Civil Rights Lawsuit Challenges the Illegal Mass Arrest of 60+ Partygoers for Less Than an Ounce of Marijuana in Cartersville, Georgia

Today, the Southern Center for Human Rights and the Merchant Law Firm, PC are filing suit against the City of Cartersville, Georgia, and select employees of the Cartersville Police Department, Bartow-Cartersville Drug Task Force, and Bartow County Sheriff’s Office on behalf of seven plaintiffs and other putative class members. The suit challenges the mass detention, search, and arrest of over sixty students, college graduates, and military servicemen attending a birthday party at a private residence in Cartersville, Georgia, on December 30th, 2017. Plaintiffs seek damages and declaratory relief on behalf of a class of all visitors who were detained, arrested, and charged with crimes that were dismissed just 12 days later.

In the early hours of December 31st, Cartersville Police Officers were dispatched to an apartment complex near the private residence after reports of gunshots (which they found no evidence of). Despite their car windows being up, officers claimed to have somehow smelled marijuana as they grew closer to the residence. Bolstered by a city policy that allows warrantless home entry on the mere basis of purported marijuana odors, officers entered the private residence without consent, a warrant, or probable cause.

Once inside, the officers found less than an ounce of marijuana. Though the officers could not tie the marijuana to any of the partygoers, they detained and searched everyone at the party. These searches yielded no drugs or contraband, but an officer announced that everyone was going to jail anyway. In total, sixty-four putative class members were arrested and taken to the Bartow County Jail for allegedly possessing less than an ounce of marijuana. Of those 64, 50 were African-American, 10 were white, 3 were Latino, and 1 Native American.

“Cartersville and Bartow County officers swarmed a predominantly black and brown house party, and arrested everyone because of a small amount of marijuana.  This mass arrest wasted taxpayer dollars and undermined the public’s faith in unbiased policing,” said SCHR Senior Staff Attorney Atteeyah Hollie.

Upon arriving at the jail, everyone – including some persons as young as 17 — were stripped-searched in front of multiple officers, and placed in crowded and freezing cold holding tanks, where they stayed for 1-3 days without access to phones, the courts, or counsel. Some were placed in solitary confinement when they complained about their treatment. The solitary cells were so cold that some people wrapped toilet paper around their appendages, or exercised in place to stay warm. One person who experiences seizures informed a jail nurse of her condition, but did not receive her anti-seizure medication until the third day of her detention. A pregnant woman was denied prenatal pills and received no care when she vomited repeatedly in a holding cell garbage can. A diabetic received a dosage of insulin that exacerbated his condition.

“It’s a different type of hurt when you get arrested for something you didn’t do,” plaintiff Nija Guider told The Appeal. Guider lost her job as a result of the arrest, and had to resort to food pantries to feed her young son while she spent two and a half months looking for a new job.

Nija Guider and her son.

“Imagine being arrested simply for attending a party,” said SCHR Staff Attorney Ebony Brown. “Then, imagine being subjected to a dehumanizing strip-search in front of multiple people, and forced into a crowded, freezing cage for days on end, away from your loved ones, your children, and your source of income. It is anything but inconsequential.”

Twelve days after the arrests, the Bartow County District Attorney dismissed the charges.  The arrests had already been highly publicized — mugshots were available online — and multiple people lost jobs or had to take drug tests to keep them. Others had potential scholarships affected, military enlistment deferred, and suffered public ridicule, online harassment, and humiliation.  Many partygoers had never been arrested before. Some plaintiffs report that they are now fearful, and no longer trust, law enforcement because of this incident.

“Police should know better than this. These arrests went well beyond sloppy police work; they were unconstitutional.  They arrested everybody at a party, literally everyone, without regard to proximity and without even posing questions to individuals,” said SCHR Senior Attorney Gerry Weber.

Read the complaint here.

When a Lawyer’s Conflict Can Be Fatal

“A deeply troubling truth about the death penalty is that it is often handed down not to people who commit the worst crimes, but on those assigned the worst lawyer to represent them.” – Steve Bright, Former President of the Southern Center for Human Rights

Southern Center for Human Rights client Nicholas (Nick) Acklin’s case is now up for review at the United States Supreme Court. His story serves as a clear and tragic reminder that bad or conflicted lawyering can be potentially fatal.

Nicholas Acklin.

Days after Nick was arrested, in September of 1996, his mother Velma Acklin Evans contacted a Huntsville, Alabama attorney named Behrouz Rahmati. Rahmati agreed to represent Nick, and Velma agreed to a $25,000 retainer and a fee of $150 per hour. When it became clear that she would not be able to afford the costs, Rahmati contacted Nick’s father, Theodis Acklin, for help. Theodis became the attorney’s primary source of funds.

Just two days before Nick went to trial, Velma met with Rahmati alone. She shared with him that Theodis had routinely abused her and their children; they endured frequent beatings, emotional abuse, and threats at gunpoint. In one such incident, she fell out of a second-story window while fighting with Theodis over a rifle.

Years later, all of this abuse was corroborated. Nick’s brother testified that his father would come into a room when the siblings were all together, strike them with a belt, and “have the gun in hand and tell us he will kill all of us and kill himself.” This abuse was confirmed by the Alabama Department of Human Resources, which had investigated an incident in which Theodis had admitted to pulling a gun on his sons and stating, “I brought you into the world and I can take you out.”

Nick Acklin as a child.

Rahmati was aware of how powerfully persuasive mitigating evidence can be to both juries and judges. He was aware that the evidence of Theodis’s abuse could mean the difference between life and death for his client. But when Rahmati asked Theodis if he would be willing to testify in court about this abuse, Theodis angrily refused. “You tell Nick if he wants to go down this road, I’m done with him” and “done with helping with this case,” he told Rahmati.

Because Theodis was the only person paying him, Rahmati acquiesced. He did not investigate the matter any further. He did not ask the court for a continuance. And, crucially, he did not inform the court or his client about the conflict. What he did do, within just 36 hours of learning about the abuse, was to sit Nick down and have him sign a document stating that he did not want the evidence of abuse presented at trial.

This meant that instead of hearing this crucial mitigating evidence, Nick’s jury heard falsehoods. At the penalty phase, Theodis was put on the stand. He testified — falsely — to the jury that Nick was raised in a loving and safe home. He told the jury that his son sang in the church choir. He talked about taking his son to the dentist and parent-teacher conferences. If anything, he testified, he was “overprotective” of Nick. Two weeks later, at a judicial sentencing proceeding before the judge, Theodis again testified falsely, telling the judge that Nick was “raised in a Christian home” with “good values” but “somehow slipped.”

The jury voted 10-2 for death – the minimum number of votes required for a death recommendation under Alabama law.

When the judge imposed a death sentence on Nick, he expressly relied on Theodis’s testimony, specifying that Nick had not experienced physical abuse (which he had) and that he was not the product of a dysfunctional household (which he was). “Most killers are typically the products of poverty, a dysfunctional family, physical or sexual abuse and/or social deprivation,” the Court wrote. “Acklin was the product of a loving middle-class family.”

As Andrew Cohen writes for The Marshall Project, “Acklin, like all criminal defendants, had a constitutional right to an attorney who does not have an ‘actual conflict of interest.’ And there is plenty of legal precedent, as well as state and national bar association ethical rules, that reasonably label what happened between the lawyer and the client here as an ‘actual conflict.’”

In an amicus brief in support of Nick, legal ethicists say that the situation “created a textbook division of loyalties” for Rahmati. They urge the Supreme Court to accept Nick’s petition, because “[u]nder ethics norms and rules of professional responsibility applicable across every jurisdiction, Nicholas Acklin’s trial attorney labored under an acute and obvious conflict of interest that resulted in a denial of Acklin’s Sixth Amendment rights.”

What is clear is that Nick Acklin was convicted and sentenced to death based on a foundational misunderstanding of the facts on the part of both the jury and the judge. At every turn, his attorney sought to serve his own financial self-interest instead of the needs of his client. Nick, like every defendant, has a constitutional right to representation from a lawyer whose judgment is objective, and not tainted by the demands of anyone else. This critically important constitutional principle applies with even greater force in a case where a death sentence is possible.

Southern Center for Human Rights represents Nick Acklin, along with co-counsel Don Verrilli and Dahlia Mignouna.

Read more about Nick’s case here.

It’s Time to End Illegal “Pay-or-Jail” Sentences at the Atlanta Municipal Court

Today, the Southern Center for Human Rights sent a letter to Atlanta Mayor Keisha Lance Bottoms and Atlanta Municipal Court Chief Judge Christopher Portis, calling for an end to the “pay-or-jail” sentences that are regularly imposed on indigent people at the Atlanta Municipal Court.

Pay-or-jail sentences are those in which the Court requires people either to pay a set dollar amount or, if they are unable to pay, to be incarcerated in jail. A 1972 landmark federal appellate case, Frazier v Jordan — which actually originated in the Atlanta Municipal Court — found that an alternative sentencing scheme of $17 dollars or 13 days in jail was unconstitutional as applied to people who could not immediately afford to pay the fine. Despite this precedent, and despite our previous communications putting the Municipal Court on notice that the sentencing practice is illegal, it continues to occur.

In recent months, we have witnessed 68 cases in which judges have imposed a pay-or-jail sentence; these have been imposed almost exclusively on homeless or indigent individuals, and judges routinely fail to inquire into the person’s ability to pay. A few examples (full names have been redacted for privacy):

  • On January 23, 2019, LS pleaded nolo contendre to drinking a can of beer on a city sidewalk. He was given a “fine or time” sentence – either payment of a $75 fine, or 30 days in jail. Unable to pay, he served the jail sentence.
  • On November 8, 2018, MM pleaded guilty to soliciting money from patrons on a MARTA train. She was sentenced to $100 or 3 days in jail. She served the jail sentence.
  • On December 19, 2018, LD pleaded nolo contendre to being a pedestrian on a roadway. He was sentenced to $150 or 5 days in jail. He served the jail sentence.
  • On November 8, 2018, BW pleaded nolo contendre to shoplifting two packs of meat from a store. He was sentenced to $150 or 5 days in jail. He served the jail sentence.

Court documents show that these sentences are recorded as “FINE OR TIME” sentences.

“Atlanta is an outlier in the State of Georgia in its consistent imposition of so-called “fine or time” sentences on people who are homeless and destitute,” said SCHR Managing Attorney Sarah Geraghty.  “The Court violates the bedrock principle of equal protection under law when it jails people only because they don’t have money to buy their release.”

Pay-or jail sentences imposed on homeless people who clearly cannot pay are not only unconstitutional, they undermine the integrity of Atlanta’s criminal legal system. In the letter, SCHR requests that the city provide written assurance, by March 20, that the Court has issued a standing order or policy ceasing this practice.

An Ode to Black Women Capital Defense Attorneys

By Terrica Ganzy, SCHR Deputy Director

Elaine Jones was counsel of record in Furman v. Georgia, the landmark United States Supreme Court case that abolished the death penalty in 37 states in 1972. She was one of the first Black females to defend people on death row. Almost five decades later, the ranks of Black women who defend people charged with or convicted of capital crimes has grown, but the numbers are still far too low. Today, as Black History Month comes to a close, we pay tribute to this cadre of women who stand in the gap for people who society would otherwise discard.

The Calling

“When I dare to be powerful, to use my strength in the service of my vision, then it becomes less and less important whether I am afraid.” – Audre Lorde

Being a capital defense attorney is hard. The hours are long, the work is born of tragedy, the stakes are the highest possible, and the pay compared to the effort is low. This is not a profession that one chooses simply to have a job. It is a calling: a calling of strength, a calling of conviction, a calling of sacrifice, a calling of love.

It is a calling of strength because so often capital defense attorneys are subjected to the anger and hate directed at their clients. Acknowledging that anger, protecting their client from it, and working to transform anger to mercy requires a certain inner strength. It is a calling of conviction because standing on principle at times is all that sustains the capital defense attorney through repeated denials of relief despite obvious injustice. It is a calling of sacrifice because fighting to save someone’s life can take a mental and physical toll. It is a calling of love because one cannot do this work without a love for humanity, dignity, and justice.

The calling of capital defense applies to all capital defense attorneys regardless of demographics. We choose to celebrate black women attorneys today because these women dare to use their strength in service of their vision of a society that does not kill to prove that killing is wrong.

We pay tribute to the Elaine Jones, the Christina Swarns; the Tanya Greenes of the capital defense community. Thank you for daring to be a powerful force for justice, redemption, and mercy.

The Bail Industry Tries, Again, To Overturn Bail Reform in Georgia

This past Monday, a subcommittee of the House Judiciary Non-Civil Committee heard HB 340, a bill which would overturn bail reform in Atlanta, and preclude any other city or county in Georgia from ending cash bail. The legislation would force burdensome costs on Georgians; it would continue to criminalize poverty and race; it would compromise public safety; and, finally, it would be unconstitutional. The only beneficiaries of the legislation would be the bail industry. The bill’s sponsor, Representative Micah Gravley, presented the legislation while flanked by four individuals from the bail industry.

The bill’s sponsor, Rep. Gravley, is seated next to Ann Hood, of Easy Out Bonding Co., Inc. from Gainesville, Nathan Owens, of Double “O” Bonding in Athens, and Corey Dunlap, of Free At Last Bail Bonding of Atlanta. Rep. Gravley is seen gesturing in the image.

Rep. Gravley told the subcommittee that he introduced the legislation due to alleged problems with individuals being released on signature bonds for violent felonies — and then he turned it over to the bail industry. For the next 25 minutes, two bail industry representatives dominated the discussion and misled the committee. The representatives of the bail industry introduced themselves as “concerned citizens,” only admitting to being in the industry when pressed by members of the subcommittee. One of the bail industry representatives, from Athens, provided copies of several recognizance bonds given to people charged with crimes like armed robbery and rape, claiming that the Athens community wants the law to be changed. SCHR has since learned, however, that in one of the cases the judge issued an OR bond after a hung jury (in which the jury was 11-1 in favor of acquittal) and, in another, the prosecutor agreed to the OR bond, due to a lack of evidence. Bondsman Corey Dunlap stated that a Georgia State Trooper was killed by someone who was out on an OR (own recognizance) bond. When challenged with the AJC’s reporting that the defendant was out of jail on $19,000 bond, Dunlap claimed that he didn’t remember the facts of the case.

The chairman then opened up the hearing for public comment, allowing 60 seconds for each person. Nearly every person who testified was in opposition to the bill. The first voices to speak against the bill were Megan Middleton, a lobbyist from the City of Atlanta, Matthew McCord, a judge who sat on the bail subcommittee of Gov. Deal’s Council on Criminal Justice Reform, and Matt Westmoreland, an at-large member of the Atlanta City Council. SCHR’s Public Policy Director Marissa Dodson continued the opposition testimony, along with Bronson Elliot from Ebenezer Baptist Church, Billy Honor from New Georgia Project, Mary Hooks from SONG, SCHR’s Sarah Geraghty, and Devin Barrington-Ward from Black Futurists Group.

The aggregate testimony against HB 340 was compelling, and some Republican subcommittee members could be seen nodding in agreement with the positions taken. Many members, again including Republicans, recognized the predatory motives of the bail industry and the injustice of forcing extended incarceration, particularly for local ordinance violations and misdemeanor offenses. The subcommittee did not vote on the bill.

SCHR is continuing to monitor HB 340 — which, as of this writing, has not been scheduled for another hearing — while we also track SB 164, a similar bill introduced by Bill Cowsert that has been assigned to the Senate Judiciary Committee but not yet scheduled for a hearing.

A Call to Action from Executive Director Sara Totonchi Before Super Bowl LIII

Next week, Atlanta will host the Super Bowl.  This will be one of the largest sporting events in the city’s history, aside from the 1996 Olympic Games. The challenge presented by these major events remains the same: how will the Gate City treat its most vulnerable populations as we welcome the world?

The Atlanta City Detention Center stands as one of the most troubling monuments of the 1996 Olympic Games. The jail was built to warehouse people the city wished to hide from global view: those visibly struggling with homelessness and poverty. As a testament to that fact, the jail population increased from 2,200 to 4,500 during the Games, all while street homelessness appeared virtually nonexistent to visitors. (For the visibly poor and homeless who weren’t taken to jail, the city was accused of distributing free one-way bus tickets for individuals, under the condition that they never returned to the city.)

Today, thanks to improved immigration policy, historic bail reform and pre-arrest diversion legislation, the jail’s population hovers at under 100 people.  Unfortunately, due in part to the City’s support of the forced closure of Metro Atlanta Taskforce for the Homeless’ Peachtree-Pine shelter, street homelessness increased nearly ten percent between 2017 and 2018.  Partners for Home reported that in 2018, 3076 people were homeless in Atlanta, 740 of whom were unsheltered.  There is no question that both the city and non-profits lack adequate bed space for the current homeless population.

Last week, the City announced that it was moving forward with removing homeless ‘camps,’ in an effort to find permanent housing solutions for the city’s homeless population. The City maintains that the timing—just weeks before the big game—was purely coincidental. But Leroy Thomas, a man who has been sleeping under the downtown connector, told the Atlanta Journal-Constitution that police clearly expressed that people sleeping under the Downtown Connector would need to be gone by a date certain, due to the Super Bowl.  APD spokesman Carlos Campos provided that Atlanta police arrested roughly 40 people for urban camping over the past 24 months. Campos told journalists on a call last week, “If they are violating a law, they will be arrested for violating a law…There are laws that are applicable to everybody and it doesn’t matter what your residential status is.”

While the lack of available shelter space is nothing new, the City’s  destruction of homeless camps, destruction of homeless individuals’ belongings, and increasing arrests and threats of arrest of individuals for urban camping and other status offenses as the Super Bowl approaches strongly suggests an intent to sanitize the image of downtown at the expense of our homeless citizens.

Criminalizing homelessness and poverty violates our most basic human rights, and it sets in action a revolving door: people sent to jail for sleeping on the street and other status-based charges (trespass, soliciting money, urinating in public, etc.) are more likely to experience homelessness again once released. Performing daily, life-sustaining activities such as crossing the street, finding relief without indoor plumbing and asking passersby for money can be enough to land people behind bars for months and in extreme cases, a year or more.  Law enforcement must utilize resources such as pre-arrest diversion and crisis intervention when making contact with people obviously in need of assistance. Jail administrators must adhere to the requirements outlined in bail reform legislation mandating that people arrested for most non-violent charges be released on their own recognizance.  Atlanta judges must honor the constitutional mandate that they not assess bail or fines at rates accused persons cannot afford.

We need your help to hold Atlanta accountable to vulnerable populations during the Super Bowl.

First, we ask you to support a collaborative effort to observe municipal court proceedings January 31-February 5 at 8:00 AM. Sign up to help here.

Second, we encourage you to contact Mayor Bottoms and your City Councilpersons in support of:

  • Warming shelters remaining open for the duration of the Super Bowl;
  • A directive to law enforcement officers to de-prioritize quality of life arrests and prioritize crisis intervention and direct service referrals;
  • A directive to law enforcement officers to use pre-arrest diversion as often as possible; and
  • A commitment from the City of Atlanta Solicitor General to encourage pre-booking diversion for people brought to the jail for minor offenses.

Sample Script: Hello, my name is [YOUR NAME] and I [LIVE/WORK/WORSHIP] in Atlanta.  I am concerned that homeless and visibly poor people will be displaced and arrested in preparation for the Super Bowl.  I am part of a larger community that supports a more humane and moral approach to the issues of poverty and homelessness and ask that instead of increasing arrests, the city (1) keep its warming shelters open for the duration of Super Bowl events; (2) encourage law enforcement officers to refer persons in need to the Pre-Arrest Diversion program or other direct service providers; (3) encourage the Atlanta Solicitor General to support pre-booking diversion; (4) require that jail administrators closely adhere to the bail reform ordinance passed  unanimously by City Council in 2018; and (5) require  judges to honor the Constitution by not assessing fines, fees and bail that accused people cannot afford.  Thank you.

 

 

Legislative Updates

Today is the fifth day of the 2019 Legislative session, and things are in full swing.  As we reported last week, there were a lot of changes to the Georgia General Assembly in the last election. While we don’t know how the new administration will respond to our demand for continued criminal justice reform yet, we do have some exciting updates to share with you.

Legislative Updates

It is still very early in the session, but we are already tracking the following bills that will impact the state’s criminal legal system:

HB 20 – prohibits persons convicted of family violence offenses from possessing or carry firearms

SB 15 – “Keeping Georgia’s Schools Safe” – proposing recommendations from the report by the Senate School Safety Study Committee

SB 23 – prohibits the movement of trailers and semitrailers on highways, unless transporting people or property

SB 25 – clarifies the law on overtaking a school bus by specifically allowing drivers to pass when there is a median, unpaved area or physical barrier

SCHR will provide updates on these and all other bills introduced this legislative session related to criminal justice reform.

Advocacy for Criminal Justice Reform in 2019

The Justice Reform Partnership (JRP), led by SCHR, continues to grow around the state, and partners will work together this session to ensure criminal justice reform is a priority in 2019. Along with the annual Justice Day at the Capitol on February 26th, JRP will also host an eight-week series at the capitol called Talk Justice Tuesdays (TJT) in which partners will focus on specific issues and opportunities for reform this session.

Last Tuesday, SCHR hosted the first TJT – The Road to Criminal Justice Reform in 2019. More than 30 people attended, and the group discussed expectations for criminal justice reform in 2019, important legislative committee assignments, and identified the issues we expect will be considered this year: mental health, bail, dignity for incarcerated women, solitary confinement, expungement, and voting rights.

There will be several other chances to come to the capitol to discuss important criminal justice issues and push for real reforms that will benefit all Georgians. You can find the full schedule for the remaining here: www.JusticeDay365.com.

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.