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For Women In Prison, The Only 'Choice' Is No Choice

Abortion is the new protection racket.

Three states among the 28 that will ban or restrict abortion if Roe v. Wade is overturned — Arizona, Florida, West Virginia — have specifically vowed to “Protect Life in the Womb at 15-Weeks Gestation.”

If elected, Michigan Republican gubernatorial hopeful Garrett Soldano wants to “protect” the DNA of fetuses by banning abortion.
It is my sincere hope that, in addition to the criminal bill passed this session, this civil liability bill will provide strong, additional protection of the life of unborn children in Oklahoma,” said Wendi Stearman, the Republican state representative who sponsored the bill that defines fertilization as the start of life — one that would be the most restrictive in the country when Gov. Kevin Stitt soon signs it as partial fulfillment of his promise to make Oklahoma the most anti-abortion state in the country.

Even Supreme Court Justice Samuel Alito got into the protection game. In his leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, Alito wrote that “Roe [v. Wade]’s central holding” was “that a state may not constitutionally protect fetal life before ‘viability.’” He and four other justices want states to protect fetal life at all stages.

One need look no further than prisons and jails to see that the purpose of regulating reproductive rights isn’t to protect anyone but rather to frustrate a woman’s will.

Because women have no choice inside them, prisons and jails would be the perfect place to execute consistent reproductive guidelines; after all, prison is a place devoid of choice. Reproductive rules should be clear in these places because the authorities who make them have absolute control. Policy is much easier to implement when few — maybe none — can effectively challenge it.
But correctional reproductive practices are entirely inconsistent.

Only 21 states have codified anything regarding an inmate’s access to abortion. In the remaining 29, it’s overly generous to describe situations as administrators’ “case-by-case” decisions. Essentially, prisons and jails can make it up as they go.

And that’s exactly what they do. A pioneering study, published online last year by the Guttmacher Institute and Johns Hopkins University, of 22 state prison systems, the Federal Bureau of Prisons, and six local jails — places that house 57 percent of incarcerated women — found 11 states that explicitly allow abortion for incarcerated persons in the first and second trimesters and three that don’t allow it at all.

But it’s not clear that the states that say they allow choice and freedom mean it. The abortion rate was 1.4 percent for prisons and 18 percent for jails, the latter being much closer to the national rate of 20 percent.

Their lower abortion rates doesn’t mean that prisons are more restrictive than jails. Jails and prisons aren’t the same facilities; in 44 states, defendants are detained in jails while sentenced inmates live in prisons. It would make sense that women who enter custody pregnant and choose an abortion would make that choice in the earlier part of their incarceration.

The Guttmacher/Johns Hopkins study may be groundbreaking but it has limited utility. Examination of these statistics provide no insight into whether incarcerated women wanted and chose the pregnancy results they live with. And there’s reason to doubt that they do.

Last year a Nebraska prisoner sued for access to abortion services after she was denied transport to a local clinic. But for the ACLU jumping in and filing suit to secure an emergency order, administrators’ decisions might have been final. It was just the most recent example of a woman’s choice being intentionally obstructed; it’s happened in other states like New Jersey, Virginia, and Alabama.

But prisons aren’t so invested in women having babies; what prison administrators want is control. From 2003 to 2014, the California Department of Correction of Rehabilitation sterilized 1400 women prisoners without their informed consent. A documentary released in 2020 titled Belly of the Beast shed more light on this atrocity.

It appears that women who expressed a desire for future childbearing were targeted for these illegal procedures. A doctor asked then-inmate Kelli Dillon if she wanted children in the future and she answered in the affirmative. The doctor then proceeded to perform a hysterectomy on Dillon, telling her both that she could have children in the future and that cancer necessitated his extreme surgical decision. Neither of the doctor’s statements were true. It stands to reason that if Dillon had forsworn children her reproductive organs might have remained intact.

This isn’t some extension of the right to life movement infiltrating correctional spaces. Ann Hose’s case is proof that carceral systems seek to impede a woman’s choice even if she wants to keep a pregnancy. A nurse in a Hawaii prison injected inmate Hose with depo provera, a contraceptive injection, without her agreement. Hose wanted to maintain the pregnancy; she asked to call her husband to discuss her decision but wasn’t allowed.

We know about all of these cases because they made their way to media outlets after someone filed suit over the decisions forced on the plaintiff women. Scores of untold stories await, tales of women who want to give birth being denied that right and women who want to terminate their pregnancies being prevented from doing so.

Those cases will be hard to suss out. In 2015, a woman confined at the Lauderdale County, Alabama Detention Center sued for access to an abortion clinic with lawyers from the ACLU representing her. Before the case was resolved, the woman agreed to carry the child to term and filed an affidavit averring that no one had coerced her to change her mind, but even the woman’s own counsel recognized the immense pressure that jail officials can apply to disabuse an inmate of her choice.

Once advocates and attorneys get involved, the problematic management of women’s reproductive freedom tends to subside. But that’s because courts have consistently held that incarcerated women do, in fact, have an unfettered right to abortion while Roe’s ruling remains in place. Without that right, a woman like the Alabama inmate might not get the assistance she needs to file in court.

Even if the precedent established in Roe v. Wade stayed intact, one national rule on reproductive rights in carceral settings would be almost impossible to develop, as the Tenth Amendment gives power over both public safety — which means policing and corrections — and health policy — such as reproductive rights — to the states.

In the absence of a single sensible, overarching practice, the best way to predict how a correctional facility will react to a pregnant inmate is to ask the incarcerated woman what she wants. Prison administrators will then oppose her choice — no matter what it is.
Decisions made for inmates reveal the truth about anti-choice laws outside of prisons and jails; they’ve never been shields wielded with protective intent, but swords used to separate women from their freedom.

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 the facility. She wrote a“Prison Diaries" column for The New Haven Independent and a blog that earned several professional awards. She recently won a reporting fellowship from the Education Writers of America. Her columns now appear regularly in The National Memo.

That Alabama Prison Jailbreak May Be A Story Of Rape, Not Escape

Each day, updates reveal even more about the 11 day jailbreak involving Lauderdale County, Alabama Assistant Director of Corrections Vicky White and her incarcerated lover, Casey White. But today, after a short chase in Evansville, Indiana on May 9, Casey White is back in custody and Vicky White is deceased, the victim of a self-inflicted gunshot wound to the head.

This saga isn’t an escape story. It’s a rape story. And it’s far from over.

Even if Casey White consented to sexual contact with Vicky White in the Lauderdale County, Alabama Detention Center, those dalliances are statutory sexual assault under the Prison Rape Elimination Act or PREA, a federal law enacted in 2003 to impose zero tolerance policies in correctional settings when it came to sexual violence.

While no one has publicly detailed the physical connection between the two while Casey was incarcerated at the jail, the sheriff’s office knows that Vicky White perused sex toys and purchased lingerie at Sugar and Spice Adult Novelties in Florence, Alabama before driving her ward out of custody -- and that Casey White referred to her as his wife when they were caught by federal marshals. Even without a formal wedding ceremony, it’s not unreasonable to assume that the two partook in the activities of a common law marriage.

If Vicky and Casey’s only sexual connection happened on the road to Evansville, it’s still rape. Even escapees have Eighth Amendment rights, or at least so the Sixth Circuit Court of Appeals held more than 20 years ago. PREA is grounded in the Eighth Amendment’s protections against cruel and unusual punishment. In 1994, in the case of Farmer v. United States, the Supreme Court of the United States found that deliberate indifference to the risk of sexual violence posed to an inmate makes his confinement unconstitutional.

As long as Casey White enjoyed Eighth Amendment protections and Vicky White was employed by Lauderdale County — which she was until May 4, 2022 — intimate contact between them was a criminal act for her, but not for him. Of course, she had long since decided to leave her law-abiding life behind.

The Alabama courts have dissected the state’s escape statutes before. In 1984, the Alabama Court of Criminal Appeals held that the crime of escape from custody entailed a willful and deliberate choice to leave custody. How those statutes will intersect with PREA is the next inquiry since the federal law eradicated the legal concepts of consent and choice when it comes to romantic or sexual relationships between staff and inmates.

The statutory stripping of inmates of the capacity to consent to sexual activity entails a lack of capacity to agree to go along with whatever activities make that sex possible. If Casey White lacked the power to consent to sexual activity by virtue of being incarcerated, then he also lacked the power to refuse the orders that would place him in a position where Vicky White would have private access to him. That’s the law.

Experts think a PREA defense is possible. Anthony Gangi, former corrections officer/supervisor and author of Correctional Manipulation and host of the YouTube show “Tier Talk” doesn’t discount it: ... because of her position, he's not the one that violated policy. She did and technically would this even be considered escape because he didn't break through any walls? He didn't, you know, climb any fences, you know, he was literally driven out by a staff member.”

The attorney who represented White on the charges for which he’s currently sentenced, Limestone County, Alabama lawyer Dale Bryant, says he doesn’t think his client’s posture in the April 29 video of his exit from the jail suggests he was a willing participant.
The planning of this escape was far too thorough and too far-thinking, and that is not Casey's MO," Bryant told Alabama Live.

Carol Moore, White’s mother, says he couldn’t have pulled this off. “I know that Casey wasn’t the mastermind of anything. She was the brains — we know that for sure,” Moore told the Daily Mail newspaper.

Even the head sheriff in the office that applied for the arrest warrant charging White with escape in the first degree said: “Casey White didn’t escape from the facility; he was basically just let out."

It’s not clear whether Casey has a new attorney yet or not. An email request for an interview to the attorney who represents White in the capital murder case, Jamy Poss, went unanswered.

Whomever White’s attorney may be, he or she will need to dispatch this escape charge quickly. The Alabama Court of Criminal Appeals has held, repeatedly, that escape from custody implies a consciousness of guilt of unresolved charges. Casey White stands accused of capital murder; his life depends on this argument.

Such a defense will require not just more investigation but also closer scrutiny of what we already know Vicky White did. She broke more than just the rule on having two staff members accompany Casey White outside of the jail.

She reportedly asked another staff member to prepare Casey for transport but it’s not clear whether this included the strip search or not; an inqurity sent to the Lauderdale County Detention Center’s public information officer to ascertain this fact remains unanswered. PREA prohibits cross-gender viewing, disallowing female guards from seeing naked male inmates.

Yet Lauderdale County Detention Center transportation policy — updated in 2021 to handle the risk posed by detainees like Casey White — requires that the transporting officer search the people they take out of the jail. If a guard can’t search an inmate, then they can’t or at least shouldn’t be transporting them.

There’s a reason for this, according to Gangi. “When you're handing over an inmate, you're responsible for an inmate, so you're responsible for the strip when you take the inmate. And then usually when you drop off the inmate, the receiving agency or the receiving individual, that responsibility will be dropped. But if I'm picking up the inmate, he's my inmate, I got to do the strip before I put him in my vehicle because it's my responsibility. I can't trust someone else's words. And [Vicky White] would not be in a position to [search Casey White]. That would be a PREA violation."

Vicky may have refused to search Casey to dodge that particular PREA violation, but she erred in not bringing along with them the deputy who actually watched Casey White bend, squat, and cough.

Inevitably, this investigation will pose questions to Casey White about whether he said or did something to his captor, complained to anyone, that Vicky White was doing things to him against his will, including taking him out of the jail where he was ordered to live.
But those questions misunderstand the power imbalance that required a law like PREA in the first place. He was the inmate and she the guard. He had no authority and questioning hers puts him in further jeopardy. Any inmate who’s been subject to an illegal order knows that bind; there’s nothing he could have done, really, without risking more harm.

That still leaves much of the general public wondering which direction this White-on-White crime goes. As a corrections insider, Gangi thinks Casey manipulated Vicky. Judging by comments on news reports, people aren’t united on who’s zooming who down in Lauderdale County. Some think it was Casey but others draw hard lines around Vicky’s authority as a guard, citing her power -- the same power that caused Congress to outlaw the type of relationship that motivated this entire mess.

It’s hard to swallow but the PREA predators are often women; in certain studies, they’re the majority of the perps. Twelve years ago, 62 percent of the claims of sexual abuse by staff were levied against female guards.

The crime that needs the most attention in the case of Alabama v. Casey Cole White is Vicky White’s. If she committed rape, then he didn’t really escape.

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 Mothers And Families, We Must Expand Clemency Now

Phyllis Powell of Ocala, Florida is looking for work. She cleans houses and has been for 54 years despite severe scoliosis. But she needs to take on more now, at age 74, because she can’t pay her bills anymore. She spends at least $450 a month supporting her son, Steven, who’s incarcerated at Okeechobee Correctional Institution. That $450 covers the cost of commissary and his phone calls to her.

Powell predicts that when her son comes home, he’ll be making $80,000 to $90,000 per year because he’s so industrious. “First thing I’m going to do is get you out of that trailer,” Steven tells his mother.

He might not be able to come home in time to help her. He has three more years to serve on two convictions: fleeing a law enforcement officer and driving without a license.

It could be less, though. He’s fighting to reduce his sentence because, in 2019, the Florida legislature made driving without a license a misdemeanor with a maximum sentence of one year of incarceration. The problem is that lawmakers didn’t make it retroactive. Steven Powell’s five year sentence for that crime stands only because of bad timing.

Powell’s hope — she admits it’s unlikely — is that Florida Gov. Ron DeSantis will commute the rest of Steven’s sentence. On May 1, she tweeted: “I guess none of my fellow peeps would have any special access to Governor DeSantis of Florida to help him get clemency.” No one did.

A 2018 Florida ballot measure colloquially called “Amendment 4” and the restoration of voting rights for people with criminal records has dominated talk of clemency process in the Sunshine State. The continued attention on Amendment 4 and its aftermath overshadows the reality that DeSantis is so stingy with clemency that his practices have become cruel.

Last year the Florida governor denied the clemency petition of a man sentenced to 60 years in prison for a non-violent drug crime, even though the district attorneys who prosecuted him and the Board recommended his release. He denied voting rights activist and architect of Amendment 4 Desmond Meade a pardon, something Meade needs for admission to the Florida bar. Meade is a MacArthur “Genius” Fellowship recipient and was named one of Time magazine’s "100 Most Influential People" in 2019.

Even if Gov. DeSantis were magnanimous, Powell’s hardship has no place in clemency considerations. An inmate’s family hardship never does.

Deprivation doesn’t qualify a prisoner for clemency. Some states are explicit about this. In its rules on executive clemency the State of New Mexico defines personal hardship for inmates as being terminally ill or being so ill that the prison medical system can’t care for the patient any longer. Nevada says hardship doesn’t count as an extraordinary circumstance. Interestingly, hardship isn’t only a valid consideration in seeking immigration waivers or pardons, it’s an essential part of the pitch, which seems unusual for a system that’s considered by many to be far less understanding than its criminal counterpart.

The reason why family hardship doesn’t qualify for dispensation is that it’s basically ubiquitous. Hardship abounds, according to the most recent analysis of incarceration’s financial impact on families. Nearly two thirds of families with an incarcerated member are unable to meet their family’s basic needs. The cost of incarceration caused about half, 49 percent, struggle to afford food, and 48 percent had trouble paying for housing. The high cost of phone calls led more than one in three families into debt to pay for phone calls and visits alone.

There’s one public instance when hardship factored into a clemency decision — and the response to it says so much about how little the plight of families plays into decisions on who gets forbearance on their punishment and who doesn’t.

One of President Clinton’s 177 pardons and commutations went to an attorney named Harvey Weinig who had been sentenced for helping the Cali drug cartel launder money received special mention. The New York Times reported that Weinig’s application painted a picture of his two sons “suffering grievously.” Clinton’s Chief of Staff John D. Podesta said the humanitarian aspects of Weinig’s application appealed to the president’s advisors.

When Clinton's clemency list came under scrutiny by congressional investigators as well as a federal grand jury in 2001 – investigations that culminated in no charges — the halving of Weinig’s sentence received special mention.

According to the report written for the Republican-majority House of Representatives “Justice Undone: Clemency Decisions in the Clinton White House,” Weinig’s arguments “relating to family hardship, simply fail to distinguish Weinig from other convicted felons.” It wasn’t that Weinig’s family wasn’t suffering; it was that they were suffering like everyone else that made his commutation so problematic.

Granting more pardons and clemency more often could restore people to their families to provide financial support. At the end of April, called Second Chance Month by presidential proclamation since 2017, President Biden commuted the sentences of 75 federal prisoners. It seemed like a start; seventy-five recipients in one load looks like a huge effort but most of them were already under home confinement, released under the CARES Act.

Biden’s parsimonious pardons and clemency isn’t unusual. The Prison Policy Initiative released a report the day after Biden’s clemency spree revealing that states tend to underuse their executive privilege to grant clemency. The study tracked clemency in eight northeastern states and found that those eight granted only 210 commutations between 2005 through mid-2021. Rhode Island’s executive capacity for mercy is as diminutive as the state itself; the Ocean State’s governor granted only one commutation or pardon since 1950, and it was posthumous, for an inmate put to death in 1845.

The Prison Policy Initiative’s report also noted that many applicants in the eight states under review don’t even know the status of their bids for early release. That checks out beyond the borders of the study: Powell doesn’t know what’s happening with her son’s petition, filed a while back when he had exhausted all of his appeals.
The most disturbing revelation from the report is that clemency seems an afterthought. Certain states don’t even track the number of clemency applications filed.

That’s likely because the focus of this executive fiat power is too narrow; it excludes people outside correctional facilities. Incarceration impacts families in devastating ways and yet their plight is inappropriate for clemency consideration.

The point that it’s not the government depriving families of consortium or financial input, it’s the loved one who broke the law doesn’t work here. Family members are constituents as well and if clemency can improve their lives materially, their concerns and conditions should matter in these government proceedings, as disorganized and opaque as they are.

Requiring a 74 year old mother to get another job shouldn’t be the way government executive leaders demonstrate grace.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How False Evidence Metastasized In Lucio Death Penalty Case

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

Like cancer, false evidence mutates and then replicates in a criminal case’s DNA. Its damage doesn’t restrict itself to the time the proof appears; it metastasizes throughout appellate review and beyond.

Mentions of death row inmate Melissa Lucio’s alleged disciplinary record appear in the opinion from the Texas Court of Criminal Appeals in her case. Not only do they not know that the whole “ disciplinary record” for Lucio was a scam, courtwatchers and other interested parties who read these opinions remain unaware that the judge, Cameron County District Court Judge Arturo Nelson, ordered almost all of this exhibit excluded. It deserved no mention at all.

That’s not the only irregularity that traveled from one site to another. The testimony of expert witness A.P. Merillat that male guards raping female detainees was common in the Texas Department of Criminal Justice — an allusion to Lucio’s potential for future childbearing and therefore future alleged child abuse — promised that Lucio herself would be the victim of a violent crime and not one of the honorable appellate jurists noticed or cared. Judges just accepted this fantasy uncritically and transplanted it back into their own written decision. These sordid and spurious claims about Lucio underpin nothing in the appellate opinion; they’re just nasty grafts to the story of someone who’s fighting for her life.

That’s why Congress and the legislatures in the 27 states that have death penalty statutes — not all of them are currently availing them of these laws — need to develop rules of evidence that are specific to capital cases. Without that guidance, penalty phases become evidentiary free-for-alls.

It’s easy to see how an evidentiary melee can happen since proof that would normally be inadmissible in one case becomes admissible in capital cases. The Federal Death Penalty Act of 1994 permits any evidence as long as “its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.” How state courts interpret that federal statute is essentially up to them; they can adhere to the normal rules of evidence or allow the judge to say which evidence is in and which is out. It’s easier to get evidence into the record in a capital case than other types of litigation.

And it shouldn’t be that way because both prosecutors and decent defense attorneys throw any facts, documents, pictures in front of jurors to persuade them. There’s actually a reason for this, thoughtfully developed by courts over the years; more evidence, rather than less, should generate more reliable sentences. The more information the jury has, the more likely it is to return an individualized and just result.

But that works only in theory. The idea that more evidence improves reliability of death sentences “is simply not true” according to Sharon Turlington, a public defender in Missouri who’s represented capital defendants since 1997.

It doesn’t make sense that cases with the highest stakes rely on the most error-prone evidence, but jail or prison disciplinary history is common documentation of dangerousness in death penalty trials, so common that a small canon of case law has developed, establishing rules like discipline records can be indicative of character or prosecutors can present misconduct reports under the business records exception to the hearsay rule on evidence if the particular guards who punished an inmate aren’t available to testify.

Rules aside, the practice of handling penalty phase evidence is nothing short of wild. In James Whipple’s capital trial, prosecutors introduced a drawing of a bottle by another inmate with a label reading “If you want to be a woman killer, drink some cold filtered Whipple and get yourself fried!" (pp.51-52 on the side) The Supreme Court of South Carolina affirmed his death sentence, saying the drawing of the bottle was acceptable evidence of Whipple’s character.

At the opposite extreme, a Florida man received a gift from The Florida Supreme Court when it reversed his death sentence even though a witness testified that the defendant told him he would kill two eyewitnesses if ever let out of prison, a plan that framers of the dangerousness requirement must have envisioned.

In 2014, a law review article in the Cardozo Law Review by a law professor and a federal judge proposed a set of rules of evidence specifically designed for the penalty phases of capital cases, in order to make clear what should and shouldn’t be admissible against a defendant facing execution.

To draft these rules, David McCord, Professor of Law at Drake University Law School and the Honorable Mark W. Bennett, a U.S. District Court Judge for the Northern District of Iowa, researched cases in the sixteen most prominent death penalty jurisdictions — fifteen states and the federal government; they accounted for 89 percent of death sentences since the Supreme Court decision, Furman v. Georgia.

The Court invalidated the death penalty in 1972 when it vacated William Henry Furman’s capital sentence, saying it offended “evolving standards of decency” and therefore violated the Eighth Amendment prohibition of cruel and usual punishment. Immediately, 630 death sentences morphed into non-lethal life sentences. The Court took it back in 1976 and held that, under certain circumstances, the death penalty is legal.

McCord and Bennett’s proposed rules recognize how paramount proof is for jurors who decide punishment. And they’re not unreasonable; only one proposed rule inverts a regular rule of evidence. Another requires juries to consider the impact of execution on the defendant’s family and friends, which had been disallowed in certain states. The proposed rules are designed to cull the prejudicial proof and usher in the facts that might help someone who could die by lethal injection, firing squad or electric chair.

To be clear, even if enacted, these proposed rules of evidence wouldn’t have governed any of the proof or testimony that convicted Lucio; they’re only for the punishment phase. One of them probably would have kept prison crime expert A.P. Merillat off the stand so that false story of Lucio’s future pregnancy wouldn’t have woven itself into the transcripts for future reproduction. Another rule might have caused more examination of the deceptive disciplinary record before it was surreptitiously snuck into the trial record. Just the presence of penalty-specific evidence code says that more isn’t better for evidence to put to death; better is better in those instances.
Enacting new rules for evidence is a legislative function and Texas lawmakers have demonstrated a keen interest in the proof used in death penalty cases. In November 2019, 26 of them wrote a letter to Gov. Greg Abbott and the Texas Board of Pardons and Paroles asking to pause execution to examine the evidence in the case of Rodney Reed. Reed got that stay and, on the same day Lucio’s stay entered the record, the Supreme Court of the United States granted certiorari to Reed’s petition to have DNA testing performed on his belt to prove his innocence. In another instance of nutty evidentiary reasoning, lower courts had blocked the forensic examination because they said time had run out to request the test.

Then the Texas House of Representatives Criminal Justice Reform Committee held a hearing on April 12 to explore evidence’s role in Melissa Lucio’s situation. Texas legislators know this process is diseased and they have the power to at least control it, if not cure it outright, by devising new versions of laws about what evidence can take a life and what can’t. And that’s what they need to do.

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.

Prosecutor Robbed Lucio Of The Most Compelling Evidence To Defend Her Life

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

I didn’t know she was 13, but I did it,” Ronald Skipper testified in his own defense with candor.

The State of South Carolina was trying Skipper for the rape and murder of Maryanne Wray, a 23 year old woman he had been seen kissing before she turned up dead underneath an abandonded beach house in Garden City, South Carolina.

Skipper took the stand during the penalty phase to provide evidence that he lived an unproblematic life in correctional custody and could be trusted to serve a life sentence without posing a danger to anyone. South Carolina 15th Circuit Solicitor Jim Dunn had asked him about a prior crime, a 1978 conviction for raping a 13 year old girl. It was one of Skipper’s three prior convictions for sexual crimes.

To offset the prior bad acts and to bolster Skipper’s testimony, his attorney, Richard Dusenbery, wanted to elicit testimony from two jail guards and a regular visitor to show the absence of problematic behavior while in prison and therefore, the appropriateness of a life sentence. Citing the reason that such evidence was irrelevant, the court disallowed these witnesses. On June 28, 1983, a jury sentenced Skipper to death in approximately 90 minutes.

In oral argument before the country’s highest court, Skipper’s appellate counsel, David I. Bruck, warned that, without the ability to demonstrate good conduct as evidence of both character and likelihood to behave:

the jury will answer the question in an artificially created blackout of information, as happened in this case, where the most reliable evidence of what was likely to happen if we spared this man’s life, the testimony of his jailers, the people that had had him and could see him day to day and could form a judgment of how he would likely do…

The Supreme Court of the United States saved Skipper’s life by relying on recently developed precedent to hold that preventing testimony about Skipper’s good conduct in jail violated his Eighth and 14th amendment rights to be free from cruel and unusual punishment and to due process, respectively.

The Court vacated Skipper’s death sentence and quoted Supreme Court precedent, insisting in the opinion of Skipper v. South Carolina: "'the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.'" Defense attorneys can use pretty much anything that can sway a jury not to condemn a defendant. Skipper’s alive today in Perry Correctional Institution in Pelzer, South Carolina, because the Supreme Court recognized that; the state was free to pursue the death penalty again but didn’t.

The decision upholding Skipper’s constitutional rights was the first time a court recognized that the behavior after a crime was potentially mitigating evidence.

In extreme pathos, the inequities and outrages in Lucio’s situation compound themselves: a corrupt prosecutor motivated to compensate for letting a man convicted of murder to slip away, abysmal — even nonexistent — legal representation; courts that wouldn’t order a transcript of her alleged confession to be entered into the record to show that she denied abusing her daughter over 100 times to police; abuse priming her throughout her life to make her amenable to coercion; poverty so severe that she had to move 26 times between 1994 and 2007 because she couldn’t pay her utilities; a deceased child, Mariah, who died accidentally but whose passing landed her mother in jail, awaiting state-sanctioned murder.

But there’s an even deeper sadness in denying Melissa Lucio the opportunity to present evidence of her conduct in jail. Not only did false notions about her conduct appear before the jury but so did the same “blackout of information” experienced by Skipper’s jury. No one knew that Lucio managed herself quite well with guards who can be capricious and cruel and fellow inmates who can get out of control.

The absence of a disciplinary record was one of the few positives Lucio could have presented to the jury because trauma and poverty consumed so many opportunities for her. Although she had a steady job as a janitor when she was arrested, she had no significant work history to speak of. She had completed only the 11th grade. Much of the evidence that weighed in her favor proved that others had abandoned, beaten, and manipulated her. That she walked the line in jail was to her credit.

Then-Cameron County District Attorney Armando Villalobos prevented her from illuminating that success. There’s a reason why a spotless discipline record appears in defense of people facing capital punishment: It’s not easily achieved, especially for female detainees who are taken to task two to three times more frequently than their male counterparts.

To be clear, it’s not only Villalobos’ fault that the jury worked with a completely false depiction of Lucio’s character. Lucio’s defense attorneys never examined her record either to see if such an argument was viable.

The larger question here is whether the pretrial disciplinary records of defendants are valuable evidence at all. The outcomes of these disciplinary systems are so specious that they hardly support any sentence, much less one of eternal slumber.

And, as Justice Lewis F. Powell, Jr. noted in a concurrence in the decision to reverse Skipper’s death sentence, capital defendants may behave themselves to generate some record of compliance, only to offend later. To wit, Skipper’s public record shows a number of rule violations since 2010. He unsuccessfully sued the South Carolina Department of Corrections for violating his due process rights when the department disciplined him for possession of marijuana.

Exploring the reasons why a person disobeys rules or laws is often necessary, but why someone behaves well doesn’t really deserve inquiry. It demonstrates a capacity to abide and that’s basically what prosecutors argue is absent in defendants they want to sentence to death. If lawbreaking is to be rebuked, then law abiding merits equal and opposite respect — especially if it can keep someone alive.

I can’t and I won’t impute Ronald Skipper’s propensity to break rules to Melissa Lucio. Her role in the history of violence in her life was victim, not perpetrator. Skipper may deny raping and killing Maryanne Wray, but no one doubts Wray’s assault or murder and his three prior sex crime convictions are not in dispute. For Lucio, the event she’s scheduled to die for wasn’t even a crime, according to many experts.

It’s not just that the Cameron County, Texas district attorneys cheated to make Lucio look bad to seduce jurors into sentencing her to death. They robbed her of a chance to make the case for her own decency, to demonstrate that what she actually did could be righteous, to say “I did it” without shame and perhaps with a hint of accomplishment.

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 will now appear regularly in The National Memo.

Why The Legal Strategy To Save Melissa Lucio Is Flawed

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

The criminal legal system values finality over accuracy. It’s better to be done than definite.

That’s why re-litigating the same issues doesn’t work - if it’s even allowed. Post-conviction review generally happens through either what’s called a direct appeal — where a reviewing court examines only the record and the evidence at trial and determines whether reversible error occurred — or a legal application called a petition for a writ of habeas corpus — where another reviewing court can consider evidence outside the record: expert or supplemental testimony. Other differences between appeals and habeas corpus actions separate them, but laws and rules govern both types of review to assure that issues terminate in a final decision and don’t get opened again.

Finality’s prominence in American jurisprudence is bad news for people who lose in court, but it’s also necessary so that litigation finishes eventually. That a case ends in ways we don’t like is, unfortunately, insufficient justification to keep it going. This juridical truth disappoints lawyers and supporters of those inmates on Texas’s death row because they know what the case’s terminus often looks like: a coffin picked up by the family or interred at Byrd Cemetery in Huntsville, Texas.

Very little is definite about the case against Melissa Lucio except that her execution is less than a week away. Even with the death chamber so close, Lucio’s lawyers — a team of attorneys from Cornell Law School, the Texas Federal Defenders Office, and the Innocence Project — selectively decide what to present to save her life. Other arguments that can save Lucio’s life aren’t as final as the ones these attorneys have presented — and they’re a lot more promising. But they’re still in the ether and haven’t made their way to paper and a clerk’s stamp for reasons no one can discern.

Namely, no specific claims of prosecutorial misconduct have appeared yet. In fact, the entire record of this case is devoid of any mention of the phrase.

Lucio’s original habeas corpus petition, one that addressed certain issues of ineffective assistance of counsel, doesn't deal with the district attorney’s behavior because earlier attorneys didn’t catch former Cameron County District Attorney Armando Villalobos’ misconduct. That in itself may constitute ineffective assistance of counsel, but it also provides reasonable explanation as to why they didn’t include it in the petition.

Attorneys who filed the most recent petitions — Amended Petition for Clemency on April 12 and a new, successive petition for a writ of habeas corpus on April 15 — know about the misconduct and they didn’t use the phrase “prosecutorial misconduct” either.

It’s not that they didn’t address the fact that prosecutors withheld exculpatory information and introduced false evidence; they did, but they buried those claims under their tautological pitch that Lucio’s case would have been different if it hadn’t been the same.

There’s time and potential for one court to react and spring Lucio from the execution chamber. Texas Code of Criminal Procedure Article 43.141 allows a trial court to withdraw or modify a death warrant if “a subsequent or untimely application for a writ of habeas corpus filed under Article 11.071” requires additional proceedings. The petition filed on April 15, 2022 satisfies this rule, but in it, attorneys seem intent on developing a narrative of juror regret, that jurors might not have voted to convict or condemn Lucio under certain circumstances.

That may be true for every trial; it’s certainly not unique to Lucio’s case. But more importantly, that’s actually not a legal basis for reopening a case.

There’s a reason for that, too, as Shannon Edmonds, staff attorney at the Texas District and County Attorneys Association said during an April 12, 2022 hearing on the Lucio case before the Criminal Justice Reform Committee of the Texas House of Representatives: “...if the legislature made [jurors changing their minds] a legal basis for creating a new way to to encourage more litigation, you unfortunately, are creating an open season on every juror who is sat on a death penalty case because the defense who zealously represents their clients will be duty bound to try to find whatever you set the threshold at three jurors five jurors to hound those jurors in an effort to try to clear that threshold and get their client another bite at the apple.”

It’s an end-run around the finality that this system prizes so much.

The argument about prosecutorial misconduct is much less a dodge. It’s never been raised, much less litigated, and its effects on jurors probably don’t matter for the purpose of staying this execution. Bennett L. Gershman, professor of law at the Elisabeth Haub School of Law at Pace University and one of the nation’s leading experts on prosecutorial misconduct said: This young woman is about to be killed… You're talking about the sense of justice and mercy and so on. I can't see this execution going forward under these circumstances because there is a serious question of this prosecutor tricking the jury into voting to sentence her to death and that is a serious issue here, regardless of what you would like to say or not say.

“If the prosecutor presented to the jury false evidence that would aggravate the defendant's potential for being executed, which this clearly did,” Gershman continued. “I don't think the court is going to count whether the jurors were in fact prejudiced or not.”

It appears that attorneys are banking more on discretionary relief — sparing Lucio’s life because of her innocence and background of trauma and gender-based violence — from Texas’ Board of Pardons and Paroles than on court intervention. It’s a bad call. In the gamble on Lucio’s life, it’s like staking another bet when the line has already closed, rather than opening a new round.

Making a more explicit case of prosecutorial misconduct enhances the case for mercy. Texas Gov. Abbott was a trial judge, a supreme court judge and attorney general of the state before Texans elected him governor in 2014. His record of deciding legal claims is stronger than his sense of sympathy or empathy for defendants who aren’t employed in law enforcement. His recent grants of clemency are small in number and usually go to people convicted of minor crimes. He and his Board of Pardons and Paroles have denied George Floyd a posthumous pardon — on procedural grounds. They like it when technicalities prevent hard decisions.

Swelling Abbott’s heart to make room for a woman whom courts have decided — however erroneously — is guilty of capital murder is a lot harder to do than explaining what’s very clear in the record: The prosecutor in the case against Lucio cheated.

Concentrating on getting what is essentially discretionary relief on things that have already been decided and considered final is too risky when so many other meritorious positions — including many forms of prosecutorial misconduct — exist. Positions like that aren’t definite to but they’re also not done.

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 will now appear regularly in The National Memo.

Why Melissa Lucio's Jury Believed Lethal Lies That Sent Her To Death Row

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

It’s impossible that the twelve jurors who decided death row inmate Melissa Lucio’s guilt and punishment weren’t affected by the prosecutor’s evidentiary sleight of hand: knowingly admitting a false disciplinary record for Lucio into the trial record.

Attorneys for Lucio have interviewed former jurors and report that none of them mentioned the discipline record as influencing their decision. Then again, no one asked them, either.

But the jurors might not prove the most reliable sources on what guided their votes. For one, those days of deliberation hang more than thirteen years behind the frenzy to save Lucio’s life; it’s hard to remember. Secondly, the jury charge — the court’s instructions to jurors on how they should arrive at a decision — directed them to settle the issue of whether there is “a probability that Lucio would commit criminal acts of violence in the future.” Unanimously, the twelve of them voted that there was a probability — but they’re taking that back now.

Juror Johnny Galvan, Jr., opined in the Houston Chronicle on April 3 that he wouldn’t have convicted and sentenced Lucio to death. He made a similar statement at a hearing before the Texas legislature on April 12, 2022 when he said other jurors pressured him into the vote.

Identifiable jurors refused to reply to interview requests, except for one juror, Erminio Cruz, who answered my text with “don’t bother me.” Cruz’s post-trial declaration, dated March 5, 2022, includes statements like “I still agree with my decision to give death (sic) because we had enough evidence”, “Nothing the defense presented could have made me not give the death penalty”, “I don’t remember most of what we discussed” and “I think everytime someone is found guilty of murder they should be hung.

The statements seem contradictory. But the addendum to Cruz’s declaration might be the most trustworthy. It states. “I remember someone saying during deliberation on penalty that if we didn’t decide now we’d be there all day.” Neither justice nor retribution motivated the jurors on July 10, 2008; it was convenience. Theirs, not Lucio’s.

Even if asked how Lucio’s jail file affected their decision making that day, juror input on the effect of the illegal jail file wouldn’t help much, although the record indicates that they held these pernicious papers in their hands.

Questioning Lucio’s jurors to review their decision is a waste of time, according to Robert Swafford, JD, founder and owner of the Austin, Texas-based Strike for Cause Jury Consultants. The human ego works hard to justify previously made decisions. “If they were to say… ‘Oh if I had known this, I would have made a different decision’ that would mean that they've done something bad. It would affect their idea of themselves as a human being.”

Capital punishment experts as well as jury experts agree that the file probably filtered into juror consciences. Robert P. Johnson, Professor of Justice, Law and Society at American University and author of Condemned to Die: Life Under Sentence of Death and Death Work: A Study of the Modern Execution Process and expert witness in capital cases [disclosure: Johnson is the editor at Bleakhouse Publishing which published my book of poetry] said of including the disciplinary file: “It would likely have an impact.” [Disclosure: Johnson is the editor at Bleakhouse Publishing, which published my book of poetry.]

Brian Bornstein, professor in the School of Social and Behavioral Sciences at Arizona State University, hasn’t worked on the Lucio case. But he wrote in an email that, assuming that the records were introduced as alleged proof of dangerousness: “it seems quite likely that it would influence jurors’ decisions to sentence her to death, as dangerousness is a key factor in sentencing, especially under Texas’ capital sentencing guidelines.”

Bornstein’s research on juror decision making bears mention here. Lucio’s guilty verdict — rendered just two days before the death sentence and one day before the unexpected witness, Cameron County Jail Disciplinary Officer Carloz Borrego appeared with the file — provided the lens on what punishment she received.

“[J]urors tend to seek out and remember information that is consistent with their verdict preference and scrutinize and reject information that is inconsistent with that preference” Bornstein wrote in a 2011 article in a journal called Current Directions in Psychological Science. By the time they bickered over punishment, these jurors no longer had a predilection for guilt; they had perfected it just days earlier.

Even if the jurors would have landed the same way today as they did on the day of Lucio’s condemnation, that doesn’t mean that the judgment shouldn’t be cracked open like a hollow Easter egg.

The legal aphorism that one can’t “unring a bell” first appeared in American jurisprudence in a 1912 case in the Oregon Supreme Court, where the victim of an alleged arson testified about the defendant’s motive; namely, he was retaliating against the victim for reporting him for “tail-cutting” — slicing the tail off a cow. Without evidence of this specialized butchery, that testimony prejudiced the defendant with the jurors. “It is not an easy task to unring a bell, nor to remove from the mind an impression once firmly imprinted there,” the judges agreed.

The unrung bell appeared again in a case before the Fifth Circuit Court of Appeals, the federal circuit that includes Texas, in 1962. “It is better to follow the rules than to try to undo what has been done. Otherwise stated, one "cannot unring a bell"; "after the thrust of the saber it is difficult to say forget the wound"; and finally, "if you throw a skunk into the jury box, you can't instruct the jury not to smell it."

Lawyers and judges talk about unringing bells to emphasize that if the prejudicial effect of a piece of evidence outweighs its probative value, the evidence should be excluded or any result drawn from it should be reversed. It’s fancy language but it’s not clear it would even apply in Lucio’s case. Lucio’s file was false. It had zero probative value. It was all prejudice.

Reversing Lucio’s judgment of death should be easy for any court regardless of the jurors’ positions, even though, according to Texas case law, it can consider a defense attorney’s failure to object to inadmissible evidence like this perfidious file as a valid trial strategy. That’s an outrage in itself.

But neither of Lucio’s lawyers ever justified it that way. They didn’t have to. Up until now, no one ever realized the file that undoubtedly colored jurors’ perceptions was a lethal falsehood.

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

The Contrived Disciplinary Records That Sent Melissa Lucio To Death Row

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How The State Of Texas Fabricated Disciplinary Charges To Execute Lucio

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How The Prison Discipline System Takes Lives

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Transgender Prison Inmates Face Troubling Issues Of Sexuality And Danger

The issue of where corrections officials will house transgender women isn’t going to go away soon. The March 16 temporary reauthorization of the Violence Against Women Act mentioned where transgender inmates should live. Sen. Tom Cotton (R-AR) introduced a bill to house inmates based on their genitals alone. There’s a bill on Washington Gov. Jay Inslee’s desk to prevent the press from accessing transgender inmates’ files.

So far, analysis of polices placing transgender women in women’s prisons has focused on safety. The Women’s Liberation Front (WoLF) filed suit to challenge California’s SB 132, a law that allows any male prisoner to identify as transgender and get moved to a women’s facility, vowing to fight for incarcerated women “until their safety and dignity are restored.”

Under the heading “Reaffirming the need for the elimination of violence against women,” Article 8 of the Women's Declaration International’s (formerly the Women’s Human Rights Campaign) Declaration on Women’s Sex-Based Rights wants transgender women out of women’s spaces because “single-sex services and physical spaces …provide them with safety, privacy, and dignity.” The message is clear: when trans women are around, there’s no safety.

Casting the conversations around housing transgender inmates in terms of safety is a mistake. It’s better to analyze these policies’ effects on rehabilitation which, after all, is supposed to be the mission of corrections.

Saying transgender women pose a safety threat when housed with other women was a bad move because it implies that transgender people are inherently dangerous when they’re not. And that unfair characterization of transgender women has more far-reaching effects. In essence, it has shut down and sidestepped substantive discussions of these policies lest participants get labeled transphobic.

I disagree that it’s transphobic to analyze whether these policies benefit inmates. The addition of transgender women to traditionally female facilities might not culminate in rape. Instead, the result might be recidivism and we need to decide if we can accept that effect.

People in prison develop relationships that can be sexual, romantic, business-related, or friendly. It’s impossible to cram thousands of people into one small space and prohibit connections between them. Not all of these relationships are illicit or illegal.

But many are. Sex will be had and whether it’s consensual or not depends on the unique circumstances of each situation and the laws in the state. While sexual contact between a prisoner and a staff member is always non-consenual under the Prison Rape Elimination Act, some states criminalize sexual contact between inmates. California criminalizes only sodomy between inmates. That’s an important distinction because much of the safety rhetoric surrounding the housing of transgender inmates depends on sexual activity between inmates being statutory sexual assault. It’s possible for two inmates in California to have sex with each other without committing rape.

And that’s the problem that, so far, remains unspoken: consensual sex in prisons is just as much of a problem as sexual violence. Consensual sex is still against the rules in all 50 states and subjects people to discipline. I’m highly critical of prison disciplinary systems, especially the enforcement of rules, but this one I support and my position has nothing to do with gender or sexuality. Rather, it has everything to do with my desire to see these women succeed.

Introducing a new population of prisoners, women who have male genitalia, adds a new — and quite frankly, for some, exciting — dimension to a prison subculture. Undoubtedly some women will seek sexual connection with an inmate with male genitalia; the California Department of Corrections and Rehabilitation bet on it when they started distributing condoms shortly after implementing a law that places transgender women in women’s prisons.

Women in prison who embrace that subculture are “less inclined to introspection and continue to involve themselves in relationships, drugs, and other distractions to divert their attention away from looking at their own behavior,” according to researchers who’ve examined relationships in prison.

If a person’s life has become so out of control that they’re incarcerated, then they need to focus all of their energy on taking that control back. Investing energy in romantic or sexual connections diverts attention away from that goal. This is standard advice for anyone in recovery from substance abuse. Even if a prisoner is innocent or her confinement owes itself to purely structural factors, that person still needs to learn how to navigate those unjust systems to protect herself. A ‘bae’ or a ‘boo’ makes those lessons much harder.

Inmates admit that these aren’t really prosocial connections. In a survey of women incarcerated at the federal prison in Alderson, West Virginia, the most reported motivation attributed to prison sexual/romantic relationships is that they’re economic in nature. It’s essentially prostitution where the currency is ramen soup.

Watching women throw away opportunities to see their children in the visiting room or even their chances at parole was a constant for me while I was incarcerated. They’d develop a discipline history for behaviors related to seeing their girlfriends, activities that had nothing to do with sex, like being out of place or carrying benign contraband, and lose visiting privileges and their chances to sit before parole boards.

The system views women who do this much like the quote from Benjamin Franklin that said “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety” — which, incidentally, doesn’t mean what most people assume it means. But the sentiment tracks to modern corrections; parole board members think that, if women are willing to endanger their liberty for fleeting romantic or sexual connections that may not be real, then they shouldn’t get either. Denied.

We have to grapple with whether effects on rehabilitation are acceptable byproducts of housing transgender prisoners by their gender identity. Incarcerated women should know better than to endanger reuniting with their families for a fling, but their decision-making skills can be suspect at times, hence their current predicament. I don’t think it’s fair to tempt them.

Of course, just because inmates are capable of consensual sex with each other doesn’t make sexual assault impossible. In Illinois, a cisgender female prisoner accused a transgender prisoner of sexual assault. The Department of Correction dismissed the complainant’s report, saying that the sexual contact was consensual; she’s now suing the state for being disbelieved. It bears noting that, in this situation, in a time when believing women has become paramount, authorities believed the woman with the penis.

But transgender inmates face sexual violence and harassment at rates 10 times higher than cisgender inmates when prisons house them according to their natal genitalia. Not only is it unconstitutional to confine people and not protect them from sexual harm but it’s also morally untenable to know that people face a risk of that type of violence and not stop it.

We may be forced to accept that transgender inmates’ rights to security will cost other inmates their liberty, long-term, because of compromised opportunities for rehabilitation. The question becomes more about why as a country we rely on a system that won’t protect both liberty and security, and less about where we should house transgender inmates.

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 Women's Liberation Put Thousands Of Female Defendants Behind Bars

It may be coincidence that Hulu series The Dropout — the biopic about Elizabeth Holmes, former Silicon Valley phenom and founder of the fraudulent failed startup Theranos that promised 200 tests for one drop of blood — airs during the dropping of the second shoe: the trial of Holmes’ former romantic partner and Theranos Chief Operating Officer Ramesh “Sunny” Balwani.

Or it may be strategy. During her own courtroom showdown, Holmes raised an affirmative defense, alleging that Balwani abused her and exerted coercive control over her, influencing her decisions. Through his attorneys Balwani denies this, but we’re about to hear his side of the story. Ultimately, the jury invested little belief in the Theranos founder’s excuse. They rendered a guilty verdict in January, convicting Holmes of four of the eleven criminal charges.

She is set to receive her sentence in September and no one knows if she’ll be spared or not. Regardless of the result, Holmes’ case — specifically her defense of coercion by abuse — highlights the tension between women’s power and their culpability.
Approximately ten percent of all incarcerated populations — 231,000 as of 2019, according to the Prison Policy Initiative — are women. Even at that small percentage, the growth in the number is startling; it’s increased 700 percent in 40 years. Around 50 years ago, almost 75 percent of county jails didn’t hold any women at all.

It shouldn’t be that surprising. Until about 1980, women were not held responsible for many crimes they committed. A common law doctrine called coverture decreed a woman wasn’t really a legal entity and, as such, couldn’t really break the law because crimes are committed by persons and women were essentially property.

Coverture wasn’t limited to criminal defense; it allowed marital rape, a husband to take whatever property his wife had, and included a presumption of marital coercion when a married woman was charged with a crime. That presumption part is important; it basically required prosecutors to prove that a woman wasn’t under her husband’s control, a nearly impossible task since marriage, under this doctrine, subjugated the woman as a matter of course.

In fact, women were so subordinate that a state statute in Arizona directed authorities to hold the husband responsible if he caused his wife to commit a crime. Coverture didn’t license women to do just anything. The doctrine wouldn’t let her get away with murder or treason.

Between 1927 and 1956, 18 states repealed the statutes that absolved women of criminal liability by marital coercion. By the 1970’s, the defense made its way out of penal codes entirely.

Ironically, women’s liberation from coverture ended up incarcerating them. Marital coercion’s collapse coincided with the commencement of growth in women’s prisons; numbers of incarcerated women started to rise alongside a burgeoning women’s rights movement as these laws fell away.

The marital coercion doctrine was designed to prevent situations where liability exceeded culpability, but that’s what has happened since the defense went away; the pendulum of women’s liability has swung from virtually no responsibility for criminal acts to an equally unreasonable extreme whereby they’re overly responsible, liable for their own choices as well as others’.

Right now, more than half of women in federal prisons are sentenced for drug-related crimes. While possession is a federal crime, a dime bag or even a suitcase full of heroin for personal use would likely be pursued by state authorities. Women doing federal time for drug-related charges are probably connected to large scale drug operations run by men which means they’re usually convicted of conspiracy, which attributes criminal liability for another person’s actions. It’s a long way from coverture, altogether too far.

The United States is trying to find the exact equilibrium between determining women’s responsibility and an understanding of trauma. Many female defendants were boxed in by abuse. According to the Vera Institute for Justice, 86 percent of incarcerated women experienced sexual abuse, 77 percent had an intimate partner who was violent towards them, and 60 percent have histories of being “abused by caregivers,” which is social worker-speak for child abuse.

Knowing this, Congress has stepped in and continues to weigh how to best help women accused of crimes. Movements are underway advocating to release abused women from custody; activists believe abuse is so pervasive that incarcerating women amounts to criminalizing survival.

But as judges and advocates feel around for the right balance, a defense based on abuse presents an inevitable tradeoff: It entails a loss of agency. No girlboss says “He made me do it”; that’s a claim reserved for a Girl Friday. It may be that the more we understand trauma’s influence on crime, the more we concede women’s powerlessness.

I don’t know if the concession helps us in the long run. We can’t complain that power is so often unaccompanied by accountability and then try to escape consequences once we gain authority. That’s the societal flaw women are trying to fix — and it isn’t fair.

And sometimes judges view this lack of agency negatively. I had a cellmate who was convicted of conspiracy to manufacture a bomb and to commit arson. She drove the car as her husband and another woman threw Molotov cocktails into a bar after hours, following a dispute with its owner. When her attorney tried to explain how a history of abuse in her childhood and coercion by her husband had basically stripped her of her ability to make decisions, the judge replied: “That’s why she’s dangerous.”

Aya Gruber, professor of law at the University of Colorado School of Law and author of The Feminist War on Crime: The Unexpected Role of Women's Liberation in Mass Incarceration, sees my former cellmate’s situation as an outlier. Gruber thinks that offering the specifics of how a female defendant withstood abuse can mitigate sentences and won’t backfire in the long run.

“I really think that it's more likely to produce lower sentences than higher sentences,” Gruber said, and she may be right. Courts may move toward a more nuanced understanding of women’s relationships that ends up empowering them — and releasing them from confinement. But if history is any lesson, we should understand that if patriarchy exculpates women, then smashing it like Holmes did might indict us.

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.

Was The Prosecution Of 'Tiger King' Tainted By Government Misconduct?

A new Tiger King show is out on Peacock, Joe vs. Carole. But the public should pay less attention to Joe vs. Carole and more to United States v. Maldonado-Passage (Joe Exotic’s legal name). While its fact pattern is highly unique, the case against Joe Exotic is predictable in that the court didn’t want to hear anything about misconduct by the United States Attorneys in Oklahoma.

On January 27, US District Court Judge Scott Palk refused to hear any evidence of government misconduct in reducing “Tiger King” Joseph Maldonado-Passage, AKA Joe Exotic’s 264 month sentence. After winning an appeal, developing cancer on top of pre-existing common variable immunodeficiency, Maldonado-Passage secured only a five percent reduction in his sentence; it went from 22 years to 21 years

The arguments before Judge Palk weren’t just that Maldonado-Passage prevailed on appeal. His attorneys said the original sentence violated federal law by enhancing the penalties twice for the same behavior. Maldonado-Passage’s attorneys offered another sentencing range: 121-151 months or around 10 to 13 years, but also that his sentence should be even shorter than that because United States Fish and Wildlife Service (USFWS) agents entrapped him, created a crime that wouldn’t have existed without their interference.

The Netflix series Tiger King was such a funnel cloud of severed limbs, political campaigns, cat prints, and Second Amendment abuses that it’s hard to keep straight exactly what the case against Joe Exotic alleges.

To recap: The jury convicted Maldonado-Passage of the two most serious crimes: separate attempts to hire someone to kill his nemesis, Carole Baskin. The first alleged attempt was the $3000 paid to Allan Glover, the hired hand who conducted his Netflix interview in a bathtub. Glover is the only witness to these alleged actions and he concedes that he never even approached Baskin. Glover’s also admitted to perjuring himself while describing his interactions with Maldonado-Passage.

The second alleged attempt happened after an undercover agent named “Mark” approached Maldonado-Passage and discussed a murder. No money, no weapons changed hands; United States Attorney for Amanda Green admitted as much in an interview for the Netflix series. To be guilty of the crime, someone has to take one of those “overt” actions. Simply ranting about killing someone doesn’t count. Yet that’s exactly what the majority of the case against Maldonado-Passage consists of.

Maldonado-Passage is also convicted of charges related to euthanizing and selling animals. I’ve reported before that prosecutors and investigators very likely committed Brady violations — instances of withholding exculpatory evidence — when they exhumed tiger carcasses.

The Tiger King’s re-sentencing is a great example of why judges should hold hearings on allegations of government and/or prosecutorial misconduct before imposing sentence or re-sentencing any defendant — and any finding of misconduct should slash the length of sentences imposed.

Courts have held that the punishment phase of a case is the wrong forum for violations of professional rules, and that claims of prosecutorial misconduct don't belong in sentencing hearings. In Joe Exotic’s case, Judge Palk said that his attorneys should bring it up in a Motion for a New Trial, which his attorneys plan to do.

That judges should keep misconduct allegations out of sentencing hearings would be a valid argument if there were a viable alternative for sussing out government or prosecutorial malfeasance, but there isn’t. Seeking to hold prosecutors accountable through the grievance system doesn’t really work.

This kind of misconduct accounts for about 30 percent of wrongful convictions; about 44 percent of murder convictions that were later overturned involved district attorneys’ dirty deeds, according to the National Registry of Exonerations of the University of California Irvine, the University of Michigan Law School and the Michigan State University College of Law.

Not only are incorrect murder convictions unjust they permit a dangerous person to possibly harm more people.

And the bar doesn’t really care about this. Only one percent of prosecutors who courts have determined committed misconduct ever undergo discipline. That’s not one percent of all prosecutors; it’s one percent of prosecutors who already had their bad behavior documented and decided in a courtroom. Ninety-nine percent of those already-determined-to-have-cut-corners lawyers skate. And when law professors filed grievances against 21 New York prosecutors last year, the professors got in trouble for complaining. This seedy subsection of the bar can secure a win any way they choose.

Because prosecutors tend to object to accountability, they will likely stomp and reel at any review of their actions in a case against someone else. They’ll predict that defendants will mount attacks on every prosecutor who tries a case in an attempt to reduce their sentence, the need for hearings will cause more court clog.

I think that argument overblows the numbers of people who try their cases and thus invite prosecutors to proceed ethically. According to the most recent numbers from the Bureau of Justice Statistics, 69,348 defendants appealed criminal convictions in 2010; that’s for all 50 state court systems combined. That’s a little over 1300 cases per state where a prosecutor’s trial behavior would even be at issue. But they can’t be evenly distributed: California likely has more than, say, Idaho.

Considering that only 12 percent win their appeals, that’s 8,226 around the country, and surface an opportunity for resentencing, fleshing out misconduct when it counts doesn’t seem insurmountable given what’s at stake: freedom.

Of course, allowing misconduct allegations to be aired during the trial phase isn’t foolproof; misconduct can affect a case in the pretrial phase; that’s the nature of Brady violations. Sometimes accused persons plead guilty because they’re unaware of exculpatory evidence. Those defendants wouldn’t necessarily benefit from litigating misconduct at sentencing.

And some experts aren’t convinced of this solution. Miriam Krinsky, Executive Director of Fair and Just Prosecution, an organization dedicated to reforming the ways criminal cases are pursued, said at the 17th Annual Harry Frank Guggenheim Symposium "Justice at the Crossroads" on March 3: “Not only are the courts a very inadequate vehicle, a far too limited vehicle for dealing with [prosecutorial misconduct], but I also really fear are presuming that the state bar is going to solve any of this.”

Krinsky may be correct. But there’s a more holistic reason to vet a prosecutor’s actions during — and not after, or in a different proceeding — a criminal case. Sentencing hearings go through a checklist of factors in a defendant’s life, facts usually presented to the court through pre-sentence investigation reports

.While criminal trials ask the question: “What happened here?” and determine the party responsible, sentencing hearings ask “How did we get here?” A prosecutor’s professional conduct answers that question. Any decent defense attorney who suspects something hinky should allege it on the record and request a hearing — and courts should grant it.

There are long-term benefits of getting this information on the record as soon as possible. It allows the remedy of sentence reduction when the conviction itself won’t budge because appellate courts are so loath to overturn convictions. Hashing out misconduct early on might speed up post-conviction review by enabling an appellate court to consider it when looking for reversible error.
Right now, anyone whose conviction resulted from misconduct has to exhaust the direct appeal process before post conviction review can expand to evidence outside the trial record in what’s called a petition for a writ of habeas corpus. Not only do prosecutors get away with misconduct, if they are caught, the remedy comes so late that it barely fixes anything. It’s bad enough that the criminal legal system coddles prosecutors and encourages them to use any tactic necessary. What’s worse is that no one can discuss these missteps in hearings where they can make a difference.

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.

Hard Truths About The Power Of 'Progressive' Prosecutors To Make Change

On January 3, the newly elected Manhattan District Attorney Alvin Bragg announced a fresh policy in what he called his “Day 1 Memo”: Under his leadership, the D.A.'s office would not prosecute low level crimes. Within days, New York gubernatorial candidate Andrew Giuliani, son of Rudy, and former mayoral candidate and anti-crime crusader Curtis Silwa launched a petition to recall Bragg. It had over 16,000 signatures as of February 25.

Then this week Bragg fulfilled his promise of desistance. He’s slowing the roll up Fifth Avenue to Trump Tower, and pausing the investigation into the former president and his family, a decision Bragg’s supporters aren’t likely to embrace. Certainly two of Braggs’ assistants didn’t agree with it; they resigned.

Charges against Donald J. Trump might prove to be a weak case, but it’s not like such evidentiary liability stops other attorneys in the same position. Just this week, prosecutors in Lorain County, Ohio announced their decision not to retry Nancy Smith and Joseph Allen, a man and a woman falsely convicted of raping children connected to a local Head Start program. A judge conceded that the original prosecutor pursued a weak case when he hadn’t found evidence of a crime.

The prosecutors' resignations revealed the reality that there’s no such thing as a progressive prosecutor. A progressive person would eschew the absolute authority the position bestows.

The progressive prosecutor movement first caught news media attention in 2016, but an example of a progressive prosecutor surfaced twenty years earlier, in 1996, in the movie Sleepers. Based on a memoir by the same name by Lorenzo Carcaterra, a former New York Daily News reporter, Sleepers tells the story of four poor kids from Hell’s Kitchen sent to juvenile detention for inadvertently hurting a man during a prank with a hot dog cart.

In detention, guards abuse them sexually, mentally and physically. Years later, two of the four boys have decided to support themselves through crime, and two went straight, or at least legal: one’s the author/journalist and the other serves the City of New York as an assistant district attorney.

The two who dedicated themselves to living off lawbreaking — one “robbed and killed at will, or on command” and the other killed a man for $50 at age 17 — happen upon the most abusive guard, played by Kevin Bacon, in a Hell’s Kitchen bar and they kill him after confronting him over his meatloaf. “One down,” they tell the journalist. “One down.”

The case against the two defendants is strong except for the lack of a murder weapon. Yet the character Michael, the assistant district attorney played by Brad Pitt, sets up a win for them; amongst other machinations, he arranges for a lawyer with a drinking problem who can be manipulated (admittedly an easy task), and cajoles a priest into perjuring himself to provide an alibi for the two defendants.

It’s not a scenario that could play out exactly the same way today. For one, it’s a full blown conspiracy that depends on the silence and continued agreement of a large number of people. Second, it was pulled off in a fictional setting designed to relay a true story -- a story that both the Sacred Heart of Jesus Church and School, attended by the four friends as children, and the Manhattan District Attorney's Office complained about back when the movie premiered -- and even then, during a time when print newspapers arrived on doorsteps and could carry a handwritten note of where and when to meet. With communications so digitized today and cameras everywhere, the DA would be busted in no time — if someone with prosecuting authority actually wanted to pursue the case.

Sleepers’ legacy isn’t the lesson that two people murdering another without accountability is progressive or moral prosecution. The redeeming ethics of the story are that it avoids the traditional response to perpetrators with histories of severe abuse: admonish them that two wrongs don’t make a right but do nothing to rectify the first wrong. That and the offending guards — who are suspected of continuing to abuse kids in the storyline — get arrested and charged, thus averting future harm.

Sleepers told audiences the truth about prosecutors: Their problem isn’t that they have unfettered power to prosecute; it’s that they have unfettered power at all. It’s not impossible that an attorney inside any of these offices is throwing legitimate cases; I’d venture it’s just as likely as pursuing weak ones. I wrote this when George Gascon was elected to serve as the District Attorney of Los Angeles in 2020: “There’s a difference between discretion and power. Power is the ability to do something and discretion is the choice to do it…Discretion is the direction but power is the hinge. It can swing where it likes.”

That’s what the news about District Attorney Alvin Bragg demonstrated this week. He can do whatever he wants and he just might dare to do so.

Today, the Sleepers movie’s value isn’t just the way it demonstrates that the job of prosecuting crimes tends to greenlight these mavericks, but that it directs the progessive prosecution movement to get smarter. Marching into prosecution offices under a woke banner isn’t a good idea, at least not for a while. Backlash awaits.

For one, labels like “progressive” prime the line prosecutors, the staff lawyers who work in these public offices who are used to pursuing people, to quit or undermine the new leader. In San Francisco, two line prosecutors resigned in October and defected to the effort to recall the current district attorney, Chesa Boudin. More than 97 percent of the line prosecutors in Los Angeles voted ‘No Confidence’ in Gascon this week, and that was after he toned down his reforms. A second bite at the ‘Recall George’ apple is underway.

Second, voters don’t necessarily want a progressive prosecutor right now given the headlines they read about crime; these candidates may lose their campaigns in 2022. The media microsurgery needed to dissect and disconnect violence rates from reform laws probably won’t be effective enough, at least not in time for the November elections.

If reformers want to change prosecution, they can’t promise that certain candidates will use their power for good because not everyone will agree on what’s good. Perhaps they should forget about wokeness and go in like Sleepers: infiltrate, ninja-style, embed themselves in these offices, and do what they can to achieve justice while looking like they're tough on crime.

But it would just be more honest to campaign saying, “I’m going to do what I’m going to do, whether you like it or not.” At least voters, like the audiences who watched Sleepers, would know what they’re getting from the leaders in charge of keeping them safe.

Everyone Knows Rikers Island Must Close, But That Doesn't Mean It Will

No one’s going to close Rikers Island.

After a 2017 report from the Independent Commission on New York City Criminal Justice and Incarceration Reform — also known as the Lippman Commission, a committee tasked with assessing problems at the New York City jail headed by former Chief Judge Jonathan Lippman — insisted that Rikers Island should cease to exist, the New York City Council voted in 2019 to close the jail by 2026, but that date has been moved back even further, to 2027.

Rikers conditions have worsened since that City Council decision. Sixteen detainees perished in 2021, overtired officers inadvertsently released a man accused of murder, and a captain who watched an inmate hang himself was charged with criminally negligent homicide. A judge lowered the bond for a defendant accused of attempted murder because other detainees had beaten him so severely that the judge wasn’t convinced he wasn’t going to be murdered himself. Thousands of detainees are suing over a lack of medical care, a situation so slow to be remedied that lawyers recommended this week that the city be fined $500,000.

As many advocates have pointed out, the Rikers shutdown needs to be speeded up but nothing has come of that, despite the fact that New York City elected a new tough-on-crime mayor who, even with his punitive and carceral inclinations, concedes that Rikers has to go.

It seemed like a harbinger of closures to come when the Board of Correction moved female and transgender detainees to state prisons upstate in October because of the staffing crisis. But no, they were moved back to Rikers last month, ostensibly because over 1000 guards returned to work, not because conditions had improved materially.

For all intents and purposes, Rikers is closed. It’s hardly operational. The detainees run the place — literally.

When a prison or jail reaches a certain point of dysfunction, there’s no improvement, no more investigation needed. Governors and administrators are admitting as much; in 2021 they announced three major prison closures. Last August, the Bureau of Prisons announced that the Metropolitan Correctional Center (MCC), the federal detention center where Jeffrey Epstein died in July 2019, would shutter because a gun had appeared inside, along with cellphones, drugs. That contraband, combined with complaints about a lack of COVID precautions, was enough for Department of Justice officials to throw up their hands and shut it down.

Days later, a federal prison, US Penitentiary Atlanta, was revealed to be in the process of closing, after investigations uncovered misconduct by guards that had corrupted the entire system; staff had smuggled a gun there, too, along with drugs and other contraband. Security had become so lax that inmates were leaving through a hole in a fence, heading to local restaurants and returning.

Last June, New Jersey Gov. Phil Murphy decided to close the Edna Mahan Correctional Facility based on a report that women endured from physical and sexual abuse from staff. Edna Mahan is a small facility — fewer than 400 women — which means that abuse is harder to hide. Indeed, abuse reigned there, in the open, for years. Murphy hasn’t closed Edna Mahan just yet but he’s appointed a board of experts to oversee the closure.

Neither MCC, nor USP Atlanta nor Edna Mahan compete with Rikers’ record of human rights abuses and dysfunction and none of them will take a decade to close.

The endless debate over closing Rikers might paint prison and jail closures as momentous events but they’re not. Prisons close often. The state of New York will turn out the lights in six facilities this year alone. Another closed ahead of schedule in Connecticut and Gov. Ned Lamont threw in two more closures. Illinois is mulling a partial closure. Between 2007 and 2013, 31 states closed 120 prisons.

But cost savings motivated those closings. The more recent closures are different because they concede that these facilities are so bad that no justification exists for continuing to house people in them. That’s why the City Council voted to close Rikers. But people still languish there.

The lesson on Rikers’ isn’t the fecklessness of local government. It’s that abolition isn’t as radical as it seems.
The concept of abolition strikes fear in the public, much the way the slogan “Defund the police” does because it calls to mind moratorium, decarceration, desistance and a boomeranging of the crime rate.

But that’s the wrong way to think about prison abolition. The right way is this: Abolition is eliminating what we do now and replacing it with something unrecognizable.

At this point, replacing Rikers Island with something unrecognizable would be a facility with employees who don’t skip work for four to eight months. One without sexual violence. One where food is not only edible, but rather simply served to the mouths expecting it.

It’s true the closing of Rikers Island waits on the completion of new, replacement jail complexes. Considering that process of accepting bids from construction companies commenced late last year, almost three years after the decision to close “Torture Island.” New York construction is notorious for delays and cost overruns. 2011 was the projected completion date for New York’s East Side Access extension of the Long Island Railroad; it’s still not done. To think that construction will be completed in the next five years is overly sanguine, to say the least. And a lot can happen in those five years.

The need for more space is an insufficient excuse for keeping people in the jail complex, especially after administrators in the federal system moved incarcerees out immediately last year. When the constitutional right to be free of cruel and unusual punishment is in play, no serious public servant would wait a decade to remove people from unacceptable living conditions.
Columnist Leonard Pitts, Jr. wrote that “If Sandy Hook didn't change gun laws, nothing will.” Pitts was right; almost 10 years after an unstable gun enthusiast gunned down 20 second graders, sensible gun legislation eludes us.

Rikers is the Sandy Hook of correctional crises. That the jail complex hasn’t been closed already while human rights abuses abound means nothing will precipitate its demise.

Stop looking for closure. It’s not coming.

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.