Get Informed

Subscribe to our newsletters for regular updates, analysis and context straight to your email.

Close Newsletter Signup

House of Cards

‘Cold case’ playing cards were just introduced into Delaware prisons in hopes of producing tips on unsolved homicides—but critics warn that informants cultivated behind bars can be dangerously unreliable.

"Cold case" playing cards distributed in the Delaware Department of Corrections.
Video still via 47 ABC/Illustration by Anagraph

House of Cards

‘Cold case’ playing cards were just introduced into Delaware prisons in hopes of producing tips on unsolved homicides—but critics warn that informants cultivated behind bars can be dangerously unreliable.

In August, the Delaware Department of Corrections (DOC) introduced “cold case” playing cards into the state’s four prisons in hopes of cultivating information about unsolved homicides. Each card features a victim’s photograph, brief details of the crime, and the number for an anonymous tip line for incarcerated people to call. The cards are modeled after the “Most Wanted” deck of cards created by the Pentagon in the spring of 2003 which were emblazoned with the identities of 52 Iraqi regime leaders that troops were meant to pursue, kill, or capture. They are distributed in prisons and jails in at least 17 states including Connecticut, where officials say that they have led to several arrests.

Delaware DOC spokesperson Jayme Gravell said the cards were introduced because prisoners may have either heard or were told about an unsolved homicide in prison, or perhaps they even witnessed a crime before being incarcerated. After looking at the faces of the victims on the cold case cards, she said, they can call in to the tip line with information.

But jailhouse informant testimony is notoriously unreliable. Law professor Samuel Gross, a founder of the National Registry of Exonerations, has estimated that nearly 50 percent of wrongful murder convictions involved perjury by someone such as a “jailhouse snitch or another witness who stood to gain from the false testimony.”  Lauren Brooke Eisen, a senior fellow at the Brennan Center for Justice and the author of Inside Private Prisons: An American Dilemma in the Age of Mass Incarceration, cautions:  “You need to be very careful about incentives; I think everyone should think about that [false testimony] when utilizing these cards.”

Critics argue that the cards perpetuate a culture of prisoners informing on one another which will inevitably lead to even more incarceration. “They’re asking prisoners to participate in their own incarceration and to basically help find other prisoners to keep inside of prisons for a very, very long time,” said Kim Wilson, a prison abolitionist who has two sons incarcerated at the James T. Vaughn Correctional Center in Smyrna, Delaware, “You’re asking prisoners to police each other, to turn each other in and it basically makes everyone a suspect. … It just seems like a bad idea from beginning  to end.”

They also note that the cards come at a cost—$1.50 per deck at the commissary—to a population already struggling with high costs of basic needs like telephone calls (a 15-minute call costs 60 cents while inmates make as little as 25 cents per hour). “That the playing cards are one more thing to be purchased inside is a cruel irony,” said Dan Berger, an associate professor at the University of Washington and an author of Rethinking the American Prison Movement. “One would think if such efforts were premised on securing long-delayed justice that they would be freely available. To ask prisoners to pay a fee in order to snitch on each other is a fitting, tragic irony of how prisons make use of predatory capitalism.” The Delaware DOC sells roughly 8,000 packs of cards each year, according to Gravell.

The cards are arriving in Delaware prisons just over a year and a half after incarcerated people in the state issued a list of demands that included better treatment, improved food, and access to rehabilitative and educational programs in the wake of an uprising at Vaughn that lasted more than 18 hours and claimed the life of a corrections officer. Gravell said there are now more programs and food options; security cameras have also been installed, and an inmate advisory council has been established. Wilson, however, countered that there has not been an increase in the requested education and rehabilitation programs. Instead, she said, prison officials have focused on technological upgrades such as video cameras and reading tablets. Wilson adds that as the Delaware DOC asks incarcerated people to purchase the cards and help solve cold cases, the state is considering sending hundreds of prisoners out of state because of staffing shortages. Governor John Carney’s administration will make the decision on the transfer within the next six weeks, Gravell said.

In Connecticut prisons, police have received tips from roughly 770 people—mostly prisoners—since its DOC started selling the cards in November 2010, Mike Sullivan, chief inspector of the state’s Cold Case Bureau, told The Appeal. Of those, Sullivan says there have been about 100 in which he “can tell they’re telling the truth.” Sullivan also emphasized that while prosecutors do not rely solely on jailhouse informant testimony to support their cases, prisoners will be expected to testify if they want to receive rewards for their information.

Some victims’ advocates and even an expert on unsolved homicides praise the cards for their promise of bringing justice to cold cases. “It’s self-funding, it doesn’t require a whole lot of resources, you’re not burning valuable time of detectives working really old cases so if it does generate tips it’s a very wise use of very minimal resources,” said Thomas Hargrove, who is the founder of the Murder Accountability Project, an organization that uses data to help document unsolved homicides. “I really don’t see a downside to this.”

But problems with jailhouse informants plague prosecutions across the country, including Orange County, California (where more than 140 cases may be tainted by the sheriff’s illegal use of inmate informants and withholding evidence gleaned from them) and New Orleans (where a death sentence was overturned in part because the district attorney’s office did not disclose its deal with a prolific jailhouse snitch). “I think you have to be skeptical of somebody [calling in tips],” said Jonathan Sills, a Connecticut defense attorney. “Somebody could certainly see the card, could maybe know something about the incident—but not everything—and then stretch the truth a little. Certainly you can have people who could just outright fabricate information about a particular incident. And if they had this information beforehand, why are they only calling it in after being incarcerated?”

The Appeal Podcast: Why Police Accountability is as Elusive as Ever

With Appeal staff reporter George Joseph.

Maddie McGarvey/Getty Images

The Appeal Podcast: Why Police Accountability is as Elusive as Ever

With Appeal staff reporter George Joseph.

“Police accountability” is a term that gets thrown around a lot in conversations about criminal justice reform. But how do we make sure police officers who break laws or department rules are held to account? The reality––even four years after Ferguson––is that little progress has been made in creating structures that discipline police officers for bad behavior. Our guest, Appeal reporter George Joseph, has been doing deep dives into police discipline in cities across America. The findings? A system that still routinely protects its worst offenders.

The Appeal is available on iTunesSoundcloud and LibSyn RSS. You can also check us out on Twitter.


Adam Johnson: Hi, welcome to The Appeal Podcast. I’m your host Adam Johnson. This is a podcast on criminal justice, abolition and everything in between. Remember, you can follow us on social media, Twitter @TheAppealPod,or go to Facebook and see The Appeal magazine’s general Facebook, where our show posts there, and of course you can always subscribe to us on iTunes. The term police accountability is one that gets thrown around a lot in criminal justice reform circles. How do we make sure that police officers who break department rules and even the law are held accountable? The reality, even four years after Ferguson, is that little to no progress has been made in creating structures that discipline police officers for bad behavior either on a federal or local level. Our guest, The Appeal’s, George Joseph, has been doing deep dives into police discipline in a number of cities for months. The findings, the system that still routinely protects its worst offenders.

[Begin Clip]

George Joseph: Some of these police leaders had over ten plus complaints like numerous taser incidents, mace incidents, that kind of thing. So even at the leadership level, people are learning that doing that kind of aggressive activity doesn’t actually hurt you, in fact either it won’t count against or it may have and help you. If that’s the way they came up and came to be the leaders of the department, why would they suddenly turn around and say, I’m going to discipline you for doing exactly what I did when I was in your position?

[End Clip]

Adam: Hi George. Welcome to The Appeal.

George Joseph: Hey, thanks for having me back.

Adam: So, um, you have been on this beat for about a year, probably longer and you recently wrote an article in the Appeal entitled, “Just 6% of Columbus Police Officers Account for Half of All Force Reports.” Force reports, for those who don’t know, is a sort of complaint about use of force. This is of course not just an issue with the Columbus Police Department. This is a broader national issue. Can you start us off by explaining why so few police officers account for so many of the complaints and to what extent do most police departments, and if you want to zoom in on Columbus, go ahead, why so many police departments have such a totally limp and useless complaint process?

George Joseph: So what we saw in Columbus, as you mentioned, was that there are 6 percent of officers who account for half of all the use of force investigations, so that both includes citizens complaining about force incidents or alleged forced incidents, as well as and this is the majority of the data set, um, officers self reporting their own use of force incidents. So if I tase someone, as an officer, I report it to the chain of command, they investigate me, find that I was perfectly justified and then uh, we go forward. So in Columbus, despite this very small group of people who are accounting for so many complaints, we found that in 99 percent of cases the officers were justified by the department. Their actions rather within policy or the citizen complaint was deemed to be unsustained. And the legal questions about why police departments so often find police not to have done anything wrong, we can see from grand juries all across the country is that even when an officer shoots someone, as long as they say they felt endangered or threatened, pretty much anything can be justified. But what we can say very clearly is that there are concrete reasons for why this concentrated group of people is generating all these complaints and it actually gets, it’s not about like a bunch of psychopaths who are part of one unit cause all the problems. It’s a structural material problem. It’s that certain units and police departments are being encouraged to do the most aggressive types of police work. Jumping out of cars in plain clothes, guns blazing, trying to get guns, trying to grab drugs, stopping people aggressively in poor neighborhoods where if you see a guy with a gun running at you, you may also pull out a gun, and so this obviously leads to escalated situations which result in shootings, beatings, and killings. And in Columbus, what we noticed was in some of the cases, some of the officers with thirty, forty different complaints had been officers who had experience in what is known there as a summer strikeforce, which is one of these plain clothes surveillance units that goes to poor mostly black neighborhoods, jumps out at people and tries to get guns. And as you mentioned across the country, police departments have similar units. They’re considered more prestigious than regular kind of patrol work. And as a result, people aren’t being sanctioned for this activity because it’s what they’re supposed to be doing and they’re rewarded for it.

Adam: Let’s cite one case that you reported on in general. It happened about two years ago, a Columbus police officer, um, there was someone who called in an armed robbery. They said that they, that they, um, were robbed for about $10 and told the dispatcher that they didn’t want to really mess with it. The cops responded to the complaint. They spotted three teenagers, um, two of whom escaped. And one was a 13 year old named Tyre King was shot while fleeing by an officer named Bryan Mason, who himself was white. The quote unquote “suspects” were African American. Now, not surprisingly, it was revealed that Mason had in his nine year career, 47 reports involving force, uh, and  four of those reports stem from previous shootings, which he had shot at a suspect, two of them resulted in death. That’s a lot of complaints. And now so what I want to do is I want to try to tease out the difference between someone who’s just involved in a lot of high risk episodes with those who are, who are, you know, maybe not violent sociopaths or psychopaths as you put it, but people who are maybe have an itchy trigger finger or maybe people who are more susceptible to escalation we’ll say, we’ll put it, we’ll put it in those terms, beyond the kind of material reality of them just being involved in more aggressive policing, because obviously this is also a policy issue. It’s, it isn’t just about the moral failing of a police officer. What are the mechanisms though for let’s say the five, ten percent who do have an itchy trigger finger, who are kind of, who view themselves as being John Wayne or is there any kind of mechanism for any meaningful oversight and I know that different cities are different or different cities have way better oversight. But specifically in Columbus, I mean these numbers are basically just rubber stamp. Police department, of course, investigates itself, finds out nothing happened. If Florence, our producer, did something wrong and there was not and The Appeal Podcast investigated itself, I would unlikely find her guilty because we work together. We’re all friends. Specifically in Columbus, can you talk about what those mechanisms are, what the oversight mechanisms are, if they even exist?

George Joseph: Well, it’s like many police departments across the country. The investigations will be led by an internal affairs bureau which has the power over, you know, who they choose to interview, how they choose to judge certain pieces of evidence and like you said, if the system justifies officers 99 percent of the time, literally, I’m not being hypothetical, then clearly it’s not even worth filing a complaint and officers within the department who we spoke to said citizens don’t lie 99 percent of the time. Why would the officer be punished when you’re telling them this is what good police work is? Which gets to kind of the problem of what police leaderships ask officers to do and there’s this strange kind of discourse emerging now where the police chiefs will kind of be seen as the more moderate, more reasonable, more rational types compared to the grunts at the bottom. The chiefs are, they wear lots of brass and they’ll be on panels at Google and all that kind of stuff, but they are the ones making the rules about what cops are supposed to do to get promoted and what happens when a cop does something that is violent. And so what was interesting to us was looking at some of the top commanders in the department, including one of the deputy ops, like one of the top among the top five, and then some of the district sub commanders. And what we found was even at that level, uh, some of these police leaders had over ten plus complaints, like numerous taser incidents, mace incidents, that kind of thing. So even at the leadership level, people are learning that doing that kind of aggressive activity doesn’t actually hurt you in fact either it won’t count against you or it may even help you, if that’s the way they came up and came to be the leaders of the department, why would they suddenly turn around and say, uh, I’m going to discipline you for doing exactly what I did when I was in your position?

Adam: Right. And this obviously gets to the broader issue amongst reformists, which is to what extent can you even really reform police from an activist standpoint, from people you’ve talked to in the community, people who are trying to work on having more accountability, a conversation that’s obviously been heightened, uh, very much since, since Ferguson. What are the actual good reform tools that police departments can use, if any at all? And then as a followup to that, what are the sort of bad reforms, like what are the reforms you don’t think do a lot of good, what are kind of just window dressing?

George Joseph: There is this problem, uh, with the public wanting the police to not do the bad violent things that we see on TV and that college protests, but then at the same time wanting them to quote unquote “get guns off the streets,” clear the corners so that old ladies can walk out of their houses. Like that’s the kind of thing you’ll hear if you go to a city council meeting or a public community affairs meeting, that’s what some people in the community are asking for. I’m not saying that’s all of them, but certainly a significant amount of them. And so what do you do with that situation? It’s difficult because the very thing you’re asking them to do, grabbing guns from people as police the only way to do that is through these really aggressive methods. I’m not an expert in community models for addressing gun violence. I know a lot of people do work on that area and do delve into that area, but there are probably alternatives to discouraging young people from carrying and using guns beyond jumping out of cars and grabbing them and taking the gun and thinking that that will change their trajectory in terms of gun use down the line. Um, and I don’t think police pulling a couple hundred guns off the street every year has ever really made a big dent in the gun supply market.

Adam: Like you said, this is the sort of, for lack of a better word, the kind of special forces of the police. Right? And to have a bunch of, you know, juiced up white guys with wrap around Oakleys and monster tattoos, jumping out of cars, probably not a good formula for reducing violence and preventing African Americans from being shot by the police. Right?

George Joseph: Well, let me point to the example of Saheed Vassel in that regard, um, who was recently shot and killed in New York. He had numerous, hundreds of interactions with police in his neighborhood before. These aren’t all quote unquote “community policing” interactions. These were a lot of tickets and citations for basically being a person out on the street with mental issues, but they knew who he was and didn’t necessarily think that he was going to go kill someone because everyone on the block knew him. The police knew him in his precinct. The people who ended up shooting him were these plain clothes officers who responded to a call, which is unusual because they’re not generally supposed to do that and came to the scene immediately, didn’t know who he was, saw what they thought was a gun and started shooting. So could that have been avoided if a patrol officer who knew him had responded first? Uh, it’s impossible to say, but it certainly seems much more likely.

Adam: Right. So there’s this kind of strikeforce mentality necessarily leads to more violent encounters.

George Joseph: I mean, the data shows that certainly.

Adam: You reported earlier this year in May about the wildly disproportionate amount of plain clothes police officers involved in violent altercations and fatal shootings. You found out that in the NYPD plain clothes officers make up 6 percent of the force, but account for 31 percent of fatal shooting incidents between the years 2000 and 2017. This is something we see elsewhere as well. Can you talk to us about why plain clothes officers are more likely to be violent? Is it similar to this sort of task force mentality you talked about earlier?

George Joseph: Yeah, it’s quite similar and it’s very striking that, I mean there are different examples. In New York, there’s a lot more fatal incidents. It’s a much bigger city. But just speaking generally about police violence, you see in the same time period roughly 2000 to 2017, in Columbus, 6 percent accounting for half of force incidents. In New York, 6 percent accounting or roughly 6 percent accounting for a third of incidents involving police fatal police shootings. And so like you said, yes, there are similar dynamics at play. In the NYPD article you’re referring to we looked at the NYPD’s plain clothes unit, which has been around for awhile and has always caused controversy because they’ve been behind some of the major police killings in recent New York history and not too different from the summer strike task force in Columbus, they drive around in cars, they don’t focus necessarily on one patrol beat, they don’t necessarily respond to calls generally. They’re out there speeding, going as fast as possible to try jump out at people who may have a gun and oftentimes there’s racial profiling involved in that. People who aren’t dressed in a very fancy way on the street corner, they go out and grab them and do shake downs and you know if you do that, maybe one out of ten times you’ll find a gun and you will be, or I don’t, maybe even less than that frankly, but you’ll get that short term gain of the gun that you found that you now bring to your supervisor and they take a photo and post it on Twitter.

Adam: They love to do that. They love to do that.

George Joseph: Right. They’ll layout the two pistols on the table.

Adam: They got roasted once. There was a police department who had a gun that it appeared like it was from the 1920s.

George Joseph: (Laughing) I think I saw that yeah.

Adam: Do you remember that? And people were like, ‘you caught Dillinger?’ No, they loved doing that.

George Joseph: But what about all the times that you kind of just profiled someone and came up short because you’re pretty much just randomly going after people who you think are, basically look like they’re up to no good. I mean, it’s going to make people hate you in a way.

Adam: It’s a total numbers game. You go to certain locations and you, and we talked about this when you were on the show before about how if you target certain populations, you will invariably find more crime disproportionate to the amount of crime that actually happens. These police departments aren’t raiding, uh, you know, the Sigma Chi house to look for sexual assault. They’re going after certain populations for very specific reasons because they, mostly because they can and when they’re looking to get convictions because they don’t have money for lawyers and so on and so forth.

George Joseph: In New York, it’s literally a numbers game in that officers allege that they are under a quota system. The NYPD denies it and yet all these recordings come out every few years with supervisors saying, ‘you haven’t given me your numbers for the month,’ and so officers are under pressure to go and, and make those kinds of felony arrests by finding a gun on someone or getting drugs. And so it’s in the nature of what policing is, is meant to be right now.

Adam: On the topic of plain clothes policing, last year in Baltimore, we have a little bit of an A/B test here because Baltimore, they disbanded their plain clothes police force, which is extremely rare. Uh, and really creates an interesting test case. Can we talk about what the logic to that was? Obviously I think the plain clothes police department in Baltimore was a uniquely uniquely corrupt, but has there been any data or any kind of analysis of how it’s affected the policing itself?

George Joseph: That’s a good question. I mean, certainly in Baltimore, beyond plain clothes officers accounting for a lot of violence, there is also a lot of just straight up corruption. So that was controversial because they went a little bit beyond the kind of things they were required to do, but ironically now Baltimore city leadership has talked about bringing them back so it doesn’t seem like anything has really changed and obviously Baltimore has a lot of murders, a lot of shootings and people seem to not feel like taking them away really fixed anything. Yet on the other hand, while they were there, they didn’t really seem to fix anything either.

Adam: Well, what about the plain clothes concept? Is policing led to or correlated with the corruption of the Baltimore Police Department? Because I mean the Baltimore Police Department, I mean for those who don’t follow these things, it makes the NYPD look like the Osmond family, sort of notoriously corrupt in a way that is pretty brazen. Do we have any indication as to why there was a correlation there between plain clothes and corruption? Because I mean plain clothes and violent interactions, you can sort of see, okay, well they don’t see that they’re a cop and they pull their gun out, but was that kind of best of the best elite mentality also given the perception that they’re above the law?

George Joseph: That’s a really good question. I haven’t studied the issue enough to talk about how the kind of plain clothes mentality bleeds into police corruption. But from an intuitive perspective it seems like when you start to dress up like someone who’s like a bad guy and you deal with people in a much less official way and off the books way and you start working your sources and kind of going into this underworld, for lack of a better term, you can sometimes lose yourself in it because not everyone who’s a drug dealer is putting their money in a bank account and like keeping good records for the IRS. So there’s a lot of temptations out there.

Adam: Yeah. They have a habit of not filing their taxes.

George Joseph: Yeah. And they don’t file drug, uh, purchases. Um, there’s a lot of temptations in a city like Baltimore. I mean, in New York you don’t probably have that to the same degree because there is honestly not the same degree of underground economic activity happening. But in cities like Chicago and Baltimore, that activity is happening and the city’s responses to send swarms of police there, and then you get these units that effectively become their own gangs, literally dealing drugs and selling people, that kind of thing.

Adam: You’ve done a lot of investigations over the years into spying of protest movements. What is the difference, if there is any, between plain clothes policemen and undercover policemen?

George Joseph: I think it’s just whatever the police PR person happens to feel like that day.

Adam: Okay. There was an incident in Oakland in 2014 were to CHP officers, California Highway Patrol, which is the state police in California, pulled their guns out on protesters after there was an incident where someone spotted them or alleged that they were cops and they pulled their guns out and it was a huge incident because (a) why were they there?  (b) The Oakland Police didn’t know they were there and their first response was to go full Charles Bronson and vanish their weapons and this confluence of undercover versus plain clothes, and they kept insisting these cops were not undercover. They were just plain clothes, but they looked like protesters, they were like doing chance. Is this a distinction do you think actually matters? And to what extent do you think the use of plainclothes to infiltrate activists is something that you see as more common or it’s more, it’s kind of a go to because they’re sort of already off the books?

George Joseph: Well, we definitely know it’s common because at the same time that, uh, you referenced the incident in California we obtained documents showing how the NYPD was sending quote unquote “undercovers” or plain clothes, whatever words you wanna use, um, people who you wouldn’t know are cops and are pretending to be protesters at Black Lives Matter demonstrations all across the city. And these demonstrations were documented over and over again in the police logs as peaceful, nonviolent, etcetera, etcetera. Yet they were not only attending the protests but also following them on social media, passing around pictures of activists and somehow obtaining access to organize your group texts. I’m not exactly sure how that happened, but we have documents from lawsuits, uh, which we published in The Guardian a few years ago showing that. Um, so it seems to be that all across the country police feel it’s very important to spy on protests about police violence. I mean, I think it probably makes sense why they want to do that.

Adam: Yeah. Um, so before you go, just want to ask you a sort of 30,000 foot question, have you seen in your years writing about this topic, do you see any meaningful change? We’re about the four year mark since Ferguson, in your mind, have these movements beared meaningful fruit and what kind of tactics do you see as working and not working?

George Joseph: My sense is that after these huge rebellions and protests took place in 2014 and people saw that they did mass protests and the cities would get shut down and then the National Guard would come in and this happened all over the country, obviously, Ferguson, Baltimore, Charlotte. All over the place. They’re still wasn’t the political power to necessarily indict officers or the willingness from county DAs to do so and to do so in a way that would actually get convictions. Now, some people obviously don’t think convicting police officers is really the answer to these problems and I think that’s true and that it doesn’t really address the issue systemically, but it does reflect how little power the public has to hold officers accountable by the general ways that we expect other members of society to be held quote unquote “accountable.” And I feel that since that kind of heyday of the Black Lives Matter movement, a large part of the reason that people aren’t protesting on the streets in massive numbers for regular police violence, that is still happening and has not changed since the news stopped covering it is because they see that the protests, um, without any sort of significant political power don’t really lead to any change. Um, so I think that with this movement to focus on DA races and starting to take more power in terms of urban politics, there’s a possibility that that could change in the near future. But I’m generally an optimistic person.

Adam: Yeah. Well, yeah I think the, I think the pivot to DAs is driven largely by necessity with an understanding that there’s just more democratic control over that, uh, and that police departments are always going to kind of be like, you know, the CIA or the military, they’re kind of a permanent state in a lot of these cities, like they’re not, you know, the police run the security for Bill de Blasio, you know, how much can you really push back against people who run your security all day? Uh, you know, he actually thought they were spying on him in his 2013 campaign, there’s no evidence of that, but he thought they were. So the very fact that he thought they were is somewhat chilling. So yeah, I think that’s, um, I think that’s interesting. I really appreciate that perspective and I really want to thank you for not giving me false optimism. (Laughs)

George Joseph: (Laughs)

Adam: We try to play it straight here. So I appreciate that.

George Joseph: Well, thanks Adam. Appreciate it too.

Adam: Thanks so much George.

George Joseph: Okay talk to you later.

Adam: Thank you to our guest George Joseph. Great as always. This has been The Appeal Podcast. Remember, you can follow us on Twitter @TheAppealPod and you can subscribe to us on iTunes just look for The Appeal Podcast and of course you can follow The Appeal magazine’s main website at The Appeal on Facebook. This show has been produced by Florence Barrau-Adams. Production assistant is Trendel Lightburn. Executive producer Sarah Leonard. I’m your host Adam Johnson. Thank you so much and we’ll see you next week.


More in Explainers

‘Will I Get Out Today?’

Louisiana is keeping people behind bars long after their sentences have expired, attorneys say.

Illustrations by Ana Galvañ

‘Will I Get Out Today?’

Louisiana is keeping people behind bars long after their sentences have expired, attorneys say.

Four days before his scheduled release from a Louisiana prison, Ellis Ray Hicks received a visit from his aunt. Her phone had recently been cut off and she needed to know what time to pick him up from the prison.  

Hicks asked a lieutenant who, after checking the prison’s computer system, returned with stunning news—Hicks’s release date had been moved from January to July. No one in the visiting room could explain this change.

This meant not only that Hicks was looking at an additional six months in prison, but also that Hicks’s aunt had to postpone her open heart surgery. “She has no caretaker,” Hicks told The Appeal. “My uncle has cancer, so can’t move around much.” That meant that his aunt, then in her late 60s, had to wait for her 50-year-old nephew to come home before she could proceed.

After the visit, Hicks contacted the computation officer, or the prison administrator responsible for calculating his release date. Initially, the officer told him that Louisiana’s probation and parole department had changed his release date. That’s also what he told Hicks’s aunt, who called once she got home. But, says Hicks, that wasn’t true. Hicks attempted to get an explanation—if not a change back to his initial release date—without success. Instead, he was issued four release dates, none of which were Jan. 8.

“The law is clear,” William Most, Hicks’s attorney, told The Appeal. “Once a prisoner’s sentence has expired, the jailor has a reasonable amount of time to process and release him. That reasonable time can vary—in some circumstances, even 30 minutes can be illegal. But the courts have reached a consensus that the reasonable time must be less than 48 hours.”

After writing to Most for help, Hicks was released nearly four months after his original date. But Hicks’s delay was no fluke. Most is representing four other Louisianans who were held far beyond 48 hours past their release dates without input from a judge. No one knows how many people are sitting in jails or prisons across the state past their sentence, in part because no agency bothers to collect the data.

“At least hundreds— and probably thousands—of Louisiana citizens have been held past their release date in recent years,” Most said.  

In New Orleans, Rodney Grant was arrested on a 15-year-old burglary charge when he tried to apply for a driver’s license. The judge sentenced him to time served, meaning that Grant should have been released from the sheriff’s department that same day. Instead, the sheriff’s office detained him for two more weeks while they sent his paperwork to the Louisiana Department of Corrections (DOC) for processing. Grant then spent another two weeks in state prison; it took multiple calls and emails from the sentencing judge before he was released. Prison officials dropped him off in Madison and gave him a bus ticket back to New Orleans, over 200 miles away.

Another man, whom Most requested remain anonymous to avoid reputational harm, was imprisoned for 589 days past his release date.

Louisiana may no longer be the nation’s incarceration capital, but the state routinely keeps people behind bars for weeks, if not months and sometimes years, beyond their release date. The extrajudicial practice has been happening at the local and state levels for years—yet no one seems willing to fix it.

Illustrations by Ana Galvañ

Stas Moroz is a staff attorney at the Orleans Public Defenders office. At least once a week, he receives an email about someone who is being overdetained. There are a number of reasons for a person being held past their release date, he told The Appeal.

One common reason is the lag in communication between the Orleans Parish sheriff’s office and the state’s Department of Corrections. If a person has been sentenced to DOC custody, that person remains in the sheriff’s custody while his or her paperwork is delivered to the DOC. Despite the advent of email and digital systems, local sheriffs and the state prison system do not have a shared computer system, so physical papers must be driven to the DOC headquarters in Baton Rouge. That paperwork is driven to Baton Rouge only once a week, meaning that a person sentenced after that particular day may have to wait another week in jail.

Once state prison officials receive the paperwork, they must calculate the amount of time served and the amount of time remaining on the person’s sentence, a process that can take over a week. Only then will they request that the person be transferred into their custody. “The process is so slow that people will be in jail for two or more weeks,” Moroz explained.

Then there’s human fallibility. Prison officials may not include time served in the jail system, either because they did not receive the paperwork or because the numbers in that paperwork are wrong. They also may fail to include good time, or time off for good behavior, when calculating a person’s release date.

“Sometimes people make mistakes,” Moroz acknowledges. But, he notes, “it’s a structural problem that the system isn’t set up to catch these mistakes. We only find out if a client writes to us.” There’s no system in place, either on the local or state levels, for incarcerated people themselves to fix these errors—or to get in touch with someone who can help. This means that those who have intellectual disabilities, mental health concerns, or cannot write a letter are left to sit behind bars for longer than their actual sentence. That’s what Hicks experienced during his time in prison—but many people were unable to write letters or advocate for themselves.

Even just a week of additional time can disrupt people’s lives. But for many, including those represented by Most and Moroz, overdetention has stretched far beyond a week. As Hicks’s experience demonstrates, the additional time means remaining unable to take care of loved ones. And the lack of certainty over what should be a certain release date can also cause or exacerbate depression or anxiety.

In January, Moroz put a call out to the attorneys he knew and asked about instances of overdetention. Between January and July, he received 54 emails. Thirty-nine were from attorneys whose clients were already past their release dates yet still behind bars. The other 15 were from attorneys who anticipated that their clients would not walk out of jail or prison once they had completed their sentences. “That’s a pretty conservative number,” reflects Moroz, noting that 54 only reflects people who have contacted their attorneys who, in turn, contacted Moroz.

The DOC apparently receives queries about erroneous time computations often. Under Frequently Asked Questions, the agency’s  website states, “If there are questions about time computation, offenders housed in state facilities should write the Records Office at his/her assigned facility.  For offenders housed in local facilities, he/she is advised they may submit his/her questions in writing following the Administrative Remedy Process. While offenders often ask family members or friends to contact the Office of Adult Services on their behalf about time computation questions, the offender should be encouraged to follow appropriate procedures to ensure that staff has the information and time needed to respond to his or her concerns.” The DOC declined to comment, citing pending litigation.

But, says Hicks, if an outside attorney had not intervened and helped secure his release, he would have sat in prison for another six months. Meanwhile, his aunt would have continued to postpone the surgery she needed.

You know you’re free. You’re supposed to be a free man.Johnny Traweek, imprisoned 21 days past release date

In court documents, Most identifies numerous past cases of overdetention. In the 1980s, the state of Louisiana paid Jerome Robinson over $250,000 for failing to calculate good time into his prison sentence. Two decades later, in 2003, the state settled a lawsuit for a person who had been held 1,213 days (or over three years) past his release date. In 2005, 2007, and 2009, it made payments to people who were held past their release dates. Most is also the counsel on two other lawsuits on behalf of men who were overdetained. One spent 41 days imprisoned past his release date; the other spent nearly two years in state prison.

Prison employees have also acknowledged the frequency of the practice. In the course of a lawsuit filed by James Chowns who spent 960 days imprisoned past his release date, DOC employees testified about the consistent overdetention that they observed. One employee testified that prison staff discovered approximately one case of overdetention per week for the past nine years. Another DOC employee, who reviewed sentence computations for the department’s assistant secretary, testified that he typically discovered “one or two [people] a week” who were eligible for immediate release yet remained in custody. (Chowns’s petition was ultimately denied by the state’s Supreme Court.)

Yet despite these acknowledgments, the spate of lawsuits and the hefty settlements, Louisiana prisons and jails continue to hold people past their release dates. That’s what happened to Brian McNeal, who spent 41 extra days in prison. He might have sat there even longer had his girlfriend not repeatedly called the DOC, the parole office, McNeal’s probation officer, and Moroz, who had been McNeal’s public defender. McNeal has recently filed suit against the DOC, alleging false imprisonment, negligence, violating his 14th Amendment right to due process, and violating the state Constitution’s due process protections.

If this issue is so widespread, why does this continue to happen? “There is a complete lack of accountability,” stated Most, who is also representing McNeal. “When the DOC finds out that someone has been overdetained, their practice is to change their release date to the date they figure it out, so that it looks like there has been no overdetention. Rarely are there consequences when someone is overdetained.”

Ken Pastorick, the DOC’s spokesperson, disputed Most’s allegations, but declined further comment.

The lack of accountability became apparent in a recent response by DOC Secretary James LeBlanc and Attorney General Jeff Landry. As part of a lawsuit Most is filing on behalf of a man overdetained for nearly two years, LeBlanc was asked to identify all instances of discipline or adverse employment activity for DOC employees who have incorrectly computed sentences or release dates from 2000 to the present. Landry and LeBlanc responded, “To the best of Sec. LeBlanc’s knowledge, no employees meet these criteria.” In other words, employees have faced no consequences for miscalculating release dates.

At other times, however, Landry has noted the department’s ineptitude. In a March 2018 op-ed, he and Senator John Kennedy wrote that there “is a layer of incompetence so deep that the Corrections Department doesn’t know where a prisoner is on any given day of the week or when he should actually be released from prison.”

But it’s not just state prisons that are overdetaining people. In May, after being sentenced to time served, Johnny Traweek still spent 21 days at the Orleans Parish Prison.

“Will I get out today?” the 66-year-old remembered asking the judge. Yes, said the judge. So when Traweek was returned to the jail, he gave away all of the fruits, chips, and candy that he had bought at the commissary earlier that week. “I was sitting in my cell with absolutely nothing,” he told The Appeal. But he didn’t mind—knowing that he was soon leaving the jail meant that he didn’t need to rely on commissary snacks to keep his hunger at bay. That was on May 2.

The next morning, Traweek asked a deputy about his release time. She checked the jail’s computer system and told him that it said HOLD. Every morning after that, he asked her to check the computer. Every morning, he received the same response.

“It was miserable,” he remembered. “You know you’re free. You’re supposed to be a free man.” Traweek, who already suffered from depression, said that the uncertainty deepened his condition. He stopped sleeping, instead staying up and wondering, “When am I getting out? Maybe it’ll be tomorrow.”

Illustrations by Ana Galvañ

The following week, Moroz, Traweek’s public defender, learned that his client was still in jail and that the Orleans Parish sheriff had not sent Traweek’s paperwork to the DOC. He emailed the sheriff’s office, which responded, “Johnny Traweek was just sentenced on May 2, 2018, so his paperwork has not went up yet.” This was on May 9, one week past the day a judge had sentenced Traweek to time served and told him that he would be released that day.

By May 14, Traweek was still sitting in jail. In response to another email by Moroz, the sheriff’s office wrote, “He can’t get released until DOC sends him a release. The whole process takes about two weeks. He has to wait!!!!”

Two days later, on May 16, state prison officials informed Moroz that the sheriff’s office had not sent the key information that they need to calculate Traweek’s sentence. Moroz once again emailed the sheriff’s office, noting, “It has now been two weeks since his sentence ended.” It was not until Moroz filed a petition for habeas corpus that the sheriff’s office released Traweek. By then, it was May 22, three weeks after a judge had told him he would be out that same day.

“I’m not the only one they did that to,” Traweek recalled. “There were three other people whose time was done [and were still in jail].” And, he added, “That’s just on one floor. That’s just one cellblock.”

In several cases, people have spent months beyond their immediate release date after the Orleans sheriff’s office has sent people not to the state prison’s reception center in St. Gabriel, where prison officials would begin calculating time left on their sentence. Instead, they were sent to the Riverbend Detention center, a parish jail in Lake Providence near the Mississippi border in northeastern Louisiana. Meanwhile, no prison officials received their paperwork, let alone began processing and calculating their release date. That meant that, four hours away from New Orleans, family and potential legal help, they were held for months past their release date.

This has happened to at least five other men, who spent between three and five months detained past their release date. All five were only released with the help of the Roderick and Solange MacArthur Justice Center, which is now filing suit against the Orleans Parish Sheriff’s Office, the East Carroll Sheriff’s Office, and the Department of Correction.

These five, says Emily Washington, an attorney at the MacArthur Justice Center and counsel on the lawsuits, which have now been consolidated, represent only a fraction of the numerous phone calls and letters they receive from incarcerated people and their family members about overdetention. But, she adds, no agency tracks the number of people held past their release dates, meaning that no one knows how many people have been affected. At the same time, neither the DOC nor the local jails have put any systems into place to resolve this issue.

Blake Arcuri, general counsel for the Orleans sheriff’s office, disputes that it holds people past their DOC release date. In an email to The Appeal, he wrote, “Judges don’t set a release date as part of a sentence. When inmates are sentenced by a judge to DOC custody, that’s an order of the court transferring them from the jurisdiction of the sheriff (pretrial detention) to the Department of Corrections.  The sheriff has no authority to release a prisoner who was sentenced to the legal custody of the state.” According to Arcuri, if the DOC issues a release for a person still in the sheriff’s custody, that person is released within two to six hours.

“Mr. Arcuri has it exactly backwards,” said Most. “The Fifth Circuit has been very clear: ‘a jailer has a duty to ensure that inmates are timely released from prison.’ Currently, the sheriff is holding inmates sentenced to the custody of the DOC for days or weeks, even when he knows they should be immediately released. If the sheriff’s department doesn’t want to be responsible for DOC inmates’ release dates, he should hand them over to the DOC shortly after sentencing.”

Moroz said Arcuri’s claims are not borne out in practice. He notes that, in the past year alone, the Orleans Public Defenders office has had had multiple clients sentenced to periods of incarceration that they had already served on the day they had been sentenced. “It is common for an individual who is sentenced to receive ‘credit for time served’ in parish jail (meaning that individual is sentenced to serve the amount of jail time that he or she has already completed) during a morning court session to sit in jail until the next day while OPSO [the sheriff’s office] processes their releases,” he wrote in an email.

But, if the person is sentenced to time served in state prison, the delays can stretch for days, if not weeks, while waiting for the sheriff’s office to fulfill its responsibility of driving paperwork to the Department of Corrections.

“Both the Orleans Parish Sheriff’s Office (OPSO) and the Department of Corrections (‘DOC’) have a responsibility to ensure that people in their custody are there lawfully,” Moroz wrote.  

Meanwhile, keeping people past their release dates have impacted their lives—and the lives of their families. “Speaking for the [five] men I represent,” Washington said, “it sounds really bureaucratic when you talk about paperwork and time calculations, but for my clients it’s their lives. It might be days, weeks or months, but these are days, weeks or months that they’re not with their families, they’re not able to work or provide for their families. You’re sentenced to a set amount of time. When that time is up, you should be able to return to your family and to society.”

Hicks went home on April 25, nearly four months past his initial release date. The following week, he took his aunt to the hospital for her long-awaited surgery. He is now caring for her as she recovers.

Others, however, have not been as fortunate. “In the time they were overdetained, my clients have missed their children’s graduation. The birth of their grandchildren. Birthdays. The death of parents. A wife’s stroke,” Most said. “They couldn’t be there for their loved ones in good times and hard times. Even after they are released, there is no going back. And that weighs on them.”

More in Podcasts