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.