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“It Is So Loud Inside My Head”

The words of a mentally ill man the state of Arkansas hopes to execute on November 9th

Photo: Arkansas Department of Correction

“It Is So Loud Inside My Head”

The words of a mentally ill man the state of Arkansas hopes to execute on November 9th

It is so loud inside my head. It feels like electrical impulses are going through my head all the time. If you took that pen and tapped it on the table I can feel it all the way down my spinal column. It is so loud inside my head.”

Those are Jack Greene’s words. He is the 62-year-old man that the state of Arkansas hopes to execute on November 9th for the 1991 killing of Sidney Burnett. Greene suffers from crippling psychiatric deficits, a possible intellectual disability, and a mental illness so severe that there are questions about his competency. He received such grossly inadequate representation at trial that the jury that sentenced him to death never heard of his devastating mental illness — a refrain all too familiar in capital cases. The state is aware of the glaring problems in Greene’s case, but it still hopes to execute him next month.

Greene, for example, regularly stuffs his ears and nose with paper “to alleviate perceived (but delusional) injuries.” Sometimes he intentionally causes his nose to bleed, and guards discover his face covered with blood. He eats out of his sink; his toilet is his desk. He thinks his central nervous system is totally destroyed, caused by, in his words,

[t]he prolong and repeated injuries on me . . . by staff of the Ark. Dept. of Corrections with the deliberate permanent destruction of such vital bodily functioning organs that’s caused injuries so severe and traumaticly [sic] inflicted to my brain, head, left inner ear, etc. . . . for all of which is so painfully torturing and inhumane I can no longer humanly function properly and live with.

He believes that his ex-attorney, the prison warden, a nurse, and a prison guard have conspired together (in that “chronological order”) to destroy “these vital functioning organs,” and that they are also preventing him from being extradited to North Carolina, where he could receive adequate medical care. He thinks his looming execution is part of this conspiracy.

Doctors believe Greene has organic brain damage. He has had a serious head injury in the past, and neuropsychological testing reveals damage to his frontal lobes. Several experts who have examined him have diagnosed him with a psychotic disorder, and his current lawyers are certain he is not competent to be executed. He also might be intellectually disabled, a status that, like incompetence, would render him categorically ineligible for the death penalty.

Then there is the trauma and the familial mental illness visible in many of Greene’s relatives. Greene’s father killed himself when Greene was an infant. His mother would later overdose on pain pills, and his brother later shot himself. Greene’s grandfather physically abused him and his siblings, sometimes rubbing salt in the wounds he caused. Greene lived in a house with no running water, electricity, or plumbing. At eleven, his grandfather handed him over to a notorious state-run training school for boys. While there, Greene was sexually and physically abused.

The evidence described above is the type that often causes juries to spare someone’s life, according to the findings of the Capital Jury Project. But at Greene’s sentencing trial, his attorney did not put on a mental-health expert and he presented no other mental-health evidence, although the signs of his illness were readily apparent. Instead, to convince the jury to spare Greene’s life, his lawyer presented a measly 46 pages of testimony, 33 of which were read from a cold, emotionless, transcript from a prior proceeding.

What happened next is equally disturbing. During post-conviction proceedings, an expert found that Greene might be intellectually disabled but stated that he needed to do additional testing to confirm. Greene, insistent that his lawyers were conspiring to torture him, asked the district court to withdraw the claim. He accused the Federal Defender’s Office of “making [him] out to be some kind of incompetent retard to get their office appointed to [his] case and try and cover up crimes of inhumane injuries maim and torture.” The judge found Greene competent to abandon this potentially life-saving claim and withdrew it. No court has ever heard it.

Perhaps the most shocking thing in Mr. Greene’s case is that, with a little more than two weeks until the scheduled execution, he has yet to receive a hearing to determine whether he is competent for execution under U.S. Supreme Court precedent that bars the execution of persons who lack a rational understanding of the punishment they are to receive. Arkansas’s unusual statute gives the Director of the Department of Correction sole discretion in making competency determinations. This means that the same person who is in charge of carrying out Mr. Greene’s execution also gets to determine –without a fair and independent court hearing — if he is competent for execution.

If the state has its way, Jack Greene will join a group of four other men executed by Arkansas in 2017, a group that to a man suffered from the most debilitating illnesses and trauma and received the worst lawyers. Ledell Lee, who might have been intellectually disabled, had lawyers who tried to withdraw from his case, citing a “gross [ethical] conflict,” a drunk lawyer, a mentally ill lawyer, but never, until it was too late, a competent lawyer. Marcel Wayne Williams had a mother who pimped him out for sex at ten and who tortured him by pouring boiling water on him and covering him with tar; Kenneth Williams may well have been intellectually disabled; and Jack Jones suffered from extreme physical abuse, was brutally raped by strangers, and suffered from bipolar disorder. Juries never heard these stories because of ineffective lawyering.

What is happening in Arkansas is a stain on our country’s moral conscience. Under the Eighth Amendment, the death penalty is supposed to be reserved for the worst of the worst, society’s most culpable. The prosecutors’ continued push for death in the face of severe illness and trauma, never heard about by juries, flouts that constitutional promise. And each time a court allows a state to carry out the harshest of punishments on the most impaired and least represented, it mocks the promise of justice. Will a court finally recognize this reality and intervene? Or will Greene become another tragedy in a system that is completely and utterly broken?

Indiana prosecutor takes “a hard line” on opioid dealers

Terry Curry

Indiana prosecutor takes “a hard line” on opioid dealers

Marion County Prosecutor Terry Curry has vowed to seek longer prison terms for drug dealers in an attempt to crack down on the opioid epidemic damaging Indianapolis and large regions of the country.

“Our office has made a decision that we are taking a hard line,” Curry recently told Fox 59 in Indianapolis. “We just feel it’s important that we make a statement and don’t lose sight that there is a criminal side to the opioid epidemic that’s occurring.”

Curry said his office will continue to divert low level drug possession cases and first time offenders to drug court for treatment in lieu of pursuing criminal sanctions. But he simultaneously argued it was important to push for long prison sentences for those dealing in large quantities of opioids and other drugs.

“There’s a distinction between those battling addiction and those who are feeding addiction,” Curry said.

The prosecutor showed he was serious earlier this month when his office secured long prison sentences for two individuals convicted of selling heroin. Frank Dangerfield was sentenced to 26 years in prison and Braxton Buxford was sentenced to 30 years in prison on similar charges. In addition to heroin, police found $7,928, 36 grams of cocaine, 125 grams of methamphetamine and 160 grams of fentanyl in Buxford’s vehicle.

Curry’s hard-line approach, however, is increasingly coming under fire by those who maintain that the opioid epidemic in this country should be treated as a public health, not criminal justice, crisis. For example, Northeastern University Law Professor Leo Beletsky, a public health and drug policy expert, said sending more people to prison for longer periods of time has never been an effective crime or drug prevention strategy.

“Locking people up during the 1980’s and 1990’s didn’t lower the crime rate or prevent people from using, and the same is true with opioids today,” Beletsky said. He argues that law enforcement should step aside to allow the health care community to play a larger role in addressing widespread opioid use. He concedes, however, “that’s hard for prosecutors to understand.”

“This gives them a chance to make themselves central to the crisis,” Beletsky said. “But we don’t usually expect prosecutors to respond to an epidemic.” Rather, he suggested, “that’s a role for epidemiologists and other medical personnel.”

Beletsky also maintained that Curry’s distinction between users and dealers — and the different treatments they should receive — is not always realistic.

“The people who sell are also the people who use,” he said. “And if you study the history, users always end up getting arrested.”

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Feel-Good Victims Rights Legislation Doesn’t Help Victims

Flickr user Tom Arthur

Feel-Good Victims Rights Legislation Doesn’t Help Victims

This November, Ohio voters will consider a ballot measure that, if approved, will add new crime victim protections to the state constitution.

The proposed constitutional amendment is called the Ohio Crime Victims Bill of Rights or Marsy’s Law. It is based on a similar victims rights bill enacted in California in 2008, named for Marsalee “Marsy” Nicholas, a University of California Santa Barbara student who was stalked and killed by her boyfriend in 1983.

The Ohio version of Marsy’s Law would give crime victims the right to notification of all legal proceedings involving their case. Victims would also have the right to weigh in on plea deals, receive restitution, and to be notified when their perpetrator is released from custody. But state law and the Ohio constitution already contain victims rights provisions similar to Marsy’s Law.

Proponents argue that existing victims rights laws are not enforced, but Marsy’s Law does not address the problem of enforcement nor does it create a cause of action for damages or compensation against the state or a political subdivision if government violates victims’ constitutional rights.

Also, it could have unintended financial consequences, needlessly straining an already overburdened criminal justice system.

The Ohio Office of Management and Budget predicted that Marsy’s Law could impose significant costs on the local level, “particularly as they relate to the court system and public defender costs borne by counties.”

Its language also expands the definition of victim and treats low-level crime and violent crime too similarly.

It broadly defines “victim” to include those “directly or proximately harmed.” Critics, including public defenders, private defense attorneys, and prosecutors, have warned that this definition goes beyond, for example, a shooting victim in a store robbery, to cover the store owner and even the store’s insurance company.

The measure also puts violent crime on the same level as a low-level property crime, whereas existing victims rights laws are limited to felonies and certain misdemeanor offenses. While Ohio already has well-established protocol for providing notice and assistance to victims of violent crime, the services provided to victims of lower-level crimes — like petty theft, fraud, or harassment — are less clear. And while current law allows a victim to provide a statement during particular proceedings, Marsy’s Law would allow a victim or a victim’s representative to assert his or her rights in any proceeding involving the criminal offense. At the very least, extending services to victims of lower-level crimes would slow down court proceedings, which would be detrimental to victims.

Worst of all, Marsy’s Law could impinge on the fundamental rights of people accused of crimes.

For example, the measure would allow a victim to refuse an interview, deposition, or discovery requests, all at a moment when criminal defense attorneys already face huge obstacles in obtaining the discovery they need to effectively represent their clients. And in its effort to protect victims’ privacy, Marsy’s Law could erode a defendant’s right to confront his or her accuser.

Furthermore, allowing a victim to intervene at any stage in a criminal proceeding could threaten a defendant’s fundamental rights to fairness and a speedy trial.

Writing about a 2016 Marsy’s Law initiative in Montana, retired state Supreme Court justice James C. Nelson explained how making victims’ rights paramount to the rights of defendants could actually jeopardize cases:

If the defendant’s constitutional rights to a fair trial, to due process, to effective assistance of counsel, to confront and meet accusers and witnesses face to face and to compulsory process of witnesses [are compromised], both Montana and federal constitutional law may require that the charges against the defendant be dismissed or may require a second trial — the victims’ rights notwithstanding.

This is contrary to the interests of victims.

Rather than passing feel-good legislation, the best thing we can do for victims is solve serious crimes like murder and rape, as clearance rates for both have fallen to scandalous levels. In Detroit, for example, only 14 percent of killings were cleared in 2016. In Las Vegas police cleared only about 9% of rapes. Victims do not need expensive programs freighted with Sixth Amendment issues. They need justice.

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