Craig Rixner walked out of the Elayn Hunt Correctional Center in St. Gabriel, Louisiana, last Wednesday after nearly 26 years in prison. It was a joyful day—filled with shrimp po boys, new clothes from Walmart and texts from many of his 28 nieces and nephews—but one with an ominous edge. Rixner was returning to a city, state and country that had mostly shut down during an unprecedented pandemic.
“It was beautiful walking out of the prison, but it was also scary,” Rixner said in a phone call the next day. “Because I didn’t know what I was walking into.” His 83-year-old mother, who breathes with an oxygen tank, couldn’t be there to greet him—she was sheltering-in-place in New Orleans. Waiting for him in the parking lot were the executive director of the nonprofit Louisiana Parole Project, which had fought for his release, and the law student who worked on his case. Rixner, despite the warnings, gave her a hug.
Coming home after decades behind bars is always disorienting. But for the people being released in the time of coronavirus, the experience is particularly jarring—trading the fear of getting sick in captivity for a curtailed, isolated kind of freedom. Nonprofits and social service agencies that support them are overwhelmed, short-staffed or moving most of their programs online. Family members they’ve waited years to reunite with are huddled at home. Food service and other industries that might hire a formerly incarcerated applicant have been decimated. And many small, everyday liberties are now a public health risk.
“Before coronavirus, where the average person dreaded going to the grocery store, my clients looked for a reason [to go]. Little things like that bring them joy,” said Andrew Hundley, director of the Louisiana Parole Project, which helps incarcerated Louisianans prepare for parole hearings and supports them after their release. “Our clients are in some sense better emotionally prepared [for distancing]. But you want to be around people and in public places… so bad, because you’ve been in isolation for so long.”
Many service providers say they’ve been struck by their clients’ resilience as the free world unravels. Some have been emotionally supporting family members, sharing tools they used in prison to structure and pass time. Mostly, they are grateful to be facing COVID-19 on this side of the prison walls. “If it spreads inside the prison, those guys are really scared. They walk around with handkerchiefs around their face,” Rixner said. “The guys in prison feel there’s nothing going to be done for them, that they’re just going to let them die.”
Rixner worried he might not get out at all. Within prisons and in online forums for family members of incarcerated people, many are confused about whether releases are still happening during statewide shutdowns. “They were saying, ‘they ain’t letting nobody out. You gonna be here for a while,’” Rixner said, of the rumors spreading inside. He had been approved for parole on March 11, and worried up until the day before his release that prison officials would not let him go. (All parole hearings in Louisiana have since been suspended.)
Attorneys and advocates across the country are pressing states to free even more people, regardless of whether they’ve finished their sentence. Last week, U.S. Attorney General William Barr ordered the federal Bureau of Prisons to place more “at-risk inmates who are non-violent” on home confinement, to protect some of the oldest and sickest in their custody. Local jurisdictions across the country have been releasing people from jail and prison to ease overcrowding. But what awaits them when they come out to a socially distanced world in the middle of an economic crisis?
Groups supporting prison re-entry are scrambling to adapt. Many organizations used to connect with clients while they were still incarcerated, to make a plan for release. But as prisons nationwide ban visits and volunteer programs to deter the virus’s spread, it’s getting harder to reach people inside. Advocates and attorneys are trying to arrange phone calls or video visits instead, though some say corrections officials have been unresponsive. Most check-ins with parole or probation officers are now by phone.
Organizations that provide walk-in services are also getting creative. A New Orleans nonprofit called The First 72+ has offices and transitional housing across the street from the Orleans Parish Prison, so people could walk straight from the prison to meet a counselor, set up a doctor’s appointment or apply for benefits. Now, instead of providing in-person assistance, they keep a cordless phone in the mailbox on their front porch, alongside a list of mentors’ phone numbers. Residents watch to see if someone uses the phone, then wipe it down with disinfectant.
“Our residents were adamant that we provide as many services as possible,” said co-director Kelly Orians. “They were the first to recognize that it’s going to be devastating when you realize this moment you were looking forward to for decades might be a part of one of the worst moments in human history.”
Reporting on the COVID-19 pandemic, criminal justice and immigration.
With a signature from Gov. Jared Polis, Colorado on Monday became the 22nd state to abolish the death penalty. But the governor’s long-planned intervention comes at a moment when capital punishment is already at a standstill across the nation for a very different reason: coronavirus.
The growing global pandemic—reaching 163 countries and more than 15,000 deaths—has at least temporarily saved two condemned men from execution in Texas, with more delays sought elsewhere. The pandemic has also stopped trials in which the death penalty was being sought. It has even upended the process for defense attorneys to try to exonerate their clients facing capital punishment.
“Almost every aspect of legal representation is at a halt in the judicial system,” said Amanda Marzullo, a consultant with the Innocence Project. “People are effectively unable to prepare and investigate their cases.”
The first delay came in Texas, where an appeals court pushed back the scheduled March 18 lethal injection of John Hummel. The Tarrant County man’s lawyers arguedthat the number of people gathering to witness and carry out the execution would risk spreading the virus. Days later, the same court postponed the March 25 execution of Tracy Beatty, giving him a similar 60-day delay “in light of the current health crisis and the enormous resources needed to address that emergency.”
In both cases, prosecutors opposed the requests to call off the executions, and Texas Department of Criminal Justice officials said they could still safely carry out the lethal injections, even after they’d barred visitors from prisons across the state.
In addition to halting executions, the coronavirus has also disrupted an exoneration. In Pennsylvania, Walter Ogrod was about to be released after more than two decades on death row for the murder of 4-year-old Barbara Jean Horn, according to the Philadelphia Inquirer. Prosecutors had agreed he was “likely innocent.” Then, the 55-year-old began coughing and developed a fever—symptoms of the COVID-19 virus. Over the weekend, a judge ordered that he be transferred from death row to a hospital outside prison.
Executions are frequently put on hold due to Supreme Court decisions and lethal injection drug shortages, but rarely do natural events play such a disruptive role. One example was in 2017, when Juan Castillo’s execution was delayed after Hurricane Harvey hit Texas. (He was executed the following year despite his long-standing claims of innocence.)
And more stays may be coming. Last week, lawyers for Oscar Smith asked the Tennessee Supreme Court to delay his June 4 execution. They said they plan to ask Gov. Bill Lee for clemency but cannot put together an application “without putting themselves and others at risk” of contracting the virus. Executions are also scheduled for May in Missouri and June in Ohio, although the latter state lacks lethal injection drugs. Several other defense lawyers told The Marshall Project they plan to ask for delays.
Robert Dunham, executive director of the Death Penalty Information Center, did not find the delays surprising.
A few weeks ago, I found myself watching the TV news from here in a Washington state prison, while drinking my morning coffee. This was my normal routine. Apparently, there had been some sort of an outbreak in China that officials were starting to call the coronavirus.
At the time, I didn’t pay much attention. Like most things, I figured it was far away—everything can feel especially far away when you’re in prison—and would hardly have an effect on me or those around me.
In fact, my fellow prisoners and I were essentially joking about how the world was coming to an end. A good friend of mine and I are huge fans of apocalyptic movies and shows, so we started to shoot the breeze about how a zombie virus had taken hold in China and would soon spread across the globe. I remember telling him in jest, “This is it, my friend. We better stock up on food and be ready with a plan of defense.” He laughed. We discussed how we could make body armor out of magazines and where we would steal the tape to do so.
But before long, we learned from TV not only that the virus had spread throughout the world, but also that the state of Washington had become the United States’s ground zero. As each day passed, the numbers continued to get worse. The nursing home where the national news was saying that so many people were infected was less than 20 miles away from us.
Like everyone in the free world, those of us on the inside began to worry about our families, especially our older folks, and their safety in the face of an unknown predator. Even in the best of times, it’s hard to know how our families are doing.
And then we started to wonder about our own safety. What measures were being taken to safeguard us from the spread of the virus within the crowded prison walls? We knew that on the outside, people were buying everything they could to prepare for disaster, especially toilet paper.
Toilet paper scarcity is no stranger to us—having more than two rolls in your room at any given time is an infraction—so we became focused on the things we weren’t prepared for, and just how little we each have in our cells for protection. We don’t have cleaning wipes, alcohol-based hand sanitizer (it’s contraband), or anything else that the CDC is recommending citizens use to prevent spreading the virus. The only cleaning solution we have is a mild “all-purpose cleaner” that is not germicidal and, rumor has it, is safe enough to drink.
As the virus continued to spread in the outside world, I along with many others inside waited for instructions on what we would do to keep the prison prepared for when it came knocking on our door—or rather came knocking on our sally ports, metal bars, and barbed-wire fences.
Prisoners and corrections officers alike inquired about what was being done to disinfect the facility. The unit porters (prisoners who work as janitors) usually can’t use bleach on the common areas. Having a small amount of bleach, even if you’re just using it to clean, will get you in trouble.
Eventually though, I noticed that the porters were given spray bottles filled with diluted bleach to wipe the living areas down. Nevertheless, one cannot expect someone who is paid at most $55 a month for full-time work to do a thorough, painstaking job of cleaning.
On one wall, non-alcohol based sanitizer was taped there without a proper dispenser; it’s just a useless substance sloshing around in a plastic pouch. Even things like cleaning rags can be impossible to find, which is difficult to comprehend, as there are large bins of old scraps in our clothing room. Possessing too many rags is also considered contraband, and could get you an infraction, which could mean losing recreation or getting sent to solitary.
The DOC has sent out messages to prisoners via paper handouts instructing us to keep our hands clean, not to touch our faces, and to clean our cells. But how can we do any of this if the proper cleaning equipment is criminalized?
I was not surprised last week when an employee who works in the living units opposite of mine tested positive for COVID-19. After that, they posted signs down by the phones instructing us to put a sock—yes, like you wear on your foot—over the phone receiver before using it in order to avoid spreading germs. There was no mention of where these socks were meant to come from; we’re only allowed a few socks at any given time or we risk being written up.
The most drastic measure they’ve taken so far is putting the entire side of the prison where the employee worked on “quarantine.” My fellow prisoners on quarantine are functionally on lockdown, which is what happens when there’s something like a fight. They are confined to their windowless cells for almost the entire day.
Some sheriffs, prosecutors and defenders scramble to move people from local jails, potential petri dishes for infection.
In Houston, the massive county jail has stopped admitting people arrested for certain low-level crimes. In Tulsa, Oklahoma, people who usually spend their days fighting with each other—public defenders and prosecutors—joined forces to get 75 people released from jail in a single day. And outside Oakland, California, jailers are turning to empty hotel rooms to make sure the people they let out have a place to go.
Across the country, the coronavirus outbreak is transforming criminal justice in the most transient and turbulent part of the system: local jails. Run mostly by county sheriffs, jails hold an ever-changing assortment of people—those who are awaiting trial and cannot afford to pay bail; those convicted of low-level offenses; overflows from crowded prisons.
Even without a global pandemic, many local jails struggle to provide adequate medical care for a population that is already high-risk: many people in jails suffer from addiction or mental illness. Some have died after lax medical care for treatable illnesses.
“Basically, the shit hit the fan,” said Corbin Brewster, chief public defender of Tulsa County. “COVID-19 is just a magnifying glass for all the problems in the criminal justice system.”
Local officials’ responses have run the gamut. In the crisis of the moment, some are adopting measures long urged by criminal justice reformers: declining to prosecute or freeing people who have committed drug offenses or nonviolent crimes; releasing the sick or elderly; trying to reduce the jail population. For example, officials have been temporarily transferring some at-risk detainees to housing units in Kent, Washington, which were built to house homeless people.
But others have stuck to tough-on-crime tactics or rhetoric. The sheriff in Bristol County, near Boston, argued the incarcerated would be safer locked up, as would the public.
Because millions of people each year cycle in and out of jail, experts have long warned that these lockups have the potential to be petri dishes of infection—an assertion coronavirus will test.
Already, at least one correctional officer and one prisoner at New York City’s Rikers Island jail have tested positive for the virus; others are under quarantine after exhibiting COVID-19 symptoms. Quarantines are also underway in Silicon Valley, where a public defender who visited a Santa Clara County jail tested positive for coronavirus. The jail in Washington, D.C., began a quarantine of 65 detainees starting March 13 after a potential exposure during a trip to court.
At last count, federal data showed 758,400 people held in 3,100 local jails—but that number is only a snapshot at midyear 2019. The Prison Policy Initiative, a research and advocacy group, estimates that 4.9 million people flow through jails each year.
“It’s not like if there’s an outbreak in the jail, it stays in the jail,” said Jacob Reisberg, jails conditions advocate for the ACLU of Southern California.
Here are snapshots of how some of the largest jail systems in the country are managing in the coronavirus era.
Jeffrey D. Stein is a public defender in Washington, D.C.
Your client is desperate, stripped of freedom and isolated from family. Such circumstances make those accused of crimes more likely to claim responsibility, even for crimes they did not commit. A 2016 paper analyzing more than 420,000 cases determined that those who gained pretrial release were 15.6 percentage points less likely to be found guilty. Not surprisingly, prosecutors commonly condition plea offers on postponing hearings where defendants may challenge their arrests and request release.
In what little time exists before the plea expires, you dispatch your overworked investigator to identify, find and interview witnesses. In federal and in many local courts, the prosecution is not obligated to reveal its witnesses before trial. You and your investigator do your best to assess whether the case rests on unreliable eyewitnesses, faulty assumptions or witnesses with reasons to fabricate an account, which you cannot fully explore because — remember — the prosecution has not even disclosed who they are.
Why not ask your client for leads? That might work if the person were guilty. Innocent clients are generally the least helpful, because they often cannot tell you what they don’t know.
You lay out options for your client. You could go to trial, but that might mean waiting in jail for months, if not years, before a jury hears the case.
The idealist in you — the one who enrolled in law school to “change the system” and to fight for justice on behalf of those who need it most — hopes your client will proclaim a decision to go to trial. But a wary voice in the back of your head reminds you of the risk and life-altering consequences of losing.
You think back to a man who once visited your office for help getting the record of his sole conviction sealed. Before the conviction, he had a job, a girlfriend and a newborn daughter. Then he lost a drug case in which a pistol was found nearby. At sentencing, the judge acknowledged the inappropriateness of the five-year mandatory minimum and even asked the prosecution to consider dismissing the charge that carried the mandatory time. It didn’t. When he eventually got out, you couldn’t even help him seal his record so he could move forward with his life because, in your jurisdiction, felonies can never be sealed.
It is hard to fathom how they got here but the West Virginia Division of Corrections and Rehabilitation is charging inmates to read!
As part of their contract with a private company inmates are provided “free” tablets in which they can access Project Gutenberg, an emporium of free, public domain texts.
Sounds great right?
Well, seems like free ain’t free.
From the Appalachian Prison Book Project:
The per-minute charge will bring in far more profit than an e-book vendor who charges a set price for downloads, as the cost to read a book far exceeds the cost to purchase one. And that cost will be especially unfair to new readers and people with dyslexia.
The paperback version of 1984 is about 330 pages. It will take a person who is able to read 30 pages per hour about 11 hours to read the novel. At the discounted $0.03/minute usage fee, 11 hours of reading a free book will cost a person about $19.80—and this is if you don’t stop to think or re-read.
The prison system receives a 5% commission on the revenue from this program.
Oh, and the average wage for a WV prisoner is 30 cents an hour.
The Texas Department of Criminal Justice is changing its visitation, mail and commissary policies for Texas prison inmates in ways which seem arbitrary and unnecessary.
Let’s start with visitation. TDCJ will begin running a drug-sniffing dog past all potential visitors, even children, and deny entry if the dogs alert. If a dog alerts twice, that person will be denied entry permanently.
The move is being billed as preventing contraband smuggling, but that doesn’t justify it. For starters, nearly all the contraband smuggling is done by guards, and the biggest problem is the agency can’t fire them because they wouldn’t have enough people to staff the prisons.
Consider this example from the French Robertson Unit in Abilene last year:
A list obtained by KTXS from the Texas Department of Criminal Justice (TDCJ) said that 51 French Robertson Unit staff members were disciplined and one of those staff members was fired for bringing in contraband between January 1, 2013 to July 3, 2019, a six-and-a-half-year span.
The TDCJ also said that out of the 400 staff members at the French Robertson Unit, the number of contraband disciplines “are below average for disciplinary action and contraband issues as compared to the other 103 state prisons in Texas.”
So one staffer out of 400 was fired for bringing in contraband to the prison, while 51 were allowed to continue working there. And that’s “below average” for other units. So it takes a lot of chutzpah for TDCJ to blame families for contraband! That’s absurd.
Anyway, why not just run the drug dog past inmates before they go back to their cell, or search them, for that matter, if need be. If you’re trying to find contraband, the policy makes no sense.
Theophalis Wilson was released on Tuesday after a Philadelphia court vacated his wrongful conviction and dismissed all charges against him. He is the 12th person exonerated by District Attorney Larry Krasner’s Conviction Integrity Unit (CIU).
Mr. Wilson was arrested and charged with murdering three people in North Philadelphia when he was just 17 years old. Mr. Wilson and his 29-year-old co-defendant, Christopher Williams, were convicted in 1993. Because he was under 18, Mr. Wilson was automatically sentenced to life imprisonment without parole; Mr. Williams was sentenced to death.
As the Philadelphia Inquirer reported, the prosecution’s case turned on the testimony of James White, a six-time convicted first-degree murderer who claimed to be an accomplice in the murders. Prosecutors admitted in a court filing in 2001 that they had no case against Mr. Wilson or Mr. Williams “unless the jury believed White.”
At a 2013 hearing in Mr. Williams’s case, James White admitted that he lied at trial in exchange for a plea agreement to avoid the death penalty. Forensics experts also testified that the physical evidence discredited Mr. White’s story that the three men were shot and pushed out of a moving van. The court granted Mr. Williams a new trial because his trial lawyer failed to present this expert evidence, which “would likely have changed the jury’s mind” about believing Mr. White and resulted in acquittal.
But even after its crucial witness was completely discredited, the District Attorney’s Office planned to retry Mr. Williams. In response to pretrial discovery requests, prosecutors steadfastly refused to turn over their case file to the defense. READ THE REST