New York’s high-profile Innocence Project is just one of 55 similar projects around the U.S. But most are struggling to cope with the load and pay their bills.
Six years ago, I crossed the line from “pure” criminal justice journalism by adding advocacy to my freelance life. I became a director of the Midwestern Innocence Project, then a struggling organization at the University of Missouri-Kansas City law school, about 120 miles west of my home in Columbia, Missouri.
We are still struggling.
The Midwestern Innocence Project, for all its good intentions and tangible virtues, is so underfinanced and understaffed that every month we fall further behind investigating claims. And we are not alone. Despite the promising expansion of innocence projects around the country—about 55 today—many states are not served well by innocence projects, mostly because finding adequate funding has been so arduous.
It’s worthwhile, therefore, to take a broader look at the current state of those projects—particularly from the point of view of a journalist who has become involved from the inside.
As a solo freelance journalist, and before that a newspaper and magazine staff writer, I could not handle more than two investigations of alleged wrongful convictions simultaneously. They are labor-intensive and financially costly. Finding publication outlets for the stories is never guaranteed. I had thought that by working within an innocence project while continuing to research cases outside the project as a journalist, I could accomplish more on behalf of inmates—and on behalf of crime victims whose murderers and rapists had never been accurately identified.
A flood of claims
But I went from feelings of guilt about making such a small dent as a journalist in the claims of actual innocence arriving from prisoners to another form of guilt. Instead of dealing with a steady trickle (but nonetheless overwhelming number) of claims that come haphazardly to an individual journalist, our project now has to cope with a flood of such claims, with few resources.
When I started my journalism career in 1969, if I heard rumors about innocent inmates, I usually dismissed them with the thought that all prisoners proclaim innocence. Why believe them after they have been arrested by police, charged by prosecutors, identified by victims and witnesses, defended by lawyers, convicted by juries, sentenced by judges and rejected by appellate courts?
Before DNA testing became sophisticated enough to prove innocence beyond a doubt, many journalists operated with a similar mindset. We did not perform our jobs well enough to know that as early as 1932, Yale University law professor Edwin Borchard had demonstrated that wrongful convictions happened year after year in jurisdictions across the United States. (His book carried the provocative title "Convicting the Innocent; Sixty-Five Actual Errors of Criminal Justice.") Nor did we realize that during the late 1940s, lawyer Erle Stanley Gardner, famous because of his Perry Mason courtroom novels, devoted his fortune to establishing the “Court of Last Resort,” now unfortunately defunct, which helped dozens of innocent inmates win freedom.
My shift in thinking began when I became executive director of Investigative Reporters and Editors in 1983. A small percentage of the 5,000 journalists who had joined IRE since its founding eight years earlier were already uncovering wrongful convictions by listening to inmates, obtaining trial transcripts, re-interviewing witnesses, locating previously undisclosed documents, and generally piecing together the truths that should have been the province of police, prosecutors, defense lawyers, jurors and judges.
At the time, appellate lawyers tended to shun the difficult task of getting back into court with post-conviction actual innocence claims, That meant either journalists served as the court of last resort, or lots of inmates claiming innocence had nowhere to turn.
Print and broadcast journalists began to succeed in proving innocence from time to time, with perhaps the most sustained, impressive effort by reporters Maurice Possley, Ken Armstrong and Steve Mills at the Chicago Tribune during the 1990s and into the new century. But journalists obviously could not literally free innocent inmates from prison without the cooperation of prosecutors and judges.
Filling the void
Slowly, what became known as innocence projects filled the void. In Princeton, New Jersey, a businessman undergoing a mid-career shift to the pastorate stumbled upon the wrongful conviction phenomenon while serving a prison ministry. Operating solo at first, James McCloskey learned the law and taught himself detective work before forming Centurion Ministries in the early 1980s. He painstakingly raised money from individual donors and found lawyers to help at reduced hourly rates. As of 2010, Centurion Ministries had played a significant role in freeing more than 50 innocent inmates.
Even with a staff of six plus volunteers from the Princeton area, Centurion Ministries can accept only a few dozen cases per year, leaving thousands waiting. Even cases that look compelling might sit for 10 years before they receive a full work-up.
Ten years after McCloskey started Centurion Ministries, New York City lawyers Barry Scheck and Peter Neufeld established The Innocence Project at the Yeshiva University law school in New York. Their innovation: a focus on cases with testable DNA evidence, as the dependable analysis of genetic material from crime scenes matured. Their innocence project has played significant roles in more than 250 exonerations.
In 2003, The Innocence Project separated from Yeshiva University and went out on its own as a not-for-profit entity. About 20 Yeshiva law students per year still receive academic credit for helping investigate claims of innocence, and Scheck remains a full-time law faculty member. Today, it is by far the largest innocence project in the nation, in terms of cases received, investigations undertaken, budget and staff. As of April 2010, there were 49 paid staff, nine of them lawyers. This month it was awarded the John Jay Medal for Justice at John Jay College of Criminal Justice in New York.
Another high-visibility innocence project resides at Northwestern University. Journalism professor David Protess has marshaled students who helped engineer exonerations in exchange for academic credit. Sometimes Protess and the journalism students find help from lawyers at a wrongful convictioncenter that started during 1999 within the Northwestern law school. A key person in the law school: Rob Warden, former crusading editor of Chicago Lawyer magazine, a book co-author with Protess, and an individual with encyclopedic knowledge of where, why and how wrongful convictions occur.
(Last year, the Cook County, Illinois, prosecutor filed a lawsuit against Protess and his students, seeking to discover whether they improperly paid witnesses during an investigation into an alleged wrongful conviction. The legal threat is real, but also so unusual—and possibly vindictive—that it seems like a remote worry at other innocence projects. After all, most prosecutors would rather devote their time to solving crimes rather than going after students and professors investigating in the interest of justice. Furthermore, most prosecutors prefer to avoid negative media coverage that results from seemingly harassing university students.)
Funding shortages
Funding shortages bedevil the innocence project in Missouri every day. From the start, we agreed we would try to expand the Midwestern Innocence Project across the state of Missouri, using the University of Missouri four-campus system as our initial vehicle. I obtained an audience with Elson Floyd, the president of the four-campus (Columbia, Kansas City, St. Louis, Rolla) system. An African-American who had faced down plenty of racial hatred, Floyd understood wrongful convictions occur disproportionately to minorities. Seeing the university as an engine of justice and pleased with the interdisciplinary approach I presented, Floyd allocated $100,000 per year for each of three years.
Law professors (especially Ellen Suni and Sean O’Brien), private-practice lawyers (especially at the Stinson Morrison firm downtown) and laypeople already involved at the Kansas City-based Midwestern Innocence Project would continue to participate. The project would expand, however, with the other key players located at the Columbia campus law school (experienced defense lawyer/professor Rod Uphoff in the leading role) and the Columbia campus journalism school. Professor Jody Miller of the criminology faculty on the St. Louis campus also became involved.
The money from the system budget allowed us to advertise for a lawyer who would train students, hire staff (if we could raise additional money), devise a process for screening inmates seeking assistance, direct field investigations, and litigate in court to overturn wrongful convictions if any of our cases made it that far. The winning candidate: Tiffany Murphy, a University of Michigan law school alumna employed as a federal public defender in Las Vegas. She moved to Kansas City during late 2007.
Teamwork
Since then, Murphy—a brilliant classroom teacher, brainy lawyer in her early 30s, of African-American heritage--has barely relaxed. She trains students at the UMKC law school, while Uphoff does the same at the other law school and I do something similar at the journalism school. Then we team the students for field investigations on the cases given priority by Murphy.
From the hundreds of prisoners who send a completed questionnaire despite its length and difficulty of material, Murphy decides which cases look most like candidates for exonerations. Then students plus community volunteers gather information about those cases. Accepting more than a dozen news cases per year can overtax the meager budget, so numerous worthy applicants must wait and wait some more.
Training students, then training a new crew when the previous team members graduate before closing cases, is inefficient. But it fulfills an educational mission, and it plants seeds within law and journalism. Thanks to the generosity of the Stinson law firm, the university system, private donors and two fundraising dinners featuring a selfless bestselling author-lawyer named John Grisham, the Midwestern Innocence Project hired recent law school graduate Ken Blucker as Murphy’s colleague.
As I write this, though, it is doubtful whether we can afford to pay Blucker’s modest salary for another year.
The Midwestern Innocence Project might be within reach of an exoneration during 2010. We cannot control the pace once the case re-enters court, needless to say. Judges, prosecutors, police agencies and state attorneys general rarely greet us warmly---and then they delay. After all, we are sabotaging the finality on which the criminal justice system is based.
Whatever happens to the Midwestern Innocence Project, I will continue to report and write about apparent wrongful convictions and their causes as a freelance reporter. The satisfaction of pulling together the clues until a pattern emerges is one of the most satisfying professional pursuits I can imagine. For me, solo investigative reporting is like breathing, and I do not want to stop breathing.
But helping supervise teams of journalism students, law students and occasionally students from other disciplines is satisfying, too. Training them is an investment in the future. Local criminal justice systems around the nation will operate more cleanly when there are lawyers, journalists and other college graduates who grasp how and why wrongful convictions occur. Along the way, we will surely help the cause of justice as we delve into cases that nobody else could or would accept—and perhaps enjoy the satisfaction of watching an innocent inmate walk out of prison.
Steve Weinberg is a free-lance journalist and blogger based in Columbia, Mo. Please read more of his work at his blog "In Justice."
When a mother’s bitter custody battle ends with the death of her child, something has gone terribly wrong with the system.
Wyatt Garcia was born in April 2009. Nine months later, he was shot and killed by his father, who then turned the gun on himself.
It might have turned out differently—if a family court judge had listened to Wyatt’s mother.
Stephen Garcia, 25, a Pinon Hills, California contractor, had been allowed unsupervised visits with his son only a few days earlier by San Bernardino County Superior Judge Robert Lemkau, who was adjudicating a bitter custody battle between Garcia and the boy’s mother, Katie Tagle. The judge had refused to take seriously her repeated warnings of her ex-boyfriend’s violent and abusive behavior.
Shortly after Wyatt was born, she left Garcia after he hit her so hard during an argument about his video-game addiction that “he knocked me out” Tagle said. After she moved home to her parents, her ex-boyfriend began harassing her and her family when he learned she was dating again, and he filed a motion for custody of little Wyatt. In turn she filed three motions for an order of protection against Garcia, which were ignored: in the last motion she charged that he had threatened to kill her and their baby.
Judge Lemkau, however, chose to believe her former boyfriend’s denials rather than the evidence she supplied of Garcia’s threats―including e-mails, text messages and voice messages. Although no extenuating circumstances were raised in court transcripts of the case, the judge simply accused Tagle of lying, and ordered that she turn Wyatt over to his father—with fatal results.
Katie and her sons Wyatt and Dakota
Tagle, 23, believes the odds against her and Wyatt were stacked the moment her case entered the emotional, chaotic world of the family court system.
“I was treated like a criminal, like a complaining woman,” she says.
The story of baby Wyatt Garcia is, sadly, not unusual.
In the nine months between June 2009 and April 2010, 75 children have been killed by fathers involved in volatile custody battles with their former partners, according to the Center for Judicial Excellence, a court advocacy organization which has been tracking news articles of such deaths around the U.S. Based in San Rafael, California, the Center focuses on strengthening court integrity as well as improving public accountability of the judiciary.
Some recent examples from the dockets of Family Courts around the country:
Teigan Peters Brown (3 years old), shot to death by his father during a court-ordered visit. (Arizona June 2009)
Bekm Bacon (8 months), killed by father, who then killed himself during overnight visitation. (Idaho Feb 2010)
Janiyah Nicole Hale (1 year), father is charged with her death during an overnight visitation. He is a registered sex offender. (Alabama July 2009)
How did a system set up to protect families and children allow this to happen?
An investigation by The Crime Report shows such tragedies are the consequences of family court procedures that allow abusive spouses to manipulate the system and leave at-risk children at the mercy of prolonged, expensive court battles over custody. These battles end all too often with a parent forced to share unsupervised custody with an abusive spouse.
The problems have been complicated by systemic flaws in the nation’s family courts that have gone unaddressed far too long.
A Broken System
Lawyers, judges, psychologists and representatives of women’s groups interviewed by The Crime Report describe a broken family court system that is already burdened with a heavy caseload and too few judges—many of whom are forced to rotate between cases—and in which serious criminal allegations of domestic or sexual abuse are routinely ignored. The crushing financial costs of pursuing long custody battles is an additional burden on indigent mothers, who get little or no legal support. The odds are particularly stacked against children at risk when the court battle revolves over “he said, she said” arguments.
The system has particularly failed parents―usually mothers―whose efforts to protect their children collide with an approach to custody issues that is based on narrow legal concepts of balance and fair treatment rather than psychological or medical evidence. “Courts assume mothers are orchestrating misinformation, instead of trying to protect their children,” said Kathleen Russell, director of the Center for Judicial Excellence.
The idea of family courts or dockets began with the best of intentions. Established in the early nineteenth century, they were designed to protect the equitable rights of both parents and children and protect the family. Too often, however, that creates a built-in conflict. Judges, as in the case of Katie Tagle, adopt a skeptical attitude towards abuse charges, which most often come from the mother, on the grounds that it is hard to distinguish fact from fiction in arguments between quarreling parents.
“The problem is that family court is not set up to protect children,” says Joyanna Silberg, PhD,Executive Vice President of the Leadership Council. “It is set up with the intent of equitable division for families. And this presents an overwhelming paradigm: how can you equitably divide a child?”
And while the deaths of children are the public face of family court tragedies, the daily reality is that thousands of parents are trapped in prolonged court battles where they either lose their children to their alleged abuser, or are forced to share unsupervised custody.
Advocacy groups interviewed for this story reported receiving between 450 and 1,000 requests for help in contested custody battles this year. The National Network to End Domestic Violence, a prominent national not-for-profit, says it is the biggest problem they are now facing. And the Leadership Council on Child Abuse & Interpersonal Violence, an independent scientific organization, estimates that each year more than 58,000 children are ordered by family courts into unsupervised contact with physically or sexually abusive parents following divorce in the United States
Experts say abusers use the court system to exercise control over their former partner’s lives, manipulating the players and risking the safety and well being of the children’s lives the courts are sworn to protect.
“Family courts are trained to look for cooperative behavior,” says Rob (Roberta) Valente, general counsel for the National Network to End Domestic Violence, which is based in Washington D.C. “When someone raises an abuse allegation, the court sees it as uncooperative behavior. The result, advocates say, is that the abuser is able to manipulate the court, while a child’s safety and well-being is placed at risk. Many judges are likely to view abuse complaints as a tactic to win custody battles. What the courts have failed to take into account but research has clearly shown time and time again, is that most of the cases that make it to trial in family court are high-risk abuse cases.
Compounding the problem is that judges, attorneys and custody evaluators have little or no training in detecting signs of abuse.
Just 20 per cent of the almost one million divorces and separations registered every year in the U.S. actually land in court. Most are settled in the pre-trial phase, according to Prof. Janet Johnston of San Jose State University, in research studies written for the journal, The Family Court Review.
But of the few who make it to a judge, over 75 percent of these cases are victims of some form of domestic or sexual abuse, according to a 1995 paper by Prof. Peter Jaffe of the University of Western Ontario, who studies children and violence in U.S. and Canadian court systems.
He Said, She said
Today’s family courts have also been affected by the rise of the Fathers Rights movement. During the 1950s, family courts almost exclusively awarded custody to mothers. But complaints by fathers that their rights were ignored in custody battles led to a shift in the 1970s to awarding shared custody, on the grounds that it was in the best interest of the child to maintain a relationship with both parents.
Nevertheless, only a small percentage of high-conflict cases require judges to act as conciliators between parties locked in otherwise endless litigation. The majority involve mothers and children that are suffering from serious sexual or domestic abuse.
The National Father Resource Center disputes this, claiming that its member organizations report that 80 percent of mothers’ abuse allegations are false. Although Canadian research from the University of Toronto studying false allegations in U.S. and Canadian custody cases has found that between one and two percent of mothers make false allegations, the fathers’ rights argument has had a powerful impact. As shown by the Tagle case, courts don’t want to hear the mothers’ allegations.
“Historically, allegations of abuse and incest are [met] with a great deal of suspicion, and there is a tremendous resistance to hearing these types of allegations,” said Eileen King, director of Justice for Children, a national non-profit that works to protect children involved in contested custody cases.
Deborah Hicks tells her story
Such resistance has already cost Deborah Hicks, 46, a former New York City television editor, six years of pain. In 2003, she filed for sole custody of her son, then three years old, when he came home from a visit to his father with suspicious signs of sexual abuse. There was reason to be worried. Her ex-partner had already been convicted of molesting a two-year old boy in Florida for which he served eight years in prison, and he was a registered sex offender in New York City. Despite her ex-boyfriend’s record, the judges who heard the case (there have been two), decided they had to give a fair hearing to his denials.
She has already spent almost $100,000 on the case, with no end in sight. Nevertheless, she still shares custody with her ex, and says, “I am not about to give up on my child.”
Even for those mothers who can afford it, the battle can take a psychological toll. Even when the evidence of risk to their children seems impossible to deny, the family court system that has proven incapable of treating these high-conflict cases with the serious attention and professionalism they require.
Moreover, courts are now often swayed by a concept called “parental alienation syndrome” (PAS), coined by the late psychiatrist and psychoanalyst Dr. Richard A. Gardner in the 1980s to describe situations in which one parent is trying to turn the children against the parent during a divorce process. Dr. Gardner, a former professor of child psychiatry at the College of Physicians and Surgeons at Columbia University, testified in more than 400 child custody cases about its effect on children.
PAS has been seized by the Fathers Rights movement as a way to defend husbands and other male partners from what they consider unjust accusations, and it has received support from other psychologists, who deny that it allows genuine child abuse to go unpunished. “If attorneys, child care evaluators, and judges were all doing their job, protective mothers wouldn’t have anything to fear,” says psychologist Amy J. Baker, author of Adult Children of Parental Alienation Syndrome: Breaking the Ties that Bind.
The concept has made little documented headway in the professional and legal field, and the syndrome has been used very rarely in legal precedent. PAS is not included in the most recent American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, although the association is currently weighing whether to include it in the 2013 issue of the manual.
It may be ironic that efforts to give fathers more rights in custody cases have increased the odds against victimized mothers and children.
“When the pendulum swung to shared custody somewhere in the midst of that (fathers) movement, the safety of children was compromised,” argues Helga Luest, founder of Witness Justice, a group that helps heal victims of violence.
A Complex Web
Amy Leichtenberg and her sons Duncan and Jack
Tears fill Amy Leichtenberg’s voice as she recounts the horrible months before her two young boys, Duncan and Jack Connolly, ages 9 and 7, were killed by their father last March. “I felt like I did everything right, I sat there, I didn’t speak out of turn,” she said of her courtroom experience. After a 20-year abusive relationship with her ex-husband Michael Connolly, she finally gathered the strength to leave him. But he wouldn’t let her go. . Each time she moved her address, he showed up at her house. She got numerous orders of protection; he violated them repeatedly.
Every six or seven weeks, the couple was back in court, following a motion filed by Connolly for one reason or another. Representing himself, he would badger Leichtenberg on the stand. Yet despite his behavior, the court allowed him unsupervised access to his young sons.
“The ball was dropped in so many places,” said Leichtenberg. “Court was just one of them.”
That points to another problem. Once a family enters the family court system, other forms of protection of women and children often fall by the wayside. Typically, law enforcement agencies are reluctant to investigate abuse charges if they learn that the parties are involved in a custody battle, said Karen Borders, a former police officer and victim of a contested abuse case, who now runs an forensic risk assessment company called Borders McLaughlin. Orders of protection that are filed in criminal court often don’t make its way over to the civil system. Child protective services (CPS), which investigate allegations of child abuse, usually close or suspend a case if the child is involved in a custody battle, she said.
In the 450 high-risk custody evaluations her company investigated over the past five years, almost 90 percent of the children were abused.
“One of the things you see very often is when there is a custody case pending, child protection services, prosecutors and law enforcement will not take the charges seriously or be willing to investigate because they think it is about custody instead of a crime,” says Barry Goldstein, co-author of Domestic Violence, Abuse and Child Custody: Legal Strategies and Policy Issues.
Decision-making in these highly volatile cases are left to an army of custody evaluators, guardians ad litem (volunteer lawyers who are assigned by the court to represent the child), and other members of the court who may not have experience in domestic violence issues.
Custody evaluators can be assigned by the court or hired by one of the parties. The cost, which can run from $5,000 to $20,000, can be picked up by the parent who hired the evaluator, or it can be split by both parties. The custody system is beset by charges of cronyism―arising from evaluators’ employee relationship with the court―and incompetence. Advocates charge that evaluators are often poorly trained on how to handle or detect an abuser.
There is scant research on decision-making by custody evaluators and how they effect their cases. “Many child custody evaluators are not comprehensive (and ) their work is not buttressed by collateral evidence,” says psychologist Eugenia Patru, who has worked as a custody examiner in Louisiana and Michigan for the past 30 years.
According to Patru, the difficulty of custody cases increases when domestic violence is an issue. “Most (evaluators) are not educated enough and just in for the money,” she says.
In the saddest irony of all, attorneys have learned to caution their clients not to reveal abuse allegations in custody cases since research suggests that such allegations can work against mothers fighting for custody. A National Institute of Justice-funded study found that 35 percent of mothers who alleged abuse got primary custody, while mothers who said nothing got custody 42 percent of the time.
Moreover, when abuse allegations are raised, judges tend to suppress or not enter the abuse into evidence, making it harder to try these cases at the appellate level. “Family courts don’t adequately deal with abuse by refusing to hear the evidence,” charges Joan Meier, director of the Domestic Violence Legal Empowerment and Appeals Project, which provides legal representation at the appellate level, trains trial lawyers and has represented the domestic violence advocacy community in Supreme Court briefs.
Meier, a professor at George Washington University Law School who has been appealing contested custody cases for the past decade, says such suppression of evidence makes it very hard to overturn bad case precedent on appeal. Additionally, cases tend to be an intense financial and time drain, with the average case running over $100,000 in costs and lasting eight years.
Signs of a Shift?
“There are thousands of good decisions being made by judges each day who err on the side of safety,” says Judge Janice Rosa, who sits on New York Supreme Court in the 8th Judicial District and is chair of the Family Violence Department Advisory Committee for National Council of Juvenile and Family Court Judges.
Judge Rosa points to New York’s practice of appointing a separate attorney for the children as a best practice in sorting out custody cases. Another breakthrough idea has been integrated domestic violence courts. There are approximately 40 such courts in New York State, which has become the trendsetter in this area. These courts, which have civil and criminal jurisdiction, could offer women and children a way to get the protection they need.
In 2002, the Office of Violence Against Women developed and implemented a four-year demonstration initiative to examine promising practices in the field of supervised visitation and safe exchanges called Safe Haven.
Grants were awarded to four demonstration sites: the Bay Area, California; the City of Chicago, Illinois; the City of Kent, Washington; and the State of Michigan for four years. Praxis International, a nonprofit research and training organization that works toward the elimination of violence in the lives of women and children, and oversaw these projects still offers technical assistance and advice for visitation centers.
Praxis International also partnered with The Battered Women’s Justice Project starting a two-year research project to determine a best model and legislation for Family Courts.
But the resources are not in place now for children and mothers who need a way to safety now. One of the more promising projects The ABA Child Custody and Adoption Pro Bono Project ended in August, 2008.
“For the moment, abused mothers who are trying to protect their children through the overworked family court system have the cards stacked against them,” says Silberg of the Leadership Council.
“I did everything right, and my children are in a cemetery now right now,” said Leichtenberg, who founded “In Loving Memory” to in order to lobby for changes in legislation relating to the response of family court and law enforcement to abuse cases. “I have a lot of ‘what could have, what should haves’ every day. But with my last breath, I will make sure they did not die in vain.”
Cara Tabachnick is news editor of The Crime Report. Additional reporting by John Jay Center on Media, Crime and Justice researcher Daonese Johnson-Colon
The Crime Report continues publishing in this space the work of journalists selected as 2010 John Jay/Harry Frank Guggenheim Fellows.
Their original reports, many of which have also been published or broadcast in their own news outlets, demonstrate the best of of contemporary U.S. criminal justice reporting. We welcome your comments.
Despite progress, Louisiana’s juvenile justice overhaul still lags original vision
Seven years ago, Louisiana’s juvenile justice reformers put the fate of children above all else in their founding document.
“The Legislature hereby finds and declares that the children and families of Louisiana are the state’s most precious resource,” proclaimed Act 1225 of 2003. The noble words read in stark contrast to the reports of state-sanctioned abuse in the preceding years.
In 1998, the U.S. Department of Justice sued Louisiana, claiming youth offenders received beatings from guards, beat up each other, were denied adequate medical care and education and were attacked and sexually assaulted by other inmates. The Louisiana Department of Corrections settled the suit in 2000, denying the allegations but agreeing to overhaul policies. Reform efforts gained momentum. By 2003, the state Legislature passed Act 1225, which called for a seismic shift in how the state treated juvenile delinquents.
But seven years later, one of the Act’s authors sees little cause for celebration.
“I’d have to say we have defaulted on those promises,” said Donald Cravins, former state representative and current mayor of Opelousas.
Even as the state currently overhauls its review process and implements best practices at two of its largest facilities, a comparison between Act 1225 and today’s state of reform reveals years of inaction and lapses in the current system. Armed with a mandate for reforms seven years ago, Louisiana has struggled since then to live up to the full meaning of its words.
The points of reform
The Annie E. Casey Foundation reported in 2003 on what was wrong with Louisiana’s youth correctional facilities. After consulting with judges, prosecutors, probation officers and others, the Casey Foundation found a system that blindly and arbitrarily handed youth their fate, offered little treatment, crowded them into prisons for lack of other options and often abandoned them there with an unpredictable review process.
The report urged Louisiana to greatly expand alternatives to incarceration, close one of the big lock-up juvenile facilities and address racial disparities in a system four times more likely to incarcerate blacks than whites.
Cravins and co-author Mitch Landrieu, the former legislator and current mayor-elect of New Orleans, incorporated the report’s recommendations into their ambitious legislation.
Act 1225 removed all youth from Tallulah’s correctional facility, a lock-up with a reputation for brutality and squalor that lasted through name changes and both private and state stewardship. It required objective assessments and regular reviews of every juvenile for placement in the least restrictive situation. It called for uniform standards for the detention centers that hold juveniles before they pass through the system. An implementation commission, an advisory cabinet and research council were established to chart a course away from the expensive, overcrowded secure-care facilities to smaller groupings closer to home, and to make certain all reforms came to fruition.
To stem a tide of truant, suspended or expelled youth flooding the system, the act called on the state board of education and local school boards to revise “zero tolerance” policies and come up with a plan to promote discipline and increase access to mental health services. To help pay for the cost of overhauling an entire justice system, the legislation compelled the former Department of Public Safety and Corrections, the departments of Health and Hospitals, Social Services and Education among others to share their information in a central database and consolidate all of their dealings with juveniles into a single state agency. The state would then reinvest savings from cutting redundant services into community-based programs based on scientific evidence of success.
The fruits of reform
Louisiana’s juvenile justice officials and their critics alike marked the last night a youth spent in the Tallulah facility a major achievement of reform.
“The closure of Tallulah was the single most identifiable part of reform,” said Michelle Smith, deputy assistant secretary for the Office of Juvenile Justice (OJJ). “It was the starting point.”
The Casey Foundation report estimated $10 million to $18 million in annual savings if the state shut down one of its secure custody facilities. Smith acknowledged the expectation of savings exceeded the actual funding freed by moving youth out of Tallulah, but the money still “exponentially” increased the number of community programs.
Almost seven years after Act 1225, the juvenile justice system finally has an evidence-based instrument to assess the risks and needs posed by each juvenile, and it is implemented statewide according to OJJ. The agency hopes the Structured Assessment for Violence Risk in Youth, or SAVRY, will identify youth who would benefit from less restrictive supervision rather than maximum security facilities. In the moments leading up to a judge’s decision on a juvenile’s fate — where the Casey Foundation once found a woeful lack of information — 4th Judicial District Judge Sharon Marchman said SAVRY and similar mental health and substance abuse screening tools have given her a more complete picture of the youth offenders.
“My comments would be limited to what we see in Ouachita and Morehouse parishes,” Marchman said. “SAVRY has been valuable. We started using it last year and my opinion is we’re getting good information.”
But other key provisions of Act 1225 have been slower to arrive, and in some cases never appeared at all. The single state entity and the potential money it would have freed for programs never materialized.
Dana Kaplan of the Juvenile Justice Project of Louisiana, a nonprofit advocacy organization, said a lack of clarity and leadership for the single agency ultimately doomed the idea.
“There was a great deal of planning following passage of legislation,” Kaplan said. “Then the state just made a decision that it was too much change and created a firewall in OJJ.”
Out of the failed effort the Office of Youth Development, which later became OJJ, took control of the juvenile justice system from the Department of Public Safety and Corrections.
Suzy Sonnier, deputy secretary with the Department of Social Services, said separating the juvenile system from the adult system was a major step in reforms even if the single agency never materialized.
“Then, to date, the work that DSS began with foster care, that led us to a lot of collaborative efforts in OJJ with residential care reform and a lot of licensing reform.”
Sonnier and Office of Juvenile Justice Executive Director Mary Livers both hold great hope for a “systems of care” model that would bring together child agencies to recognize common needs and resources. Agencies would then combine efforts, sometimes with federal help, to get the most out of state money and intervene early before children became stuck in the system. The approach would continue much in the spirit of the single state agency idea without actually housing it one group, but “systems of care” is still in development.
“I think that effort has continued,” Sonnier said. “There’s not, today, one system where agencies can look and see what youth have been provided. But we’re looking to do it in a way to leverage our resources.”
Without a single agency to do it, the state also never established standards or license requirements for its detention facilities, a gap addressed in a current bill by state Rep. Damon Baldone D-Houma. The state board of education’s master plan for revising “zero tolerance” rules and refining discipline rules made little difference in Louisiana’s dismal record of expulsions and dropouts.
Kaplan said programs that stressed positive behavior in schools received little support. A study by the Friends and Family of Louisiana’s Incarcerated Children found 12.1 percent of the state’s students were suspended out-of-school in 2007-2008, compared to the national average of 6.9 percent. Louisiana’s expelled 1.1 percent of its students in the same period, a rate five times the national average of .2 percent. The Juvenile Justice Implementation Commission, the group convened to ensure the reforms happened, was staffed part-time by the lieutenant governor’s office. But the group never received its own paid staff, according to Kaplan, and suffered from constraints.
“That I think was a challenge to the members of the JJIC certainly,” Kaplan said. “In the absence of staff to do their work, they didn’t have the resources.”
The mixed legacy of reform
In December 2009, The MacArthur Foundation announced more than $3 million in grants for Louisiana. The foundation gave the “Models for Change” grants, which include a $385,000 grant to the University of Louisiana at Monroe, to bring about changes in the state that would serve as a model for other juvenile justice reformers. The grant also intends to address the disproportionate amount of black youth in secure custody.
Livers points to the decrease of juveniles incarcerated in secure-care facilities as progress of the reform efforts.
“Back in 2003, there was about 2,000 offenders in secure care,” Livers said. “Today there’s around 480 in secure care.”
But of those in secure care, 53 percent are incarcerated for nonviolent offenses, according to OJJ statistics. Most of these nonviolent offenders, around 31 percent of the entire secure-care population, are incarcerated for property crime.
Livers said case loads for probation officers, once deemed overwhelming at 40 by the Casey Foundation, now average in the ideal range of 25 per officer.
But in the middle part of the spectrum, between probation and secure care, the state is still struggling to provide options. OJJ currently has no moderate-security residential facilities, though at least one facility near Columbia is in the works. OJJ is planning on opening the 10-acre facility in early 2011 and expects it to provide 48 beds for adjudicated youth and help further lower the numbers in secure custody.
Marchman said recent closings of two private service providers, Hope Youth Ranch in Minden and Joy Youth Home in Keithville, have her concerned about where to place juveniles.
“(Keithville) closed and that facility was helpful because it specialized in younger children and that was very much needed. It was a place where younger, smaller children could go if they required an extra measure of safety,” Marchman said.
Livers said the closing of both private facilities hasn’t impacted OJJ’s ability to place youth in need of supervision.
The district judge said she also has few options on where to send children with mental health issues and oftentimes she is forced to send them to Swanson Correctional Center, a secure-care facility in Monroe. The episode reads like one of the points in the Casey Foundation’s 2003 argument for reform.
“Youth with behavioral, mental health and substance abuse needs are incarcerated because treatment services are lacking in their communities,” the report said. “As a result, many low-level offenders who do not pose a public safety risk are placed in state custody.”
“That’s the best place I can put children,” Marchman said of Swanson. “The mental health treatment at Swanson … is very high quality, but it’s an abomination that we have to send children there to give them the best treatment.”
Livers said OJJ is planning an intermediate facility outside the fence at Swanson to provide alternative care such as substance-abuse and mental health screenings.
The reports of juvenile abuse, the original spark of reforms, have declined at two of the three remaining secure-custody facilities. The two facilities, the Bridge City Center for Youth near New Orleans and the Jetson Center for Youth near Baton Rouge, also happen to be where OJJ has implemented the LaMod, a version of the respected Missouri Model that stresses a higher ratio of staff to youth, staff engagement with young offenders and therapeutic efforts applied within the smaller group settings.
According to OJJ statistics, altercations in Jetson dropped from around 75 per month in February 2008 to less than 30 per month in November 2009. After peaking at nearly 50 altercations per month in the summer of 2008, Bridge City reported less than 20 by the end of the year.
But OJJ purchased the results in southern Louisiana largely at the expense of Swanson. Livers said OJJ had the resources to put two of the three remaining secure facilities on the Missouri Model. With legislators threatening to close Jetson and advocates strongly opposing any increases at Bridge City, Swanson and its large campus became the last holdout by default. Bridge City and Jetson’s youths per dormitory hover around 12. LaMod calls for a ratio of at least 2 staff per 12 youth on a dormitory except for the midnight shift where there can be one staff with roving supervisors throughout the facility.
Swanson houses up to 24 youth per dorm.
Swanson’s staff total, 318, would appear to be more than enough to supervise population of 228 youth. Smith with OJJ said only 189 of the 318 staff are youth care workers, the rough equivalent of guards. The number of counselors and teachers are based on the number of youth and the services needed, specific services provided and integrated into the model.
OJJ Communication Director Jerel Giarrusso said the 189 youth care workers work in shifts.
“You would never see 300 staff at Swanson at the same time,” Giarrusso said.
In part because Swanson’s dorms hold twice the model’s ideal number of youth, the facility’s reports of fighting trended toward 60 per month late 2009.
Kaplan said the result is youth living in fear.
“We still take calls from the facility,” Kaplan said. “We got a phone call from a child saying he was so afraid for his life that he couldn’t sleep at night. In the last month there’s been two broken jaws, a broken arm. The level of violence at Swanson has definitely escalated.”
Livers said the number of youth per dorm at Swanson is based on the needs of the system.
“Just by sheer numbers it’s difficult to manage 24 youth in a secure facility,” Livers said. “You’re going to have more problems, more issues.”
Mark Steward, director of the Missouri Youth Service Institute group that advises the state on adopting the Missouri Model, said it took 30 years for his state to fully implement needed changes and counseled patience with the seven years Louisiana has had, especially with Hurricane Katrina wreaking havoc with juvenile justice staffing and progress.
“In the early 2000s, Louisiana had one of the most horrible prisons in the country,” Steward said. “Now it’s a decent system and getting better.”
Sonnier with DSS echoed those sentiments, saying that changing an entire system with several different agencies takes time.
“For some people it has moved too fast, for others not quickly enough,” Sonnier said.
Cravins, the former state representative and current board member of the Juvenile Justice Project of Louisiana, falls into the second group.
“The reform we envisioned called for serious changes,” Cravins said. “And it’s a failure of commitment from the Legislature and the executive branch. In order to bring about reform, you have to have a lightning rod, a person whose sole focus is that issue and a commitment has to come from a broader section of the Legislature.”
The co-author of Act 1225 worries Louisianians will see the current state of juvenile justice, with juveniles inside Swanson still phoning out their fears and stories of violence, as the best that reforms can offer, and a backlash against what he sees as real reform might follow.
If progress stalls and public support for reforms erode, Cravins fears Louisiana will have squandered the outrage and sense of action engendered in the early 2000s.
“The chances after that are slim to none,” he said.
mhamilton@monroe.gannett.com
This piece, which appeared in The News-Star is one of a series of original criminal justice journalism projects around the country produced by 2010 John Jay/H.F. Guggenheim Fellows. They were coordinated with editorial input by Joe Domanick, Associate Director of the John Jay College Center on Media, Crime and Justice. We thank the Harry Frank Guggenheim Foundation for their generous support of this project.
First-responder groups clash with regulators over how to build a next- generation national wireless communications network for public safety.
A battle over control of a small slice of the nation’s air waves has put the law enforcement and first-responder community at loggerheads with the federal government and Congress.
The battle is over the final remaining10 megahertz (MHz) of unlicensed wireless spectrum in the 700 MHz band, called the D Block. For years, that little piece of spectrum has been central to plans to create a nationwide inter-operable, wireless broadband communications network for public safety.
Federal regulators, first responders and elected officials agree that such a nationwide system is badly needed. Almost a decade after the terrorist attacks of Sept. 11 2001, first responders from different jurisdictions and agencies still often cannot talk to each other during an emergency. At the same time, existing systems can’t always handle the dramatic increases in traffic seen during emergencies. One widely cited example is the 2006 incident during which Yankee pitcher Cory Lidle crashed a small private plane into a Manhattan apartment building. New York’s public safety officials reported at the time that responders at the scene couldn’t use their commercial wireless cell phones because of network capacity limitations. Post-event analysis showed that even officials with priority access had problems, since commercial wireless networks weren’t scaled to handle such traffic spikes.
No one disputes the argument that the systems now in use across the country by public safety agencies are crippled by the lack of broadband data services such as text messaging, photos, diagrams, and streaming video.
However, that’s just about where the agreement stops.
Auctioning the D Block
By congressional mandate, the Federal Communications Commission (FCC) is required to auction off rights to the D Block that some experts estimate to be worth as much as $3 billion. The proceeds of the auction would go to the federal government and they haven’t been earmarked to pay for building a new public safety network, according to FCC officials.
But public safety officials say they need the 10 MHz of D Block spectrum, combined with an additional 10 MHz for public safety broadband already set aside for them in the 700 MHz band, to build a new network that would let them take advantage of fourth generation (4G) mobile technologies currently in development which would supply first responders with a host of new communications capabilities.
Although not all public safety organizations have joined the fight, most of the country’s police, fire and first-responder organizations are lobbying Congress to lift the auction requirements and reallocate the D Block for first responder use. They are supported by state and municipal elected officials, some key members of congress and some large telecommunications firms.
But arrayed against them is a coalition that argues the quickest and most economical way of creating a next-generation public safety broadband network is through commercial incentives. That camp includes federal regulators, a powerful member of Congress, a national police organization, and other telecommunications companies.
Priority Access
The FCC released in March a plan to expand broadband use nationwide that included a section on building a broadband network for public safety.
The plan recommended that the FCC quickly hold an auction to license the D block for commercial use. But it also recommended that licensees throughout the entire 700 MHz spectrum should be required to provide first responders roaming and priority access in return for a fair price if a public safety network is unavailable. The plan also called for the FCC to require the winning D Block licensee to operate networks on the same standard that the public safety licensee does, and it recommended allocating grants for building out the public safety network.
An earlier attempt by the FCC to auction off the D Block that would have imposed stiffer public safety requirements on the successful licensee failed when no one came up with the required minimum bid.
The FCC maintains that it has already made parts of the 700 MHz spectrum accessible to priority public safety needs, including a 10 MHz block utilized as a nationwide broadband spectrum for first responders . And it argues that building the kind of stand-alone public safety network called for by advocates would cost time and money―about $15.7 billion (over 10 years). In contrast, the FCC estimates that it would cost only $6.5 billion to piggy-back on commercial users’ efforts to build out the D Block.
“If we don’t start the network in the next year or two, then the commercial entities will go ahead and build out their broadband networks, their 4G broadband networks,” says retired Navy Rear Admiral James Barnett, Jr., the chief of the FCC's Public Safety and Homeland Security Bureau.
“After that,” he adds, “The price to build a public safety network almost doubles.”
But first responders and their supporters, including elected state and municipal officials, say the FCC is missing the point. In order to build the capacity they need in order to take maximum advantage of Internet-based mobile voice, data and video communications, authorities argue they need the control over the D Block that can only be ensured by direct allocation.
First responder groups say they envision a network that would let them use broadband data services such as streaming video not available in most systems being used today. Moreover, they want broadband to benefit first responders at all levels of government in order to head off the kind of paralysis that developed after the 9/11 attacks, when a number of jurisdictions were unable to talk to each other in real time.
Videos shot from a police car, for example, could be transmitted in real time with a designated broadband spectrum rather than recorded to video and then cumbersomely replayed later, according to Yucel Ors, director of legislative affairs for the Association of Public-Safety Communications Officials International. “Once you have the spectrum, once you’re starting to use it, you’re going to see the proliferation of (similar) technologies and equipment,” he said in a recent interview with The Crime Report.
And to underline their argument, advocates of earmarking the D Block for public safety purposes point out that previous priority-access agreements with commercial carriers worked well on paper, but not in practice.
Controlling the spectrum
Ors said responders need to be able to control network traffic in an emergency the same way they can on a highway. “At the end of the day the number one concern (for them) is control, who controls the spectrum when they need it,” he added.
Another reason public safety is particularly keen on the D Block is because it sits on the spectrum next to the 10 MHz already allocated to public safety for broadband.
Public safety officials don’t have another opportunity to get any more of the 700 MHz spectrum, said Harlin McEwen, chairman of the Public Safety Spectrum Trust (PSST) Corporation, a non-profit selected by the FCC as licensee for the 10 MHz already allocated to public safety, in a recent interview. “Once it’s auctioned, it’s gone,”
According to McEwen, space in the 700 MHz band is important because it lets first responders use slightly modified commercial off-the-shelf devices that are affordable and currently in wide use.
“If you give us spectrum in some other band to add to ours, we will need unique devices that are only good for public safety because nobody will be in that band but us.”
The FCC’s Barnett disagrees, observing that the commission’s approach is based on ensuring that the nation’s public safety infrastructure keeps up technologically with the commercial networks. And he adds what may be the clincher in the argument: lawmakers are unlikely to appropriate an additional $6.5 billion to build out the public safety network if they are forced to give up auction revenue.
The larger question remains whether in today’s budget-strained environment public agencies could even afford to pay for any level of expanded internet access without federal assistance. “What’s bothering us is that they’re not even willing to give us auction proceeds which would be at least $1 billion,” says McEwen. “What would give us any confidence they’re going to give us other money?”
Congressional Support
Proponents of reallocating the D Block for public safety got a boost last month, when Republican Congressman Peter King of New York introduced legislation to force the issue. Rep. King, the ranking Republican on the Homeland Security Committee, said the 700 MHz band spectrum is ideal for public safety because the signal's frequency lets it work relatively well inside of buildings.
The bill received bi-partisan support, a rarity in today’s political atmosphere. “We would be remiss if we didn’t reserve that spectrum for our first responders,” said co-sponsor Yvette Clarke, a New York Democrat who chairs the homeland committee’s Emerging Threats, Cybersecurity, and Science and Technology Subcommittee, in an interview.
All the same, it’s likely to be an uphill battle in Congress. Virginia Democrat Rick Boucher, chair of the House Energy and Commerce Committee’s Communications, Technology and the Internet Subcommittee said in a press release that the FCC’s plan to auction the D Block is “an essential recommendation.” He also supports using federal public funds to support the build out of a public safety network. News reports have indicated that Boucher may introduce a bill championing the auction.
But commercial carriers also appear to be split on the issue. According to Ors of the Public Safety Communications Officials association, the campaign to award the D Block to first responders is supported by large carriers such as AT&T and Verizon, which also happen to already control a large amount of spectrum in the 700 MHz band. Perhaps not surprisingly, T-Mobile and Sprint Nextel, which don’t control any spectrum in the 700 MHz band, are part of the coalition advocating for the auction.
So, in fact, are some law enforcement groups. The Fraternal Order of Police sent a letter to the FCC in February announcing its support for an auction, on the grounds that making it possible for a carrier other than Verizon and AT&T to win a license in the 700 MHz space would head off a “duopoly” that may be hard for public safety officials to negotiate with.
The arguments may be coming to a head. Barnett said he thinks FCC’s wireless bureau will kick off the rulemaking for the D Block auction sometime this summer. He said the auction should occur sometime in the first or second quarters of calendar year 2011.
Ben Bain is a staff reporter with Federal Computer Week magazine based in Washington. He can be reached at bbain@1105media.com
A Federal Law was Supposed to Curb Disruption and Violence at Abortion Clinics: But Has It?
DENVER- John Dunkle paces along a narrow alley waiting for his cue.
As clinic escorts hoist heavy blue tarps to shield patients from the phalanx of anti-abortion protesters assailing them, Dunkle springs into action.
Megaphone in hand, the spry 72-year-old stakes out the door barking lurid catcalls at women entering the Allentown Women's Center.
By day's end, the retired English teacher will have bolted across that alley at least a dozen times.
Until one day when the scene took a much more sinister turn.
Days after the May 31 execution-style murder of Wichita physician George Tiller by an anti-abortion extremist, Dunkle sidled up to a clinic escort and asked:
Which way would you rather die — by bullet or the slow torturous death of a knife?
So goes the abortion wars. What could be sloughed off as callous behavior in the midst of heated debate is causing renewed alarm among law enforcement experts.
Menacing behavior is on the upswing nationwide and is proving to be emblematic of a growing extremism against clinics by militants emboldened by Tiller's death. Currently, federal authorities are investigating more than two dozen cases of suspected violent criminal acts or serious threats, according to law enforcement insiders.
And that trend is prompting officials to question the effectiveness of the federal law created to serve as a deterrent to clinic violence.
Playing cat and mouse
In the years following the landmark 1973 U.S. Supreme Court decision Roe v Wade affirming legal access to abortion services, organized protests grew in number and intensity.
In 1994, after decades of escalating extremism, President Bill Clinton signed the Freedom to Access Clinic Entrances (FACE) Act to provide both civil and criminal remedies to stem clinic violence and blockades.
The law prohibits "certain violent, threatening, obstructive and destructive conduct that is intended to injure, intimidate or interfere with persons seeking to obtain or provide reproductive health services." The new rules also defined federal penalties for clinic property damage and destruction that had been the early aim of radical abortion foes primarily through bombing, arson and vandalism.
The intent of FACE was also to provide needed clarity for local law enforcement agencies on the often murky degrees of separation between constitutionally-protected free speech and public safety threat.
Even as the law was initially vigorously enforced violence-prone abortion opponents have adapted to test its limits.
Dunkle's scrapes with the law offer a telling roadmap.
In 1994, he was arrested along with 20 members of a nomadic extremist group, the Lambs of Christ, for physically blockading a Rochester, N.Y., clinic by chaining themselves to a junked car dropped near the door. It took police and firefighters hours to extract the protesters. The protesters were charged in federal court with a miscellaneous civil rights violation, collectively fined $20,000 and ordered to stay away from the clinic.
Except, the permanent injunction, like others before FACE, did little to thwart the protesters. The Rochester clinic and others in western New York would be the scene of violent and repeated clashes with local police for years to come despite repeated injunctions, unpaid fines and brief jail stints. The mayhem unleashed by extremists also provided cover for increasing violence that resulted in the deaths of four people and wounding of five at clinics in Buffalo, Brookline, Mass., and Pensacola, Fla., in 1994.
Over the next dozen years, Dunkle continued his protests while building connections to one of the most virulent extremist groups, the Army of God, a shadowy network that advocates a paleo-conservative Biblical justification for the murder of abortion providers.
In 2007, Dunkle publicly resurfaced in northeast Pennsylvania and once again came to the attention of federal authorities. The devout Catholic posted on his blog that a Philadelphia-area physician should be shot in the head to prevent her from providing abortion services. He was charged with a FACE Act violation and slapped with a permanent injunction barring him from making death threats or otherwise intimidating clinic patients and staff.
But it seemed to have little effect.
Now, when Dunkle and his megaphone aren't holding fort outside Lehigh Valley women's health centers, he's reveling in the exploits of other ideological extremists.
He operates a website that mimics one operated by the Army of God. On it he features serialized manifestos and unrepentant letters from anti-abortion protesters imprisoned for murders, bombings, arsons and attempted attacks against clinics. A point noted by a U.S. District Court judge in his 2007 injunction ordering federal authorities to periodically monitor Dunkle's site for compliance.
Federal prosecutions don't keep pace
The situation prior to the FACE Act and in the ensuing 16 years following its enforcement points to a grim reality for reproductive health clinics, staff and patients.
Prior to FACE, the National Abortion Federation tallied 1,641 violent incidences and 8,110 disturbances at clinics between 1977-93. The most violent acts — homicide, kidnappings, stalking, arsons, bombings, butyric acid attacks and clinic invasions — are nearly always attributed to anti-abortion extremists directly connected to or inspired by militant Christian organizations.
Since 1994, the Justice Dept. has prosecuted just 19 civil and 45 criminal cases. The prosecutions have overall been very successful — 62 convictions, one pre-trial diversion and one dismissal because the defendant was deemed incompetent to stand trial. Yet, they pale in contrast to the thousands of incidents reported.
Meanwhile, U.S. Attorneys are currently prosecuting four cases and notched another conviction Apr. 28 in New York City involving a blockade of a long-targeted clinic in Manhattan. They will be sentenced June 10.
The incident and prosecution trends also reveal another truth in enforcing the FACE Act. Some types of violations, like bombings and arson, which alone carry heavy federal sentences have decreased significantly while other crimes are skyrocketing. Again, signaling an evolution in the violence-driven protesters' tactics to thwart local law enforcement efforts while continuing their mayhem.
Bead-holders versus bomb-throwers
Anti-abortion activists may be united in their anger over Roe but they occupy two very distinct camps. Motivated by a sense of personal morality, flocks from mainstream Christian churches and affiliated institutions invoke their constitutionally-protected free speech rights to express their opposition. Largely peaceful, the protesters often recite rosary prayers, sing hymns or try to distribute well-intended but medically inaccurate literature outside the clinic.
The more zealous of the bunch resort to shouting at patients about abortion alternatives — a tactic dubbed "sidewalk counseling" by proponents. In broad terms, the "bead-holders" prefer to legally challenge Roe v. Wade by incrementally restricting abortion services through onerous state and federal laws.
The other end of the protest spectrum is so radicalized that even the most staid law enforcement insiders and religious figures are increasingly describing their actions as domestic terrorism. They are bomb-throwers, literally and figuratively.
A May 1988 RAND Corporation report on domestic terrorism provides one of the earliest mentions of militant anti-abortion groups as threats to national security. The analysis notes that during the early 1980s these groups were among the most active terrorist movements in the United States.
Nearly ideologically-driven "anti-abortion terrorist cells" conducted nearly 50 percent of all domestic terrorist activity in 1984 and 1985. Groups like the Army of God, Lambs of Christ, Missionaries for the Preborn and the various Operation Rescue splinter groups created from internecine power struggles, all espouse the violent rhetoric, paleo-conservative theocracy and hyper-militancy typically used to describe armed anti-federalist militias and racist groups. And, like other terrorist groups, they are highly networked.
Proselytizing with self-published manuals on arson and bomb-making techniques, they fuel their adherents with fiery, convoluted fundamentalist Biblical interpretations.
Throughout the now 22-year-old report RAND specifically names the Army of God as domestic terrorists — the group to which Dunkle and Tiller's murderer Scott Roeder have allied themselves. Further, the analysis found that law enforcement officials frequently dismissed evidence of an armed, organized anti-abortion network that threatens national security.
Today, that's no longer the case.
Over the coming days, RH Reality Check will explore the FACE Act. We'll be asking tough question about its effect as a deterrent to clinic violence and obstruction. State, local and federal law enforcement officers are talking candidly about jurisdictional issues that impede arrests and prosecutions. And we'll assess the rise of militant anti-abortion groups and potential new solutions to ensure public safety.
NEXT: Anatomy of FACE. How a violent anti-abortion protester has terrorized a clinic for more than 30 years — and why he's still there.
This piece, which appeared in RH Reality Check is one of a series of original criminal justice journalism projects around the country produced by 2010 John Jay/H.F. Guggenheim Fellows. They were coordinated with editorial input by Joe Domanick, Associate Director of the John Jay College Center on Media, Crime and Justice. We thank the Harry Frank Guggenheim Foundation for their generous support of this project.
Florida----Early one morning last May, while in a drug- and alcohol-induced stupor, Jordan Perez was prowling around his neighborhood checking for unlocked cars that might contain cigarettes or cash.
A parked white 1998 Mercedes-Benz SUV proved an easy target. Perez, then 19, opened the unlocked driver's door and removed a .357 magnum revolver and two semi-automatic pistols from the side panel.
He stumbled the four blocks back to his grandparents' home, tucking the guns into his pockets and waistband. He was confronted by a neighbor. Perez displayed the revolver but was talked into putting it down before running off. At some point, one of the pistols discharged, the bullet ricocheting off the ground.
Darla Healey was alarmed by her grandson's intoxicated state as soon as he entered the house, while Healey's daughter - Perez's aunt - noticed the guns.
They disarmed the slurring, incoherent teen, who never so much had held a gun before, and promptly called the cops.
Perez, now 20, faces three counts of grand theft, one count of carrying a concealed firearm, and one count of burglary of a conveyance while armed - a first-degree felony punishable by up to life in prison. Under Florida statutes, the latter charge also carries a mandatory minimum three-year prison sentence.
The Forest High School graduate admits to a severe and prolonged drug habit, but claims never to have exhibited violent behavior. He has a fleeting memory of wanting to sell the firearms for cash. Other than being caught with marijuana as a juvenile, he has no criminal record.
"I was messed up when all this happened. I wasn't in the right frame of mind. I wasn't in the right circumstance. I'm not a criminal, I'm not a thief," Perez said during a recent interview at the Marion County Jail.
A prosecutor has offered Perez a plea offer of three years behind bars.
The apparent mitigating circumstances - the influence of drugs, the remorse, his family's concerted efforts to get him into rehab - have not swayed the prosecutor."If this guy was a 35-year-old habitual criminal, I'd understand [the plea offer], but he was 19," said Perez's defense attorney, Doug Kirkland. "Prison for a young kid? I don't see that solving anything."
But that's the reality of the state's rigid system of meting out punishment.
Florida's mandatory minimum sentencing laws, among the toughest in the country, blanket everything from drug and gun crimes to parole and probation violations, allowing not even one seemingly isolated act committed on a drunken binge to sneak past.
Such laws have helped push Florida's state prison population past the 100,000 mark, outpaced only by California and Texas.
Last month, The Pew Center on the States reported that the nation last year experienced an overall decline in the number of state prisoners for the first time in 37 years. Florida was one of 24 states that continued to see an increase, and one of five states that accounted for more than half the increase.
Experts say that a greater number of individuals are serving longer prison terms than ever before, plus returning to prison with a greater degree of frequency because of probation violations, owing in large part to sentencing policies that some argue are too one-size-fits-all.
"Mandatory minimums is not intelligent. It's attacking crime with a blunderbuss. We need more finely tuned weapons to deal with crime," argued Robert Batey, a criminal law professor at Stetson University.
While other states have enacted measures repealing decades-old mandatory sentencing laws in the face of rising corrections costs, Florida has yet to follow suit.
"The difference between Florida and quite a few other states is that [Florida lawmakers] haven't taken the comprehensive look at the laws that have been enacted and the impact of those laws," said Linda Mills, who's been consulting nonprofit organizations on Florida justice reform issues since 2005.
Experts are hopeful that the tide may be slowly turning."We've identified Florida as being particularly problematic because of the length of the drug mandatory minimums. We also think some really good stuff is happening in Florida," said Deborah Fleischaker of the Washington, D.C.-based group Families Against Mandatory Minimums, which has spearheaded a lobbying effort in Florida.
"People are starting to pay attention because the budget is a mess," she said.
Fifteen years ago, Florida's corrections budget was $1.6 billion, or 9.4 percent of the state's total budget. By fiscal year 2009-2010, that corrections budget ballooned to $2.4 billion, consuming about 11 percent of the general revenue fund.
With Florida now facing an approximately $3 billion budget shortfall heading into 2010-2011, recent prison projection estimates have turned this forecast even stormier.
Already at 101,467 inmates in February, the state's prison population is expected to swell to over 115,000 by 2015, requiring the construction of nine new prisons and a cost to taxpayers of over $862 million, according to a March report from the Office of Program Policy Analysis & Government Accountability.
Aware of this trend, The Collins Center on Public Policy, an independent think tank with offices in Miami and Tallahassee, formed a steering committee in early 2009 to propose a series of recommendations for reform.
In February, the committee's report suggested, among other things, to reevaluate mandatory minimums for low-level drug and theft offenses; expand drug courts; implement more faith- and character-based prisons; and ensure that a Correctional Policy Advisory Council established by the Legislature in 2008 finally meet.
"It is time for our state to rethink thirty-year old policies that may have served the state well in their time. But their time has passed. We know more now," the authors wrote. "Continuing to pour money into a bloated prison system in a time of fiscal austerity is not only unsustainable, it confounds common sense."
April Young, vice president of Criminal Justice Initiatives at the Collins Center, said it's not possible to reduce correctional costs without discussing sentencing reform.
"If we're spending all this money on corrections, we have to look critically at what it's getting us and what we forgo as we make these choices," she said. "What we're interested in is incarcerating people appropriately."
One-size-fits-all
Florida's first mandatory sentencing laws for drugs were introduced in 1979, around the time Miami was known as the "drug capital of the Western Hemisphere."
Today, possessing an amount of marijuana greater than 25 but less than 2,000 pounds, or cocaine greater than 28 but less than 200 grams, nets a minimum three-year sentence. As the amount goes higher, these minimums rise to either seven or 15 years.
The punishment appears even more extreme for other types of drug offenses. Possessing 28 grams of non-prescribed prescription bills such as oxycodone or hydrocodone - the equivalent to one bottle of pills - triggers a mandatory minimum sentence of 25 years.
"You're supposed to reduce the charge if a [defendant] gives you substantial assistance. The idea was, you're going to get the little guy to get the big guy. But that's not what's happening in the pill cases," said Sixth Circuit State Attorney Bernie McCabe, whose district covers Pinellas and Pasco counties.
These mandatory drug laws were in effect even as the state revised its correctional policies. Parole was abolished in 1983. In February 1987, the Department of Corrections began implementing early release of inmates due to lack of prison space. The average prison term then was 33 percent of court-given sentences. Early release continued until December 1994 - by then, Florida was undergoing a massive and accelerated prison-building program.
By 1995, the Legislature passed a "truth-in-sentencing" policy which required all offenders to serve at least 85 percent of their prison sentences.
By 1999, a new category of mandatory gun laws, proposed by Gov. Jeb Bush during his campaign a year earlier, was introduced. Under 10-20-Life, possessing a firearm during a crime such as murder, robbery or sexual battery nets a minimum 10-year sentence. If the firearm is discharged, the sentence rises to 20 years. If someone is seriously injured or is killed, that's an automatic life sentence.
While it had been possible to receive a mandatory three years in gun-related cases where one commits or attempts to commit aggravated assault - or, in Jordan Perez's case, commits burglary of a conveyance - since as far as back as the 1970s, 10-20-Life also made possessing a firearm by a convicted felon subject to a three-year mandatory sentence.
"This (10-20-Life) was supposed to send a message to the population," Stetson's Batey said. "The people who deserve these kinds of sentences could have gotten them anyway, because judges have the discretion to sentence up to these numbers."
Linda Mills recalls that the passage of 10-20-Life was widely championed by the state at the time.
"It became a brand, like Coca-Cola," she remembers. "Like, 'Florida: 10-20-Life.' "
Those who don't particularly view mandatory minimum sentencing laws as problematic will often turn the discussion back to the issue of public safety.
"The general principle of having a mandatory minimum is a good one," said Ric Ridgway, chief assistant to 5th Circuit State Attorney Brad King. "Ultimately, it's favorable to public safety. The crime rate is generally down. You've got to see that at least some of the people are locked up doing mandatory minimums."
Florida's crime rate, like the nation's, has been dropping. Its overall index crime rate experienced a 6.4 percent decline in 2009, reaching a 39-year low. According to the Pew Center, the national index crime rate in 2008 was 37 percent lower than the historic high in 1990.
But that doesn't translate to fewer prisoners. The Center finds that a growing parole and probation population, and the pattern of sending offenders back to prison when they violate probation, has "kept the prison population increasing during a time when crime declined."
Retired prosecutor Jim Phillips belongs to the school of thought where locking criminals up under such laws is a surefire method of keeping the streets safe.
"We have to look at money costs versus human costs," he said. "If you can prevent one convenience store clerk from getting shot over 30, 50 dollars, it's certainly worth the extra financial cost" of long-term incarceration.
"From a standpoint that there are very dangerous people that can be removed from society for a number of years, they (mandatory minimums) surely have served their purpose," said Circuit Judge Stanford Blake, who spent 15 years on the felony bench in Miami-Dade County.
But, he added, "The Legislature understands and the people understand that if you pass these things and house people in prison, there is a cost involved."
Loss of discretion
Critics say mandatory minimum sentencing laws have shifted the power balance of the justice system, assigning more authority to the state attorneys who make charging decisions and less to judges, who have lost discretion in sentencing.
A judge may depart downward from a mandatory sentence in only two circumstances: when a defendant is sentenced as a youthful offender; or when a judge approves the state's motion to reduce or suspend a sentence based upon the defendant providing "substantial assistance" in connection to another case.
The State Attorney's Office has authority to waive a mandatory minimum, or amend a charge.
Defense attorney Kirkland said he's noticed that flexibility is "going to the wayside."
"The mandatory minimums are not what's best because I trust the judge's discretion," he said. "They're the ones sitting there, hearing the facts."
Two years ago, 5th Circuit Judge Hale Stancil sentenced a Weirsdale man to 12 years' probation for firing a single shot at law officers while in the shower. No one was injured. The deputies were preparing to commit the man to a mental health facility.
With no plea bargain, Bradley Vanderhoff pleaded guilty to three counts of attempted first-degree murder of a law enforcement officer. Stancil, finding that the shooting was an isolated incident, was conducted in an unsophisticated manner, and that the defendant showed remorse, departed from the mandatory 20-year prison term required under 10-20-Life.
The state immediately appealed. In June, the 5th District Court of Appeal overturned the judge's decision, finding it did not follow the law, but allowed the defendant to withdraw his plea. Today, Vanderhoff, 44, awaits a new trial but will undergo competency review.
"Mandatory sentence laws are a threat to judicial independence and remove discretion from trial judges who once were able to consider the unique circumstances of each case," Stancil wrote in some notes several months before the appellate ruling came out. "The 'one-size-fits-all' mentality may sound good or look good on paper, but it has little or nothing to do with justice."
Others say such laws could have an unintended effect: Confronted with tough sentences, defendants have nothing to lose by going to trial.
"It sort of prohibits effective plea bargaining, which results in more trials, which are more time-consuming and expensive," said Umatilla defense attorney Ronald Fox.
It's an issue that outrages many defense attorneys, confounds legal experts, resigns some judges and leaves those most affected by such laws - the criminally charged - often with little option.
"When you're in criminal court, you deal daily with human landmines. There are times we have discretion, there are times we do not," Judge Blake said.
Unique circumstances
The vehicle that Perez burglarized belonged to an undercover law officer. He faced no disciplinary action for failing to secure his guns in a box or conceal them from view, as required when off-duty. He said the SUV had "a faulty locking mechanism."
It's unlikely this unique circumstance will have any effect on the prosecutor's steadfast resolve to stick with her three-year plea offer.
"I would have gotten a lesser charge if I just took the whole car," Perez, who has bonded out of jail recently, said with sarcasm.
He's right. After all, there is no mandatory minimum sentence for grand theft.
Council ‘vital’
Those hoping for revisions to Florida's tough sentencing policies all refer back to the same legislation from 2008: Senate Bill 2000.
This bill created a 10-member Correctional Policy Advisory Council to evaluate specific sentencing practices like mandatory minimum laws.
Under the bill, which was signed into law by Gov. Charlie Crist, the body was to report findings and recommendations to the Legislature by Jan. 15, 2009.
But without any appropriations for staff support or travel expenses for the members - who would not receive compensation for their work - the council has yet to convene, two years later.
So crucial do reformers feel this council could be in achieving a more cost-effective criminal justice system down the road that the Collins Center for Public Policy prioritized its reinstatement in a February report.
"That is the most important thing that we can do, because at the end of the day, it [sentencing reform] is not going to happen as easily in an election year," said Allison DeFoor II, a former sheriff of Monroe County and former vice chairman of the Republican Party of Florida, who served on a steering committee established by the think tank.
Legislation introduced by state Sen. Victor Crist, R-Tampa, this year has brought the Correctional Policy Advisory Council back into the conversation.
His Senate Bill 1394, now in the Policy & Steering Committee on Ways and Means, mandates that Department of Corrections Secretary Walt McNeil organize a first meeting if the council has not convened at least once by Sept. 1.
It also requires the bipartisan group - consisting of two state Senate members, two House members, a victim advocacy representative, the attorney general, the DOC secretary, a state prosecutor, public defender and a private attorney - to submit a report by Jan. 15 of next year.
Among the extensive list of questions the council has been asked to consider include whether mandatory minimum sentences should be repealed or modified to reflect exceptions in some circumstances, or whether "truth-in-sentencing" gain-time restrictions could more closely align with federal minimum requirements.
"I think they actually might get this [council] reauthorized and working which means for next year, for session, there will be a lot more to do because the council will have done its work," said Deborah Fleischaker, of the group Families Against Mandatory Minimums.
‘Baby steps’
Nancy Daniels, public defender in Florida's 2nd Judicial Circuit, which includes Tallahassee, was appointed by the governor in August 2008 to serve on the council. While she is optimistic of its future, she acknowledges that in Florida's political environment, one must hope for "baby steps."
"It's a tough thing for politicians to make the laws more lenient," she said. "They're accused of being soft on crime, and it's tough in an election year to have that tag on you."
But the factor that might push the discussion past the "soft-on-crime" rhetoric is the fiscal reality of Florida in general and its correctional policies in particular. The state has plans to build nine new prisons, with an estimated cost of $862 million.
"Florida can't afford it," said Barney Bishop, president and CEO of Associated Industries of Florida, which represents businesses around the state. "We're continuing to put more money into building new prisons and the outcome is the same. It's [creating] a revolving door, high recidivism, and we're not giving them [inmates] any new skills," he added.
"This is a conservative position at the end of the day," DeFoor said. "Wasting money is not exactly a conservative lifestyle. No one is demanding accountability or performance and they're just sending a bill. But that party is over, because the numbers became so big."
Breaking the cycle
As Florida's prison population continues to increase, the rate of growth has slowed in recent years.
Since October 2008, the DOC began introducing re-entry initiatives to provide inmates with comprehensive services and programs to help with their transition back into society.
In Florida, the recidivism rate is 32.8 percent within an average three-year span. Corrections officials hope to reduce that to 20 percent over the next three to five years.
But they urge patience, explaining that current reentry initiatives are culled from existing resources, and that it might be some time before the numbers start to reflect any decrease.
"We have 101,000 inmates. We're trying to turn this ship around but we're huge. It's going take us a while to turn things around here," said DOC spokeswoman Gretl Plessinger. "The bottom line is, we have to house those people."
The state spends an average of $95 million to build each new prison for 1,335 inmates, with another $27 million set aside for operations costs. It costs $20,000 a year to house one state prison inmate.
Back-end treatment programs like re-entry initiatives, which teach valuable education or work-related skills to those already behind bars, and character- and faith-based prisons are viewed as useful and innovative ways to try and tamp down on recidivism.
Some states have opted to try reducing inmates' sentences in certain circumstances.
Michigan, for instance, reduced its prison population by more than 6,000 since March 2007 by releasing non-violent felons who served 100 percent of their minimum sentence and decreasing parole revocation rates.
In Mississippi, non-violent offenders are now required to serve only 25 percent, as opposed to 85 percent, of their sentences to become eligible for parole.
There is also a greater movement afoot to utilize various treatment courts, such as drug court and mental health court, to divert offenders with underlying needs.
A long haul
But some believe Florida needs to adopt a more proactive approach earlier on, and part of that begins by examining how and for whom mandatory minimum sentences are being applied.
"Take some criminal justice dollars and put them on the front-end of the system to divert people who don't belong in prison," said Bishop from Associated Industries. "Prison should be for those who are a danger to themselves and a danger to society. A significant number of people we're putting in prison are low-level druggies."
When it comes to existing mandatory minimum sentencing laws, no one is holding their breath for rapid-fire reform.
Bishop predicts it will be a four-year effort to overhaul such laws. But he's hopeful because of the condition of the budget.
"This is the perfect time to focus on an issue like this, because when you don't have money, you have to start prioritizing what's the most important, least important to do," he said.
Robert Batey, a criminal justice professor at Stetson University, said that if legislators were to amend any of the mandatory minimums, the drug offenses will likely be the first to be affected.
"When it comes to mandatory minimums, change has come very slowly, but when it does happen, it will happen very quickly," he predicted.
"It really does take a critical mass of legislators who essentially wake up and say, 'What were we thinking?' "
This piece, which appeared in Ocala Star-Banner is one of a series of original criminal justice journalism projects around the country produced by 2010 John Jay/H.F. Guggenheim Fellows. They were coordinated with editorial input by Joe Domanick, Associate Director of the John Jay College Center on Media, Crime and Justice. We thank the Harry Frank Guggenheim Foundation for their generous support of this project.
State legislators have complained about prison crowding – and the mounting cost of incarceration – for decades.
Yet the Ohio General Assembly allowed the state prison budget to grow this year, despite looming multibillion-dollar budget deficits. Ohio’s statewide inmate population climbed within 128 inmates of the all-time record of 51,273 this month, prompting state lawmakers and Gov. Ted Strickland to blame one another for inaction.
State Sen. Bill Seitz introduced legislation 15 months ago to change criminal sentencing laws in Ohio, reduce prison crowding and begin saving money that the Green Township Republican says could be directed toward job training, drug treatment and other programs to keep offenders out of prison. Less-serious crimes would no longer mandate prison time, under his bill.
Strickland, a Democrat up for re-election, proposed similar sentencing reforms in his two-year budget last year.
But Seitz’s bill remains stalled in the Ohio Senate, leaving the sponsor wondering why Strickland – a former prison psychologist – isn’t raising a bigger fuss. Meanwhile, prison union leaders fear crowding will lead to another deadly prison riot like the one that killed nine inmates and a guard at Lucasville prison in April 1993.
“We need to pass it sooner rather than later,” Seitz said. “It’s one of those Mexican standoffs. . . When we’re facing an $8 billion budget deficit, why are we delaying?”
Strickland, speaking at the Ohio NAACP’s legislative lobby day this month, suggested the group urge state lawmakers to enact legislation to overhaul the state’s criminal sentencing laws. “We have a prison system that is hugely overcrowded, perhaps even dangerously so,” Strickland said. “And we have now the opportunity, because I think the time is right and I think there is growing support for really addressing some of the problems that we have within our sentencing laws today. And so that’s one of the things that I hope you will talk about and focus on.”
According to research and interviews funded in part by a John Jay College fellowship, The Enquirer found:
m.At least 26 states have reversed the trend of recent decades and cut funding for corrections. Ohio lags behind half the nation in cutting its prison expenditures, according to a 2009 study by Vera’s Center on Sentencing and Corrections, part of the non-partisan, nonprofit Vera Institute of Justice. Ohio’s prison budget continues to grow, up slightly this fiscal year over last.
m.Other states have successfully reduced prison crowding by emphasizing treatment programs and improving parole and probation programs, according to studies by the Council of State Governments. (CSG).
With most Ohio legislators seeking re-election this fall, it’s easier to keep a near-record number of state prisoners locked away than pass legislation that appears soft on crime.
But that choice comes at another price, according to the CSG’s Justice Center, which found prison spending typically outpaces spending by most other state agencies – totaling $53 billion nationwide last year, and averaging $1.6 billion a year in Ohio. That’s up from $480 million in 1991 and $1.4 billion in 2001. About one of every four state employees works for the Ohio Department of Correction and Rehabilitation Services, the fourth-costliest state agency. after the Department of Job and Family Services. Department of Education and Board o Regents.
DRC Director Ernie L. Moore called it more important than ever to examine what is pushing the prison population upward “and make tough decisions to divert appropriate low-level offenders to safe and effective community alternatives.”
Strickland, Moore and legislative leaders are awaiting completion of a CSG Justice Center study, which could take up to three years, before deciding on any drastic action, such as a mass release of inmates. The Justice Reinvestment Initiative study, which could cost up to $1 million, was prompted by a 2008 request from Ohio’s elected state leaders. Most of the cost is paid for by the Pew Center on the States and the U.S. Department of Justice Bureau of Justice Assistance.
CSG, a non-partisan, non-profit organization, has worked with more than 10 states, including Texas and Kansas. In many cases, the studies – which focus on "justice reinvestment,’’ gave state lawmakers ideas on how to decrease the prison population and cut the corrections’ budget. Justice reinvestment is defined as "a data-driven approach to reduce corrections spending and investing the savings into programs and strategies that decease crime and strengthen neighborhoods,’’ according to Michael Thompson, director of the council’s Justice Center.
"We certainly don’t want to get in the way of what the legislature wants to do,’’ Thompson said.
To guide the Justice Center’s analyses of Ohio’s criminal justice system and development of policy options, the state set up a justice reinvestment work group, co-chaired by Seitz and state Rep. Mike Moran, a Democrat from Hudson. Members represent both parties and all three branches of state government, including the two chambers of the General Assembly. The work group will review data analyses from the Justice Center and identify policy options to address the projected growth in Ohio’s prison population, identify ways to save money, reinvest in strategies to prevent repeat offenses and increase public safety.
Texas’ state legislature reinvested its savings into treating drug abuse, mental illness and other "diversion" programs that reduce prison crowding.
In Kansas, the Justice Center’s study of prison data found 65 percent of that state’s prison admissions were due to parole and probation violations. So Kansas officials created financial incentivesfor county parole officers to meet certain goals, new policies and training to improve the parole system while expanding treatment programs. The changes allowed Kansas to scrub planned prison construction, and close some smaller prison facilities. That’s a good concrete sentence
In Ohio, the Justice Center plans a July meeting to share an interim report on its prison analysis with state legislators including Seitz and state Rep. Louis Blessing, R-Colerain Township. The Cincinnati-area legislators are considering a new bill that would identify ways to keep offenders from returning to prison.
The interim report in July will include an analysis of cost and prison population pressures the state is facing.
"This project is an important step to develop a comprehensive policy framework that strategically invests Ohio’s corrections dollars,’’ Moore said Friday.
Because of the complexities of the study and three phases of the project, the total cost will range between $ 500,000 and $1 million, according to CSG’s Mark Pelka. The vast majority of the cost is covered by private foundations and federal agencies, namely the Pew Center on the States and the Bureau of Justice Assistance, a division of the U.S. Department of Justice.
CSG, a non-partisan, non-profit organization, has worked with more than 10 states, including Texas and Kansas. In many cases, the studies – which focus on “justice reinvestment,’’ gave state lawmakers ideas on how to decrease the prison population and cut the corrections’ budget. Justice reinvestment is defined as “a data-driven approach to reduce corrections spending and investing the savings into programs and strategies that decease crime and strengthen neighborhoods,’’ according to Michael Thompson, director of the council’s Justice Center.
“We certainly don’t want to get in the way of what the legislature wants to do,’’ Thompson said.
To guide the Justice Center’s analyses of Ohio’s criminal justice system and development of policy options, the state set up a justice reinvestment work group, co-chaired by Seitz and state Rep. Mike Moran, a Democrat from Hudson. Members represent both parties and all three branches of state government, including the two chambers of the General Assembly. The work group will review data analyses from the Justice Center and identify policy options to address the projected growth in Ohio’s prison population, identify ways to save money, reinvest in strategies to prevent repeat offenses and increase public safety.
Texas’ state legislature reinvested its savings into treating drug abuse, mental illness and other “diversion” programs that reduce prison crowding.
In Kansas, the Justice Center’s study of prison data found 65 percent of that state’s prison admissions were due to parole and probation violations. So Kansas officials created financial incentives for county parole officers to meet certain goals, new policies and training to improve the parole system while expanding treatment programs. The changes allowed Kansas to scrub planned prison construction, and close some smaller prison facilities. That’s a good concrete sentence
In Ohio, the Justice Center plans a July meeting to share an interim report on its prison analysis with state legislators including Seitz and state Rep. Louis Blessing, R-Colerain Township. The Cincinnati-area legislators are considering a new bill that would identify ways to keep offenders from returning to prison.
The interim report in July will include an analysis of cost and prison population pressures the state is facing.
“This project is an important step to develop a comprehensive policy framework that strategically invests Ohio’s corrections dollars,’’ Moore said Friday.
The report will include findings on Ohio’s behavioral health system (mental health, addiction services and treatment). It includes input from judges, prosecuting attorneys, defense attorneys, victim advocates, probation officials, community corrections, and behavioral health service and treatment providers.
In 2009, of the more than 9,100 offenders enrolled in Ohio’s Treatment Alternatives to Street Crime, also known as TASC, just 6 percent of adults were arrested on a new charge and 2 percent were jailed. About 82 percent of their drug tests were negative.
Letting prisoners out en masse doesn’t reduce crime or crowding, according to several recent studies, including by the Pew Center on the States.
In fact, shaving three months off every criminal’s sentence has been found to reduce repeat offenses and prison crowding over time.
Strickland once counseled inmates at Southern Ohio Correctional Facility in Lucasville, site of the deadly 11-day riot that began on Easter 1993. The deaths were largely blamed on prison crowding and a shortage of guards. Tensions among prison staff are high again as budget cuts loom. Rather than release prisoners from Lucasville, state officials instead decided to stop manning several prison guard towers, prompting the correction officers union to picket over new safety concerns.
Prison growth
Ohio's prison inmate population has grown by more than 500 percent since 1972 and is projected to soar to 53,992 next July if proposed sentencing changes and alternatives to punishment aren't passed by the General Assembly.
1972: 8,846
1975: 8,978
1979: 12,768
1985: 17,382
1989: 24,373
1995: 39,065
1999: 45,285
2005: 41,039
2009: 50,985 (as of April 6)
2010: 51,145 (as of April 5)
*All-time Ohio record: 51,273 on Nov. 10, 2008
Source: Ohio Department of Rehabilitation and Correction
What worked?
The Council on State Governments' Justice Center, which is studying Ohio's prison system for ways to reduce its prison population and repeat offenders and save money, cited these success stories from past studies:
Kansas state legislators enacted a 60-day credit for inmates who completed certain programs and a grant program for local community corrections agencies to reduce repeat offenses. The state expects to save $80 million over five years. About one-tenth of that money was reinvested into treatment programs, improved local supervision and targeting high-crime neighborhoods. The changes allowed Kansas to scrub planned prison construction, and close some smaller prison facilities.
Texas state lawmakers have saved $443 million by focusing on improving supervision after prison release, and reinvested $241million in drug abuse, mental health and other diversion programs. The number of people returning to prison from parole and probation has decreased since 2007. The state's prison population had been projected to increase by 14,000 in five years, but flattened out instead.
Senate Bill 22
State Sen. Bill Seitz' legislation, Senate Bill 22, has sentencing proposals similar to those proposed last year by Gov. Ted Strickland and Terry Collins, his former prison director. Strickland's two-year budget, which was passed last July, included $3.65 billion through June 2012 to operate Ohio's 32 prisons, which are crowded at 130 percent of their designed cell space.
Strickland recommended sentencing people to alternative programs for failing to pay child support, freeing 527 prison beds annually; increasing from one to seven days per month the possible "earned credit" time for eligible inmates, freeing 2,644 prison beds; redefining supervision for parole violators, freeing 591 prison beds; and raising the felony theft thresholds from $500 to $750, freeing 300 prison beds. Those and other reforms could eventually save $29 million and reduce the prison population by 6,736 annually, according to budget estimates.
Seitz, a Republican from Green Township, proposed reducing "earned credit" to five days per month instead of seven. Credits would be earned by completing education courses, job training, drug treatment and other prison programs. Violent offenders and sex offenders would not be eligible for good-time credits under Senate Bill 22. Seitz' sentencing proposals re projected to free-up 3,498 prison beds, saving the state $15 million-a-year.
Flashback
In May 2001, here's what two popular Cincinnati-area lawmakers told the Enquirer about prison crowding:
Legislators such as state Rep. Gary Cates, a Republican from West Chester who is now a state Senator, suggested the state use more halfway houses and other alternative programs for non-violent criminals to slow the exploding prison budget; there were 45,000 inmates at that time.
"When you look at the cost of incarcerating people you realize how much more that department is gobbling out of the budget," Cates said. "We have to do a better job of rehabilitating people. It's cheaper."
Former Senate President Richard Finan, a Republican from Evendale, had favored spending more money on intensive drug and alcohol treatment in Ohio prisons - a move he believes would save money in the long run. Just 15 of Ohio's 34 prisons provide residential drug and alcohol programs.
"Here we've got a captive audience and doggone it, we ought to be trying to change them," Finan, now a Statehouse lobbyist, said at that time.
Finan also proposed: college courses via the Internet for inmates; putting more prisoners to work refurbishing tires for school buses and performing similar factory jobs. Finan said such programs would save money because inmates who learn job skills are less likely to return to prison. About 32 percent of inmates released in Ohio end up back behind bars.
"Right now they come out of prison with no ability to get a job, so where can they make money? They go back to the streets," Finan said nine years ago. "We've go to do something. The mentality in the prison system is they are not as much into correction as they are incarceration."
This piece, which appeared in Cincinnati Enquirer, is one of a series of original criminal justice journalism projects around the country produced by 2010 John Jay/H.F. Guggenheim Fellows. They were coordinated with editorial input by Joe Domanick, Associate Director of the John Jay College Center on Media, Crime and Justice. We thank the Harry Frank Guggenheim Foundation for their generous support of this project.
The Crime Report is proud to introduce a special feature that begins today in Inside Criminal Justice. Over the next two weeks we will be publishing in this space the work of journalists selected as 2010 John Jay/Harry Frank Guggenheim Fellows.
Their original reports, many of which have also been published or broadcast in their own news outlets, demonstrate the best of of contemporary U.S. criminal justice reporting. We welcome your comments. The special reports begin with a piece by Matthew D. LaPlante of the The Salt Lake Tribune: From combat to lockdown: Troubled Veterans Trade Military Uniforms for Prison Attire.
John Pace stumbled to his car, slipped Johnny Cash's "Folsom Prison Blues" into the compact disc player and turned the key.
From half a century away, one Air Force veteran crooned to another:
When I was just a baby, my mama told me, 'Son,
Always be a good boy, don't ever play with guns.'
Five years as a military police officer, including a stint in South Korea, a tour of duty in Afghanistan and multiple deployments in Iraq, had all come to this: a drunken 23-year-old combat vet behind the wheel, determined to find another bottle to empty onto his pain.
Pace pulled into the dark parking lot of a TGI Friday's restaurant in Riverdale, broke a window and crawled inside. He took one bottle, then another. Then he decided to empty out the entire bar.
More than 2 million American military members have served in the nation's ongoing conflicts, and many are returning home deeply troubled by their experiences. About a third suffer from post-traumatic stress disorder (PTSD), traumatic brain injury, depression or other mental illness. At least a fifth struggle with drug or alcohol dependency.
Mental illness and substance abuse are the greatest predictive factors for incarceration in America. And that has put thousands of veterans on a collision course with the nation's criminal justice system.
But no one has a handle on the extent of the problem because most police agencies, prosecutors and prisons aren't tracking who, among the accused and the convicted, has served in the military.
That lack of information is hampering criminal justice officials and social workers who are making an initial push to help veterans in Utah get the support they need before they wind up behind bars - especially if, like Pace, they have not committed a violent crime. But most vets in trouble with the law today will complete their sentences before help arrives.
'I let it get to this point'
Pace, who grew up in Atlanta, yearns for home. But he blames himself for where he is instead: the Central Utah Correctional Facility in Gunnison.
"I let it get to this point," he said. "I made the decisions that resulted in my being here."
Still, he adds, "I've got to give the military some credit, too. I can say with 100 percent certainty that I wouldn't be here if I hadn't gone to war."
Pace knew when he joined the Air Force, right after high school, that he was likely to be called into the fights in Afghanistan or Iraq. But his first tour of duty involved far less action. "In Korea, when we weren't working, we were drinking," he said. "That's just the way it is there."
Ultimately, Pace did deploy to Iraq -- where he manned combat checkpoints, stood watch on guard towers and ran convoys on bomb-laden roads, he said. Among his duty stations: Balad Air Base, not-so-fondly known as "Mortaritaville" for the frequency of mortar and rocket attacks, and Camp Bucca, where U.S. military police keep watch over thousands of Iraqi prisoners suspected of terrorist acts and other crimes.
He still has a hard time talking about his experiences, which left him troubled, confused and angry. "I started hitting the bottle as soon as I got out," Pace said.
Pace contends a desire to "feel a rush" -- like being at war -- drove his Oct. 3, 2008, restaurant break-in. He thinks medication for PTSD might have influenced his "stupid" decision. And alcohol did the rest.
For reasons he can't fully explain, most of the stolen bottles were at the bottom of a ravine near the Pineview Dam in Ogden Canyon within hours of the burglary.
'To see him like this is sad.'
It was Pace's first crime, and records show he cooperated with investigators who arrived on his doorstep the next morning. "I just wanted to avoid going to jail," he said.
"You've got to feel bad for the guy," said Riverdale Police Chief Dave Hansen. Pace had "a drinking problem -- and that certainly could be related to his time in the war," he said.
But charges were up to prosecutors, who filed two felonies against Pace in 2nd District Court. Five weeks later, Judge Ernie Jones - a retired lieutenant colonel in the Army Reserves - sentenced Pace to 36 months of probation for the theft.
A month later, Pace was back before Jones for hitting a parked car while driving drunk. Jones sent him to jail for 90 days with the admonition to use the time to sober up.
A few months after he got out of jail, police were called to an altercation between Pace and a female roommate. Pace wasn't charged in the incident, but he admitted he had been drinking -- a violation of the terms of his probation. On Feb. 11, Jones ordered Pace to prison for up to five years.
Pace said he's still trying to figure out how he went from being a military policeman to being an inmate in the Utah State Prison. "It boggles my mind," he said.
His younger brother, U.S. Marine Miller Pace, also struggles with his brother's downfall. "John was one of the major reasons I joined the military," he said. "To see him like this is sad for me."
But after two combat tours in Iraq's volatile Anbar province, Miller Pace believes he recognizes his brother's pain in the lives of some of his brothers in arms. "I've seen alcohol ruin a lot of these guys' lives," he said. "I've lost a lot of good buddies to this same thing."
'The services they need'
A pilot program in Utah's capital city will offer a different path to some veterans who, like Pace, are accused of crimes related to addiction or mental health.
Starting this month, Salt Lake City prosecutor Sim Gill will allow some vets to stay out of jail or reduce their sentences if they access treatment and other services through the Department of Veterans Affairs.
While all offenders must be held accountable, Gill said, "we also have to get them the underlying help they need. And there really isn't another entity that has a better understanding of what these men and women have been through, and what they need to get better, than the VA."
U.S. District Judge Paul Warner agrees. The retired Army colonel in the National Guard was saddened by the stream of veterans, charged with minor violations, he saw cycling through his courtroom. "I was seeing people who were veterans who were being picked up for being drunk or disorderly," Warner said. "Some of them were in their 80s. Others were from Vietnam. And I was starting to see some from Iraq and Afghanistan."
He asked other judges in Salt Lake City's federal courthouse to watch for vets and send them to his court. Once Warner has them, he works with the VA to arrange housing, mental health services and addiction counseling.
The beauty of both solutions, Gill and Warner agree: "We're not reinventing anything," Gill said, "we're just connecting veterans to the services they need."
But the two programs will help only a small number of veterans -- those who find themselves in trouble in Salt Lake City or who commit violations on federal land in Utah. It could be years before similar programs are implemented to help veterans statewide.
Gill's initiative was inspired by his volunteer work with the "Homeless Veterans Stand-down," an outreach event at the Salt Lake VA Medical Center, where he met veterans who had spent decades moving in and out of incarceration. When the wars in Afghanistan and Iraq began, Gill said, he wanted to prevent others from falling into the same cycle.
One major obstacle: No one was asking accused criminals whether they were veterans.
'I started using right away'
On the battlefields of southern Iraq on Feb. 27, 1991, two groups of American M-1A1 Abrams tanks mistook each other for the enemy. Before the fog of war had cleared, six soldiers from Ray Lara's unit, the 2nd Armored Division, were dead.
"It wasn't easy for me to deal with," the heavily tattooed former soldier said.
Lara left the service three years later, ending a 16-year commitment to the Army in a haze of alcohol and drug abuse. "I started using right away, and I just never stopped," he said.
After years of trouble in California, Lara moved to Utah -- but didn't leave his problems behind. In 2004, he was cited for misdemeanor assault. In 2006, he was arrested for possessing drugs. And in 2009, he was picked up for dealing meth near a school while carrying a gun. He's serving up to 15 years in Gunnison.
These days, Lara said, he doesn't feel worthy of the uniform he once wore, but he wonders what his life might look like today if his service had been a ticket to help. Once he'd fallen into addiction and crime, he said, no one ever asked if he was a veteran.
"I went from hero to zero in no time at all," he said.
Veterans are less likely to be incarcerated in the United States than non-vets. But in a nation with the largest prison population in the world, federal researchers believe nearly a quarter-million veterans are locked up. About 400,000 are on probation and 75,000 or more are on parole, according to estimates from Bureau of Justice Statistics, based on surveys done early in the wars in Iraq and Afghanistan.
But most individual veterans, advocates say, are invisible in the justice system.
"Most jails don't even ask whether someone has served in the military," said Amy Earle, a VA justice outreach coordinator in Salt Lake City. "And even if it is a question in the intake process, nobody is keeping the data."
Earle is helping to change that in Salt Lake County, where new inmates are now asked whether they have served in the United States military. Veterans' names are sent to Earle, who evaluates what services they might receive -- after release.
Under federal law, veterans aren't permitted to access VA services while they are incarcerated. Those suffering from PTSD and other combat-related mental health issues must make do with the care that jails and prisons can provide.
'I ask God to help me'
Utah Department of Corrections therapist Ross Williams runs a support group every Thursday for veterans in Gunnison. He can include no more than 20 inmates at a time -- and it's the only program of its sort for more than 500 veterans in the state prison system. There is no similar program at the state's main prison in Draper.
The department does not offer effective treatment for PTSD, said Williams, a former Navy chaplain.
"The priority here is safety and security, not treatment,'' Williams said. "We do enough to keep people stable and healthy enough to do their time. We don't do enough to get people healed and well."
Veterans advocate Tom Tarantino believes prison is "the absolute worst place" for veterans with PTSD. "Combat would actually be a better situation for a lot of these guys," said the Iraq war veteran from Washington, D.C., who frequently testifies about veterans' health issues before Congress.
Lara agrees. The slamming doors, uniformed guards, shouting prisoners and seething hostility -- all bring back unwanted memories. "I just go to my higher power," he said. "I ask God to help me get through it."
Tarantino, a legislative liaison for the nonprofit Iraq and Afghanistan Veterans of America, said there's one relatively easy and immediate way to help incarcerated vets: Allow them to get VA treatment.
But so far, he said, no one has stepped up to lift the ban.
Lynn Jorgensen, an incarcerated veterans re-entry specialist with the VA, said the ban means "all I can do is send them some information -- and wait."
Since the state parole board decides when convicts will be released, "I have to put the responsibility on the inmate," Jorgensen said. "I say, 'Mr. Inmate, you have to let me know when you are six months shy of being released.'"
Many do, but some are released suddenly due to overcrowding and have little time for correspondence. "Some will get lost in the system," Jorgensen acknowledged. "But we're trying very hard to make sure that everyone has a chance to access our help."
'If someone ... had intervened ...'
Walter Smith was loading a shotgun, apparently intent on killing himself, when Pleasant Grove police confronted him in 2004.
Friends say it was a cry for help that should have propelled the former Marine, recently returned from Iraq, into intense treatment for PTSD. Instead, Smith was released after two days in a mental health facility with instructions "to find counseling," they say.
A year and a half later, Nicole Speirs, the mother of Smith's infant twins, drowned in a bathtub at her Tooele home. The death remained a mystery until Smith confessed eight months later. Prosecutors charged Smith with murder, but later agreed he could plead guilty to the lesser charge of manslaughter -- - reasoning that jurors might have found he was suffering from extreme emotional distress during the slaying. He'll serve up to 15 years at the prison in Draper.
Tarantino believes the Smith case is one of an epidemic of missed chances.
"If someone had deduced what was going on with him and intervened," he said, "you might not have seen the horrible consequences that happened."
Darin Farr, an outreach specialist for the Utah Department of Veterans Affairs, said officials have "learned a lot" since Smith's first encounter with police and are less likely to miss warning signs.
Troubled vets often cross paths with police many times before they commit a crime serious enough to draw a jail sentence, Farr said, "and every one of those instances is an opportunity."
Ron Bruno wants officers to make the most of those opportunities. As a crisis intervention instructor, the Salt Lake City police detective teaches officers statewide how to deal with people who are mentally ill.
He wants to increase the veteran-specific section of the training, which is limited to a few hours. For now, officers talk with a veteran who has PTSD, and they work through a scenario in which they encounter a veteran suffering a flashback.
Bruno said about 11 percent of Utah's public safety officers have taken the course. He'd like to double that rate.
But Tarantino would like every police officer to be trained to deal with veterans. With tens of thousands of new combat veterans created every year, he believes the criminal justice system needs to be better prepared to confront the consequences of war.
"In a lot of cases, these aren't people who chose to live a life of crime," he said. "A lot of these individuals are in the situation they're in as a result of their service to this country. Their inability to cope within the norms of society, the lack of treatment, the lack of understanding, the self-medication -- it all leads them to where they are."
For two years Daniel Miller chronicled his experience while being tried as an adult for a crime he committed at sixteen. Following is the second half of his story, which The Beat Within, has generously allowed The Crime Report to share.
Day 9
March 1st, today was the last of the people’s evidence. There was a detective again on the stand for most of the morning. Then there was Dr. Michelle Jordan, Medical Examiner.
She’s a coroner. In this case she was rendering her opinions off of photos of the victim. How can she say how the guy died if she never actually looked at the body herself? It doesn’t make sense to a lot of us.
When the DA was asking her questions, she was “on point” I guess you could say, but when defense started asking questions, she seemed to not know any of the answers to the questions they were asking, like they were speaking in a foreign tongue.
But I guess that’s that. Now we start the defense side tomorrow. We don’t have that much material. We will be done by either tomorrow or Wednesday.
But what I don’t get is how can you determine how a person died just by looking at pictures? Crazy. Let’s just say this: What if a man was hit by a car, then an hour and half later he gets shot and dies the next day in the hospital. So a coroner doctor does the autopsy and says the cause of death was from the car, internal bleeding, but a contributory cause of death was the bullet wound(s). Now, let’s say those two people go to trial, one for the hit-an’-run, the other for the gunshots. The judge rules that the original coroner doctor doesn’t have to come in on both cases. So some other coroner comes in and says it was the bullet wounds that killed him. He/she are looking at pictures to determine the cause of death. So who’s going to get out? The guy who actually killed the person, the hit-an’-run guy gets out. How is all that even fair?
I keep telling my co-defendant we’re not getting a fair trial ‘cause we’re really not. Our case is basically the same thing as the above. Guy got beat up; hour and half later got tasered 20 times. The original doctor in my case said it was both the altercation where got beat up and the cops tasering the victim/suspect.
Now this coroner doctor says it was due to “blunt force trauma”. The DA said the victim was brain dead walking around for an hour and a half… How does that work?
I think the judge messed with our rights to a fair trial. It’s not just me either, a lot of people think so.
I just hope I get a chance to enjoy my life, ‘cause what I was doing when I was a teen, that was not life. I thought it was, but I was young, dumb, and full of drugs. As long as I learned from those mistakes…
Can I really get punished for something I did not do? It hurts to know that I possibly could.
Day 10
Defense only took one day. We had four witnesses testify and, well, it only took one day. So we’re done… Tomorrow we go back and start doing the jury instructions. The jury wont be there, but we will. We gots to set the rules.
I am really nervous right now. The jury will start to deliberate on Thursday. I can get charged with 1st or 2nd degree.
There were a lot of people there on our behalf. I would say a little over 20 people we’re there for us. You can tell everybody is stressed out or depressed. I just hope nobody lost that faith.
We gots to keep our heads up. God forbid that anything bad happens to us.
Judgment day is comin’ real soon.
Day 11
Nothin’ really happened today. Counsel was just going over the jury rules. No jury was there. So we go back tomorrow for the closing statements and to give the jury their instructions.
I guess our families were mad ‘cause the defense side of the case was only one day long. Some of the witnesses weren’t even called. I thought I could get a PC 32, accessory after the fact, but the judge did not comply with us, as always. No manslaughter either. It’s 15 or 25 to life or our freedom.
So tomorrow they will (the jury) start deliberation when everything is done.
I’m very nervous, depressed and sick of feeling like the way I do.
Day 12
Closing Statements…
The DA’s closing statement was just like his opening statement. Just a few differences. The fact that now he can say what he wants, such as “They’re guilty,” really bothers me.
If we get convicted, it will be every terrible because the DA actually thinks he has the right guys. Well, that is far from right. I really never thought it could be like this. My co-defendant and I are so innocent; it’s crazy that we’re still here.
We didn’t even get done today. The DA took the whole morning and some of the afternoon. Then my co-defendant’s attorney went. Let me say this, even though the DA was very harsh with his PowerPoint, Eddie’s attorney was very good at what he did. He shot it and made a three-pointer. All the DA is trying to get is a slam dunk. Well that’s not going to happen. The DA claims that “identification is not an issue in this case.” Well, it is. Very much so. There is no physical evidence in this case whatsoever. This whole case is about identification. The DA keeps saying we did the crime. He has never been more wrong in his life.
This one woman that we know started to cry during the DA’s closing. Everybody was basically wondering why. Well, she wanted to testify in our case, on our behalf. Well, let me flat out say it: A man she used to hang out with told her that he killed someone and got two other boys locked up for it. That man was picked out in a photo line-up as the one with the bat. Another line-up was shown, and another kid was picked out as the one on the bike. A sketch was done of the kid on the bike. That sketch was taken to a school and shown to the principal. The principal straight up said, “That’s _____” So basically, the sketch looks identical to that kid. How crazy is that?
Eddie’s attorney did what he had to do. My attorney goes on Monday. Then the DA gets to go again. The jurors start to deliberate.
Another thing I found out is the jury is responsible for letting us go home or giving us 1st or 2nd degree murder. We all can’t wait until this case is over. Again, there was over 30 people there for us — friends, family, “De-Bug”, and the Mercury News. It’s nice having support.
Day 13
Today was my attorney’s closing and the DA’s rebuttal.
I would have to say my attorney did a really good job. He was so into his work, he started to sweat really bad. Shoot, I was sweating, and I was just sitting there. But all in all, he did a good job.
The DA has this thing for power points on his laptop. He did a good job, too. He is a very good DA, very tough.
My attorney made a joke, saying, “I feel like we’re the hurt locker and Carr is Avatar.”
The DA did go off a little, but that’s his job. Now we sit and wait while the jurors deliberate. It was a very long day.
During my attorney’s last statement, I almost started to cry. Yeah, I said it. I was just thinking that if we get convicted, nobody will ever know the truth. It hurts to get blamed for a murder that you never committed. But I still go to court day to day with my head held high. Or, as my mom says ,“Chin up.”
I just got hella mad and sad at the same time ‘cause to see all these people hurt due to this case. Yeah, it’s sad that someone lost their life, but the people in court I see grieve are my family, friends, and my co-defendant’s family. To see all these people sad and crying ‘cause two young men might lose their lives to the system… it hurts.
I never really got to live my life. I thought I was, but I was wrong. I was 17 when I got locked up. Now I’m 20, almost 21. It’s a lot to maintain, but I gots to keep on movin’ and continue to keep my smile on my face so it shows my family that everything will be all right.
Day 14
The jury is deliberating
Day 15
Jury Deliberating
Day 16
Today was the day. We knew it; we felt it. It was about 1:40 pm when we got into court. The judge came in and that’s when my heart started to pound.
When the judge told my co-defendant to stand up, I really felt like cryin’, but didn’t. The whole courtroom was packed. A lot of family and some friends. Then the clerk read the verdict. She went on for some time, then, finally. “We the jury find the defendant, Mr. Eddie James Sample, guilty of count one, first degree murder.”
My head dropped. People were crying. It was all bad. I could feel it coming
“We the jury find the defendant, Mr. Daniel Miller, guilty of count one, first degree murder…”
It’s not the end though. Some of the jurors were crying.
Then Eddie’s Dad yelled at the 12 in the box, “How are you all going to be able to sleep at night?” His Uncle said, “You all should be ashamed of yourselves.”
Then we had to get out of there. Pretty crazy day if you ask me. I’m fine though. I got to keep on movin’ with my head up. I mean, yeah, it hurts, but I’ll be fine. My family is still behind me 100%. You know, the sad part about it is they still got the wrong people. Now that’s the part that hurts the most.
The man who passed away, his family didn’t even look like it’s what they wanted. But I guess this is how it was supposed to end up. I’ll be comin’ back, believe that. We’re not done. We sure as hell ain’t gonna give up.
To everyone, never fall down, never give up. Keep that faith and remember always. stay true to yourself.
To the Beat staff and readers, much love.
Post Script — One Week Later
It’s Not Over
You know, when I first got convicted, I guess I was in shock. I really didn’t know how serious it all really is. I got convicted of first degree murder! I still haven’t been sentenced. Then again, it’s only been a week. When they said my boy was guilty, that’s when I knew it was a wrap for me.
The courtroom was filled, packed. A lot of crying. They said we showed no emotions when the verdict was read. What did they want us to do, sit down, slam our heads on the table and start crying? I don’t think so. I did cry, but not ‘til the next day. Everybody got emotions, it’s just that I hold my emotions in. People say that’s bad, but that’s how I’ve always been.
Now I wait. It’s not over. Far from it. I just got to wait for my appeals to go through. The waiting game. I’ll be back. Probably two to three years. But I’ll be back! It’s not over.
Never give up. Always stay true.
I’m going to keep goin’. I tell myself, family, and my girl that there is still hope. I never gave up. I been down since ’06. I’ve been smiling ever since. There’s not a day that goes by with me not smiling at least once.
I am only 20, and my life is far from over. There’s only one thing that can come out of this… And that thing is good.
I Got To Keep Moving!
Keep That Head Up!
For more information about The Beat Within and other writings by juveniles in the justice system please visit their Web site at http://www.thebeatwithin.org.
Daniel Miller, "Thirst" wrote faithfully for The Beat Within , a juvenile justice system writing workshop. For two years he chronicled his experience while being tried as an adult for a crime he committed at sixteen. Following is his story, which The Beat Within, has generously allowed The Crime Report to share.
Introduction
Trial… it’s about to start. I’m tired, feel weak, stressed and I feel like dying, to tell you the truth. I always ask myself why did everything have to change. So drastic? So fast? I was only 17 when I got arrested. They say the crime happened when I was 16. I still can’t believe I am being charged as an adult.
I’ve been through some shhh in the past 37 months. Ups and a whole lot of downs. Everybody who is in my corner says I’m going home. A lot of them don’t understand I am going against SJ PD! It’s very complicated, my case. The case is four years old and I’ve been down for three. I don’t think any person should go through this kind of pain — the pain that my family goes through, especially my mom.
There’s been a glass window separating me from my mom. I haven’t hugged or kissed my mom in two years. Now that hurts a lot, because before I got locked up, I was never home. I was always our and either doing or selling drugs, all bad. Now I wish I could’ve spent way more time with my Mom, with the family.
I should be out there enjoying life. I’m only 20 years old, and there are tons of things I’ve never done. Like fly in a plane or touch snow. To all you at the halls, stop thinking that everything is a game. This isn’t a game, it’s reality. It took a murder case to open my eyes. A murder I didn’t even commit. It’s my first time locked up.
Guys have said I’ve adapted pretty good to this life style. Well, either I adapted to it or I didn’t, and if I didn’t, then I would still be telling myself that I’m going home tomorrow. It took a year and a half for me to figure out that I wasn’t going home any time soon.
This life isn’t life. Open your minds and ask yourself if you want to be trapped in a box for the rest of your life. I don’t. I have a family and a woman waiting for me out in the free world.
Yeah, I got a lady. She means a lot to me. She does a lot for me. For me to be facing a life sentence, she shoes that she don’t care. Many male/females that are your lovers, if they seen that you were facing life, they would’ve been gone in 7-9 months of you being down, unless you got a kid with ‘em, then that’s different. This woman I am with is my third since I’ve been locked up. I had a lady when I got arrested. She left me after nine months. Then I came to county, and my other ex wanted to get with me and marry me. We were together for four months. My lady right now, we’ve been together for about one year. Great woman.
I got off subject, my bad. I will be writin’ throughout my jury picks and trial. I got court on Monday, January 25th 2010. My co-defendant and I are still filing motions. The last of ‘em are going to be heard the 25th and the 26th.
Jury! We’ve been picking the jury for about five days. It seems to me that nobody wants to be on a jury where the defendants are 19 and 20. The fact that the crime happened when I was 16 and my co-defendant 15 raises some flags in people’s heads.
I really thought it would’ve been different. Some people who got dismissed wanted to stay. The DA dismissed one woman because she kept looking at me and smiling. There’s been a lot of different people, and a lot of different stories.
The DA finally offered us a deal. Mine was 11 years and my co-defendants was 15 to life, if you call the second one a deal. But people have told me that they were glad that I didn’t take the deal. Well it was a joint deal, meaning we both had to take it.
We are down to the last 45 people. We’re keeping 15, 12 for the box and three others just in case. (alternate jurors)
It feels so weird now that everything is going to be all said and done. Let’s just hope that I’m good at gambling because we’re playing for my life, playing for keeps.
Jury is all picked; 12 people have my life in their hands. Everything has been different. People have been saying that I’ve been acting different. Well, how about they go to trail for a murder that they never committed. See how different they act. I start trial tomorrow, February 9th 2010.
9:15 a.m. — Day One
“Record will show both defendants are present. Mr. Edward James Sample and Mr. Daniel Miller.”
It was a good day in court, really tiring but good. The actual eye witness got on the stand today. Six hours and 45 minutes of questioning. That’s pretty brutal. He said a lot that helps. He looked a bit mad ‘cause he has to come back tomorrow, but everything is goin’ good.
The DA’s opening statement was harsh, like they always are. He made it seem like he knew every detail form the night of the assault. He said a lot of terrible things, but he also brought up that after the assault by two individuals, the victim walked for one hour and 30 minutes to two hours. That person got the police called on him for trying to break into a car one mile and some away from where he got attacked. The second scene: he was beat with excessive force. The total of cops at that scene was six-eight. The first three used pepper spray and batons. Then a taser was deployed. More cops showed up and used their batons. Another taser was deployed. Altogether, two cops tasered the man 20 times, eight from one gun and 12 from the other.
The judge ruled that my attorney or my co-defendant’s attorney can’t tell the jury how many times the man was tasered. What does that tell you? They are trying to cover up what the cops really did to the man. In the DA’s opening statement, he made it seem like the man only got tasered once or twice. To me, that’s hiding evidence and violating my rights to a fair trial. Well, the victim/suspect passed away the next day, January 26th 2006. So much for having a fair trial.
Day 2, February 10, 2010
I don’t think the first witness wanted to show up. He came late, so the DA called up another witness who says he didn’t see anything from where he was standing, which he said was about 70 yards away from the attack. It was a good day though.
Then a doctor got up there on the stand for a really long time. To me he was talking about noting.
Then Mr. Richard Torres (had been my co-defendant) took the stand against us. He got a deal to testify: three years accessory after the fact. He took that in a heartbeat. He was facing life, but now he gets to go home for a fake-ass story. Well, he got up there and said what he said, but we’re not done with him. Cross examination has not started. We start that on the 16th and get a five-day weekend, so now I wait.
At the end of the day, one of the jurors asked to talk to the judge at the bench. Turns out our case was in the newspaper, and it talked about everything — the attack all the way up ‘til they tasered he man 20 times. It talks about how people think we’re being scapegoated by SJPD for they’re wrong doings. The juror said he only read some of the article, but I think the judge is going to kick him off.
I just want to go home. I want all this to end already. It’s not fair. I could get life, and I wasn’t even there when the crime took place.
According to the comments left on the Mercury News, a lot of people are upset with the fact that the cops aren’t on trial for what they did. The county did get sued for six million by the victim’s family, but the cops never went on trial. The family won the lawsuit, but they only get the money if we win at trial.
Day 3
Well, I get woken up every day at six a.m,.. well, on the days I got trial. When me and my co-defendant got to our courtroom, the DA wasn’t there. He was in Texas during our five-day break. The DA went somewhere on the east coast and got snowed in because of a blizzard. He got to Texas the day we were supposed to start, which is the 16th of February. His flight from Texas to San Jose was going to come in at 11 or 11:30 a.m., so we had no court in the morning because of the DA. Thank you! The excuse was his son is real active in hockey… Ooookay... Well guess what, we’re real active in this trial.
When we went into court at 1:50 p.m., 50 minutes late, the DA went over the same thing with the same witness. It is very annoying just sitting there and listening to lies about yourself; kinda sucks.
My family came, my mom, dad, step dad, sister, cousin and his wife. Also my lady.
(By the way, the juror didn’t get kicked off.)
Day 4
Wow, it seems to me that something does not want this case to go any further. Another delay. Isn’t that great? My co-defendant’s attorney, his father is sick. Now that is actually understandable.
We went in for half the day, but nothin’ happened. The cross examination was supposed to start today, which is the 18th. This is too much. This trial is behind schedule by three or four days. Something new is always coming up. A lot. In the four days of trial we’ve gone, some new stuff has been popping up.
Then to my attorney, my co-defendant’s attorney and the DA, they feel that our judge doesn’t know what he’s doing. My attorney said the judge messed up numerous times. He said the judge messed up so bad that -God forbid - we lose, we have so much action at appeals it’s not even funny.
Now we go back on the 22nd. Too many days off.
Some questions were brought to my attention today, like “How can they convict you if there is no murder weapon?” Well, that is a very great question. My family would ask my attorney these types of questions, and he would just brush them off. Then another, “How can you get convicted for someone else’s wrong doings?” Well, I don’t have any idea. Our laws are crazy. Oh yeah, and my favorite, “How come the cops aren’t on trial?” I wish I knew the answers to all my questions, but I don’t.
Day 5
The same witness was up there on the stand repeating his testimony. Same thing, different say. Caught him in some lies, and made him look like an idiot. He was basically the worst part of the trial, even though his testimony and another’s don’t match up. But in the end, it’s all up to the jury.
Day 6
The detective, well one of them, was up there for the day. He looked kinda mad that our attorneys caught him in some lies.
He is not very good at lying. You can actually tell. He rubs on his chin when he lies.
I learned that there was a total of six suspects for this case. They’re trying to say it’s gang related, but we’ve never belonged to a gang, the only two out of that six.
They got a picture of me through up a “W” with my hand. Well, that’s where I’m from, the West Side of San Jose. The DA went as far as saying West Side is a ‘hood.
Oh, and there was evidence thrown away and blood washed away from the first scene.
But anyways, the DA and his “team” are trying to convict us so bad that the detective said we’re guilty already. He said it twice about my co-defendant and once about me. Well, he wasn’t supposed to say that. We are innocent ‘til proven guilty.
Tomorrow the detectives partner goes on the stand. We’ll see how that goes.
The trial will be going on longer than we expected.
My Mom, Dad, and my Lady all came today — including an 8th grade class for a field trip! Who does that? Take some 8th graders to a murder trial? Weird.
Day 7
The days really do keep getting weirder. Well, the highlight of the day was when the DA threw a little fit in court. They went up to the bench and, well, the judge said the DA was acting unprofessional and with no respect towards the defense. The DA kinda acts like a kid.
My attorney asked me gain if I wanted to testify. Well, I’m following my heart and not testifying. I can’t do that .My attorney’s not giving up hope. He just said it would make our case stronger, but I’m cool. My co-defendant is like my brother (from another mother).
I just hope everything goes all right. I really hope that I go home.
For the sake of my family… I hope I get my chance.
Day 8
Well, the DA threw another little fit. He can’t keep his cool under pressure.
Oh, and the judge thinks he screwed up a little on a decision. Well, he did. My attorney said we got a lot of action at appeal. He said — God forbid — we get convicted, but if we do then we’re comin’ back real hard. I hope we get out. The DA told my attorney he thinks it will be a hung jury, and that he doesn’t want to go through the process again.
The witnesses are either getting worse or they are just too full of themselves. I’ll be all right, though. I gots to keep my head up for my family.
I’ll be all right. Things will be fine.
Part 2 of Thirst's court trial will appear on The Crime Report on Thursday, April 22nd, 2010. For more information about The Beat Within and other writings by juveniles in the justice system please visit their Web site at http://thebeatwithin.org.
New York’s high-profile Innocence Project is just one of 55 similar projects around the U.S. But most are struggling to cope with the load and pay their bills.
