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Protesting ICE Courthouse Arrests Doesn’t Get NYC Prosecutors Off the Hook for Everyday Injustice

Brooklyn DA Eric Gonzalez (R, at the podium) and New York AG Eric Schneiderman (L) making an announcement about ICE courthouse arrests
Drew Angerer / Getty

Protesting ICE Courthouse Arrests Doesn’t Get NYC Prosecutors Off the Hook for Everyday Injustice


On February 14, Manhattan, Brooklyn and Bronx prosecutors stood in front of Manhattan Supreme Court to protest U.S. Immigration and Customs Enforcement (ICE) arresting New Yorkers involved in criminal cases.

The event followed growing protests from public defenders — including walk-outs — taking aim at ICE’s practice of staking out courthouses to locate targets for deportation.

According to a December 2017 report by The Fund for Modern Courts, arrests in courthouses by immigration authorities of people presumed to be undocumented increased fivefold in 2017 from the previous year.

But until their recent protest, district attorneys in New York have largely been silent about ICE courthouse crackdowns, though last fall Brooklyn DA Eric Gonzalez did describe the immigration enforcement agency seizing three men with no criminal records outside Brooklyn Criminal Court as “outrageous.”

ICE courthouse arrests present something of a sweet spot for elected district attorneys trying to burnish their bonafides as “progressive prosecutors” without having to address the obvious injustices they preside over on a daily basis inside courthouses.

District attorneys say that ICE arrests disrupt the public’s “access to justice.” They are not worried about the arrests, per se, but instead take issue with their location, arguing that courthouse arrests will discourage undocumented witnesses or victims of crimes from coming to court to help the prosecutors settle their cases.

This presumes that New York courthouses are places where justice is actually sought and that ICE is disrupting what is otherwise a fair and honest process.

Spend a single day in New York City’s low-level criminal courts — where most of the ICE arrests have occurred — and you can’t help but come away with an understanding that racism and prosecutorial overreach are the defining characteristics of the system.

Long lines — made up almost exclusively of people of color — snake outside of courthouses every day. The power prosecutors wield ensures that defendants very rarely see their day in court; 99 percent of cases are disposed of through plea agreements. More than 250,000 people are prosecuted in New York City courts each year, 7 million total since the advent of Broken Windows policing in the mid-1990s. Every eight minutes, a defendant is sent to Rikers Island from criminal court in New York — and if it were up to these prosecutors, the pace would be even quicker.

Most prosecutions end with lifelong consequences inhibiting a defendant’s ability to get a job, a loan for a car or school, an occupational license, access to public housing, or to retain custody of his or her children. These consequences are typically not considered as district attorneys grind their cases through the system.

District attorneys in New York perpetuate injustices in many other ways. Manhattan District Attorney Cy Vance has an abysmal approach to discovery practices — taking full advantage of an outdated state law in order to withhold evidence against people until, literally, the day before trial. Manhattan public defenders call this “trial by ambush.”

District attorneys have tremendous discretion on issues like bail, discovery and speedy trial, but in New York (and elsewhere), they frequently use this discretion for leverage to win their criminal cases — instead of in the service of justice. Statewide campaigns for legislative reforms are seen as the only way to actually bring the prosecutors in line.

Protesting ICE arrests at court also ignores the specific role that district attorneys play in putting the targets of ICE enforcement at risk. As ICE itself has made clear, it is mostly through the actions of police and prosecutors that it is able to locate people for deportation.

No one doubts the severe consequences of immigration enforcement, and ICE should clearly be shut down. But it requires real cognitive dissonance to believe that district attorneys are credible arbiters of what’s fair and just, especially within the courts in which they operate as the most powerful actor. ICE in New York courthouses should not be seen as an aberration, but as just one of the myriad negatively life-altering consequences that result from our excessively punitive and overreaching criminal justice system.

Nick Encalada-Malinowski is a social worker, organizer and writer. He lives in Brooklyn. The views and opinions expressed in this article are his and do not necessarily reflect the views of the Fair Punishment Project.

Louisiana Denies Parole to Man Behind a Supreme Court Ruling Limiting Life Sentences for Children

U.S. Supreme Court
Stringer via Getty

Louisiana Denies Parole to Man Behind a Supreme Court Ruling Limiting Life Sentences for Children


By all accounts, 71-year-old Henry Montgomery is not the same man he was when he was 17. In 1963, Montgomery skipped school and encountered Charles H. Hurt, a plainclothes sheriff’s deputy, in the woods. In a panic, he shot and killed Hurt with his grandfather’s gun.

A Baton Rouge, Louisiana jury convicted Montgomery of murder and, after an initial death sentence was voided, a judge sentenced him to life in prison.

During his decades at Louisiana’s Angola Prison, Montgomery started a boxing club, joined a church, and kickstarted a literacy program. He worked as a silkscreener and won a number of awards for his job.

Yet on Monday, the Louisiana parole board voted 2 to 1 to keep Montgomery in prison. Why?

“It was Henry Montgomery,” said Kerry Myers, a spokesperson for the Louisiana Parole Project, which represented Montgomery in the parole hearing. “I got the feeling that if it was anyone else besides Henry Montgomery … maybe it would have been different. Maybe the opposition would not have been as strong.”

That’s because Montgomery successfully challenged his five-decade-old life without parole sentence in a landmark 2016 U.S. Supreme Court case. In Montgomery v. Louisiana, SCOTUS held that its previous ruling (Miller v. Alabama)which declared mandatory juvenile life without parole sentences unconstitutional, should be applied retroactively. Montgomery’s retroactivity paved the way to freedom for roughly 2,000 prisoners across the country sentenced as teenagers to life without the possibility of parole. Three hundred are incarcerated in Louisiana.

“Prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption,” wrote U.S. Supreme Court Justice Anthony Kennedy in the 2016 opinion, “and, if it did not, their hope for some years of life outside prison walls must be restored.”

Even after his Supreme Court victory, Montgomery spent two years fighting for a chance at release and completing numerous prerequisites —such as taking 100 hours of pre-release training and developing a certified reentry plan — that Louisiana requires before an inmate can even appear before a parole board.

The decision to deny Montgomery’s parole Monday shocked juvenile justice advocates. But it was also representative of the way Louisiana has skirted the Supreme Court’s instruction to stop condemning children to die in prison.

The Court held in Montgomery and Miller that such sentences should be highly unusual. Because scientists now understand that the human brain does not fully mature until a person is in his or her mid-20s, the ruling states,children and teenagers have an immense capacity to change and become positive forces in society, even if they committed heinous crimes in their youth. Therefore, only “the rare juvenile offender whose crime reflects irreparable corruption” should face life without parole, the Court concluded in Miller.

Louisiana prosecutors, however, seem to believe that most of the juveniles they have sentenced to life without parole are, in fact, irredeemable. The Louisiana Center for Children’s Rights (LCCR) found that prosecutors are seeking to reinstate life without parole sentences for more than one-third of the juvenile lifers eligible for re-sentencing. As LCCR explained in a November press release, who gets a juvenile life without parole (JLWOP) sentence and who is spared seems dictated solely by the local district attorney’s preferences:

  • The rate at which DAs are seeking JLWOP varies by jurisdiction, suggesting that a person’s fate can be determined by happenstance of location rather than by their individual circumstances.
  • Lafourche Parish’s DA is not pursuing JLWOP in any of its five cases, while the West Baton Rouge DA’s Office has filed in all four of its cases, and the 23rd Judicial District in four out of five instances.
  • In 2016, Caddo and Jefferson Parishes had roughly the same number of people serving illegal JLWOP sentences. Caddo DA James Stewart has filed for JLWOP in only one case, whereas DA Paul Connick has filed in 10 of 24, or 43%, of cases.
  • Like Jefferson Parish, other districts with the highest numbers of cases are also seeking JLWOP at the highest rates. In East Baton Rouge Parish, DA Hillar Moore is pursuing JLWOP at a rate of 42%. In Orleans Parish, DA Leon Cannizzaro has filed notices in 44% of cases in his district.

“There appears to be basically zero criteria being used to evaluate which case should go forward,” said Jill Pasquarella, an attorney with LCCR.

Indeed, because many of these cases precede current prosecutors by decades, Orleans DA Leon Cannizzaro told the Times-Picayune in November that “we’re basically just guessing on these cases.”

“We are trying to make the best decision that we can without really seeing this person,” he said. “I think it puts an unfair burden on the district attorneys.”

Despite his complaint that DAs are ill-equipped to make these decisions, the Louisiana District Attorneys’ Association (LDAA) successfully blockedlegislation last year that would have eliminated JLWOP entirely and put the decision in the hands of the parole board. Because the organization killed the bill, “there’s a practical burden that DAs are now placing on the courts and on public defenders to now defend these cases and hear these cases,” Pasquarella said.

The state must hold resentencing hearings for each case where the DA seeks to reinstate JLWOP, clogging court dockets and costing the state millions.

Meanwhile, newly convicted teenagers are still facing life without parole sentences. Life without parole remains the most common sentence for children convicted of murder in Louisiana; LCCR found that 62 percent of those convicted since 2012 have been sentenced to die in prison.

Still, the fight to get juvenile lifers in front of the Louisiana parole board may ultimately be pointless if the parole board tasked with considering their release denied relief to the man who made such hearings possible.

Montgomery’s hearing reportedly focused on the facts of his crime 54 years ago rather than the man he has become. Ultimately, the board claimed it denied Montgomery parole because he had only taken two classes during his time in prison (Montgomery’s attorney pointed out that no classes were offered to lifers for the first 30 years of his incarceration).

 

“No one said in that room that Henry was irredeemable or the worst of the worst, which is the criteria for keeping them in prison,” Myers said.

According to the Louisiana Parole Project, the board has denied parole to more than 50 percent of the juvenile lifers who have managed to get a hearing. If that trend continues, another challenge could be in the works.

“The underpinnings of Miller and Montgomery are more than just a perfunctory hearing where you get to hope for release,” Pasquarella said. “If applicants are going to the parole board and being summarily denied without much process, or in great numbers, then that’s going to be a problem. That raises the question, is the parole board hearing the meaningful opportunity for release that the court had in mind?”

Meanwhile, Montgomery’s long battle for freedom isn’t over. He can reapply for parole in two years, though there’s no guarantee the board will grant him another hearing. Still, “he handled it like he’s handled everything in the time he’s been there — stoically,” Myers said. “He’ll get another day.”

Thanks to Cassi Feldman.

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Over 100 Pennsylvania Prisoners are Held in Solitary Confinement — With No End in Sight

Shoatz with his sister, Muriel Adam-El

Over 100 Pennsylvania Prisoners are Held in Solitary Confinement — With No End in Sight


Russell Maroon Shoatz says that for 22 years straight he couldn’t sleep for more than three or four hours a night. The restricted housing unit where he lived — a solitary confinement cell, in common parlance — was smaller than most horse stalls, perpetually lit, and often cold during Pennsylvania’s long winters. Another Pennsylvania prisoner, Andre Jacobs, developed a reputation as a whistleblower for reporting correctional officers who abused prisoners; he reportedly spent 17 years straight in isolation. And Daniel Delker, who killed a prison guard in 1973, has been in solitary ever since. When he went in “the hole,” as it’s known, Richard Nixon was president.

Holding a prisoner in solitary for more than 15 consecutive days is a violation of the United Nation’s “Nelson Mandela Rules” for the treatment of prisoners. But in Pennsylvania, people continue to languish in isolation for years — in some cases, with no end in sight. In 2004, the state created what is called a “restricted release list” (RRL) of prisoners who would be kept in solitary indefinitely, pending release approved by the DOC secretary, in writing.

John Wetzel was named secretary in December 2010, and has developed a reputation as a reformer. In 2016, he appeared on CBS News’ 60 Minutes to trumpet the strides his state was making. “More now than [at] any time in the history of our country, we have the right and left agreeing that we’ve, frankly, screwed up the corrections system for 30 years and it’s time to do something different,’’ he said. “It really starts with understanding that a human being’s value isn’t diminished by being incarcerated.’’

But his track record on solitary confinement tells a more complicated story, as illustrated by the restricted release list. A DOC spokeswoman said that 115 people are currently on the RRL — 30 more than there were in 2010.

Pennsylvania DOC policy says prisoners are placed on the RRL for violent behavior against staff or fellow prisoners, including sexual abuse; escape attempts; and posing a “threat to the orderly operation of a facility,” by joining a gang, for instance. There is little transparency on specifics, though. The ACLU of Pennsylvania was ready to take the department to court because officials refused to disclose the RRL list, but the organization stopped short of litigation when DOC finally provided a list of the prisoner’s names last April. Yet the reasons the prisoners were on the list were redacted.

To learn more about who those prisoners were and why they were on the RRL, researchers with the ACLU-PA corresponded with 68 prisoners on the list last summer. Sixty-six of them reported that they had been in solitary for more than a year, 15 for over a decade.

The researchers asked the prisoners why they thought they were placed on the RRL. The answers varied, but common responses included physical altercations with staff or other prisoners, and attempted escapes. One man said, to his understanding, he was in solitary because he was taken off his “mental health medication” upon transfer to a new prison, and told staff he wanted some time apart from other prisoners; he had been in isolation for four-and-a-half years.

Russell Shoatz spent 10 years on the RRL, with prison officials reviewing his placement every 30 to 90 days. But the review committee didn’t give him a detailed explanation for why he couldn’t live among other prisoners until 2012, when he was informed he was a flight risk.

Shoatz, a former Black Panther who was convicted of first-degree murder of a police officer in 1970, was sentenced to life without parole. He successfully escaped from prison twice during his early years of incarceration, landing in solitary for two years after the second escape. But his decades-long stint in solitary didn’t begin until after he began organizing fellow prisoners with life sentences. In 1982, he joined the now-defunct Pennsylvania Association of Lifers, a group of prisoners who worked with their family members to lobby legislators for a law that would eliminate life without parole. A year after he joined, membership numbers swelled from 12 to nearly 110 and his peers appointed Shoatz interim president. On the night of his appointment, prison officials swiftly put him back in the hole. He stayed there for over 30 years, 22 of which were consecutive.

Represented by the Abolitionist Law Center and two other firms, Shoatz filed a lawsuit against the DOC in 2013, arguing that his conditions amounted to a violation of his constitutional protection from cruel and unusual punishment, and that he had not been granted due process to end his isolation. Ultimately, he was moved to the general population a year after the suit was filed, and in 2016 reached a $99,000 settlement with the DOC the week before his trial was scheduled to begin.

“Mr. Shoatz was famous within the Pennsylvania system, so I do think that played into why he was placed into solitary confinement,” said Amy Fettig, director of the ACLU’s National Prison Project. Shoatz wrote political essays, often incisive critiques of mass incarceration, which were published from behind bars. His ultimate removal from solitary may also have been related to his celebrity: His case received national press and organizers across the country advocated on his behalf. “But a lot of people get lost there,” Fettig said.

Fettig points to the cruel irony that many of the symptoms that people in long-term isolation exhibit — anger, paranoia, anxiety — lead to behavior that keeps them there. “Solitary confinement is allegedly used to control behavior in the institution, and in fact, it causes that behavior. It’s this Kafkaesque situation that people get placed into,” she told The Appeal.

Pennsylvania prisoners on the RRL are not the only ones kept in long-term isolation. “I’ve known people in there for 10 years or longer who were just never put on the restricted release list,” said Bret Grote, legal director of the Pittsburgh-based Abolitionist Law Center.

“Solitary confinement is allegedly used to control behavior in the institution, and in fact, it causes that behavior.”

Of the 49 states plus the Virgin Islands that responded to a 2015 Yale Law School survey, Pennsylvania ranked thirteenth based on its percentage of prisoners held in solitary — defined by the researchers as confined to a cell for at least 22 hours a day — for 15 consecutive days or longer. But that’s still 1,716 people. Of those, 190 prisoners had been held in solitary for six years or longer. Fifteen states had zero people held in isolation this long.

Amy Worden, press secretary for the PA DOC, declined to directly address the department’s use of long-term solitary confinement, but wrote in an email that, “The DOC is actively implementing the American Correctional Association’s guidelines,” which since 2016 suggest that the ‘classification committee’ or staff review the status of inmates in solitary every seven days for the first 60 days, and at least every 30 days thereafter.

There have been other notable reforms in Pennsylvania, spurred by litigation. In 2013, the Disability Rights Network filed a federal lawsuit against the DOC for its treatment of mentally ill prisoners. Two years later, in a courtsettlement between the two parties, the state agreed to improve conditions for the prisoners on its mental health roster held in segregated housing. The settlement required that prisoners with serious mental illness be allowed at least 20 hours a week out of their cells, regardless of whether they are in solitary or in the residential treatment unit — a sort of in-house psychiatric hospital. And prisoners who aren’t classified as seriously mentally ill upon placement in solitary must be evaluated annually, at a minimum, for psychological deterioration. If a doctor deems it necessary, the prisoner would be moved to the residential treatment unit. A recent assessment by a court monitor determined that the DOC is in compliance with these stipulations, and that monitoring is no longer necessary, Andrew Favini, a staff attorney at the Disability Rights Network told The Appeal.

In a written statement, a DOC spokeswoman said that in partnership with BetaGov, a consulting project for government agencies out of New York University, the department has implemented over 100 pilot projects since 2015 to reduce the violence and misconduct that leads to sanctions such as solitary confinement. These programs range “from the use of aromatherapy and yoga to the introduction of therapy dogs,” and 600 prisoners have been trained to be peer mediators, said Worden. The prisons have also started to implement sanctions that are more consistent and less harsh, following a model known as “Swift, Certain, and Fair” punishment. The goal, she said, is to reduce violence and also the use of solitary. Two trial studies showed that this strategy reduced minor infractions; however, in one study, the test group had more serious infractions than the control group.

But other states have gone further. Since September, prisoners in Colorado who commit serious violations are not isolated for more than 15 days, and are then given therapy or anger management classes, if necessary. Rick Raemisch, executive director of the Colorado Department of Corrections, told Frontline last spring that between 2007 and 2013, he reduced the number of people in solitary confinement from roughly 1,500 people to between 130 and 150 at any given time. In Maine, solitary policies were overhauled in 2011 under the leadership of then-Corrections Commissioner Joseph Ponte, who later held the same post in New York. Reforms included the increased use of alternative sanctions, such as limiting work opportunities, for all but the most serious infractions. And now, holding a prisoner in solitary for longer than 72 hours requires the commissioner’s personal approval. The state slashed the number of prisoners held in solitary confinement in half over just 18 months.

Grote and his colleagues, along with other civil rights lawyers, would like Pennsylvania to join these states in making more dramatic reforms to solitary confinement. Wetzel “has this image as a reformer,” Grote said. “But a lot of his positions are quite safe, a lot of his reform-y type statements are hollow pieties.”

The Abolitionist Law Center has sued the Pennsylvania DOC on behalf of individual prisoners — with at least one success in addition to Shoatz’s case, and several suits pending. Last month, the Center joined the ACLU and several other firms to file a class action lawsuit challenging the mandatory isolation of Pennsylvania’s 156 prisoners with death sentences.

“The long-term solitary litigation has been piecemeal,” Grote said. “There are not as many lawyers willing to represent the people that we represent.” Despite reforms in the treatment of mentally ill prisoners, Grote is not convinced the department will continue to make changes without outside pressure. “The changes were made when they saw the writing on the wall. In other words, they were pushed kicking and screaming.”

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