Get Informed

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

Close Newsletter Signup

The Appeal Podcast: Neglect and Abuse in Our Prison Healthcare System

With Mercedes Montagnes of the Promise of Justice Initiative.

msppmoore/Flickr (CC BY-SA 2.0)

The Appeal Podcast: Neglect and Abuse in Our Prison Healthcare System

With Mercedes Montagnes of the Promise of Justice Initiative.


Most people know that the healthcare situation in the United States is one of most precarious in the world, but what’s rarely discussed is the quality of healthcare for America’s 2.2 million incarcerated people––which is lightyears worse. One prison in particular, Angola in Louisiana, rates at the very bottom of even this group, with mortality rates almost double the national average for prisons. Our guest, Mercedes Montagnes of the Promise of Justice Initiative, is a lawyer helping people incarcerated at Angola sue the state for rampant abuse, neglect, and injury.

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

Transcript:

Adam Johnson: Welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us on Twitter @TheAppealPod, you can like us on Facebook at The Appeal magazine’s main Facebook page and as always you can subscribe to us on iTunes. Most people know that the healthcare situation in the United States is awful, but what’s never talked about is the status of healthcare for America’s 2.2 million incarcerated persons, which is light years worse. One prison in particular, Angola in Louisiana, is the worst of the worst with mortality rates almost double the national average. Our guest today, Mercedes Montagnes of the Promise of Justice Initiative, is a lawyer helping prisons in Angola sue the state for rapid abuse, neglect and injury.

[Begin Clip]

Mercedes Montagnes: At Angola the most common healthcare provider that people encounter is an EMT and, you know, there are three levels of EMTs, but the basic EMT essentially has a high school degree or equivalent and four months of training and they have become the gatekeepers to healthcare at Angola such that very often they’re making the medical decisions that a doctor should be making. And that’s why we see cancer progressed to really advanced stages when it shouldn’t be.

[End Clip]

Adam: Thank you so much for joining us on The Appeal.

Mercedes Montagnes: Thank you for having me.

Adam: So you are involved in a class action lawsuit along with the Southern Poverty Law Center, the ACLU, the Advocacy Center for Louisiana and several others that is suing specifically about the negligent healthcare at Angola prison in Louisiana, also known as the Louisiana State Penitentiary. This has been going on for some time. Can you set the table for our listeners by explaining what the impetus for this lawsuit was and what are the kind of broad charges being made?

Mercedes Montagnes: Sure, so Angola is a prison that is about an hour and a half away from our states’ capital of Baton Rouge. It was formerly a slave plantation and then it was converted into a prison. It has 6,000 people there. It’s maximum security and essentially the folks who are incarcerated there, our patients, our plaintiffs in this case, work in the fields, they work in various factories. It’s sort of a small town that exists in an isolated part of our state and a few years ago I began to receive a number of complaints about the quality of healthcare that they were receiving in addition to a lot of lawyers around the state and so I convened a sort of small working group of people to talk about the trends that we were noticing and did we think that this was a situation and we launched an investigation. That investigation lasted a couple of years and then we filed suit in May of 2015 alleging constitutional violations as it relates to the provision of medical care as well as several claims under the Americans with Disabilities Act relating to access to the facility and medical care for folks with disabilities.

Adam: Okay. That’s very exhaustive. So let’s kind of go down here because I want to establish the stakes. There’s a general ethos in American culture and I think specifically probably more so in Louisiana, at least if it’s anything like Texas where I’m from, of lock them up, throw away the key, screw ’em, they did their time. That prisons in general are the last thing that we want to fund, we being the sort of proverbial, you know, Joe Sixpack and healthcare within prisons is maybe right behind education as the absolute last thing we want to fund. How difficult has it been in your experience when doing publicity or talking to people or doing anything involving this case, how do you convey to people that this actually matters as a sort of baseline human rights issue?

Mercedes Montagnes: Well you know I always think that the stories help, you know, so one of the stories I like to tell is about my client Shannon Hurd. He actually died in the pendency of this action, but he was a named plaintiff and he complained for years and years. He was losing weight. He had flu like symptoms and it took them three years to properly diagnose him with renal cancer. By the time they diagnosed him with it it had metastasized all over his body and he died at 42. Shannon was serving time for stealing $14 out of an uninhabited dwelling. He was convicted by a non unanimous jury and maintained his innocence and it was under a really perverse three strikes law and he ended up getting a life sentence. So sometimes I think telling stories like Shannon’s, how people understand what we’re really talking about and shed some light on why this suit is important. But I also think that we have to recognize that when we lock someone up, they have no ability to go to their own doctor or go to their own pharmacy or help themselves in any way. They are at the complete mercy of the prison system. And finally, I think that there is always going to be a public health argument. Prisons become breeding grounds for infectious disease and they spill over into the community inevitably and those are public health issues as well.

Adam: Right. So let’s start with some numbers here. Uh, some pretty startling statistics coming out of Angola as Appeal writer Jessica Pishko noted, which are that the prison mortality rate has increased quite a bit over the last few years. In 2001, it was 361 deaths per 100,000 prisoners, as of 2013, the last date where data is available it’s 623, so it’s almost doubled. There are several theories as to why this is. One of them is that the hard labor, the use of hard labor is increasing and they are effectively working people to death. Can you talk about the extent to which hard prison labor is used as both a sort of punishment and a means of overworking, especially the the elderly prisoners?

Mercedes Montagnes: So I definitely think that there’s been a massive increase in the number of people dying within the system. I think that’s absolutely accurate. I also think that we ask folks to participate in sometimes dangerous labor and we actually had a client, Charles Butler, testify to that this week, where he had a duty status restricting the kind of labor he could do and he was forced to do drywalling. I would be skeptical if that rise in the death rate was related to the kind of labor that we are requiring from the patients and the plaintiffs in the lawsuit, only because I would really link it to the decline in the quality of medical care.

Adam: Right. To what do you attribute the lack of medical care?

Mercedes Montagnes: I really think it’s about funding. I think it’s about reliance on outdated medical techniques. I think it’s about, so for example, at Angola the most common healthcare provider that people encounter is an EMT and, you know, there are three levels of EMTs, but the basic EMT essentially has a high school degree or equivalent and four months of training and they have become the gatekeepers to healthcare at Angola such that very often they’re making the medical decisions that a doctor should be making. And that’s why we see cancer progressed to really advanced stages when it shouldn’t be. And we actually had two doctors who treat patients at the University Medical Center here in New Orleans who regularly see patients from Angola testify that the patients show up from Angola, their disease progression very far along. So what’s happening is they’re just not catching diseases when they’re still treatable. For that reason our experts in their report found that many of the deaths that they saw were preventable deaths, meaning if the patients had received proper medical care, they would likely not have died from the diseases that were there.

Adam: And the gentleman who runs the medical services at Angola, Dr. Randy Lavespere, had his license suspended from 2006 to 2014 after a felony conviction for the distribution of meth. Now we don’t want to, you know, necessarily stigmatize people who’ve been subject to arbitrary drug laws, but it seems like it seems like the people they’re picking to work there are not the highest quality care and that has obviously gotten worse over time.

Mercedes Montagnes: Yeah. I think it’s important, right? We believe in redemption and we don’t want to be punitive, but I also think it’s important that when you have a doctor, particularly doctors who have been convicted of crimes and have a limited licensure, you want them to be practicing in an environment where they’re around other doctors who don’t have limited licensures. What you have at Angola is a concentration. All the doctors at Angola have a history of restrictions on their licenses. Many of them have restrictions on their licenses because of the way that they provided care to their patients, either be it sexual abuse, be it over prescribing pain medication, and various other things, and then you take our patients, the most vulnerable patients and you put them with those doctors it’s just not a safe recipe.

Adam: And one element of this, which I was shocked to learn and I’m curious how common it is, is that there’s something called aggravated malingering, uh, which is a label applied to people who are deemed to have requested medical attention gratuitously or without merit, that they actually get punished for it at Angola prison. That if you ask for medical assistance and they somehow diem, again, I’m not sure based on what theory of mind, but they deemed that you did so fraudulently, that you get punished through the mechanisms that prisons punish people. Can you talk about that and how that has a deleterious effect on healthcare?

Mercedes Montagnes: Absolutely. So every healthcare request form that Angola has at the bottom is a warning that if you’re asking for healthcare and you’re deemed not to want it, that we’re going to punish you with this punishment called aggravated malingering. So with every healthcare requested a patient puts in, not only are they charged $4 to $6 per healthcare request when they only make four to twenty cents an hour for their work, but they have to fear that they could take disciplinary action against them. And actually just in October we had one of our experts testify about  a patient where they thought he was making up his symptoms and in fact he had lymphoma and they sent him to mental health and mental health was speculating about why he was exaggerating and in fact he died from that lymphoma. And so it’s very hard in the medical profession to say that someone is lying and not telling the truth and usually, as our expert testifies, if you can’t figure out what’s wrong, it just means you have to keep looking, not that the patient is lying.

Adam: Yeah. Again, having seen the dichotomy in healthcare personally, um, I know the difference between a small county hospital and a, an appointment at Northwestern or um, or MD Anderson is night and day. I imagine that it’s, you know, a whole different universe, not to mix metaphors. Especially in terms of cancer. I mean, cancer is a very involved process. It’s a very, you have to have many expertise. I can’t even imagine what it’s like getting cancer in prison, much less Angola. Is the lack of early detection and the lack of early treatment is something that’s, it’s something that’s systemic, correct?

Mercedes Montagnes: Absolutely. Um, whenever I visit Angola, I hear more and more stories and our case is named after Joe Lewis. Joe Lewis also died in the pendency of this action from throat cancer. He complained again for years about feeling like his, he had a sore throat, something was wrong, Laryngitis and sure enough he also had throat cancer and by the time they caught it, it was too late. So we see that quite often. And as a result, we see people, you know, what I believe is a very high death rate as a result of missed diagnosis.

Adam: Now  according to data Angola spends about half as much in healthcare per prisoner than the national average and that there seems to be a mindless cost cutting ethos. You talked about the importance of personal stories. Let’s talk about the case of Otto Barrera, who was shot in the jaw, the lower jaw in 2012 and had most of it removed and then he was referred for reconstructive surgery in 2014 for a missing bottom lip and tongue. But Angola denied this. He can’t chew food and he has to be on a soft diet, but they refuse to give him a soft diet and they gave him regular prison food which he had to cut up and apparently it’s excruciatingly painful for him to chew. Can you talk to us about that case and what? I mean I, I assume at some point in the, in these proceedings, somebody representing the state will get in front of a judge and defend these actions. What are the kind of apologetics here like how do people justify this dehumanizing healthcare?

Mercedes Montagnes: Well, in Mr. Barrera’s case, he testified at trial in October and he spoke eloquently about the difficulties he had encountered. Um, he has subsequently many years too late, began having some of his reconstructive surgery so it’s slightly better, but he still has significant trouble and the defendants essentially went after him because they noted that he had purchased some food from the commissary that suggested that he could in fact chew. They didn’t believe him that he couldn’t chew even though it was plainly obvious to anyone who saw him. And, you know, in the end he is, he simply said, ‘Yes, I did buy food because I was living in the infirmary with many men who had no family support. I was lucky enough to have family support. And so I bought food for other people.’ Essentially the argument appears to be that these individuals, you know, might have one time refused care because their family was visiting or they had an attorney visit or something like that and because they did that it’s okay that we didn’t give him surgery for three years. It appears to be that that’s the kind of explanation that we get.

Adam: Now, obviously certain states are better than others in terms of healthcare. In your knowledge, both in terms of Louisiana and other states, is there any sort of coordinated movement that’s a little more high level to really bring to attention these conditions? Healthcare in general in prisons, obviously you have a lot of talk about prison reform. Oftentimes labor conditions are centered in that, but I think rarely would we talk about healthcare in prisons. Can you talk to us about any organizations or groups or, or, or kind of high level stuff that’s going on, uh, that tries to raise public awareness about this?

Mercedes Montagnes: Well. One thing that is exciting is that they’re Vera Institute has begun to take individuals on trips to places in Europe where they really approach incarceration from a very different level. And in fact the secretary of the Department of Corrections in Louisiana. I was scheduled to attend that trip in October and he had to cancel. But I think exposing our, especially our corrections, high up high level corrections officials to a different way of doing things. So in Europe, often there’s a much stronger focus on rehabilitation. There’s a much stronger emphasis on reintegrating people into society slowly and helping them get back on their feet with a real emphasis away from punishing people for mistakes, but rather thinking about innovative and new ways that we can help people recover from incarceration. So I’m really grateful for that work. Um, I’m grateful for the existence of things like The Appeal which are really focusing on criminal justice issues and raising awareness. I think that’s essential if we’re going to move this conversation forward. Um, and then, you know, I think all about chipping away at a system that you know has been allowed, I think especially since the nineties, to go a little bit under dark. I tell everyone this, but when the Prison Litigation Reform Act passed, it made it much, much harder for attorneys to go in and expose these kinds of conditions. It made it more expensive. It made the likelihood that they would prevail much, much harder. And because it raised the bar so high, you really see as sort of curtain withdrawn over a lot of these prisons in the nineties and I think that’s changing now. And I think a lot more exposure about these issues is happening.

Adam: Yeah. We discussed this on a, on a prior episode with Raven Rakia about the prison strikes, the law that was passed in the nineties under Clinton that basically made tort very, very difficult, which of course is going to, you know, in any case where you don’t have any kind of compensatory or punitive alternative you’re going to just have people treating you like garbage. I mean that’s the, that’s the logical endpoint of that on a systemic level. So I mean that, that to me seems to be a major factor in both the healthcare and the and the, uh, labor abuses that you see. So before you go, can you tell us the status of the lawsuit and where people can read about it or check out or follow up dates if there’s any place that can do that?

Mercedes Montagnes: So the lawsuit is wrapping up October 26th. And then once it’s wrapped up, they’ll probably be somewhat of a lag between when the trial ends and when the judge renders her opinion. We certainly are in the media, but um, you can follow justicespromise.org, our website, and we’ll have updates there as things progress along. Can you follow us on Twitter @JusticesPromise and we will definitely be updating it as things progress. You know, one thing to bear in mind with these kinds lawsuits is it’s a marathon not a sprint and change is a slow process. And so we’re hoping that we will be able to convince the judge in this first step of approving the constitutional violation and then we can move into deciding how we fix it.

Adam: Well, thank you so much. I appreciate you coming on.

Mercedes Montagnes: Well thank you so much for having me.

Adam: Thanks to our guest, Mercedes Montagnes of the Promise of Justice Initiative. This has been The Appeal podcast. Remember, you can follow us on Twitter @TheAppealPod or subscribe to us on iTunes and follow us on Facebook at The Appeal magazine’s main Facebook page. I’m your host Adam Johnson. The show is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn and executive producer Sarah Leonard. Thank you so much for joining us. We’ll see you next week.

Pardons for immigrants with criminal records emerge as a tool of resistance to Trump’s deportation agenda

Pardons for immigrants with criminal records emerge as a tool of resistance to Trump’s deportation agenda


What you’ll read today

  • Spotlight: Pardons for immigrants with criminal records emerge as a tool of resistance to Trump’s deportation agenda

  • Rural Oregon sheriffs lead charge to repeal state’s sanctuary law

  • D.A. charges Pittsburgh mom after toddler’s mysterious death from fentanyl in sippy cup

  • Report shows that formerly incarcerated people ‘rarely get the chance to make up the education they missed’

  • North Carolina mother charged in son’s drowning death during Hurricane Florence

  • Whitey Bulger, mob boss who became a snitch and then a fugitive, was beaten to death in prison

  • Chicago protestors shut down courthouse over cash bail, secure meeting with chief judge

In the Spotlight

Pardons for immigrants with criminal records emerge as a tool of resistance to Trump’s deportation agenda

Last night, as some people scrambled to perfect their Halloween costumes, dozens of immigrants facing the threat of deportation crowded into a room at New York University’s law school, eager to learn about a possible longshot strategy to stay in the country: asking New York Governor Andrew Cuomo for a pardon. These immigrants are at risk of deportation because of past criminal convictions, from felonies to misdemeanors like shoplifting, turnstile jumping, or low-level drug possession, for which they have served their sentences. For many of them who face mandatory deportation, a pardon is their only protection. For some, it may even clear a path to citizenship. “All these people walk around with the knowledge that ICE could end the lives they have built here without even a moment’s notice,” Jane Shim, staff attorney at the Immigrant Defense Project (IDP), told the Daily Appeal. This clinic was a part of IDP’s new Immigrant Clemency Project, which will help “determine eligibility for individuals who have had contact with the criminal justice system and face disproportionate immigration consequences,” according to IDP. “As the Trump Administration continues waging war on immigrant communities, a gubernatorial pardon is a unique safeguard.” [Immigrant Defense Project]

As the Trump administration ramps up immigration enforcement, “states are making a lot of statements about how they will protect their immigrant communities, and pardons are a great uniquely state-level solution,” Shim, the attorney who has been organizing the project, told the Daily Appeal. “We think of it as being an anti-Trump initiative.” Shim explained that pardons should not be confused with commutations, which typically reduce sentences. Pardons are a different form of clemency, typically granted long after a sentence has been served. The state usually wants to see that the person has turned his or her life around. Pardons protect the recipient from the continuing effects of the conviction long afterward, including, in some cases, deportation. In New York, Shim explained, this is not without precedent. “Governor David Patterson had an immigration pardon panel that specifically granted pardons for preventing deportations.”

Shim said people generally lack the resources to seek a pardon without counsel, because putting together an application is pretty involved. Last year, IDP coordinated with various legal service providers to submit pardon applications before the end of the year, when they are typically granted. Cuomo ended up granting 18 out of approximately 30 applications IDP submitted last December. At the time Cuomo said, “While the federal government continues to target immigrants and threatens to tear families apart with deportation, these actions take a critical step toward a more just, more fair and more compassionate New York.”

IDP believes that the model is something other states can use, even though each state has its own rules. Earlier this year, California Governor Jerry Brown granted pardons to 56 people who had completed their sentences years prior. Five of them were immigrants facing deportation, two of whom came to the U.S. as child refugees. According to the Washington Post, one of the immigrants pardoned is now “active in his church and volunteers for a youth sports program,” and another, who had been convicted of kidnapping, robbery, and firearm charges, “is now the recycling program director of Ecology Center, a nonprofit organization based in Berkeley.” [Kristine Phillips / Washington Post] Possibly influenced by a segment on “Fox and Friends,” Trump tweeted the day after the pardons were announced:

Pardons for immigrants with criminal records have emerged as one tool of resistance to the Trump administration’s deportation efforts. But historically, pardons also were used to correct for excessive punishments and were granted frequently. In 2008, the Mississippi governor’s decision to suspend the sentence of a person convicted of murder “sent shock waves across the state,” according to a local news source. “But what the governor did has been a common practice for many years in Mississippi.” Attorney Andy Taggart who has written a book on Mississippi politics commented, “It’s long, long been the custom and tradition in the state of Mississippi for governors to either commute, or suspend, or in some cases even pardon those who had served as a trusty in the Governor’s Mansion.” [Jon Kalahar / WLOX]

In 2013, Governing reported that pardons are “increasingly rare among governors, who fear political backlash if a pardoned criminal should reoffend,” adding that various governors in the national spotlight from both parties, including Wisconsin’s Scott Walker, New York’s Andrew Cuomo, and Massachusetts’s Deval Patrick, had at the time granted no pardons at all. P.S. Ruckman, a professor of political science, argues that the reason for the precipitous drop in governors’ pardons since the 1960s is political. “Some governors think, ‘why should I do this? It won’t benefit me politically and it might hurt me.’ There’s some very crass political calculating going on,” says Ruckman, “and people suffer because of it.” Pardons have become synonymous with the restoration of civil rights after the completion of a sentence and are often made at the end of a governor’s tenure. “You really see what they believe when they’re a lame duck,” says Rachel Barkow, a law professor at New York University. [Maggie Clark / Governing]

Back in 2001, the New York Times reported that pardon powers were coming under scrutiny because many feared that governors were granting them too liberally, especially as favors for allies. The idea that clemency could correct for excessive punishments barely got a mention. Now, despite the paucity of clemency, the focus is at least where it should be: providing a check on harsh sentences and collateral consequences doled out by the courts and the legislature. [William Glaberson / New York Times]

Stories From The Appeal

An immigrant indentifying herself only as Vioney, who spent six months in an ICE detention facility, holds her grandson for the first time while being reunited with family members at Portland International Airport in Portland, Oregon, in September. [Photo Illustration by Anagraph / Photo by Mario Tama/Getty Images]

Rural Oregon Sheriffs Lead Charge to Repeal State’s Sanctuary Law. More than one dozen sheriffs support Measure 105 that would allow for cooperation with federal authorities even when an immigrant suspect has not been apprehended for any crime. [Mike Faulk]

D.A. Charges Pittsburgh Mom After Toddler’s Mysterious Death From Fentanyl in Sippy Cup. Despite looming questions about what happened, Jhenea Pratt is now facing life without parole. [Joshua Vaughn]

Stories From Around the Country

Report shows that formerly incarcerated people ‘rarely get the chance to make up the education they missed’: A new report from the Prison Policy Initiative (PPI) reveals “how incarceration, rather than helping people turn their lives around, cements their place at the bottom of the educational ladder,” author Lucius Couloute writes. PPI found that 25 percent of formerly incarcerated people have no high school degree, twice as many as in the general public. The unemployment rate for formerly incarcerated people is 27 percent, PPI previously found, but the rate differs by education level; for those without educational credentials, it is “nearly impossible” to find a job. “Formerly incarcerated people without a high school diploma or GED face unemployment rates 2 to 5 times higher than their peers in the general public,” with the worst outcomes experienced by Black women. “We need a new and evidence-based policy framework that addresses K-12 schooling, prison education programs, and re-entry systems,” the report concludes, offering four recommendations. [Lucius Couloute / Prison Policy Initiative]

North Carolina mother charged in son’s drowning death during Hurricane Florence: In a sure contender for cruelest prosecution of the year, a North Carolina mother has been charged with involuntary manslaughter in the death of her 1-year-old son, who drowned while she tried to save him in Hurricane Florence floodwaters. Dazia Ideah Lee, 20, of Charlotte drove around barricades on a highway “that resulted in the tragic drowning death of her 1-year-old son,” Kaiden Lee-Welch, the Union County Sheriff’s Office said Monday in a statement on Facebook. Lee was also charged with a misdemeanor for driving on a closed highway. “We continue to pray for all those suffering as a result of this child’s death,” Sheriff Eddie Cathey said, while increasing the suffering of the child’s mother. According to the sheriff’s office, Lee drove until her car hit rushing water. “She managed to free herself and Kaiden, who was in a car seat, but lost her grip on him in the rushing water.” [Joe Sutton / CNN]

Whitey Bulger, mob boss who became a snitch and then a fugitive, was beaten to death in prison: “James (Whitey) Bulger, the South Boston mobster and F.B.I. informer who was captured after 16 years on the run” and given two life sentences following “a murderous reign of terror that inspired” books and films “was found beaten to death on Tuesday in a West Virginia prison. He was 89,” reports the New York Times. For 15 years he had been a federal informer, and the authorities turned a blind eye to his crimes in exchange for his snitching. “Beyond corrupting agents with bribes, the government said, the arrangement helped him conceal 19 murders, learn the identities of witnesses who later turned up dead, and send an innocent man to prison for a killing that Mr. Bulger had committed. It also led to a re-evaluation of rules for dealing with informers.” [Robert D. McFadden / New York Times] It is not yet clear why the prison was unable or unwilling to prevent or stop the beating death.

Chicago protestors shut down courthouse, secure meeting with chief judge: “Demonstrators pushing for an end to cash bail in Cook County shut down the entrance of the Leighton Criminal Courthouse Tuesday afternoon,” reports Patch. The group, organized by activist groups, occupied the lobby of the court building demanding an end to unaffordable bails and the resignation or removal of the judges who set them.  “The group expected to get arrested, but as afternoon turned into evening and staff emptied out of the courthouse, sheriff’s deputies did not move in to take the demonstrators into custody.” Instead, when the protesters emerged around 7:30 p.m., they announced that after negotiating with county officials, they had secured a meeting with the chief judge. They plan to demand release of 2,500 people being held on bail they cannot afford in violation of a judge’s order and an end to the practice entirely. [Joe Vince / Patch]

Thanks for reading. We’ll see you tomorrow.

Have a tip for The Appeal? Write to us at tips@theappeal.org. A good tip is a clear description of newsworthy information that is supported by documented evidence.

More in Explainers

In Allegheny County, People Arrested With Cell Phones Can Be Charged With ‘Possessing Instruments of Crime’

Advocates say these charges endanger sex workers and urge the police to stop using them.

Credit: Shutterstock/antstang

In Allegheny County, People Arrested With Cell Phones Can Be Charged With ‘Possessing Instruments of Crime’

Advocates say these charges endanger sex workers and urge the police to stop using them.


In Allegheny County, Pennsylvania, prostitution arrests often begin and end with a phone call. Officers may call the number in an alleged prostitution ad, set up an appointment, and then seize the cell phone that matches the number from a nightstand or from a dresser, as a county vice officer did at a Red Roof Inn in May 2017, according to a police report. Sometimes officers search for phones, as Moon Township police did, according to a July 2017 arrest report that said they seized two phones from a woman at the Sheraton. In dozens of prostitution cases in the county that year, police used a woman’s phone against her as evidence of a crime.

That’s dangerous, says Gabrielle Monroe, an organizer with the Sex Workers Outreach Project (SWOP) Pittsburgh who notes that phones actually help keep sex workers safe by allowing them to get help in an emergency.

“The message to me they are sending to sex workers is they don’t care about their well-being and their safety,” she told The Appeal.

Monroe has visited the county’s special prostitution court regularly since July. A month earlier, the Pittsburgh Tribune-Review had reported that sex workers were being charged with “possessing instruments of crime” if they were carrying condoms when police arrested them.

The Appeal reviewed Allegheny County police records from 2016 and 2017 and found 260 prostitution cases, about 52 percent, where police also charged someone with possessing an instrument of crime. Other offenses can carry an instrument-of-crime charge as well, but that happens far less frequently; about 5 percent of burglary cases in 2016 and 2017 carried the added charge, as did just over 1 percent of simple drug possession cases.

After an uproar from advocates—led by SWOP Pittsburgh, and joined by the Women’s Law Project, Planned Parenthood of Western Pennsylvania, the ACLU of Pennsylvania, and the Pittsburgh Democratic Socialists of America—over the public health implications of discouraging condom use, Allegheny County police said in June they will no longer use the “instrument” charge against those with condoms. (Police in much of Pennsylvania are able to file criminal charges and even resolve low-level offenses before a case gets to a district attorney.) Other jurisdictions, like New York City and the state of California, have also stopped using condoms as evidence in at least some prostitution cases.

But the Allegheny County Police Department’s new policy hasn’t been communicated to sex workers themselves, said Susan Frietsche, senior staff attorney at the Women’s Law Project. “There has not been any public outreach, as far as I know, to reassure sex workers and others that possession of condoms is no longer chargeable as a crime.” (In Washington, D.C., for example, after police stopped using condoms as evidence in prostitution cases, they handed out cards while on patrol that explained this to sex workers.) The Allegheny County police did not respond when asked if they were planning outreach.

Even if police say they aren’t charging condoms as instruments of crime, advocates say, cell phones are still fair game. According to a Women’s Law Project analysis of 2017 cases where both prostitution and instrument of crime were charged, at least 84 percent involved cell phones charged as an instrument of crime. And the police have not guaranteed they won’t use condoms as evidence in prostitution cases. “This means that it still isn’t safe for sex workers to possess condoms or cell phones,” said Frietsche.

If sex workers face steeper criminal charges for having cell phones, they told The Appeal, they will be less likely to carry their phones while working. This means they won’t be able to call for help if faced with dangerous customers, for instance, or when encountering law enforcement. Jessie Sage, co-founder of Sex Workers Outreach Project Pittsburgh, said her group’s community members use their phones not just for emergencies, but to take photos of a customer’s identification or license plate. They may also place their phone in view of customers just to let them know they could call help.

Monroe, the court watcher with SWOP Pittsburgh, is also a sex worker and was arrested in a 2004 sting in nearby Westmoreland County, charged with prostitution and with “possessing a device for intercepting communications”—a cell phone. The cell phone charge was dismissed, but she pleaded guilty to the prostitution charge. At the time, they took her cell phone, she said, and recalls only getting it back after completing probation years later. Now, she said, sex workers “are going into working situations without cell phones, so that way they’re not catching the worse charge.”

Allegheny County DA Stephen Zappala has said instrument-of-crime charges are “usually withdrawn” by his office “when brought to our attention.” The office declined to comment further for this story. The Allegheny County Police Department did not respond to questions by publication time.

But police continue to use the charge against sex workers, said Dena Stanley, founder and director of TransYOUniting in Pittsburgh, an advocacy group, and prosecutors continue to make use of those charges. “The more charges they have, the easier it is for them to give you a plea deal,” Stanley explained. “With trans women, I don’t know about everybody else, when we get arrested, they search for your phone, immediately.”

SWOP Pittsburgh is now demanding that Allegheny County police and prosecutors stop using instrument-of-crime charges for cell phones and commit to ending the use of both phones and condoms as evidence so that sex workers can protect their health and safety. Even if prosecutors say they often drop instrument-of-crime charges, said Sage, such charges still discourage safer work practices. “That’s true with the condoms and it’s true with the cell phones.”

Additional research by Joshua Vaughn.

More in Podcasts