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.