backstories, the audience learns that most have been killing all along; no one ever apprehended them. Their credo is: “In death there is life. In death there is love. In death there is everything.”

I watched it during my last year in prison and all the violence — the setting of unsuspecting people on fire, the slicing of security guards’ livers, the gouging of eyes — scared me more than usual. All I could think was: A few women in here don’t need any new ideas.

Since 2016, I’ve flashed back to various episodes. It’s often said that Trump supporters are a cult. That label needs to leap forward to reflect reality. MAGA is now a murder cult. It seems like no one’s come out and said this yet. There’s no firm definition of a murder cult. The phrase seems just to be a cult qualifier. The difference between a murder cult and a regular cult is their daily activities; murder cultists kill people while others work or chant or pray or study or get sexually abused by their leaders.

Rep.Jackie Speier (D-CA) came the closest to calling Trumpism what it is when she compared Trump to Jim Jones, the cult leader who led the mass suicide at Jonestown, Guyana. Speier would know: she was shot five times when she traveled in a congressional delegation to investigate Jonestown. She made the comparison during an appearance on Brian Selter’s Reliable Sources show on CNN last August.

The only difference between Jim Jones and Donald Trump is the fact that we now have social media, so all these people can find themselves in ways that they couldn’t find themselves before … both of them merchants of deceit,” Speier said.

A writer for The Federalist freaked out and accused Spier of defaming Trump in a 2021 article titled “CNN’s Brian Stelter Lets Congresswoman Compare Trump To Murder Cult Leader." Madeline Osburn’s indignant rejoinder is the first and only instance of putting Trump and ‘murder cult’ in the same sentence. She accurately pointed out that “Trump did not lead his supporters to feed 287 children a potion of Kool-Aid and cyanide, leaving them foaming at the mouth, convulsing, and then dead.” But Trump led his supporters to do other things to kill people, or at least die trying.

One Trumper is a literal murder cultist. “Blacks for Trump” founder Maurice Symonette, a.k.a. “Michael the Black Man,” the Black man positioned behind Trump at his rallies, was in a real-life murder cult following a man named Hulon Mitchell, Jr. who called himself Yahweh Ben Yahweh. Interestingly, Mitchell a.k.a. Yahweh was also a hotelier and real estate developer and lived in Florida. He exhorted his followers to slay at least 14 people, “white devils,” who were usually homeless people, unlucky well before they ran across one of Yahweh Ben Yahweh’s dispatched killers. There’s no allegation that Symonette was involved in any of the attacks.

In terms of murder, there’s the January 6, 2021 attack on the Capitol that ended six lives. And MAGA megafan Cesar Sayoc and his pipe bombs; luckily, no one died. The bombs planted at Democratic National Committee and the Republican National Committee could have taken out thousands of employees. One Trump supporter tried to cut the throat of a six year old Asian boy in a Texas Costco. A Penn State student threatened to put a bullet in an Indian student. Three men in Kansas plotted to bomb a building that housed many Somalis.

And there’s “Hang Mike Pence.” Because, at least on January 6, 2021, in Pence’s anticipated assassination, there was everything.

These are just a few examples. I suspect the death count from bloodthirsty Trump supporters was supposed to be higher. They’re not as competent as the Followers who have a writing room in West Hollywood to tie up the ends of their stories.

After the search of Mar-A-Lago, violent rhetoric surged again online. It could be tough talk or it could be terrorism, not to defend Trump but to indulge the violent, homicidal nature of some of his supporters.

About halfway through the first season, Claire asks her Follower, Charlie Mead (played by Tom Lipinski): "What is Joe doing? Why do you listen to him? What is this all about?”

“He’s teaching me to feel my life,” Charlie says.

It isn’t about the Deep State. It isn’t about stopping another witch hunt. It isn’t because of the search warrant executed at Mar-A-Lago. This is only about white supremacy because that it’s a simple way to identify targets for violence. How many of the Trump cultists are just murderers who found their justification in — and coalesced around —Donald J. Trump?

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.

Despite 'Reforms,' The Torture Of Solitary Confinement Persists Unabated

Albert Woodfox passed away on August 4, 2022. In what’s believed to be the record for the longest stint in solitary in American history, Woodfox spent approximately 43 years alone in a 6-by-9-foot cell in the Louisiana State Penitentiary, colloquially called Angola, the name of the plantation that once occupied the same land.

The circumstances of his incarceration are as mind-boggling as the length of time Woodfox languished in loneliness. Along with an inmate named Herman Wallace, Woodfox was falsely accused — and wrongly convicted twice — of killing a corrections officer. Woodfox, Wallace, and another inmate were known for their indefinite placement in segregation and were dubbed the “Angola 3.”

It’s not as if administrators, lawyers and even judges didn’t know that the Angola 3’s duration in isolation was beyond objectively unreasonable. In 2005, federal United States Magistrate Judge Docia Dalby wrote that the Angola 3’s confinement went “so far beyond the pale” that there seemed not to be “anything even remotely comparable in the annals of American jurisprudence.”

Yet Woodfox remained in isolation for over ten more years after that judicial proclamation. Only when he was finally released in 2016 when he pleaded guilty to lesser charges did he get out of the box.

Despite the fact that the United Nations declared that solitary is torture, no prison will completely eliminate the practice of confining people for weeks and even months, sometimes years, in a parking space sized cell. This “affront to our common humanity”— as former President Barack Obama called it — persists. And it will, since even reforms to the system often don’t stick.

In what was heralded as a bipartisan win and demonstration of humanity, the Criminal Justice Reform Act became law in Massachusetts in 2018. It was designed to, among other changes, make the time spent in isolation more humane and bearable, as well as cap periods of time spent in isolation at six months. But the hoopla might have been premature. Inmates filed a class action lawsuit on July 23, 2022 alleging that the Department of Correction isn’t obeying that law and are leaving them in solitary confinement for as long as 10 years.

It’s not just Massachusetts that’s seeing reform’s empty promises; the solitary confinement refit in New York City isn’t all it’s cracked up to be. The Board of Correction, the oversight body for New York City Department of Correction, had put forth new rules that former Mayor Bill DeBlasio claimed would “end” solitary confinement in the city.

But overhauling the “restricted housing” at Rikers Island came to a “screeching halt” according to reporting in the publication The City when Mayor Eric Adams signed Executive Order 148 in July, pausing implementation because the department lacks sufficient staff.

Even if the rules went into effect, they’re not that drastic of a change. Solitary confinement goes by different names so reforming it can be as easy as changing a label. Indeed, that’s what the Board of Correction will be doing should Mayor Adams ever give them the green light. The new rules will christen the system as the Risk Assessment and Management System or RAMS instead of ‘Punitive Segregation’ or ‘PSEG.’

Typical conditions for solitary confinement are 23+ hours of isolation with only a few minutes of time in an outside area - alone. The new rules boast 10 hours of out-of-cell time - longer than an average work shift. The problem is that this freedom happens in a literal cage placed outside of the cell. The out-of-cell time allows people to see and hear each other - through indoor chain link fencing.

The now-indefinitely paused new rules for New York City don’t limit the amount of time a person can be held in these conditions, a stark contrast to the state statute, the HALT Solitary (Humane Alternatives to Long Term Solitary Confinement) Act, which limits segregation stays to 15 days no more than 20 days every 60 days, in accordance with what the United Nations calls The Nelson Mandela rules. United States District Court judge Mae A. D’Agostino recently tossed a lawsuit filed by New York State Correctional Officers And Police Benevolent Association, Inc. — the guards’ union — that sought to invalidate the law, so this statute might have some staying power.

But even if the HALT Solitary Act endures as a public law, legislation is a long way from implementation as the claims of the Massachusetts inmates demonstrate. James Pingeon, litigation director for the Prisoner Legal Services of Massachusetts, told Michigan law professor Margo Schlanger in a recent interview that Massachusetts’ Criminal Justice Reform Act came about because advocates had used litigation to garner political support.

The same is true for New York’s trajectory of limiting use of isolation; it started in response to litigation. In 2016, the state of New York settled a class action case — it consolidated a number of pro se prisoner suits into one case — and agreed to remove young, pregnant, and disabled prisoners from extreme segregation and set first-ever maximum limits on the time people can spend in extreme isolation. The Peoples v. Fischer settlement paved the way for the 2021 passage of the HALT Solitary Act. The law is brand new. In four years, the State of New York may be facing litigation similar to what Massachusetts confronts right now, amid allegations that the changes aren’t panning out.

Addressing honest complaints about continued reliance on solitary confinement need not take so long. New Jersey’s reform wasn’t in place for even a year when the law appeared to be violated. The Isolated Confinement Restriction Law went into effect in 2020, with segregation limited to 20 day terms — five more than the 15 day limit established in the Mandela rules — or no more than 30 days in a 60 day period. However, a review of disciplinary records found that women at the Edna Mahan Correctional Facility were sent to “Restorative Housing” — another clever name change — for anywhere between 60 days and a year.

It’s not that reform of solitary hasn’t made any strides. The American Civil Liberties Union called 2019 a watershed year for change, with twelve states enacting some measure of reform. A new law in Connecticut limits the use of confinement to no more than 15 days at a time and no more than 30 days within a 60-day timeframe. Ridding correctional spaces of torturous practices will require patience because it’s an incremental process.

But that’s the problem. Incrementally phasing out human rights abuses seems insufficient. When faced with atrocities, we ban them. Implementation may take time but the moral position is clear immediately.

Not only is this slow reform ethically dubious, it’s not even effective. Passing a law about solitary confinement seems almost meaningless at this point, leading to changes that are largely cosmetic if they happen at all.

It’s one of the most perplexing realities of modern corrections: Despite substantial consensus — five of six voters support restricting use of this type of isolation — and broad acknowledgment that solitary confinement is abusive and harmful to people with disabilities and mental illness, reducing its use is almost impossible, even with statutes in place that demand change.

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.

Why The Constitution Can't Protect Us From 'Cruel And Unusual' Punishment

On February 4, 1960, two Los Angeles police officers noticed "scar tissue and discoloration on the inside" of Lawrence Robinson’s right arm, and "what appeared to be numerous needle marks and a scab which was approximately three inches below the crook of the elbow.” Officers Brown and Lindquist didn’t witness Robinson committing a criminal act; they simply noticed his arm and engaged with him. The officers said Robinson admitted to using drugs in the past so they arrested him for the crime of “being addicted to the use of drugs”; at the time, Section 11721 of the California Health and Safety Code criminalized simply being an addict.

Robinson denied any admission of narcotics use at trial, yet a jury convicted him of the misdemeanor and the court sentenced him to 90 days in the Los Angeles County Jail and two years of probation.

Robinson’s appeal of his conviction ended Section 11721. His bid to overturn the judgment against him reached the Supreme Court of the United States where the Court invalidated the law by deeming it unconstitutional; by punishing a person for a medical condition, the statute violated the Eighth Amendment prohibition against cruel and unusual punishment. Sadly Lawrence Robinson died of a “probable overdose” in a Los Angeles alley on August 5, 1961, according to the Los Angeles Times.

Our highest court was much more enlightened 62 years ago. But the Robinson decision was important for another reason besides medicalizing addiction: it extended Eighth Amendment protections to those held in state and municipal custody; the framers of the Bill of Rights had anticipated the Amendment’s applying only to the way the federal government treated people it confined.
At the time, 218,830 people were incarcerated in state and federal prisons on felony convictions. The Robinson decision should have been a boon for all of them and the millions who would come after. But it wasn’t.

Since the decision, here’s what doesn’t get Eighth Amendment protection from the courts: subjecting an inmate to needless exploratory surgery to find contraband in his rectum that was never there, or denying surgery to a man who had headphone mesh pushed further into his ear, against his eardrum, by a correctional nurse. Elbow macaroni with maggots doesn’t cut it for “cruel and unusual.” Nor do poisonous metals like radium and lead in the drinking water. Even causing pain during capital punishment doesn’t violate the Eighth Amendment in this country.

While no court has even contemplated Greg Corley’s case — after sheriffs dislodged a stent by handcuffing him behind his back and the Denton County Jail withheld medical treatment for months, until Corley’s arm was beyond remedy — the chances are low that any court would decide that compromising the blood supply to his arm was cruel or unusual punishment.

The case of Greg Corley, who was denied care to the point that amputation was the only way to save his life, suggests the Eighth Amendment isn’t sufficient to protect inmates’ overall health, much less their emergency medical needs. While Corley never made an Eighth Amendment claim about his arm — that would happen either through a lawsuit alleging that jail officials violated his civil rights or through a petition for a writ of habeas corpus that claims his incarceration was itself illegal — he’d probably lose it.

The Eighth Amendment covers only people within a system of punishment, not the ones without. Free individuals don’t need constitutional coverage; regulatory law protects them. But Aaron Littman, assistant professor of law and deputy director of the COVID Behind Bars Data Project at the UCLA School of Law, noted in a recent Yale Law Journal article titled “Free-World Law Behind Bars,” regulation “recedes” in correctional spaces.

In fact, regulation recedes so much that many times, the doctors who treat prisoners aren’t licensed to do so, with instances of unlicensed doctors providing care to incarcerated populations in Kansas and Louisiana. In 2018, the National Commission on Correctional Healthcare issued standards for healthcare providers in corrections, and one of the standards is that they actually be licensed; nevertheless, licensure of a prison doctor cannot be assumed.

When I go to a hospital, I know that my constitutional rights don't have anything to do with whether I'm treated by a licensed physician in accordance with certain standards. It's not a constitutional question. It's a regulatory question. And that same thing needs to be true in a prison," said Littman said in a recent interview.

Marty Buchanan, the doctor assigned to the detention center that held Corley, is licensed to practice medicine in the State of Texas, without any reported instances of malpractice or misconduct. But if ignoring a gangrenous limb like Buchanan did and offering the patient a benzodiazepine tablet rather than an examination is the standard of care provided by a doctor with an unblemished record, expecting better care from those who have lost their licenses seems overly optimistic.

Other kinds of critical public institutions like hospitals and schools are the subject of very significant amounts of regulation because we think, ‘Oh well, what they do is important. It may affect whether somebody lives or dies.’ And yet people don't actually have voluntary choice about whether they're in them. So it's really important that we make sure that they're meeting basic standards, that they're operating in ways that are keeping people safe and healthy,” Littman said.

Correctional healthcare affects whether or not someone dies; Greg Corley still lives in fear of an unexpected blood clot until his arm is removed. And no one who’s in custody has any choice about their care which only heightens the government’s duty toward its ward
But somehow, over 62 years of the Eighth Amendment applying to anyone held in custody, no one, not even physicians treating inmates, has effectively taken up the cause, at least not effectively, to raise the standard of care for incarcerated people.
Littman says the reason for this is that advocacy for incarcerated people has focused on constitutional law for the most part.

“There are things that [constitutional claims have] failed to do, [are] increasingly failing to do in addressing conditions in prisons and jails. I think it's time, not to pivot away from constitutional litigation, but add to the toolkit. Different kinds of regulatory advocacy to try to say, ‘no, no, incarcerated people are members of our community just like anyone else [are needed]. And actually, they need to be protected by the same health and safety and wellness systems,’” he said.

Even while he languished in Texas county jails, Greg Corley was a member of the community and he deserved the same care as anyone who walked into any Texas hospital. He didn’t get it, at least not in time. By itself, his case is a clarion call for more regulation — and perhaps less United States Constitution — behind bars. Incarceration in this country has become so bad that even our founding document can’t protect the vulnerable anymore.

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.

When The State's Indifference Can Cost Your Right Arm -- Or Your Life

When Greg Corley was released from pre-trial custody on July 18, 2022, he didn’t celebrate his freedom. Instead he hightailed it to Parkland Hospital to have his stent flushed. Then he tried to schedule the amputation of his right arm.

It’s a result he can’t avoid. The flow of blood to his arm had been restricted for so long that severing the limb remains the only way to save his life.

Between March 6 and April 29, 2022, while he was detained at the Denton County Jail, Corley filed at least twenty-two medical grievances seeking medical attention for an arm that showed no signs of a pulse; all of the grievances were denied or closed administratively and Corely got no medical care for his arm.

“The only time I saw a physician at the jail was on March 1st, when I came back from having the first angiogram [to assess the stent]. And he [the doctor] said: ‘Yeah, well, we're not too worried about your arm. But I wonder, you sound a little upset. Would you mind taking a mild sedative while you're here?’”

He didn’t see a surgeon until May 4, 2022 and then the doctor told himif you had come in before this we could have saved your arm.”

Corley says he told administrators: “I will come back and do my time gladly. But I don't want to die in jail.”

Now, Corley says amputation is the only way to prevent his dying from a blood clot, incarcerated not. “There's no choice and no option but amputation to keep from getting a blood clot,” he said in a recent interview.

Not only has the Prison Litigation Reform Act (PLRA) - a 1996 federal statute implemented, ostensibly, to reduce inmate litigation - erected more barriers to prevent prisoners from accessing the courts, the PLRA’s exhaustion requirement has heightened antipathy between inmates and guards. That is, the law pitched prisoners against staff and worsened what was already a relatively hostile dynamic.

The late Vincent Nathan, Professor of Law at the University of Toledo, surveyed Ohio inmates over 20 years ago about their attitudes toward the grievance/”administrative remedy” systems. The way facilities field complaints didn’t earn high marks.

In Nathan’s survey, 70.1 percent of inmates who used the system reported being retaliated against; moreover; 92 percent of them agreed with the statement, "I believe staff will retaliate or get back at me if I use the grievance process.” Eighty-seven percent of prisoners who didn’t avail themselves of the system agreed with the statement about staff retaliation. About six years later, half of inmates in a survey in New York reported retaliation for using formal channels of redress to deal with the conditions of confinement.

Wardens and officers confirmed the virtual guarantee of retribution for expressing ones needs or discontent. Only 21 percent of staff members surveyed disbelieved that reprisal didn’t happen; at least that’s what they told researchers. One warden admitted that counterattacks were “commonplace” when incarcerated people use the system built to receive and resolve their complaints.

Corley knew the risks of filing these formal requests for assistance. I actually thought that [filing the grievances] was just, you know, adding that much more fuel to the fire for them to not treat me.” But he had no other choice if he ever needed to file suit to secure a court order for medical care.

The medical staff was blatant in delivering a tit for each of Corley’s grievance tats. Corley heard from nurses that he was medically blackballed at the Texas Jail.

“Dr. Marty Buchanan [Division Manager at Denton County Public Health] had told all the other nurses, do not treat me. Literally don't treat me. That's what one of the nurses said. He was like “look, man,we were told not to treat you. We all know that situation with your hand and you're on a physician-based care plan.” But yet I didn't see a physician,” Corley said.

This type of retaliation is illegal on its face. It’s also unconstitutional and that seems to be the only kind of violation that courts will duly examine when it comes to prisoners. Sometimes retaliation is a denial of due process under the 14th Amendment. Other times it’s a violation of the inmate’s First Amendment rights. Some statutes, like the Prison Rape Elimination Act, outlaw retaliation quite specifically.

But it’s hard to prove. The surplus of power jail guards enjoy provides cover for vengeance; it’s easy to make payback look like standard operating procedure. And the only place to get some relief is a federal courthouse - and getting there would require even more formal complaints, only inviting further retaliation.

Corley’s 22 grievances were less complaints than they were pleas for help; it may have been incompetence, bureaucratic malaise or retaliation in not providing him proper medical care. Whatever it was, law enforcement doesn’t allow for these delays or snubs for people living in society at large.

Prosecutors criminally charge gatekeepers who don’t properly triage requests for emergency assistance. Just last month, the Greene County, Pennsylvania District Attorney charged 911 dispatcher Leon Price with involuntary manslaughter, recklessly endangering another person, and official oppression and obstruction for not sending an ambulance when Diana Kronk’s daughter called for one after finding her unable to walk or speak and turning yellow; Price told her to call back when she was sure that her mother would consent to transport to the hospital. Kronk’s daughter had already assured Price that her mother would go. Kronk died from the lack of timely care.

Last year, the New Orleans, the Louisiana Police Department charged dispatcher Precious Stephens with malfeasance in office and interfering with an emergency communication for last year when she kept hanging up on callers without ascertaining where they were.

Another operator in Houston spent 10 days in jail and 18 months on probation after she disconnected thousands of calls prematurely and was recorded telling one caller “Ain’t nobody got time for this. For real.”

Corley doesn’t have time for this. He works as an electrician and in HVAC and he needs his dominant arm to earn a living. Although his future is uncertain, the most sadness comes to him when he tries to figure out how he will fulfill traditional fatherly duties like teaching his son to drive a car with standard transmission or building a treehouse.

The extremes of negligence in Corley’s case would have been very difficult to achieve with a patient who wasn’t incarcerated and not just because apathy and cruelty often abound in correctional facilities. It’s because regulatory law has almost no role to play in the places that need the most regulation.

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 Conservative 'Reform' Literally Cut Off A Texas Prisoner's Right Arm

Denton County, Texas is home to about 941,647 people and sports five separate criminal courts. That excludes civil actions and leaves one criminal court for every 188,329 people. Denton County Commissioners expect business to be brisk.

On February 9, 2022, one of those 188,329 patrons, Greg Corley, tested positive for COVID-19, an event that’s become almost routine for millions of people. But the stakes were higher for Corley; the Denton County Court expected him to appear that day on a case for drug and firearm possession that had been pending for about a year.

At that point, the Centers for Disease Control and Prevention (CDC) had given up on the 10-day quarantine about six weeks earlier and halved it to five days. But even with the shorter isolation period, the infected Corley couldn’t and shouldn’t have appeared in court on February 9. So he emailed the court administrator with a copy of his COVID test results.

The court issued a rearrest warrant anyway for his absence. The court administrator offered Corley two dates to come in and see if 462nd County Court Judge Lee Ann Breading would vacate the warrant; one of the dates, February 14, fell squarely within the five day quarantine period. He could have appeared on February 15, but Denton County Court administrator offered Corley the date of February 22, the Tuesday after the long President’s Day weekend.

Corely never had a chance to appear on that date because the bond company arrested him on the outstanding warrant on February 15, 2002. Bounty hunters, and then Denton County Sheriffs, handcuffed Corley behind his back and thereby dislodged a stent the detainee had placed years before to correct an old motorcycle accident injury. The displaced stent blocked blood flow to his arm.
And the 1996 federal statute, the Prison Litigation Reform Act, blocked Corley from restoring it. To date, blood isn’t flowing in Corley’s right arm.

The Prison Litigation Reform Act, or PLRA, attempted to curb the number of federal lawsuits filed by inmates, many of which were described as frivolous. Retrospective analysis suggests that the evidence presented in support of passing the law was twisted in a way to make meritorious claims look frivolous, but the goal was to reduce the number of civil claims, which were overwhelmingly filed by self-represented prisoners trying to address conditions of their confinement.

The statute addressed a number of aspects of federal litigation from behind bars: filing fees, a three-strikes provision, and a requirement that inmates sustain physical injuries in order to have standing to sue jailers.

But the most consequential part of the PLRA is its exhaustion requirement; the law required anyone who wanted to sue over correctional conditions to run through all possible avenues of resolution before filing suit.

The exhaustion requirement wasn’t a bad idea — if one assumes good faith on the parts of everyone in the system, a dicey proposition in prisons and jails. That someone shouldn’t make a federal case, literally, about a problem until he searches for all solutions isn’t unreasonable by itself. But, as Corley’s case demonstrates, the exhaustion requirement has turned into an excuse and delay tactic rather than a focus on real fixes.

Corley started filing medical grievances on March 6, 2022, and the exchanges between him and jail staff soon became a master class in gaslighting; almost every answer to his increasingly panicked requests for help agreed that he needs clinical treatment while also denying it. In his first complaint, Corley wrote that he asked for medical care for the first two weeks of being in custody and was denied. The lack of care became so severe that he described being taken to the medical unit to see if a “pulse could be found for [his] right hand.”

Denton County’s Medical Grievance Board responded to Corley: “You have a medically indicated, physician directed (sic) care plan in place. You’re encouraged to continue to address your medical needs with the Correctional Health Team,” which is exactly what he was doing.

When Corley complained again a week later, he wrote: “I was called to medical to do a check for pulse on right arm. Nurse tried for 10 minutes to find pulse. No pulse found. She noted that hand is swollen, purple and cold, no blood flow to hand. She informed physician who refused medical care and sent me back to my cell. Note that this is the second time in one week that medical attention has been denied.”

Five days later, the Medical Grievance Board replied: “Previously addressed.”

On March 29, 2022, Corley complained that he asked a guard “to call medical because they did not call me for a medical appointment yesterday. He told me it was not his problem and to go sit down. I asked for a grievance form and an envelope and he denied me both.”

“The officers are not required to communicate with medical for you,” the Medical Grievance Board responded, which wasn’t what Corley had requested.

On another grievance filed by Corley two days later, he reported that a nurse “stated she could see and feel the red swollen hot area on my hand and wrist where obvious blood infection has started to form.” A week later, the same Medical Grievance Board decided, and expressed through custody staff: “This is a clinical concern that needs to be addressed with correctional health. In the interim, all encounters are reviewed by a physician.”

One of the reasons why Corley’s arm got caught in this administrative cycle is that the PLRA was unconstitutional from the start; it allows employees of a correctional facility to decide administrative remedy applications, complaints about their treatment of an inmate.

Almost 100 years ago, the Supreme Court made law in a case where judges in Prohibition-era Ohio where local mayors were allowed to decide cases and then be paid extra for every defendant found guilty. According to our highest court, when a decision maker has “a direct, personal, substantial, pecuniary interest” in a controversy, the right to due process is violated, even when the decision makers have only good intentions

Yet the Medical Grievance Board that adjudicated all of Corley’s complaints consists of two members, neither of whom are physicians. John Kissinger and Shannon Sprabary oversaw all of Corley’s complaints — and they’re two correctional health managers at Denton County Public Health who have financial interests in keeping the county’s costs down and a personal interest in looking blameless.

It’s not just possible, it’s probable, that Greg Corley’s arm has been sacrificed as a matter not of justice or clinical judgment, but of the business of criminal prosecution.

How Idaho Entrapped An Ex-Offender Into Voting Illegally

Laurie Erickson just came home from the Ada County Jail in Boise, Idaho.

Detained since March 1 of this year, Erickson admits she violated the law, although without any of the required intent.
Erickson voted in the 2020 presidential elections when she was on parole at the time for possession of a controlled substance, so she pleaded guilty to one count of felony illegal voting/interference with an election on June 23, 2022 which subjected her to a maximum prison sentence of five years and/or a $50,000 fine. She’s now serving a three-year sentence of probation for the new charge.

Erickson was working as a food delivery driver when parole officers picked her up. She’s back at it already, having dropped off orders from Chicago Pizza and Pojo’s Family Fun Center within an hour or two of walking out of the jail.

While she was detained, Erickson lost three months of income, though, and feared she’d lose her home. She didn’t, but only because her landlord likes her and her boyfriend, according to Mark Renick, Erickson’s friend and director of re-entry services at St. Vincent de Paul Southwest Idaho, a charity affiliated with the Catholic Church. If the landlord wasn’t fond of them, she’d likely be homeless right now.

So some luck wove its way into the plot line of Laurie’s recent past. But it's not all easy. Erickson has three months of back rent to pay and the court fees and costs stemming from the last three months total $1395.50 which she has to pay by July 2025, which is hard since that first shift delivering food she made $38.88. Only $100 of the total assessment is a punitive fine according to Renick.

Erickson’s story seems both cautionary — ineligible people shouldn’t cast ballots — and excessive — almost $15 per day for a charge that the state of Idaho didn’t really want to incarcerate her for (they had to take her into physical custody without a warrant because parolees aren’t allowed bond when charged with a new crime). It was an offense against the public order of Ada County, Idaho that the the Gem State ultimately valued at a whopping C-note.

The story seems unfortunate and preventable until one realizes that Erickson never sought the voter registration form that kicked off this mess. She received the form in the mail and returned it to get an absentee ballot; Idaho was one of 25 states where absentee ballots had to be procured by the voters themselves; counties were allowed to inform residents of this any way they chose and Ada County mailed out registration packets.

Erickson says she probably wouldn't have voted if the form didn’t arrive at her home unsolicited.

It’s not as if she was on a hunt for the form and just happened to pick one up at the parole office, where they’re available. Erickson says she saw signs when she was incarcerated on the original drug charge that said that once all fines and fees are paid and someone’s been out a year, they’re eligible to vote.

The signs, she says, were misleading because, when combined with the appearance of a voter registration form that arrived after she had been home for a year and paid off all of the legal financial obligations imposed by Idaho’s criminal legal system, they led her to believe she wasn’t committing a crime. She had no intent to break the law.

Initially, Erickson’s story sounds like entrapment. In Idaho, entrapment is an affirmative defense, with the burden of proof resting on the defendant who claims it. All Erickson would have had to do is prove that a state agent gave her the idea of voting --I'm looking at you, registrar who ordered forms mailed to residents because of the pandemic -- and that a state agent persuaded her to commit the crime. And she would have to show that she wasn’t ready and willing to vote as an ineligible person.

She could have tested this at trial, but Erickson was advised, incorrectly, by other inmates that there’s no entrapment defense in Idaho which is why she entered her plea of guilty last month.

Disenfranchised people voting isn’t a huge problem, numbers-wise. The conservative Heritage Foundation compiled a database of 1365 instances of proven illegal voting. Of those 1365, only 278 are for voting by an ineligible person. And of those 278 instances of voting by an ineligible person, only 77 were ballots cast by a person who was convicted of a felony whose rights had not been restored. Slightly over five percent of illegal votes are cast by people who’ve been disenfranchised by their status as convicted felons.

The larger problem is how situations like Erickson’s discourage positive and lawful conduct. “We are law abiding citizens and they act like we are scum because we voted,” she told me.

That’s a problem because voting correlates with lower recidivism. Offenders in states that permanently disenfranchise people are 10 percent more likely to reoffend. Back when former Florida Governor Charlie Crist re-enfranchised 155,315 offenders, less than one percent of the restored citizens recidivated, very likely because the ones who voted weren’t subject to arrest when they performed their duty as citizens.

In fact the better behaved parolees are more likely to land in a mess like this. According to Los Angeles attorney Arash Hashemi, who represents people on probation and parole, it’s the good parolees who can most easily fall victim to erroneous instruction.

"If you're actually someone who's trying to rehabilitate yourself and, you know, be a productive member of society, you're actually going to put your faith in your parole officer [and other government officials.]...So if they tell you you can go vote and you listen to them, then I think for them to later on say, no, you committed a crime is unfair,” said Hashemi in an interview.

Erickson should have done more due diligence and made an inquiry to her parole officer. But she didn’t see the need to do so because she was mailed the form. And even checking with a parole officer wouldn't have been dispositive. In North Carolina, where the voting rights status of people on probation and/or parole remains in limbo pending litigation, registration forms are still available at parole offices, where parolees may end up violating the law and the terms of their release if they vote.

You'd be surprised. A lot of people who were incarcerated when they get out, they're not that sophisticated with the everyday procedures that you and I take for granted," Hashemi said.

Erickson will be eligible to vote again in Idaho in 2025, after the 2024 presidential election. “I know all I want to know now…enough that I’ll never vote again,” she texted me.

It’s not the best news I’ve heard from someone who’s just been set free.

If you would like to donate to the Facebook fundraiser to help Laurie Erickson get back on her feet, please do so here.

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.

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.

Why That 'Miranda' Warning Matters So Much Less Than You Think

The United States Supreme Court decision in Vega v. Tekoh, released on June 23, worries many constitutional rights experts. Once the Clerk of the Court released the opinion, the digital town square grew rife with nervous energy that the Miranda warning -- the legally mandated reading of rights by police to suspects to inform them of their Fifth and Sixth Amendment protections while in custody -- is all but gone.

Graydon Gordion, a member of the executive board of the American Civil Liberties Union of Georgia tweeted: “Roe. Miranda. Gun control. Church and State. All dismantled in a single week. The single worst week for civil rights and liberties in decades.”

Elie Mystal, attorney and justice correspondent for The Nation chimed in on the bird app, too, in partial accuracy. “Folks,” Mystal wrote, “this basically overturns ‘the right to remain silent.’”

Colin Kalmbacher, editor of Law and Crime News, described the decision this way: “U.S. Supreme Court conservatives overturn time-honored Miranda rights in landmark decision."

But I’m not that worried. All the new decision says is that law enforcement’s failure to Mirandize — meaning read the warning and a list of their Fifths and Sixths as outlined by the Supreme Court in a 1966 case called Miranda v. Arizona — doesn't afford a suspect any remedy under the federal civil rights code. Miranda lives on.

And that’s the problem because Miranda is a mirage; the warning ritual creates the appearance of protecting a suspect’s constitutional rights but doesn’t really do the job.

Miranda’s job, of course, is to protect people from coercive police tactics and misinterpretation of their protestations of innocence; the warning isn’t designed to provide refuge for the guilty, which is the main criticism of the constitutional right. False confessions happen only when a suspect is communicating with law enforcement. Those words that can and will be used against you in a court of law only exist if you utter them.

Or so the public thinks.

Let me tell you a story called State of Connecticut v. Chandra Bozelko. Picture it: Milford, Connecticut, 2007. It was a sunny October afternoon outside 14 West River Street, but inside, my future looked forbidding as the Assistant Chief of Police of the Town of Orange, Connecticut sat on the witness stand describing my arrest on February 2, 2005 for various crimes related to credit card fraud. In a nutshell, packages with purchases made on others’ credit card accounts had been directed to my parents’ home in Orange. They arrested me for various offenses and then went about trying to connect me to the crimes.

“At that point,” Koether said, “I read her her rights from a little rights card and asked her if she would talk to me.

After officers transferred me to the station and I signed the paper acknowledging my advisement of rights, I asked to speak to my lawyer. When asked whom to call, I gave an officer my sister’s and my father’s numbers. They were both lawyers. I spoke to both of them and, as they arranged to post bond for me, I sat in one of the Town of Orange’s holding cells, alone, talking to no one.

The police said I confessed anyway.

The very next day in the trial, then-Officer Robert Cole (he went to another department in 2016 where AAA recognized him for his superior traffic enforcement) — falsely testified that I confessed to procuring other people’s credit card information and using it.

Cole swore under oath that I unburdened myself to him and divulged that someone called me on the phone and provided me with the stolen credit card numbers. That’s how I pulled off this massive attempted heist, according to Cole: I just answered the phone and a third party -- a person whom the police never even attempted to identify and have no idea who this person was -- provided me with stolen credit card information, an act that would have positioned as him my accomplice, as well as made him even more of a risk to the community than I since he was grabbing personal financial information from unsuspecting marks.

It should go without saying that this alleged confession doesn’t make sense - unless law enforcement traced calls to my phone and identified this caller, which they never tried to do. And, of course, the prosecution introduced no written, audio, or video memorialization of this alleged confession — because they were never required to do so.

The Innocence Project lists Connecticut as one of 30 states that require recording of certain custodial interviews but that inclusion isn’t entirely accurate. The Supreme Court of the State of Connecticut held that the state constitution doesn’t require recording of interviews. Memorialization is required only if certain circumstances apply.

No confession that isn’t memorialized in writing, audio, or video should even merit consideration as evidence in a criminal trial, much less get introduced into the record. But they do. These bogus unbosomings underwrite many convictions.

So Miranda warnings may be talismanic to civil rights advocates but they’re often useless in my opinion. I was read my rights, exercised them, and said nothing -- and yet the cops still boned me with a false confession I didn’t even make.

Miranda’s better half -- my right to counsel and her effective assistance to me -- was supposed to provide some adversarial testing to this Fifth Amendment fracas. But that didn’t work out either.

When Officer Cole described this alleged confession, one he had mentioned in a police report, my attorney, Angelica Papastavros, asked for the proof. It’s not clear that she understood that police don’t have to record or memorialize anything but she said she’d never heard of this alleged confession, that no one had provided it to her in discovery. It would have been a valiant defense if she hadn’t been holding the document in her hand when she made the argument.

“You do recognize the fact that you do have that document?” the judge asked her.

“So far, nothing rings a bell,” she replied.

The false confession didn’t ring a bell because my attorney hadn’t actually read the case file, the papers in her hand, before trial. She could have filed a motion to suppress the nonsensical confession or to hold a hearing on why, if the police accepted the cockamamie explanation that a random, unknown person plied me with stolen credit card numbers over the phone, none of them ever traced the calls to that line to identify that person. No one tracked down the mystery caller, most likely because he never existed, along with the confession, not that the record indicates any of that. It’s hardly a surprise marshals carted me to the state’s only women’s prison two months later.

Even leaving my story out, scant evidence supports Miranda’s effectiveness. People who know their rights still think that talking to police is wise if they’re innocent; most of them are juveniles or adults with mental health problems. If Miranda did her job, the number of false confessions would have dropped after 1966, when the warning became required by law. But they didn’t.

All the false confessions identified by the National Registry of Exonerations between 1989 and 2016 were squeezed out after a Miranda warning. Studies show that recitation of rights doesn’t effectively inform suspects with language barriers. Miranda’s a mess.

The moral of this story is that Miranda isn’t what people think it is; silence doesn’t even guarantee that police won’t say a suspect confessed. Not only should anyone in custody remain silent and ask for counsel, but that person shouldn’t even agree that they’ve been read their rights. Acknowledging a Miranda warning makes it easy for police to construct a narrative, as I learned entirely too well.

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 1990 Supreme Court Decision That Could Protect Trump's 'Big Lie'

During the past week, members of the House Select Committee to Investigate the January 6th Attack on the Capitol spent hours detailing the crimes that led up to the riot that ransacked the Capitol building on that first Wednesday of January 2021. The exhibits included testimony from witnesses, copies of written communications, and video clips posted by the rioters showing how they interpreted the reporting of events.

What none of the committee members mentioned was the role that a 1974 midwest melee played in the proceedings. The conditions that would allow former President Donald J. Trump to foment an insurrection that snatched the lives of four civilians and five police officers and injured scores more started their development in an Ohio wrestling match almost 50 years earlier.

At a February 9, 1974 wresting match, Maple Heights High school wrestling star Bob Girardi didn’t want to accept loss; he hit his opponent from Mentor High School. The punch exploded into a mess of violence that sent four Mentor High School wrestlers to the hospital. No one was criminally charged for the riot, but the Ohio High School Athletic Association barred Maple Heights High School — a nine-time state champion — from participating in the next state championship. To get a chance to stay champs, Maple Heights High School sued, leading to a hearing that required the school’s head wrestling coach, Michael Milkovich, to testify.

The day after the hearing, Tim Diadiun, a local newspaper columnist, wrote a column headlined “Maple Beat the Law with the ‘Big Lie’” and accused Milkovich of lying under oath about what happened at the match in order to slide back into contention; Diadiun had been present and witnessed what he saw as Milkovich fomenting the fracas. Milkovich sued Diadiun for libel and the case took 16 years to reach the Supreme Court of the United States as the case of Milkovich v. Lorain Journal Company.

Diadun had the advantage at the high court because, twenty years earlier, American Opinion, a publication of the John Birch Society, ran an article that named Elmer Gertz, a well-known Chicago attorney who represented a police shooting victim’s family against the officer, and called him a Communist with a criminal record. The American Opinion editor published the “Communist” and “convict” labels without verifying them; the editor admitted he relied on the reputation of the author for their accuracy. Attorney Gertz sued for libel and won $50,000 from a jury but the judge set aside the verdict.

After many appellate wranglings, Gertz eventually won $400,000 in compensatory and punitive damages. One of those appellate stops was at the U.S. Supreme Court, where Justice Powell wrote of Gertz’s claim: “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Because of this holding, Diadiun and the other defendants were likely going to prevail at the Supreme Court; the Gertz Court extended refuge to falsehoods, saying some of them deserved protection under the First Amendment “in order to protect speech that matters.”

In other words, it actually didn’t matter what the columnist wrote; as long as it was labeled opinion, it was protected. States and lower courts didn’t like this; they interpreted the Gertz decision as creating privilege tantamount to “a wholesale defamation exemption for anything that might be labeled 'opinion.”

Diadiun lost because the Supreme Court set out to change that rule in the Milkovich case. The Supreme Court explicitly rejected blanket protection for any article labeled opinion when Chief Justice William Rehnquist, writing for the majority, said the Gertz decision never intended that comprehensive exception “since "expressions of 'opinion' may often imply an assertion of objective fact.”

It seemed like a win for accurate journalism and public opining, but it ultimately wasn’t.

On one hand, the Milkovich decision narrowed the First Amendment shield for opinion writers; they must write the truth, a reasonable requirement. As long as those facts within an opinion piece aren’t “provable as false” — meaning the language cannot be proved true or false by a core of objective evidence — a statement is constitutionally protected. This category of non-provable opinion includes subjective beliefs based on true facts.

On the other hand, the Court limited free speech protections, saying that statements that “cannot reasonably [be] interpreted as stating actual facts” — meaning “loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining” an actual fact, or where the “general tenor of the article” isn’t to be believed — are also protected. At the time of the decision, Jane E. Kirtley, a lawyer and executive director of Reporters Committee for Freedom of the Press, predicted disaster to the New York Times. The decision, she said, “ironically is going to encourage irresponsible commentary at the expense of well-reasoned analysis.”

Kirtley was right. Crazy claims — like China or Italy interfering in our 2020 election through wifi or the late Hugo Chávez maneuvering a Democrat into the White House from the grave — ultimately get protection (no one’s litigated these claims) because no reasonable person would ever believe them.

Attorneys for the former president and right-wing media stars avail themselves of the Milkovich defense in courtroom wrestling matches, claiming that the content in question may be false, but it’s not actionable because it isn’t believable. They started with softball cases. When Stephanie Clifford, a woman who credibly claimed to have had an affair with Donald Trump, sued him for calling her a “con job” in a 2018 tweet, the court held, citing Milkovich, that “ would be clear to a reasonable reader that the tweet was not accusing Clifford of actually committing criminal activity.

The Milkovich holding helped Fox News host Tucker Carlson defeat a defamation claim filed by Karen McDougal, the model who said she had an affair with Donald Trump. McDougal alleged Carlson defamed her when he described her request for money to keep her story quiet as the crime of “extortion.”

But the most recent use of Milkovich is a big-league problem and the most disturbing; it’s been used to prop up not the ‘Big Lie’ that Tim Diadiun wrote about in 1974, but the Big Lie about the 2020 presidential election. Lawyers pulled the case out when Dominion Voting Systems filed defamation claims against Fox News in 2020 for reports that their machines miscounted votes in favor of then-candidate Joseph Biden. Fox lost a motion to dismiss the lawsuit under the Milkovich defense, but the court will still hear the case on its merits and the defense can pop up again and succeed, barring any other settlement or resolution.

Just like it did in 1974, an unwillingness to accept defeat and inartful grappling with facts conspired to create a brawl, one that would take years to dissect, understand, and resolve. Through the Milkovich decision, that insistence on a win and the events that followed it brought the country to the brink of a coup -- but not because the Supreme Court justices didn’t care about the truth.

Both the Sullivan and Milkovich courts had a faith in the public's capacity to discern factual falsehoods that we don’t — or at least we shouldn’t — today. Both courts thought that inaccuracies deserve constitutional protection because the general public is responsible enough to both assess and improve the flow of information on matters of public concern. But it’s not.

We’re not that responsible, as this week’s hearings demonstrated. The ability of the "marketplace of ideas" ability to adequately determine facts depends on the “reasonable reader” or consumer of news. That isn't what happens anymore. Judging by the videos of Capitol rioters shown during the hearing this week, rather than that reasonable reader acting as a check on lies and disinformation, unreasonable readers respond to unreasonable speakers and put American democracy at risk.

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.

If There's A Crime Wave, That May Well Be Trump's Fault Too

On June 8, San Francisco voters recalled the city’s most recently elected district attorney, Chesa Boudin, because of perceptions of rising crime in the city. Two days later, the public hearings of the Select Committee to Investigate the January 6th Attack on the Capitol began.

Associating increasing crime and evidence of wrongdoing by former President Trump is not a coincidence.

There’s some debate whether crime rates have, in fact, increased. In San Francisco, for instance, the number of rapes and assaults fell below pre-pandemic levels while Boudin oversaw prosecution of crime in that city. Across the country, crime rates hardly crested in ways that suggest a wave; datapoints for all sorts of crimes, from the severe to the silly, are scattershot.

But the murder rate is the bellweather of crime data — homicides can’t easily be reclassiffied as other crimes that don’t end in death — and murder is up in San Francisco and elsewhere, rising from 5.1 per 100,000 people in 2019 to 6.5 per 100,000 people the next year, so something is happening although clear explanations elude us.

Until 2020, most blame for rises in crime landed on the so-called Ferguson Effect: the theory that public disapproval of law enforcement, as evidenced by mass protests, causes police officers to either fear enforcing the law because of criticism or legal liability, or to refuse to do their jobs without broad public support. Heather MacDonald, a fellow at the conservative Manhattan Institute, championed this explanation of crime. Former Director of the FBI, James Comey, reinforced the same idea in 2016; instead of calling it the Ferguson Effect, he called it the “viral video effect.”

There’s a perception that police are less likely to do the marginal additional policing that suppresses crime — the getting out of your car at 2 in the morning and saying to a group of guys, ‘Hey, what are you doing here?’” he told reporters.

But right now, criminologists don’t know why violent crime is up in certain places. Inflation explains the increase in property crimes, but the increase in violent crimes is somewhat of a mystery, one that finds convenient explanation for the unprecedented chaos of 2020-21: The pandemic, stupid.

A change in routine activities is related to a change in crime,” says Richard Rosenfeld, Curator’s distinguished professor emeritus of criminology and criminal justice at the University of Missouri, St. Louis.

“One criminologist has referred to the pandemic as the greatest criminological experiment in history,” Rosenfeld continued. “I don't know if that's the case, but it certainly did fall in line with, in my business, what we refer to as the routine activity theory of crime. That is how crime patterns are tied to the day to day activities of the population.”

It makes sense to invoke COVID commotion to explain the unexplainable. But other historical events occurred simultaneously with the pandemic: namely, impeachments of the president.

The House of Representatives voted to impeach then-President Donald J. Trump on December 18, 2019 and the Senate acquitted him on February 5, 2020, two days after the Trump administration declared COVID-19 a public health emergency and twenty days before the Centers for Disease Control and Prevention (CDC) warned of a pandemic.

That was just the first impeachment. The second iteration of impeachment — when the House voted to impeach Trump again on January 13, 2021 and the Senate acquittal happened exactly a month later — coincided with the pandemic's second wave of infections.

The causation that some criminologists are attributing to the pandemic might well belong to the formal accusations against the leader of the free world.

Understanding why the crimes of a president could inspire or unleash crime amongst the electorate is where political sociology and the study of deviant behavior collide. Researchers from Washington State University went directly to that intersection, hypothesizing that, after the Watergate scandal, government institutions’ perceived loss of legitimacy would cause an “increased risk of revolution, rebellion, and/or wholesale violations of the laws.”

While the attitudes of people surveyed didn’t adhere to the hypotheses exactly, crime did increase after Watergate; the researchers weren’t wrong. After the crimes and cover ups committed by the various personalities connected with the scandal revealed themselves starting in 1972, rates of lawbreaking — outside the White House — rose, and significantly. Between 1973 and 1974, the number of overall crimes committed increased by 1,535,000, one of the largest jumps in the country’s history. Between 1974 and 1975, that same count went up by over one million again: 1,039,000 more crimes overall.

To be clear, the idea that a public exposure of wrongdoing at the highest levels of government and society delimits deviance doesn’t track entirely. In 1998, President Bill Clinton underwent the same House indictment-Senate acquittal two-step Trump did, but crime decreased in 1999 and thereafter.

But Clinton’s impeachment was different; institutions didn’t lose their legitimacy during that process— despite unethical and unorthodox behavior by special counsel Kenneth W. Starr and the three judge panel in the District of Columbia Court of Appeals that appointed him.

The Monica Lewinsky scandal was about what a man did in the Oval Office, not the office itself. A president can ethically get his joint copped while occupying the position. Clinton was a classic case of sexual indiscretion, perhaps even harassment. His behavior was inexcusable, for sure, but nothing that the average cad hadn’t already done or couldn’t do in his own workplace.

Orchestrating break-ins on political opponents – whether in some swank Northwest Washington apartment complex or the House of Representatives — is never legal or ethical. These indiscretions are rarefied, almost impossible for the average American to conceive, much less pull off. It would make sense that exposing them could unleash mass repudiation of the criminal code.

This explanation of crime spikes doesn’t debunk the Ferguson Effect, which posits that police recede in the face of criticism of their treatment of the public. Rather, it’s the flip side of Ferguson; that criticism of police is just a symptom of law enforcement’s loss of institutional legitimacy. Crime follows the fall, like it did after Watergate, and as it’s likely doing now.

There’s not quite enough evidence — mercifully, the United States Congress hasn’t completed enough impeachments for a robust study sample — to conclude that indicting and tossing a president of office can set off a crime spree. It’s still just a theory. But it’s not an outlandish one.

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 Corruption That John Durham Ignores In His Own Backyard

The way land records work is pretty simple. Owners file a deed in the city, county or town’s clerk’s office and the deed states that the first owner, or grantor, is conveying the property to the new owner or grantee. Usually the new deed lists the page and volume number of the first owner’s deed. The deeds form a chain, connecting one to another in a way that can be tracked.

Except in East Haven, there’s a small piece of property, 105 McLay Avenue, where the land records offer two chains of title. One owner has a chain going back to 1924. The other owner doesn’t. That second owner’s chain starts in 2005 where the Town of East Haven simply appears as the owner of 105 McLay Avenue and conveys the property to a Connecticut corporation.There’s no deed conveying the property to the town and yet the town went and granted it — for unknown consideration — to a local business. It’s almost like the Town of East Haven stole the land.

Indeed, something is rotten in the Town of East Haven. I know; I’ve watched it unfold because one of the owners of 105 McLay Avenue is my father.

My father reported these problems to then-United States Attorney for the District of Connecticut, John Durham. Connecticut’s Assistant Attorney General, Sandra Arenas, and also referred the matter to Durham’s office by letter. No one from Durham’s office ever contacted my father.

People who don’t live in Connecticut already know who Durham is. He’s the special counsel secretly appointed to ”investigate matters related to intelligence activities and investigations arising out of the 2016 presidential campaigns” by former Attorney General William P. Barr in October 2020. The first trial in that investigation against Michael Sussman, an attorney for Hillary Clinton’s 2016 presidential campaign, ended when a jury acquitted Sussman of lying to the FBI on May 31.

Even with that special counsel assignment, Durham had time to take action here in Connecticut; he learned about problems in East Haven in October 2019; he didn’t resign from his Connecticut post until February 2021.

For context on the Sussmann acquittal and how easy it would have been for Durham to win if he actually had a case, only two percent of defendants in federal criminal cases insist on a trial. Of that two percent, only one percent prevail and are found not guilty.

It appears Durham would rather tilt at Trump’s windmills than look into corruption in his former home district.

The FBI would be the agency to investigate for the US Attorney’s office and it doesn’t confirm whether an investigation is ongoing or not, so it’s possible that the United States Attorneys office and/or the FBI are looking into this situation.

But inquiries like this don’t take that long or run into he-said-she-said forks in the investigative path; it’s not an issue of credibility. Public land records contain all the evidence and in East Haven they’re available online. A federal prosecutor could decide whether there’s a case or not sitting in his pajamas at home.

It’s not like Durham’s office was or is unaware of problems that plague East Haven; the town is known for corruption and chaos. In 2009, then-Mayor April Capone and her assistant were arrested for interfering with police. Neither was convicted.

In 2020, three town employees were arrested for “double-dipping” — collecting pandemic unemployment assistance while still being paid their salaries. One of the accused is former Mayor Joseph Maturo’s daughter and the former mayor has been noted for allegedly trying to influence the investigation into his child.

An East Haven School Board member was charged with fraud. His wife was removed from her post as the director of the preschool program amid a federal probe and she was cited for allegedly shoplifting $150 worth of goods from a local supermarket.
And that’s just the chicanery outside real estate and property matters.

East Haven land records have been the subject of investigation before. A local zoning officer was placed on paid administrative leave in September 2020 and resigned a few months later and no one’s provided a reason why. In 2015, East Haven zoning official Frank Biancur was charged with extorting money from a resident, telling him he would make the resident tear down an addition on his house if he didn’t pay.

Michael Milici, while serving as the town’s tax assessor, was placed on administrative leave last year for allegedly not paying employees overtime; Milici himself brought this issue to town officials. He retired soon after, but he had worked as the assessor for 31 years and oversaw the tax records related to 105 McLay Avenue. Milici was sued in 2004 when he was a member of the neighboring town of Branford’s Board of Assessment Appeals. Plaintiffs claimed Milici inflated the value of their house and received a reduced valuation on his own home in the town.

The entities that ended up with 105 McLay Avenue are Statewide Construction, Inc. and Connecticut contractor Robert Pesapane, a man who paid for an attorney to represent the assistant to former East Haven mayor Joseph Maturo to sue Maturo for sexual harassment. Maturo had blocked one of Pesapane’s construction projects.

Yet, even with this history of pandemonium, Durham’s office has done nothing.

To be fair, there are other people who could have intervened and corrected this situation. For one, Durham had attorneys working for him. The courts have consistently sided with the town but their findings don’t make sense; the trial court found that the two competing chains of title were “the same” even though one has three deeds and the other eleven. More litigation is planned.

Joseph Carfora, the mayor of East Haven, is aware of the matter. He received a certified letter about it in May 2020 that he never answered. His office didn’t respond to a request for comment.

I emailed the FBI’s then-Community Liaison Charlie Grady and asked for assistance with the matter. Grady’s response was that he wasn’t sure how the tip line worked but I should continue to use it. He ended his answer with “Good luck!”

Luck is what East Haven homeowners need if no one from the U.S. Attorney's office will step in.

By itself, deed fraud isn’t a crime. But when it’s done by a town employee, it indicates corruption. Deed fraud is also one of the most underreported thefts, according to former FBI agent Arthur Pfizenmeyer in an interview with

But deed fraud is enough of a problem in Connecticut that the Connecticut General Assembly passed a law in 2017 making the filing of false deeds actionable in a very specific way.

While there’s no testimony on record supporting the bill and there was no opposition to it — it was placed on what’s called a consent calendar which means that it was combined with other bills that wouldn’t require debate — false deeds must be a problem in Connecticut in places other than East Haven. After all, three state representatives and two state senators didn’t draft a bill and see it through to passage for no reason.

The law also classified filing a false deed as a Class D felony, which means that what’s happening is in fact a criminal matter involving the town, an issue of potential public corruption, landing it right in Durham’s and the FBI’s wheelhouse.

The problems that can arise from these deeds extend beyond criminal investigation. According to Connecticut’s Marketable Record Title Act, if a party doesn’t have an unbroken chain of title to their property, they’re technically not the owner of it. That means that sales of certain real property may not be possible unless this is stopped. In fact, it may even invalidate certain deeds, meaning people could lose their homes.

Trump’s effect on real estate extends beyond New York. His obsession with Hillary Clinton distracted Justice Department officials and seduced Durham into pursuing these popcorn fart cases instead of dealing with crimes right in front of him in Connecticut.

Durham’s got another trial scheduled for October 2022, against Igor Danchenko, over lies Danchenko supposedly uttered to FBI agents over the Steele dossier. Durham’s priorities are clear; he’d prefer to chase phantom charges against Trump’s enemies than protect the residents of the district he once oversaw as the chief federal prosecutor.

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 Prison Authorities Hide The 'Unnatural' Causes Of Prisoner Deaths

On August 12, 2017, Sirrena Buie of Birmingham, Alabama talked to her son Kedric. He was incarcerated in a federal prison, United States Penitentiary Atlanta, and called his mother from inside.

The next morning another call came; a prison administrator dialed Sirrena and told her that Kedric had died.

I'm like, What happened? I just talked to my son. What happened to my child? What happened to my son?” she said she asked the woman who called her that Sunday morning.

To this day it’s not clear what happened to Kedric Buie. The official story, according to his death certificate and autopsy report, is that “hypertension and atherosclerotic cardiovascular disease” snatched 26 year old Kendric Buie’s life.

But those explanations didn’t make sense to his mother. When Sirrena viewed Kedric’s body, she noted a gash on his head as well as swelling so severe that he looked looked like he had gained 100 pounds. Moreover, a note sent to the autopsy provider suggested that Kedric might have overdosed on black tar heroin but the official toxicology report stated that he didn’t have any drugs or alcohol in his system.

Led by his mother, the search for what happened to Kedric Buie has been ongoing since his death. But lawyers bounced her around. Reporters and investigative journalists never prioritized her son's story.

To compound the mystery, a well-known journalist provided Sirenna what purports to be an amended autopsy report that says blunt force trauma killed her son.

That document from the journalist is particularly troublesome because Sirrena Buie was told by people familiar with the situation that her son Kedric was beaten by guards after he balked at a guard allegedly spitting in his food.

So Kedric’s death was either a homicide or a sudden deadly illness. Not knowing which one is unacceptable.

I commenced an investigation into what happened to Kedrick Buie and the results so far are concerning. On May 19, 2021 I filed a simple Freedom of Information Act (FOIA) request for a copy of Kedric Buie’s file within the Bureau of Prisons.

Over a year later, the Bureau of Prisons is either unable or unwilling to furnish a copy of Kedric Buie’s file. The Bureau acknowledged the request on July 6, 2021 and noted that the pandemic had caused processing times to get longer; it might take as long as nine months to provide the records requested, an estimate they later increased to 12 months because of pandemic-induced understaffing. The FOIA unit claims to have sent several requests for the file to the archive holding his file.

I followed up several times and the Bureau of Prisons’ responses bordered on nonsensical. On February 16, 2022, a paralegal explained that Buie’s file is beyond my reach because it hadn’t been received by the office that sent it out. “A search is still being conducted for records responsive to your request. In [particular], the file has not been received by institution who sent into to Archives” the email read.

Vincent Shaw, regional counsel for the Southeast regional office of the Bureau of Prisons, promised to update me on May 10, 2022. He didn’t and he hasn’t responded since, including not returning a request for comment on the matter.

Either Kedric Buie’s file is there in the Bureau of Prisons records or it’s not. And if it’s not, there’s cause for concern because it looks like a potential cover-up.

Covid-19 woke up the public to the reality that people die in prison without an assist from a death warrant. We don’t know exactly how many inmate lives COVID claimed — the Marshall Project and the Associated Press estimate it was about 2715 last June – but the problems with notifying families of prisoners’ health statuses came into full view during the pandemic. Many had no idea that their incarcerated loved ones had contracted the disease, ended up hospitalized or even succumbed to it.

On May 20,

Senators John Ossoff (D-GA) and John Kennedy (R-LA) introduced the Family Notification of Death, Injury, or Illness in Custody Act of 2022. Representative Karen Bass (D-CA) introduced an identical bill late last year. If the bill becomes law, it would require federal prison administrators to contact a person’s next of kin within twelve hours (during the day), provide the circumstances of their loved one’s passing and whether an investigation has been opened into the death. The bill’s sponsors hope that it would provide a model for state corrections systems.

COVID or not, the bill will get good use if it passes. In 2018, the last year for which data exists, state prisons reported 4,135 deaths (excluding 25 people executed in those facilities). That’s more than 10 per day and it’s the highest number since the Department of Justice’s Bureau of Justice Statistics (BJS) started tabulating mortality data in 2001.

Dividing deaths between natural (illness) and unnatural (suicide, homicide, accident or overdose) the BJS said 77 percent of all prison deaths in 2018 were natural but it might not remain in that proportion for long; the number of unnatural deaths is growing. They were 11 percent of deaths in federal prisons in 2015 and 14 percent in 2018.

Notifying family of inmates’ health status should be dignified and empathetic, so it should be standardized. But this notification bill does more to make people who aren’t incarcerated feel better than it does to protect inmates and make these systems truly transparent. The Buie case demonstrates exactly why formal notification requirements can end up being an end run around real transparency.

An administrator called Sirrena Buie well within 12 hours of her son’s death and therefore preemptively satisfied what lawmakers think is a reasonable expectation for timely communication. And that administrator wasn’t required to tell the grieving mother about any investigation because none had been opened — even though the facts apparent now certainly warrant an inquiry.

Requiring administrators to connect with inmates’ family and friends won’t stop corrections officers from stomping prisoners and raising that number of unnatural inmate deaths even higher — nor from preventing the discovery of what caused these deaths.

Unfortunately, homicide at the hands of correctional staff is a pretty common occurrence. Just last month, the Florida Department of Law Enforcement charged four guards with the murder of an inmate whom they allegedly beat to death. Another was charged in 2021. Those cases were unusual in that investigators identified perpetrators and held them accountable. Authorities held no one responsible for the murder of an inmate who was essentially boiled to death in a shower in 2012.

Kedric Buie’s death may be one of those cases where staff get away with murder even though they notified his family quickly and dishonestly. Without even a general file on his incarceration, it’s still up for grabs who’s going to answer the question of what really happened to him — if that question ever gets a reply at all.