The 2019 Legislative Session has Begun

On Monday, the 2019 Legislative Session began with the swearing in of Governor Brian Kemp, Lieutenant Governor Geoff Duncan, Secretary of State Brad Raffensperger, lawmakers, and other state elected officials. There are a lot of new faces at the Capitol, and a seemingly palpable recognition that there has been a shift in political power. Though the Senate and the House are still overwhelmingly led by Republicans, the Democrats gained thirteen seats in the last election, and now have a significant majority in the Fulton County delegation. Typically, lawmakers are more willing to pass the new Governor’s agenda in his first legislative session, in order to establish a mutually beneficial relationship that allows both branches to more easily create and enforce the laws they want. At this point, we are unsure of what will happen with criminal justice reform in the next forty legislative days, but we are expecting a longer than usual session because of the semi-late start, the upcoming MLK holiday, and the impending Super Bowl that will be held in Atlanta at the beginning of February.

While Governor Kemp repeatedly said he supported the reforms passed by his predecessor, Governor Nathan Deal, he has yet to adopt any of the specific reforms recommended by Deal’s Council on Criminal Justice Reform in his policy agenda. The Council made clear in its final report that there is still work to be done, and asked lawmakers in 2019 (and beyond) to consider finding ways to assess and collect fines and fees in a way that ensures that vulnerable communities are not disproportionately impacted, improving access and quality of mental health treatment so that people who need help are not put in jail, and changing the use of harsh and ineffective mandatory minimum prison sentences. The only criminal justice issues that Kemp has committed to so far has been to aggressively prosecute gang activity, immigration violations, and sex trafficking. None of these policies would improve public safety nor spend taxpayer dollars wisely. For example, Kemp has said he wants to see the creation of a gang database, in order to track and monitor everyone believed to be involved in gang activity. The research makes clear, however, that these databases do not keep people safe; instead, they unfairly target racial minorities and waste of resources that could more appropriately be spent on improving public schools, expanding affordable housing, and increasing the opportunities for economic mobility.

SCHR is ready to respond to any legislation introduced this session that would result in policies that advance racial injustice, criminalize poverty, endorse the death penalty, or weaken the state’s public defender system. Despite the concern with Kemp’s criminal justice priorities, SCHR is working with lawmakers on both sides of the aisle to create the mental health study committee recommended by the Council on Criminal Justice Reform. We also are working with Republicans and Democrats to pass legislation to improve jail and prison conditions for women, address the inhumane use of solitary confinement, and tackle sentencing disparities.

Community engagement during this session will be critical to the success of reforms that will improve the lives of Georgians impacted by the criminal legal system. To that end, there will be several advocacy opportunities for people interested in criminal justice reform during the 2019 session. The Justice Reform Partnership, the SCHR-led coalition of nearly eighty organizations committed to criminal justice reform, will host eight advocacy days at the Capitol this session. These days, titled Talk Justice Tuesdays, will be held every Tuesday beginning on January 22nd through March 19th, which will include the annual Justice Day at the Capitol on February 26th. Each Tuesday, JRP organizations will focus on an aspect of the system and engage interested individuals by offering information and opportunities to advocate for specific policy reforms. Topics for Talk Justice Tuesdays include expungement, conditions for incarcerated women, the impact on children and families, and access to housing. Additional information about Talk Justice Tuesdays and Justice Day at the Capitol can be found at www.JusticeDay365.com.

Georgia Prisoners Reach Settlement to Reform One of the “Harshest and Most Draconian” Solitary Confinement Units in the Nation

The Southern Center for Human Rights and Kilpatrick Townsend & Stockton, LLP, have reached a settlement with the Georgia Department of Corrections in Gumm v. Sellers, a case challenging solitary confinement in Georgia’s Special Management Unit (SMU). Plaintiff Timothy Gumm was held in the SMU for 7.5 years.  Plaintiff Robert Watkins is now in his tenth year of confinement in the unit.

Conditions in the SMU Before Litigation

Built in 2007, the SMU was designed to isolate people in an extremely harsh form of solitary confinement.  Those assigned to the unit were locked inside specially equipped, parking-space sized cells that deprived them of normal communication and socialization with others.  For many years, the Georgia Department of Corrections placed no fixed limits on who could be confined to the unit, what conditions they would endure while there, or how long they would be subjected to those conditions.

By 2017, the unit had deteriorated to the point where people were being confined to isolation cells for nearly 24 hours per day on average, unable even to see out of a window or interact normally with another person.  A number of them stayed in these cells literally around the clock for months at a time.  Research shows that isolation of this kind for even a few days can produce a range of harmful effects, but Georgia placed people in these conditions for years with no clear pathway out.  People frequently were forced to restart the program from the beginning.  Many were able to leave the unit only after completing their prison sentences and being released to society.

Nearly half of those assigned to the unit had documented mental disorders requiring treatment, and they frequently resorted to extreme measures to cope with the stress of isolation, including cutting themselves, swallowing harmful objects or pills, banging their heads against the wall, and smearing feces on their cells and bodies.  Two men committed suicide in the SMU in 2017.

After touring the unit in October 2017 and speaking with the people confined there, nationally renowned psychologist Dr. Craig Haney authored an expert report observing that some of those he spoke with “were among the most psychologically traumatized persons I have ever assessed in this context.”  Dr. Haney’s report identified numerous problems that made the SMU “one of the harshest and most draconian” facilities in the country and placed people housed there “at significant risk of very serious psychological harm.”

“Dr. Haney’s report was a watershed moment that caused the Department to reexamine its philosophy around solitary confinement,” said SCHR attorney Sarah Geraghty.  “A civilized society doesn’t lock people in isolation cells for years on end.  It was past time to move out of the dark ages.”

Settlement Terms & Reforms Going Forward

In December 2017, the parties reached a settlement agreement concerning conditions and procedures in the SMU.

The settlement terms provide that:

  • Every person held in the SMU must be allowed at least 4 hours per day out of their cells except on weekends and holidays. People will no longer have out-of-cell time denied as a punishment except for short periods following serious misconduct.
  • Except in narrowly defined circumstances, assignment to the SMU cannot exceed 24 months. Any prisoner held for longer than two years will be reviewed quarterly by a special panel composed of senior security, legal, and mental health professionals.
  • People may qualify for transfer from the SMU as soon as 13 months after assignment and may not be arbitrarily moved backward in the program.
  • Everyone in the SMU is assigned a computer tablet equipped with educational programs, email capability, music, and other media.
  • People are also permitted library access and the opportunity to participate in at least 120 minutes per week of out-of-cell programming or classes.
  • The criteria for assignment to the SMU will be modified to limit those who may be placed in the unit.
  • Before assignment to the SMU, and in conjunction with every 60-day or 90-day review hearing, people will receive an out-of-cell mental health evaluation performed by a licensed mental health provider. If the provider finds that someone is decompensating or is likely to decompensate, they will be transferred to an appropriate treatment facility.

The SMU’s population has decreased significantly due to the recent reforms.  In October 2017, the population was 180.  Today it is about 100.

“This settlement has provided and will continue to provide critical relief to the people who have experienced extraordinary suffering while confined in Georgia’s SMU,” said Allen Garrett, a partner at Kilpatrick Townsend & Stockton, and one of the plaintiffs’ counsel.  “As the result of this case, the Department of Corrections has agreed to meaningful reforms that will provide SMU prisoners with essential human interaction and tangible guideposts for getting out of the SMU,” said Garrett.

The settlement will not become final until the federal court approves its terms as fair and reasonable.

FIRST STEP ACT passes the Senate

The FIRST STEP Act (FSA) is a national, bipartisan piece of legislation that passed the Senate last night, in a vote of 87 to 12. It is expected to become law. In today’s divisive, hyper-partisan political landscape, the FSA is an act full of unexpected compromises. It contains some truly positive steps forward, but it also contains dangerous provisions that have the potential to further harm the communities most impacted by mass incarceration, and further entrench wealth and race-based inequities.

SCHR has long been committed to ending the criminalization of race, and supported the federal reform in 2010 to end the sentencing disparity between crack and powder cocaine. A big problem with the implementation of that reform — which the FSA will fix — is that the reforms were not retroactive, meaning thousands of people were unable to benefit from the change. If passed, the FSA would make those reforms retroactive, and reduce the sentences of about 2,500 people.

The FSA would also take steps towards easing harsh mandatory minimum sentencing under federal law. The law would expand the use of a “safety valve” which allows judges to use their discretion to skirt mandatory sentences and would change the “three strikes” rule, so that people  with three or more convictions (including non-violent drug charges) will receive an automatic 25 years, instead of life. Further, some felony drug charges that currently result in an automatic 20 year sentences would be reduced to 15 years.

The FSA also includes provisions to protect the dignity of incarcerated women. The bill would ensure that pregnant women are never shackled during childbirth or post-partum recovery. It also mandates that federal prisons offer free feminine hygiene products; products that are currently prohibitively expensive for many incarcerated women. Currently, women without means are often forced to choose between buying feminine hygiene products and calling their families. The FSA would also require the Bureau of Prisons to place people closer to their homes and ensure people are matched with appropriate rehabilitative services.

The bill also modestly increases the amount of “good time” credits that incarcerated people can earn. The good news is that the change would be retroactive, which would mean that (potentially) thousands of people would qualify for earned release the day the bill goes into effect. The bad news: the good time credits don’t apply to immigrants. The worse news: in order to qualify for good time credit, prisons will be using algorithmic risk assessments. These risk assessments determine someone’s risk factor based on a number of factors including their criminal histories.

We know at the Southern Center that these risk assessments do not take into account the over-policing of black and brown communities or the criminalization of poverty. As The Movement for Black Lives points out in their nuanced opposition to the FSA, the risk assessments will be “using criteria that fails to meet even basic Americans with Disabilities Act standards.” There is good reason to believe that these risk assessments will create more barriers to early release and further marginalize people with disabilities.  It bears repeating: risk assessments based on factors like criminal history, educational background and other demographic considerations pose a real danger of more deeply entrenching institutionalized patterns of racial bias and wealth-based detention.

Also, of concern is that the bill mandates the use of electronic monitoring for the people who have been deemed eligible for early release. The expansion of surveillance practices, which advance the profit agendas of companies who seek to benefit from caging and keeping people under correctional control, is something that SCHR will continue to monitor closely.

Because the FSA applies only to the federal prison system, the potential impact of its passage will be minimal. There are roughly 181,000 people incarcerated in federal prisons, a modest – but important – fraction of the more than two million people in local jails and state prisons. In Georgia, of the more than 102,000 people incarcerated, the FSA will apply only to the approximate 7,900 people being held in federal prisons in this state.

The FIRST STEP Act is just that: a first step. Because the passage of FSA would mean that some people incarcerated in our federal prisons would receive lighter sentences and some dignities for incarcerated women would be restored, SCHR is endorsing it. But we know how important it is to support this bill with clear eyes, and we will continue to sound the alarm on aspects of the FSA that have the potential to further harm individuals, families, and communities. Most importantly, we are committed to ensuring that the work doesn’t stop at the FIRST STEP.

Clemente Aguirre is the Nation’s 164th Death Row Exoneree

Clemente Aguirre-Jarquin, 38, walked out of a Florida detention facility on the afternoon of November 5th, 2018, wiping away tears. He hugged his legal team and his supporters. It was the first time in 14 years — a decade of which he spent awaiting execution on death row —  that he was not behind bars. He is now the 28th person who has been exonerated from death row in Florida, and the 164th  nationwide.

Aguirre-Jarquin’s 14 year ordeal begin in 2004.  The Honduran immigrant was living in a trailer park in Altamonte Springs, Florida — a community where neighbors knew one another and socialized often. In the early morning hours of June 18th, Aguirre-Jarquin went to the home of his neighbors, Cheryl Williams and her mother Carol Bareis, to see if they had any beer. He opened the door to the trailer and was greeted by a horrific sight: the bloodied body of Cheryl Williams on the floor. He tried to revive her, but it quickly became clear that she was dead. As he ventured further into the home, he found the body of Carol Bareis, with a bloodied knife nearby. Fearing that the assailant was still in the home, he picked up the knife in an act of self-defense. Once realizing the home was empty, he ran outside, dropping the knife in the grass. Because he was in the United States illegally, Aguirre-Jarquin didn’t report the crime. He didn’t feel he could risk deportation back to his home country of Honduras, from which he had fled after narcotics traffickers attempted to recruit him into their gang.

Aguirre-Jarquin initially denied knowing anything about the murders when police questioned him, but eventually told investigators the truth about discovering their bodies. He was arrested for tampering with crime scene evidence. Police later claimed that the knife used to commit the murders resembled one at the restaurant where Aguirre-Jarquin worked, and the head chef claimed that one was missing. The facts looked bad: 64 of the 67 bloody shoe prints found in the trailer matched Aguirre-Jarquin, and a “bloodstain pattern analyst” testified at trial that his shorts had contact blood stains on both the front and the back. At one point in his trial, Aguirre-Jarquin rose and shouted: “they’re trying to kill me for no reason! I didn’t do it. I didn’t kill nobody.”  Yet the jury convicted him, and voted, 7-5, to sentence him to death.

In 2007, it came to light that the fingerprint analyst who had claimed that Aguirre-Jarquin’s prints were on the murder weapon had been wrong (an unsurprising development; fingerprint analysis is often done incorrectly). Aguirre-Jarquin filed a motion for new trial based on that disclosure, but in 2009, the Supreme Court again upheld his conviction and death sentence.

Then, in 2011, attorneys from the Capital Collateral Regional Counsel and the Innocence Project won DNA testing for more than 80 items of evidence. These results were presented at an evidentiary hearing in 2013, along with a crime scene expert who testified that the blood on Aguirre-Jarquin’s clothes was in fact not consistent with spatter, but the result of transfer from picking up the victims. A grand total of 0 items of evidence tested contained Aguirre-Jarquin’s DNA. The DNA of Samantha Williams, the daughter and granddaughter of the victims, was found in 8 places in the trailer, all in places consistent with her being the attacker (despite the fact that she claimed not to have been at home on the night of the murder.) Williams had a long history of serious mental illness, and according to her attorneys, a “long and well-documented history of substance abuse, serious mental illness (including impulse control disorder and intermittent explosive disorder), blackouts, and irrational anger, all of which she suffered from at the time of the murders.” She had been hospitalized roughly 60 times for psychiatric evaluations and fought frequently with her mother.

While Aguirre-Jarquin’s appeal for a new trial was pending, defense lawyers were allowed to present the testimony of four people to whom Williams had confessed her guilt in the murders. Her best friend testified that Williams had confessed twice to her in 2010. A neighbor further testified that Williams had said “I’m crazy, I’m evil, and I killed my grandmother and my mother” at a neighborhood barbeque in 2012.

Nonetheless, the circuit judge once again denied the motion for a new trial. “Mr. Aguirre should never have been prosecuted,” said Marie-Louise Parmer, one of Aguirre-Jarquin’s defense lawyers. “And, when the prosecution was shown to be so clearly wrong and unjustified, the State dug in even deeper and law enforcement refused to investigate new leads.”

Aguirre-Jarquin’s team appealed, and the case wound its way up to the Florida Supreme Court. In October of 2016, the Court reversed the denial of new trial, vacated his conviction and death sentence, and set a new trial. “No longer is (Aguirre-Jarquin) the creepy figure who appears over Samantha’s bed in the middle of the night;” the Court stipulated. “He is now the scapegoat for her crimes….And when the DNA evidence is considered together with Samantha’s numerous, unequivocal confessions, the result is reasonable doubt as to (Aguirre-Jarquin’s) culpability.”  “We commend the Florida Supreme Court for acknowledging the extensive and powerful DNA evidence of Mr. Aguirre’s innocence,” said Nina Morrison, one of Aguirre-Jarquin’s attorneys from the Innocence Project.

The retrial was set for 2018. In March of this year, during jury selection, a mistrial was declared after jurors were overheard discussing their Internet searches in attempts to learn more about the case. The jury selection process for the second retrial began in October of 2018. On October 29th, the defense put forth an affidavit from Samantha Williams’ then-boyfriend’s current wife, which directly contradicted the boyfriend’s testimony at Aguirre-Jarquin’s 2006 trial that Williams had been with him for the duration of the night when the murders took place. The affidavit revealed that he had known that Williams had indeed gone back to the trailer that night, telling him that she  “had a bad feeling about her mother.” On November 5th, while jury selection was still ongoing, the prosecution abruptly dismissed all of the charges against Aguirre-Jarquin. It was an unexpected victory – the culmination of years of dogged work by a large legal team –and the end to Aguirre-Jarquin’s 14 year nightmare.

Timely Justice?

Around the same time of Aguirre-Jarquin’s evidentiary hearing in 2013, Governor Rick Scott signed the ghoulishly named “Timely Justice Act” into law. The legislation argued that the process from conviction to execution took too long, with the average length of stay on Florida’s death row hovering at nearly 15 years. Despite the fact that the state holds the dubious distinction of the most death-row exonerations in the country — Florida has released 28 prisoners previously sentenced to death — the new law significantly accelerated the pace of the capital punishment process, requiring the governor to issue an execution warrant within just 30 days of death row prisoners exhausting their legal remedies. Once the death warrant is signed, the execution must be carried out within 180 days. But the Timely Justice Act didn’t have enough teeth for the Florida legislature — on November 6th, 2018, a mere 24 hours after Mr. Aguirre was fully exonerated, a constitutional amendment was voted into law in Florida.

The text that Floridians read at the voting booth contained nothing about capital punishment. On the ballot, Amendment 6 discussed creating constitutional rights for crime victims, requiring courts to facilitate victims’ rights, and raised mandatory retirement age of judges from 70 to 75, in addition to a few more changes, none of which dealt with the death penalty.  If you were to read further than what’s included on the ballot, though, you would learn that a vote in favor will limit “all state-level appeals and collateral attacks on any judgment” in a capital case within five years, “unless a court enters an order with specific findings as to why the court was unable to comply with this subparagraph.” This is not justice. In the case of Clemente Aguirre-Jarquin — and 27 others before him — it would constitute a deadly, irreversible mistake.

“Clemente’s case raises many layers of concern about our criminal justice system, the impact of race and national origin in police investigations and subsequent prosecutions, and the inherent fallibility of the death penalty,” said Marie-Louise Parmer. “The case demonstrates a need for improved funding for indigent defense, training for judges and prosecutors to understand our system is fallible and to be receptive to new evidence, and a recognition of the importance of the interplay between the indigent defense bar and top tier civil law firms. We, as Americans, should carefully and honestly take the time to review and consider whether we as the only Western Democracy that still imposes the death penalty should still be doing so.”

Aguirre-Jarquin is now living in Tampa, in a home provided to him by the Sunny Center, a nonprofit started by Sunny Jacobs – herself an alumnus of Florida’s death row, where she was incarcerated for 17 years for a crime she didn’t commit – and her husband Peter Pringle, an innocent man who had been sentenced to death in Ireland. Aguirre-Jarquin lives next door to Derrick Jamison, who spent 20 years on Ohio’s death row before he was exonerated in 2005. Freedom, Aguirre-Jarquin told the Orlando Sentinel, “is a beautiful dream.”

Aguirre was represented by a team of dedicated lawyers over the years: Maria DeLiberato, Julissa Fontan, Marie-Louise Palmer, Nina Morrison, Barry Scheck, Lindsey Boney, Kevin Newsome, Ashley Burkett, Frank Bankowitz, Brooks Proctor, Dylan Black, & Josh Dubin. 

The End of Louisiana’s “Jim Crow Jury”

Last week, Louisiana voted overwhelmingly to abolish non-unanimous jury verdicts – a relic of Jim Crow that has, since its inception, silenced black jurors with terrifying and profound precision. Louisiana was one of only two states that allowed verdicts with only ten of twelve jurors. While resistance to Jim Crow juries has always existed, a pioneering study of over 5,000 jury trials in Louisiana between 2011 and 2017 gave a final burst of momentum to the movement. Tuesday’s historic “Yes” vote on Amendment 2 came almost exactly 120 years after the Jim Crow Jury was first adopted at the Louisiana Constitutional Convention of 1898, expressly convened “to establish the supremacy of the white race in this State to the extent to which it could be legally and constitutionally done.”

120 years later, there should be no doubt that the Jim Crow jury was successful. The empirical evidence compiled exposes non-unanimous jury verdicts as an exceptionally effective tool of white supremacy, operating exactly as intended: first, to stifle the voices of black jurors who understand intimately the injustice of the criminal process, and second, to grease the wheels of the carceral machine intent on efficiently criminalizing black bodies. While black jurors made up less than a third of total votes in non-unanimous jury verdicts between 2011 and 2017, they cast more than half of these verdicts’ “empty votes,” or votes that were disregarded in a non-unanimous verdict. Not only were black jurors silenced, it was black defendants who were disproportionately convicted in these non-unanimous decisions. When a conviction was reached against a black defendant in Louisiana, there was a 43 percent chance that the verdict was non-unanimous. When the convicted defendant was white, that number dropped to 33 percent.

The margin of victory for Amendment 2—at nearly 2-to-1 (with only 3 of Louisiana’s 64 parishes opposed)—was a remarkable shift for a state that has long led the country in its tough-on-crime approach to criminal justice. Until very recently, Louisiana was the most incarcerated state in the most incarcerated country in the world. But it was another fact about Louisiana’s criminal process that featured prominently in the public debate over Amendment 2: Louisiana—and New Orleans specifically— is the wrongful conviction capital of the United States. Of the twenty-five individuals exonerated since 1990, eleven were sent to prison by non-unanimous jury convictions. 85 percent of voters in New Orleans voted in favor of the Amendment, which, alone, gave it almost enough support to succeed. The second highest percentage of support came from Caddo Parish, where more people were sentenced to death per capita from 2010 to 2014 than any other county in the United States. (The Parish’s former District Attorney, Dale Cox, has often said that Louisiana needs to “kill more people.”)

There were few clear indicators, however, that determined how a parish would vote, revealing the true extent of the campaign’s support. Some of the most non-white parishes, like East Carroll and Madison, had relatively low percentages of “Yes” votes, while some predominantly white parishes, like Jefferson, had some of the highest percentages. One of the few factors that did seem to have an effect was the level of vocal opposition from that Parish’s district attorney. In Sabine Parish, one of the three parishes that voted in opposition, District Attorney Don Burkett was one of the most outspoken critics of Amendment 2. Yet in an ironic twist, the powerful Louisiana District Attorneys Association (that has long fought for split-juries) did not take a position on Amendment 2. The LDAA does not take public stances unless it reaches a unanimous decision amongst its members.

Amendment 2’s overwhelming victory should not be understated: grass-roots organizers built an extraordinarily diverse coalition that should serve as a model for justice reform in the future. As Mercedes Montagnes of the Promise of Justice Initiative told us, “Our courts hold out the promise of justice for every citizen. With the passage of this Amendment, we are one step closer to making this promise a reality for the people of Louisiana. Together, our coalition and the people of Louisiana have shown that we are ready to move our criminal justice system forward and make justice a reality for all.”

As the movement looks ahead to the next battle for equal justice, how we frame this victory is critical. Across the political spectrum, Amendment 2’s success has been heralded as the final knockout blow for Jim Crow. “You, now, ladies and gentlemen have ended 138 years of Jim Crow,” declared Sen. J.P. Morrell, the sponsor of the legislation that led to Amendment 2’s place on the ballot. And while non-unanimous jury verdicts may have been the most egregious relic of Jim Crow left standing, they were simply the most visible piece of Jim Crow’s legacy on our criminal legal system, signifying the rot that reaches to the core of criminal justice in the United States. The abolition of the Jim Crow Jury is not the final blow, but rather, an essential first step in the long process of eradicating the structural racism at the heart of the country’s carceral regime.

Tennessee Plans to Execute Edmund Zagorski in Electric Chair Tonight

Tonight, in Tennessee, barring any last minute intervention, Edmund Zagorski will be strapped into an electric chair. Four sponges soaked in brine will be attached to his ankles to increase conductivity, another brine-soaked sponge will be placed on his forehead, a shroud will be placed over his face, and he will be shocked to death. Two shocks, both 1750 volts.

Mr. Zagorski requested that he be executed by electrocution on October 8th, just hours after the Tennessee Supreme Court upheld the use of a 3-drug lethal injection cocktail, which multiple experts have warned would lead to a very painful death. Mr. Zagorski said that he preferred the thought of a 35 second death, with two large shocks, to a potentially protracted, agonizing death via lethal injection. He’s not alone in his trepidation — this summer, in an effort to avoid a botched execution, eight death row prisoners in Alabama requested to be executed in the gas chamber, rather than face lethal injection.

But in choosing the electric chair, will a slow and painful death be avoided? Other death penalty states have moved away from the use of the electric chair; the Supreme Courts in Georgia and Nebraska ruled that its use is unconstitutional. In the 5-4 Georgia Supreme Court ruling, the electric chair was denounced for “its specter of excruciating pain and its certainty of cooked brains and blistered bodies.” The ruling went on to say that death via electric chair inflicts “purposeless physical violence and needless mutilation that makes no measurable contribution to accepted goals of punishment.” There are multiple instances of botched executions via electric chair. Jesse Tafero, who was executed in Florida in 1990, had smoke and flames shooting from his head. In 1999, blood spilled from under an prisoner’s mask as he was being shocked to death in the electric chair.

Compounding an already horrific situation, the electric chair which will be used to kill Zagorski was built by a self-taught expert — with no engineering degree — and hasn’t been used for over a decade. The expert, Fred Leuchter, worries that his device will malfunction. “What I’m worried about now is Tennessee’s got an electric chair that’s going to hurt someone or cause problems. And it’s got my name on it,” Leuchter told AP. “I don’t think it’s going to be humane.”

The last execution using the electric chair was in Virginia, in 2013. There is no humane means of executing another human. But it is especially tragic that in 2018, a person sentenced to die must be forced to choose a method of execution that has been ruled unconstitutional and cruel, in an attempt to avoid another method that is likely unconstitutional and cruel.

The Tennessean has published a timeline of what tomorrow’s execution will look like, below.

At 5 PM, Zagorski will be dressed in cotton pants, a shirt and cotton socks or cloth house shoes.

Immediate family of the victims, two men Zagorski is convicted of killing, will arrive at the prison by 6:15 p.m. Around the same time, prison staff will shave Zagorski’s head and  legs.

At 7 p.m., prison staff will take Zagorski out of his cell next to the execution chamber. He will be led to the electric chair.

Staff will strap Zagorski into the chair with an electric chair harness and wrist straps.” Four sponges soaked in salt water will be strapped around his ankles to increase conductivity.

Zagorski’s lawyer, federal public defender Kelley Henry, and an attorney for the state will leave the execution chamber.

At 7:10 p.m., blinds to the witness rooms will open and the warden will ask Zagorski for last words.

After that, prison staff will place another sponge soaked in salt water on Zagorski’s head. Staff will then place the electric chair head piece” on Zagorski’s head. They will also  place a shroud around his face.

More salt brine will be poured over the ankle sponges.

The warden will give the signal to proceed, and the executioner will activate the electric chair.

The electric chair will release 1,750 volts of electricity for 20 seconds, will stop for 15  seconds and then will release 1,750 volts for another 15 seconds.

After the first wave of electricity, officials will wait five minutes and then close the blinds into the witness room.

A doctor will check Zagorski for signs of life. If there are none, the doctor will pronounce him dead.

If Zagorski is still alive, the blinds will be raised, another round of electricity will be administered and the doctor will be called in again.

The warden will announce when Zagorski’s death sentence is complete, and will ask witnesses to leave.

South Dakota Executes an Intellectually Disabled Man

Growing up, Rodney Berget had some trouble fitting in. His home life was troubled; he was surrounded by alcoholism and endured physical abuse. A psychologist who examined him at the age of nine determined that he had an IQ of about 70, a score that would classify him as intellectually disabled. As a 10-year-old, he got the chance to compete in the South Dakota Special Olympics. Yesterday, that same state executed him via lethal injection.

Executing people who have intellectual disabilities has been unconstitutional since 2002, when the Supreme Court ruled in Atkins v. Virginia that the execution of a mentally retarded (or ‘intellectually disabled’) person is cruel and unusual punishment, prohibited by the Eighth Amendment to the US Constitution. A few years after Atkins, the American Bar Association developed, for the first time, guidelines which laid out the critical role of mitigation specialists in death penalty defense. Mitigation specialists are trained to leave no stone unturned as they investigate a defendant, delving deeply into every facet of the defendant’s life, including investigating inter-generational, environmental, health, social and other influences on the defendant’s life, and also assisting in screening for intellectual disabilities and mental illnesses. Mr. Berget was sentenced to death for the murder of a prison guard, Ron ‘RJ’ Johnson, in a foiled escape attempt from a South Dakota prison. Despite his case going to trial in 2012 — a decade after Atkins and at a time when mitigation specialists were not uncommon — Mr. Berget was still sentenced to die, and there is no indication that his lawyer had investigated his background to develop a mitigation presentation that might have saved Mr. Berget’s life.

The deleterious effects of a childhood filled with violence and traumas is demonstrated by its impact on Mr. Berget’s immediate family. Mr. Berget’s brother, Roger, also turned to violence as an adult, spending 13 years on death row in Oklahoma before his eventual execution. Mr. Berget looked up to his brother, shadowing him constantly as an adolescent.

Last month, in Alabama, the state Supreme Court voted to overturn the death sentence of Anthony Lane, a Birmingham man with an IQ of 70. The ruling came down after the United States Supreme Court had ordered the state of Alabama to reconsider sentencing Mr. Lane to death in 2015, citing Atkins. Mr. Berget had the same IQ as Anthony Lane.

In Georgia, SCHR has advocated for bills which would work to ensure that people with intellectual disability are not put to death, by improving the process by which someone is determined to be intellectually disabled. Georgia remains an outlier in how they determine intellectual disability. Of the thirty-one states which still use the death penalty, twenty-two have used the standard of “preponderance of the evidence,” five use “clear and convincing,” three don’t specify a standard, and just one — Georgia — has the standard of “beyond a reasonable doubt” for proving an intellectual disability to the courts. This standard is an extraordinarily difficult legal obstacle, and it is responsible for Georgia having executed intellectually disabled people in the past.

The death penalty will never achieve justice. It is empty vengeance, most often leveled against people who have been the victim of abject poverty, violent childhoods, and pervasive race discrimination themselves. But history will judge especially harshly the executions of intellectually disabled people; vulnerable people whom the constitution is meant to protect, not harm.

Our thoughts are with the family of the victim, Ron Johnson, and the Berget family.

Bail Reform in Atlanta Has Been Successful: Don’t be Duped by Misleading Court Data, Especially in the Wake of the Cyberattack

Nearly 750,000 people are detained in jails across the country every day because of an inability to post bail. The costs are tremendous, both for the government as well as the individuals, their families, and the community. The purpose of bail is to secure the individual’s return to court, as well as to consider the risk release poses to the public. People who do not pose a public safety risk and are likely to return for their court date should not be locked in a jail cell only because they cannot afford to pay for release.

Atlanta’s bail ordinance, which became effective in March 2018, was the right move for a city like Atlanta that prides itself on its civil rights legacy.  And the ordinance has had its intended effect.  Since March 2018, about 3,064 people have been released on signature bonds under the ordinance.  These are people who otherwise would have been stuck in jail to await trial for petty offenses.  Further, because of the bail ordinance, community members have kept in their pockets a total of $3,110,850 – money that would otherwise have gone to enrich the bail industry.

But some people think Atlanta should go back to locking up indigent people for their poverty.  And they have seized on incomplete and misleading data to make their case.

In the Atlanta Journal-Constitutions October 4 article, “More defendants miss court dates since some cash bonds dropped,” a misleading picture of the impact of Atlanta’s new bail reform ordinance, passed by City Council just 6 months ago, emerged. The ordinance, which passed unanimously, authorized the Atlanta City Detention Center to release people with pending nonviolent misdemeanors or city ordinance violations on their own recognizance. The idea behind the ordinance was simple: poor people accused of minor offenses should not be sitting behind bars while those charged with the same offenses – but who can pay bail– await their court dates at home.

In an effort to monitor the implementation of the bail reform ordinance, the Council required a six-month review and presentation to the public safety committee by the Chief of Corrections. The Council also acknowledged that, along with eliminating cash bail for most minor offenses, the municipal court’s notification procedures would need to be updated and improved. On March 5, the Council adopted a resolution to study the court’s notification system and identify opportunities for improvement.

Just days later, the City of Atlanta was attacked by ransomware.  Many city services and programs were affected, including the courts. Almost immediately, the City acknowledged the severe impact the attack had on governmental functions and published a press release stating that the ransomware attack affected the ability to access court information.  Improvements to court notification systems that would help people make it to court were predictably put on hold.

The Atlanta City Council’s Public Safety Committee held the pre-planned 6-month review of the new system on September 25.  At that point, due to the ransomware attack, there was just over 60 days of post-bail ordinance data.  In an emotionally charged meeting, City of Atlanta Chief Judge Chris Portis stated that during April and May, because of the ransomware attack, the Court was unable to send court notifications to defendants. He went on to assert that Failures to Appear (FTA) had “doubled” in Municipal Court because of bail reform. There was no discussion of the fact that the Court had only 60 days of data, and that such data came immediately on the heels of a total shut down of the Court’s computer system. Neither a written report nor any explanation of how this data was collected by the Court, was presented to Council.  Alarmingly, the validity of this data was not questioned by any elected official, save for Councilmember Andre Dickens, who requested that raw data be provided before any conclusions be drawn.

The fact is that we have nowhere near the data we would need to reliably conclude that the bail ordinance has caused an increase in failures to appear in court.  Let’s start with the fact that the court’s numbers don’t add up. In his presentation, Chief Labat reported that fewer than 3,500 people arrested between March 1, 2018 and September 25, 2018 were even eligible for release on signature bonds under the ordinance.  Minutes later, however, Judge Portis told the committee that there were 4,120 “failures to appear” in court in the month of August alone. How could the new bail ordinance cause more people to miss court dates in one month (August) than were even eligible for bail reform signature bonds during the entire six-month review period?

Additionally, with the limited data available, we have no way of knowing that the persons failing to appear in court were the same people released on signature bonds pursuant to the ordinance. Any statistician will say that correlation is not causation, and to report conclusions about cause and effect without a thorough examination of the data is irresponsible and misleading.

Over 3,000 people charged with minor offenses who otherwise would have lost housing, jobs, and other necessary support were able to return to their community without having to pay for their freedom. According to Chief Labat, bail reform has saved the community $3 million, money that would have gone to the jail and to bail bond industry. This is a civil rights and fiscal victory for Atlanta. Let’s not go back to wealth-based detention because of incomplete data and a few unvetted claims at a city council meeting.

Are Alabama Sheriffs Violating Federal Law? It’s Time to Investigate.

Today, in a letter sent to the United States Attorneys for the Northern, Middle, and Southern Districts of Alabama, the Southern Center for Human Rights, Alabama Appleseed Center for Law and Justice, the American Conservative Union, FreedomWorks, and the Adelante Alabama Workers Center urged an investigation into Alabama sheriffs with federal detention contracts who have personally pocketed substantial amounts of taxpayer money from jail food accounts. There is reason to believe that it is these sheriffs’ federal contracts that have allowed them to reap especially rich rewards from jail food accounts — and that much of the money they have taken comes from the federal government, in likely violation of federal law.

Across the state of Alabama, many sheriffs contend that an archaic state law allows them to keep funds allocated to feed people housed in their jails for their own personal profit, and some sheriffs  have relied on this interpretation to justify the transfer of hundreds of thousands of dollars into their personal bank accounts.(Etowah County Sheriff Todd Entrekin infamously purchased a $750,000 beach house with these funds.) Sheriffs claim that the law authorizes them to retain “leftover” food money for themselves, abusing public trust and creating a perverse incentive to spend as little money as possible on feeding the prisoners in their care.

These sheriffs’ interpretation of Alabama law has been squarely rejected in an Attorney General opinion and by the current Governor of Alabama, Kay Ivey. “Public funds should be used for public purposes,” Governor Ivey said in a statement in July, urging lawmakers to address the issue in the next legislative session.”It’s that simple.”

In addition to personally pocketing state tax dollars, because a number of these sheriffs also house federal detainees (who are either defendants in federal criminal cases or immigrants facing deportation), there is reason to believe that some sheriffs have pocketed federal tax dollars for personal use.

There is a stark difference in the per capita reimbursement rate for feeding a state prisoner versus a federal prisoner. In Monroe County, Alabama, for example, the per capita reimbursement rate for feeding state prisoners is $1.80 per day. For federal prisoners, it is over five times higher: $10 per day. In 2016, the Monroe County Sheriff’s Office received a total of $26,710.80 in food funds from the State of Alabama, $5,505.00 in food funds from municipal contracts, and $108,620.00 in food funds from the federal detention contract. On December 30, 2016, the sheriff “declared excess and paid to” himself $44,402.77 – over $12,000 more than the total amount he had received from state and municipal sources, combined.

The misappropriation of funds by sheriffs with federal detention contracts may violate federal contracting law and criminal law. In particular, they likely constitute crimes under 18 U.S.C. § 666, which penalizes an agent of a state or local government or agency receiving more than $10,000 per year from a federal contract who “embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies” property of the state or local government or agency valued at $5,000 or more. These sheriffs’ actions also likely violate federal contracting law, such as the provision in the Intergovernmental Service Agreement with Etowah County which prohibits officials or employees of the recipient county from “participat[ing] personally” in performance of a contract in which he or she “has a financial interest,” and from “[u]sing his or her official position for private gain.”

“The law is clear, and Governor Ivey has been clear: jail food funds are public funds, and should be used only to feed incarcerated people,” said Aaron Littman, staff attorney at the Southern Center for Human Rights. “Because these sheriffs have refused to disclose to the public how much taxpayer money they have taken, further investigation is urgently required to determine whether they are violating federal law.”

When limited food funds are misappropriated by sheriffs, the Treasury isn’t the only victim: the health and safety of the people incarcerated in these jails is jeopardized. Recent media coverage of the food served at the Etowah County Detention Center included reports that inmates are frequently served meat packaged in wrapping that says “Not Fit For Human Consumption,” and donated chicken that is rotten and riddled with “tumors and abscesses and deformities.”

“It appears that some sheriffs have placed personal profit above their sworn duty to ensure the basic human needs of those in their care,” said Frank Knaack, executive director of Alabama Appleseed. “We are deeply concerned that those charged with enforcing our laws are instead breaking them. No one is above the law – this includes Alabama’s sheriffs.”

Sheriffs who pocket money paid by the federal government for feeding prisoners have abused the trust of the taxpayers — both in the state of Alabama and across America — out of whose paychecks these dollars came. Their actions also offend the conscience of all who believe that prisoners are to be safeguarded, not exploited for profit. An investigation into these sheriffs’ actions is urgently required.

Read the letter here.

Last Week, Texas Executed 2 Men in 24 Hours

Last week, two Texans were executed by lethal injection within a 24-hour period. From conviction to death, neither of them wavered in their proclamations of innocence. One’s last words were “I’m not the one who killed Christina.” The other did not give last words; instead choosing to lie silently with his eyes closed, waiting for the lethal cocktail of drugs to take effect.

Their names were Troy Clark and Daniel Acker. They were the 17th and 18th men put to death in the United States this year.

Mr. Clark alleges that he was set up by his former girlfriend, who at first informed police that another person was responsible for the victim’s death, and then later gave a statement saying that she had in fact killed the victim, and that Mr. Clark was not involved. She eventually implicated Mr. Clark, in exchange for a 20-year sentence.

Mr. Acker was convicted of strangling his then-girlfriend in a moving car. He maintains that she jumped out of his moving car during an argument — as she had done before — and died accidentally, likely having been struck and killed by a passing car. Mr. Acker’s legal team filed multiple appeals saying that his trial was tainted by the misleading, erroneous forensic testimony. In 2011, in an evidentiary hearing, the prosecution changed their story: instead of being strangled, they argued, Mr. Acker had pushed her from the car. “This is a real tragedy,” Mr. Acker’s defense lawyer, A. Richard Ellis, told the Houston Chronicle last week. “Daniel Acker is innocent, this was a tragic accident not a homicide, yet the courts are not listening.”

Texas holds the dubious distinction of holding back-to-back executions more than once: the last time was in 2012, when the state put to death Ramon Hernandez and Preston Hughes. Hughes also professed his innocence with his final words.

Since 1973, 163 people have been exonerated from death row, including 6 each from Georgia and Alabama, the states in which the Southern Center for Human Rights works. There is no way to tell how many of more than 1,450 people executed in the U.S. since 1976 may have been innocent. Courts do not generally entertain claims of innocence once the defendant is dead.

As with any human-run system, the criminal legal system is fallible. In at least 163 instances, many people – including juries, judges, and the general public – were so convinced that someone was guilty of a heinous crime that they sentenced them to be put to death. And in at least 163 instances, we were wrong. The fallibility of the system is not a fixable problem. The only fix is to end the death penalty.