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Did Prosecutors Use a ‘Cheat Sheet’ to Strike Black Jurors in North Carolina Death Penalty Case?

A single training document uncovered in a prosecutor’s files could save Russell William Tucker’s life.

Illustration by Richard A. Chance

Did Prosecutors Use a ‘Cheat Sheet’ to Strike Black Jurors in North Carolina Death Penalty Case?

A single training document uncovered in a prosecutor’s files could save Russell William Tucker’s life.

On Dec. 8, 1994, in Winston-Salem, North Carolina, a 28-year-old African American man named Russell William Tucker walked out of a Super Kmart shopping center wearing a coat and a pair of boots he had just stolen. According to court documents, he was followed into the parking lot by William Maki, an assistant loss-control manager, and another store employee, Travis Church. The store’s security guard, Maurice Travone Williams, trailed close behind. It was his first day on the job.

When Maki approached Tucker in the parking lot and asked for a receipt, Tucker pulled a semi-automatic handgun from his backpack and began firing at him. Tucker missed but quickly took aim at Williams who was running back toward the store alongside Church. He fired one fatal shot at the security guard, and then he ran. When a marked patrol car with two Winston-Salem Police Department officers approached soon after, Tucker slowed to a walk, turned and fired five shots into the cruiser, striking both officers. He then fled up an embankment into some nearby woods. He was caught within the hour.

The violent scene that unfolded in the parking lot lasted less than two minutes. Tucker was convicted and sentenced to death a little over a year later. But in the more than 20 years since his trial, Tucker’s case has been marred by a string of inappropriate, and sometimes illegal, moves—including outright sabotage by one of his own lawyers—that have provided ample grounds to challenge his death sentence. Yet, what ultimately saves Tucker’s life could be something as mundane as a single piece of paper: a training worksheet found in a prosecutor’s files.

A ‘cheat sheet’ for prosecutors

To understand the significance of that worksheet, it helps to know a little about jury selection. Prosecutors and defense attorneys generally have a lot of leeway when it comes to dismissing jurors. Many get struck for cause—a strong opposition to the death penalty often suffices in a capital case, as does an admission by a potential juror that he or she would definitely vote in favor of the death penalty if a defendant is found guilty of capital murder. But with peremptory strikes—of which attorneys are allotted a limited number—jurors can be dismissed without a stated reason, as long as race or gender aren’t determined to be factors.

Before 1986, when the United States Supreme Court ruled in Batson v. Kentucky that peremptory strikes based on race violated a defendant’s rights to equal protection under the 14th Amendment, potential jurors were frequently dismissed by prosecutors because they were Black, especially in cases involving Black defendants. Prosecutors may have believed, perhaps rightly, that all-white juries would increase the likelihood of conviction for the state.

In Forsyth County, where Tucker was tried, three out of seven Black men on death row, including Tucker, were sent there by all-white juries, while two were sentenced to death by juries with only one Black juror.

A Michigan State University legal study found that from 1990 to 2010, prosecutors from Forsyth County were more than twice as likely to strike Black jurors from capital cases. Another study conducted by Wake Forest University found the disparity in strikes of Black vs. white jurors was even wider when researchers analyzed data from all types of trials that occurred in 2011.

Batson should, in theory, change this by forcing prosecutors to openly justify each peremptory strike with a race-neutral reason if challenged. Yet, in practice, it has proved relatively ineffective because it’s not that difficult for prosecutors to come up with reasons that sound race-neutral. Since Batson, eligible Black potential jurors have been struck for stated reasons that border on the absurd: a pierced left ear, a hyphenated last name, or not seeking counseling after their car stereo was stolen.

Neither the North Carolina Supreme Court nor the Court of Appeals has ever ruled in favor of a defendant’s Batson claim, setting North Carolina apart from nearby and neighboring states Virginia, West Virginia, Maryland, and South Carolina.

Elizabeth Hambourger and Mark Pickett, staff attorneys with the Durham, North Carolina-based Center for Death Penalty Litigation, hope to change that. They say Tucker’s case offers clear evidence—not unlike a 2016 Supreme Court case in which a conviction was overturned—that after Batson, jurors were still being struck for being Black.

“This was a weakness in Batson that was predicted from the very beginning by Thurgood Marshall,” Pickett said, referring to the then-Supreme Court justice’s concurring opinion in the case. “He predicted exactly what happened in Mr. Tucker’s case and what’s happening in other cases.”

Illustration by Richard A. Chance

The problem in Tucker’s case stems from a training organized by the North Carolina Conference of District Attorneys called Top Gun II. Forsyth County attorney Rob Lang was one of several prosecutors in the state who attended the program, which was held the summer before jury selection in Tucker’s trial. During the training, prosecutors received a worksheet entitled “Batson Justifications: Articulating Juror Negatives,” which offered 10 explanations prosecutors could use if defense lawyers challenged a peremptory strike that they believed was based on race. The list included things like “inappropriate dress,” which may signal a “lack of respect for the system,” and “physical appearance,” said to indicate “resistance to authority.”

The worksheet went undiscovered in Lang’s files on the Tucker case for nearly 16 years after Tucker’s trial but surfaced in 2012 during discovery in the case of Errol Duke Moses, another Forsyth County man on death row.  Moses’s lawyers were given access to prosecutor files from a number of capital cases, including Tucker’s, as a result of the Racial Justice Act, a since-repealed law that gave prisoners on death row in North Carolina a chance to challenge their sentences if they could prove racial bias played a role in their convictions or sentencing.

But Hambourger and Pickett say the worksheet and other documents related to Tucker’s case weren’t shared with Tucker’s team until more than three years later, when they were appointed to represent him.

They’re not exactly stereotypes, but they are racial code.Elizabeth Hambourger, attorney for Russell William Tucker

In October 2017, Hambourger and Pickett filed a motion for appropriate relief in Forsyth County Superior Court on behalf of Tucker based on the discovery of the Batson worksheet in Lang’s files. They argued that Lang unfairly dismissed five jurors because they were Black, and that the worksheet proves it. If their motion succeeds, it could lead to a whole new trial for Tucker—and potentially save his life.

Pickett and Hambourger refer to the handout as a “cheat sheet,” and Hambourger describes the justifications themselves as “thinly veiled dog-whistle-style code” for race.

“They’re not exactly stereotypes, but they are racial code,” she told The Appeal. “The fact that it says ‘Batson’ makes it very clear that it’s about race.”

No one but Lang knows exactly what was in his mind when he struck all the eligible Black potential jurors in the pool. But with each of those strikes came an objection from the defense citing Batson and a seemingly race-neutral response from Lang. When contacted by The Appeal, Lang, who currently serves as an assistant U.S. attorney for the Middle District of North Carolina, declined to comment citing the pending litigation.

For Pickett, the existence of the list is, in itself, troubling. “Regardless of what the reasons it gives are, the list is problematic,” Pickett said, “because the reason the prosecutor gives is supposed to be the actual race-neutral reason that’s in the prosecutor’s mind when he makes the strike.”

An all-white jury

Thomas Smalls, then 60, had lived in Forsyth County for four decades when he was called for jury duty on Tucker’s case. Married with four children and employed by R.J. Reynolds Tobacco Company, Smalls believed in capital punishment but, like many people, had reservations about it.

When pressed by Lang about whether he could actually impose the death penalty, court filings show Smalls was ambivalent—“I guess so,” “I don’t know,” and “I think so” were his responses—and Lang used one of his peremptory strikes to remove Smalls from the jury pool. The defense objected, and Lang offered a lengthy explanation in court that Pickett and Hambourger say seems to draw directly from the worksheet.  

For instance, Lang argued, Smalls “put his head down and began talking to the floor. He did not ever make eye contact with me during the death penalty questions. … We were able to drag some answers out of him but he was very difficult and his body language was absolutely horrible in our opinion.”

That language mirrors the fourth and fifth justifications on the Batson worksheet. The fourth mentions “attitude,” arguing that lack of eye contact with a prosecutor signals an “air of defiance.” The fifth justification references “body language,” just as Lang did, noting that it could convey “anti-prosecution tendencies.”

The worksheet isn’t the only piece of evidence Hambourger and Pickett cite in their claim. A handwritten list entitled “Batson” was found in a trial notebook belonging to the prosecution. It listed additional generic reasons that could be used to strike jurors, such as “lack of maturity,” “history of unemployment,” or “has criminal record.”

Tucker’s lawyers had also hoped to review the prosecution’s copies of juror questionnaires and the notes prosecutors may have made on them. But at the urging of Lang’s co-counsel David Spence, and with consent from Tucker’s trial attorneys, those copies were collected and destroyed, according to Hambourger and Pickett’s motion. Spence, who now serves as an assistant district attorney in eastern North Carolina, declined to comment, saying the North Carolina State Bar Association’s Rules of Professional Conduct prohibit him from doing so.

Smalls wasn’t the only Black potential juror Hambourger and Pickett say was unfairly struck from the jury pool. Debra Banner, then 39, was also cut. Because Banner wasn’t registered to vote and because she rented her home as opposed to owning it, Lang questioned her “stake in the community.” He cited that as a reason for her dismissal, yet he accepted more than one white juror who wasn’t registered to vote, and a white renter, according to Pickett and Hambourger’s motion.

“To me that’s really offensive,” Hambourger said. “It seems clearly based on race to suggest that this hardworking mother who lived her whole life in the community doesn’t have a stake in the community because she doesn’t make enough money to buy her own home.”

You can't just treat it like a legal game of back and forth—how do I beat Batson?Mark Pickett, attorney for Russell William Tucker

Lang also cited Banner’s job—as a nursing assistant at Forsyth Memorial Hospital—as a reason for striking her. “It has been an experience that those who save lives are often hesitant to make a recommendation for death,” he told the court. According to Hambourger and Pickett’s motion, Banner “expressed no doubt or hesitation in response to Lang’s death penalty questions.”

But he accepted Brenton Sharpe, a white pharmacist who worked with cancer patients, also a profession that saves lives. Sharpe, like Smalls, wasn’t sure he could apply the death penalty, but the prosecution did not dismiss him as they did Smalls. “They were willing to take a white man that expressed doubt over the death penalty than any African American juror,” Hambourger said.

As Justice Marshall had predicted, Batson never evolved into an ethical guide that would encourage prosecutors to confront their own racial bias in jury selection. Instead, the decision just became another obstacle, one easily circumvented

“You can’t just treat it like a legal game of back and forth—how do I beat Batson?” Pickett said.  He notes that the damage inflicted by such questionable strikes goes beyond this particular case. “It’s an injustice not just to Mr. Tucker but to the Black community in Forsyth County to be systematically excluded from jury service in these cases,” Pickett told The Appeal.

A spokesperson from the North Carolina attorney general’s office declined to comment, citing the pending litigation.

But in a response to Tucker’s motion, which the state filed in May, Senior Deputy Attorney General Danielle Marquis Elder and Special Deputy Attorney General Jonathan Babb outlined several procedural issues that the attorney general’s office believed should bar the litigation from further review, stating, for instance, that the worksheet was previously available to Tucker during appeal and post-conviction proceedings, which Tucker’s lawyers deny.

Elder and Babb also argue that the Batson worksheet isn’t real evidence of racial discrimination in jury selection.

“Far from establishing any sort of intent to discriminate on the basis of race, this document establishes that the prosecutors in Tucker’s case were aware of Batson’s prohibition and that all peremptory challenges should appropriately be based on non-racial reasons,” they wrote in response to the motion.

Rather than proving discrimination, the office contends, the worksheet only shows that prosecutors received training in regard to Batson before Tucker’s trial, and that Smalls’s dismissal was because of his hesitancy regarding the death penalty, not his race. Banner’s dismissal, the response claims, was based on evidence that she didn’t want to serve on the jury and said it would be a hardship. The prosecution also claims both she and Smalls fell asleep during jury selection, though according to Hambourger and Pickett’s motion, the trial court made no finding that they did. Regardless, Hambourger argues, the fact that some of the reasons Lang offered may be legitimate doesn’t discount the others that are less credible and seem to have relied on race.

Illustration by Richard A. Chance

In their reply to the state’s response filed in July, Hambourger and Pickett argued that the Batson worksheet puts Lang’s justifications into proper context.

“The existence of the document in the prosecutor’s file and the prosecutor’s use on the record of words and phrases obviously taken directly from the document show that the prosecutor did not have valid race-neutral reasons for his strikes,” they wrote. “If he did, he would not have needed to refer to a list of prefabricated reasons prepared by someone else.”

A botched defense

Tucker could easily have been executed long before Hambourger and Pickett were appointed to represent him. He was scheduled to die on Dec. 7, 2000, almost six years to the day after Williams’s murder. But a little over a week before, the North Carolina Supreme Court granted a stay of execution. That’s because Tucker’s court-appointed attorney David B. Smith, who was representing him alongside another attorney in post-conviction proceedings, admitted in an affidavit that he intentionally sabotaged his client’s case by missing an appeals deadline.

“I decided that Mr. Tucker deserved to die, and I would not do anything to prevent his execution,” explained Smith in an affidavit at the time. ”I shared with my therapist my feelings and the consequences of my inaction, but I could not bring myself to act in a professional and responsible manner.”

Smith, who still practices law, declined to comment on the case.

It was “pretty stunning,” Hambourger recalled. “I’ve never heard of another case, not in North Carolina, where a lawyer actually was working against his client’s interest—was actually trying to get his client killed,” she told The Appeal.

But that’s not the only way in which Tucker’s case has been mishandled, argue Hambourger and Pickett, who were appointed in 2015 after a 2012 U.S. Supreme Court ruling in Martinez v. Ryan gave state prisoners the opportunity to file motions related to the ineffectiveness of their post-conviction counsel.

Beyond Smith’s well-known deception, Tucker’s new lawyers discovered major holes in their client’s defense. Though Tucker was examined, at the request of his trial attorneys, by a clinical psychologist who testified that Tucker was suffering from a psychotic disorder and not competent to stand trial, very little of his background or mental health history, which would have supported this claim, made it to the jury before his conviction or during his appeal. And while Tucker showed signs of mental illness during court proceedings, including frequent outbursts so severe that he was physically restrained, a psychiatrist who testified on the state’s behalf concluded he was faking his symptoms. Without additional mitigating evidence from the defense, the court declared Tucker competent to stand trial.

Hambourger and Pickett wanted to dig deeper. In 2016, they hired a mitigation specialist to investigate allegations of severe abuse Tucker suffered at the hands of his adopted family in Queens, New York, and the effect that abuse had on his mental health. They had Tucker’s adoption records fully unsealed and identified his birth mother, who moved back to her hometown of Laurinburg, North Carolina, after her son’s adoption. Hambourger and Pickett traveled to Laurinburg and convinced her family to sign off on releasing her medical records, which showed that she had been treated for schizophrenia.

“Psychotic disorders are inheritable,” Hambourger said. “And what are the chances that this guy who never knew his birth mother, knew nothing about her, is faking mental illness and then it just happens that we go down and talk to his mother’s Laurinburg relatives and find out that she had schizophrenia. What are the chances?”

Having this information could have made a huge difference to the jury that heard Tucker’s case, Pickett said, arguing that his original trial lawyers did Tucker a disservice by not requesting his adoption records to learn more about his biological family, according to motions filed in state and federal courts. “It’s not like they sought the records and were denied, and we just filed a better motion or got lucky in front of a judge or something,” Pickett said. “They just never did it.”

One of Tucker’s trial attorneys, Richard Ramsey, died in 2015. When reached by The Appeal, the other, Thomas Taylor, had difficulty recalling specifics of the case and whether he and his co-counsel pursued Tucker’s adoption records.

“We followed pretty much anything we knew,” Taylor said. “I would be surprised if we didn’t pursue every course of action.”

No new evidentiary hearing has been granted on these claims of ineffective counsel. Meanwhile, Pickett and Hambourger await news of whether they will be granted an evidentiary hearing regarding the “cheat sheet.”

I was surrounded [by white people], but what could I do?Russell William Tucker, defendant

North Carolina hasn’t executed any prisoners since 2006 and Tucker himself remains hopeful that he’ll receive a new trial or sentencing hearing.

In phone calls with The Appeal, and in statements released through his attorneys, he said he believes the outcome of his case would have been different if the jury had heard more evidence related to his childhood and mental health issues. He also believes the racial makeup of the jury played a role.

“I was surrounded [by white people], but what could I do?” he said. “To me it’s an unjust and unfair thing because they wouldn’t understand my situation and my upbringing. … They can only hear what was presented to them without really … knowing who I was or what I was about.”

Hambourger acknowledges that it’s hard to know what a diverse jury would have done in this case, but says that’s exactly the point. “I think it would have been important for people who looked like Mr. Tucker to be judging his worth,” she said. “Maybe they would have seen his life story differently.”

What if John McCain had been a prisoner in this country?

What if John McCain had been a prisoner in this country?

What you’ll read today

  • Spotlight: What if John McCain had been a prisoner in this country?

  • ‘We thought it was important to knock down doors.’

  • Columbus officer was under investigation when he shot and killed Donna Dalton

  • Kavanaugh gutted habeas rights for detainees

  • St. Louis prosecutor won’t work with certain cops anymore

  • South Carolina city profits by ticketing people who use profane language

  • The danger of risk assessments in California’s new bail law

In the Spotlight

What if John McCain had been a prisoner in this country?

As eulogies and elegies for Senator John McCain pour in, one of his achievements is lauded over and over: the Detainee Treatment Act of 2005. This measure, which he sponsored, barred “cruel, inhuman and degrading treatment” of prisoners in U.S. custody anywhere in the world. It grew from the revelations about prisoner torture at the now-notorious Abu Ghraib prison outside Baghdad. McCain said that although intelligence is needed to fight terrorism, “the intelligence we collect must be reliable and acquired humanely, under clear standards understood by all our fighting men and women.” Torturing prisoners lets “the cruel actions of a few to darken the reputation of our country in the eyes of millions.” When confronted with the claim from right-wing politicians that those very prisoners might commit the same atrocities if given the opportunity, McCain responded, “But this isn’t about who they are. This is about who we are. These are the values that distinguish us from our enemies.” He added, “What we are is a nation that upholds values and standards of behavior and treatment of all people.” [CNN]

The values that animated the legislation resonate today, even though some have argued, persuasively, that McCain later allowed politics to water down the law. McCain’s motivation stemmed from his experience as a prisoner of war in Vietnam, and came during the presidency of George W. Bush and the war on terror. It therefore focused on how the U.S. treats enemy combatants at home and abroad. But what if McCain had been incarcerated in this country? What if he had been similarly motivated to ensure that the U.S. treats every human in its custody with dignity and respect, including people incarcerated at home? What if we took to heart his willingness to possibly forego intelligence for the sake of our values? Would that mean that we would be willing to soften our stance against those who commit crimes, even violent crimes, to uphold our values?  If we want to treat McCain’s legacy with respect we might start by listening to his words: “This is about who we are.”

Originally, the term “dignity” meant only high social status and accompanying respect. The first president known to have used the term in the modern sense was Franklin Delano Roosevelt, who in 1939 warned that democracies risked a descent into dictatorship if they denied their people “as large a share of material success and of human dignity as they have a right to receive.” After the Nazis “exposed the desperate need for a universal commitment to humanity’s intrinsic worth, dignity became a staple of international human rights discourse,” writes professor Joseph Margulies. The first sentence of the UN’s Universal Declaration of Human Rights proclaims that “all human beings are born free and equal in dignity and rights.” The following year, Germany adopted a constitution that announced in its first article that “Human dignity is inviolable.” [Joseph Margulies / Verdict]

This commitment to dignity has informed the way Germany runs its prisons. Laws, staff culture, and a shared mission make dignity more than a legal abstraction. When a delegation of people concerned about the U.S. criminal justice system including academics, activists, and corrections leaders, toured German prisons in 2015, what they found amazed them: “The men serving time wore their own clothes, not prison uniforms,” wrote Nicholas Turner and Jeremy Travis upon their return. “They lived one person per cell. Each cell was bright with natural light, decorated with personalized items such as wall hangings, plants, family photos and colorful linens brought from home. Each cell also had its own bathroom separate from the sleeping area and a phone to call home with. The men had access to communal kitchens, with the utensils a regular kitchen would have, where they could cook fresh food purchased with wages earned in vocational programs.” [Nicholas Turner and Jeremy Travis / New York Times]

The Supreme Court, in holding that California prisons were unconstitutionally overcrowded, said that the state was forcing people to live under conditions that deprived them of “the essence of human dignity inherent in all persons.” [Brown v. Plata]

Margulies argues that unlike liberty, which can be compromised for pragmatic reasons, dignity cannot be compromised. “The State cannot deprive someone of her dignity. It cannot—at least not legitimately—degrade her, or treat her as some might an animal,” he writes. “Unlike with liberty, the State cannot invoke the seductive language of imminent catastrophe to justify behavior that tramples on human dignity, nor may it say restrict dignity to some but not others—to the citizen, for instance, but not the visitor.” It extends “to all people, at all times, under all circumstances.” This is why dignity and only dignity “mitigates the most pernicious impulse in American history—viz., the frenzy to dehumanize, to construct mythical monsters who do not so much walk the street as haunt the imagination, and whose specter is invoked to justify yet another round of repression.”  [Joseph Margulies / Verdict]

If Americans took dignity seriously, our prisons would look more like Germany’s. We would grant aging and infirm people compassionate release. Corrections staff would never refer to their charges as “bodies,” as they regularly do today. We would never let a criminal conviction get in the way of safe housing or meaningful employment. As Pope Francis made clear earlier this summer, we would not have the death penalty, because it is, in his words, “an attack on the inviolability and dignity of the person.” We would focus on restorative justice, and honor the dignity of the victim as well. When incarceration is found to be necessary, it would not be for a day longer than needed, and the deprivation of liberty would be the only punishment. Then we could say, proudly, as McCain had hoped, “This is who we are.”

Stories From The Appeal

Lewis Conway Jr. at a recent campaign rally [Matthew Bradford/Hank+Tank Photography]

‘We Thought It Was Important to Knock Down Doors.’ Lewis Conway Jr., a formerly incarcerated activist running for Austin City Council, sits down with The Appeal. [Sylvia A. Harvey]

Columbus Officer Was Under Investigation When He Shot and Killed Donna Dalton. Community outrage mounts over Officer Andrew Mitchell’s killing of Dalton during an attempted prostitution arrest in Ohio. [Melissa Gira Grant]

Stories From Around the Country

Kavanaugh gutted habeas rights for detainees: As an appeals court judge, Supreme Court nominee Brett Kavanaugh signed on to decisions that deprived Guántanamo detainees of the ability to challenge their detentions. In 2008, the Supreme Court recognized, in Boumediene v. Bush, a constitutional right for Guantánamo detainees to get federal courts to review the legality of their imprisonment. The decision was a bitter 5-4 split, with Justice Anthony Kennedy writing the majority opinion. But subsequent lower court decisions eviscerated Boumediene’s holding, leaving detainees, according to their attorneys, “caught in a trap from which they cannot escape.” In the New York Times, Linda Greenhouse wonders if Kennedy’s words rung “in Judge Kavanaugh’s ears as he signed on to opinions that left the promise of the Boumediene decision an empty one? And if not, why not?” [Linda Greenhouse / New York Times]

St. Louis prosecutor won’t work with certain cops anymore: “St. Louis Circuit Attorney Kim Gardner will no longer accept criminal cases from 28 city police officers and is reviewing any open cases they handled for ‘viability,’” according to the St. Louis Post-Dispatch. In a written statement, Gardner said, “A police officer’s word, and the complete veracity of that word, is fundamentally necessary to doing the job. Therefore, any break in trust must be approached with deep concern.” The listed officers comprise about 5 percent of front-line officers, and the business manager for the St. Louis Police Officers’ Association estimates that group is linked to “dozens if not hundreds of cases.”  According to the Post-Dispatch, “Gardner’s predecessor, Jennifer Joyce, refused to take cases from a handful of officers at a time in the past when their credibility had been questioned.” [Christine Byers and Joel Currier / St. Louis Post-Dispatch] See also our 12/11/17 edition on prosecutors who refuse to call unreliable cops as witnesses.

South Carolina city profits by ticketing people who use profane language: A Freedom of Information Act request by the Sun News found that the city of Myrtle Beach brought in $22,161 last year from issuing 289 tickets for using profane language. Those who are found guilty of the misdemeanor offense could be taken to jail or issued a citation. A lieutenant with the Myrtle Beach Police Department said those who violate the ordinance intend to “provoke a violent reaction from another person.” The fine money goes toward the city’s general fund, which funds various departments, including law enforcement. [Hannah Strong / Sun News] The assistant police chief’s wife responded to this reporting by calling the reporters “pieces of crap.”

The danger of risk assessments in California’s new bail law: California’s new bail system eliminates cash bail, which is a step in the right direction, but it could “create a system that is worse than what California had, in the heartbreaking name of bail reform,” writes Robin Steinberg in USA Today. It replaces cash bail with “expanded discretion for judges and a system of ‘risk assessments,’ which assign a score to people to determine who is eligible for release before trial and who should be held, not on bail, but without any hope of release at all.” Risk assessments, she argues, “turn questions of due process, veracity of evidence, and law, into matters of statistical probability.” Instead of scrutinizing the strength of the evidence in the case, “these computer models use algorithms to assess, among other things, how someone’s age, employment, drug use and criminal history will influence whether he might flee or commit a crime before trial.” This does away with the presumption of innocence, and has led to racially disparate outcomes. [Robin Steinberg / USA Today]

Thanks for reading. Have a great weekend.

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As National Prison Strike Continues, Incarcerated People Face Retaliation

Now in its second week, a strike staged by prisoners over poor conditions, low wages, and other issues is resulting in consequences, including harsh conduct reports and placements in solitary confinement.

A prisoner behind bars with his hands cuffed
Caspar Benson/Getty

As National Prison Strike Continues, Incarcerated People Face Retaliation

Now in its second week, a strike staged by prisoners over poor conditions, low wages, and other issues is resulting in consequences, including harsh conduct reports and placements in solitary confinement.

In April, Jailhouse Lawyers Speak, a group of people incarcerated in South Carolina that organizes for prisoners’ rights, called for a national prison strike to begin on Aug. 21. One of the strikers’ demands was for the rescission of the Prison Litigation Reform Act (PLRA), a 1996 federal law that makes it much more difficult for prisoners to file federal lawsuits regarding conditions of confinement or abuse by prison staff and therefore nearly halved such litigation in the six years after its passage. But before the strike even began, prisoners in several states, including Ohio, reported retaliation and repression because of it.

As this reporter wrote the day the strike started, Imam Siddique Abdullah Hasan was placed in solitary confinement on July 27 after receiving correspondence about the strike. Hasan’s conduct report stated the Ohio Department of Rehabilitation and Correction’s “STG Intelligence Unit have been monitoring communications and social media postings related to planning a nationwide prison strike from August 21 to September 9, 2018.” The report, written by a correction officer, used mail correspondence Hasan received about the strike and Hasan mentioning the national strike while speaking at public events (via the prison’s phones) as evidence of rule violations.

The report listed five rule violations: rioting or causing others to riot, engaging in or encouraging a group demonstration or work stoppage, conducting business operations with any person or entity outside the institution, use of telephone or mail in furtherance of any criminal activity, and violation of rules pertaining to receiving money from unapproved sources (a union wanted to pay Hasan $250 to speak to their members by phone). Central Ohio Incarcerated Workers Organizing Committee (IWOC) told The Appeal that Hasan engaged in a hunger strike to protest the conduct report from July 28 to Aug. 8.

On the same day Hasan ended his hunger strike, Greg Curry, another prisoner at Ohio State Penitentiary, reported that some prisoners in his unit decided to begin a work stoppage due to retaliation from guards. “Meanwhile, the low wage cops [are] harassing us, looking to create problems,” Curry wrote to his supporters via the blog Lucasville Amnesty. “So Enough prisoners that recognized this decided to start protest that include[s] refusing to work!” After a hearing on the conduct report, Hasan was moved to Extended Restrictive Housing Level 3 (where prisoners are held in their cells for 22 or more hours a day for at least 30 days) and had his phone privileges taken away for a year, according to Central Ohio IWOC.

Since the national prison strike began, Central Ohio IWOC announced that there are at least two prisoners on hunger strike at the Toledo Correctional Institution in Ohio: James Ward and David Easley. Ward and Easley are protesting abuse, communication restrictions, and lack of mental health treatment. The Ohio Department of Rehabilitation and Correction did not respond to a request for comment.

Some prisoners in Ohio have come to expect retaliation. The Appeal spoke by phone with a man in a minimum-security Ohio prison who asked to be identified only by his nickname, “Fridge.” “Intimidation, threats all of that is coming down the pipe, without a doubt, for even discussing [the strike],” he explained. Fridge also said Ohio prisoners are still reeling from a protest several years ago when they demonstrated against the state parole board’s inaction on parole, pardons, and commutations. Ohio’s parole rate declined from 48.5 percent in 2004 to 15.93 percent in 2017.  “Here in the state of Ohio, the parole board pretty much has complete autonomy and no oversight whatsoever,” Fridge told The Appeal. “The brothers were pretty much fed up because you know a lot of guys sitting around here rotting—30, 40 years. The brothers tried to make a statement by saying we ain’t participating [in parole hearings] … it was a desperate plea for help.” Those who participated in the parole hearing boycott were sent to the Southern Ohio Correctional Facility, a maximum security prison, according to Fridge.

Prior to the Aug. 21 strike, however, Ohio prisoners in IWOC released a set of 18 demands to the Ohio Department of Rehabilitation and Correction (ODRC). They called for ending long-term solitary confinement; paying prisoners no less than the minimum wage for their labor; the immediate release of all inmates sentenced before they were 18 years old; the release of “old-law” prisoners (meaning they were sentenced before 1996’s “Truth in Sentencing” law, which required judges to issue “flat sentences” for a specific number of years) who have completed their minimum sentence; reducing exorbitant commissary prices; allowing prisoners to participate in on-camera media interviews; and firing and criminally indicting correctional officers who physically abuse prisoners when they are restrained.

The demands also included rights for non-incarcerated citizens, including a demand that the minimum wage in Ohio be raised to $15 by 2020.  “Improving wages and working people’s lives on the outside,” the prisoners said, “is interconnected with prisoners’ struggle because such improvements will protect many people from either entering or re-entering the prison system.”

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