After Brief Sunshine, Darkness Again at LA Family Court….Mental Retardation and the Death Penalty…Alabama’s Women’s Prison Problem….& MoreMarch 4th, 2014 by Celeste Fremon
FAMILY COURT, WHERE FOSTER CARE CASES ARE DECIDED, IS CLOSED TO PRESS AGAIN IN AN APPELLATE COURT RULING MONDAY
On Monday, in a 2-1 decision, a California appeals court closed off press access to LA’s Juvenile Dependency hearings—aka where foster care cases are decided—in all but a few instances.
The ruling came more than two years after Judge Michael Nash, the presiding judge of the county’s juvenile court, issued a blanket order opening the long-shuttered court system to the press, on January 31, 2012.
In Nash’s original order, there was a fail safe system to further ensure that kids were protected. The way it worked was simple: if there was clear evidence that media presence would be harmful to the children involved in any given case, the press would be excluded. Otherwise, they would be allowed—very carefully—in.
Those who objected to the blanket order seemed to envision crowds of insensitive reporters storming the hearing rooms, but in fact very, very few reporters showed any interest.
Those few who did show up, seemed to tread very carefully and took pains to protect the privacy of the kids involved in any case they were covering.
After all, the point of opening the courts in the first place was to shed some light on a secretive system that is, in so many ways, terribly broken.
According to the appellate ruling, however, in one particularly difficult case in February 2012, the attorney of a fifteen-year-old girl—who was the eldest of five children siblings involved—objected to press presence in behalf of her client, who had allegedly been badly assaulted by her dad.
An LA Times attorney, who was present with a Times reporter, pushed back against the objection.
A lengthy legal battle ensued, and Monday’s ruling was the result.
In reading the court’s opinion, it is unclear why the LA Times chose to go to the mat on this one case, where there was such a virulent objection. It is also unclear whether it was really the 15-year-old girl who objected or merely her attorney.
In any case, whatever the individual motives of the adults, the result is that the press is once again excluded from child dependency court. Thus a much-needed check-and-balance to the functioning of LA’s foster care system in its dealings with our county’s most vulnerable kids….is no more. Which is very, very unfortunate.
The LA Times Garrett Therolf has written a story about the decision too, and reports that Judge Nash said Monday he would soon issue a new order complying with the appellate court decision and laying out a new procedure for journalists and members of the public seeking access to dependency hearings.
(This is very good news.)
“Over the last two years, I’m somewhat disappointed that there were not [more] visits to the court by the media. Other than that, I think the old order went well,” Nash said.
POST SCRIPT: A hat tip to the Chronicle of Social Change for alerting us to the fact that the ruling had come down.
WHEN IT COMES TO THE DEATH PENALTY WHO IS MENTALLY DISABLED?
In 2002 the U.S.Supreme Court ruled that those suffering from mental retardation should be excluded from execution. However, in the case known as Atkins v. Virginia, the court failed to actually set down guidelines to help determine exactly what amounted to the kind of mental disability that the justices intended with their ruling.
On Monday, March 3, SCOTUS heard a case that may force the Supremes to lay down such guidelines—or leave the matter to the states.
The excellent Irwin Chemerinsky, Dean of the UC Irvine School of Law explains the case and what it could mean for the issue in an essay for the ABA Journal.
Here’s a clip:
Freddie Lee Hall was tried and convicted for a murder that occurred in 1978. At a hearing on whether to impose the death penalty, Hall’s lawyers presented evidence that he is mentally retarded. His teachers had identified his mental disabilities and labeled him “mentally retarded.” Doctors who examined him concluded that Hall was “extremely impaired psychiatrically, neurologically and intellectually,” that he showed signs of “serious brain impairment,” and that he “is probably incapable of even the most … basic living skills which incorporate math and reading.” On intelligence tests, his IQ measured at 60, 76, 79, and 80, all in the range of being mentally retarded. Nonetheless, the Florida trial court sentenced him to death.
In 2001, Florida enacted a statute that prohibits the execution of persons with mental retardation. The law defines mental retardation as “significantly sub-average general intellectual functioning” as measured by a “performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules.” In 2007, the Florida Supreme Court interpreted this law to mean that only those with an I.Q. score of 70 or below qualify as mentally retarded. Cherry v. State.
In 2009, a hearing was held on whether Hall was mentally retarded. An expert testified that he had administered an IQ test to Hall–the Wechsler Adult Intelligence Scale-III–and Hall scored 71. Another expert testified that Hall’s IQ was 73. The trial court concluded that Hall could be executed by Florida because his IQ was above 70.
Florida is one of 10 states with laws that define mental retardation solely based on whether a person has an IQ score of 70 or lower. Two other states set a cutoff of an IQ of 75 or lower. The question before the Supreme Court is whether this approach to defining who is mentally retarded is consistent with the Eighth Amendment.
This is an issue that the Supreme Court has avoided since its 2002 decision in Atkins v. Virginia, which held that the “mentally retarded should be categorically excluded from execution.”
Read the rest here.
And for NPR, Nina Totenberg also has an explanatory story on the Monday’s case.
AND….Lyle Denniston at SCOTUSBlog has a terrific and prognosticative analysis of the Supremes attitudes as they heard the case on Monday morning.
Here’s a clip:
If a state, trying to make it simple to decide who can be given a death sentence, opts for a choice that looks arbitrary, it is likely to have a difficult time in a Supreme Court that worries about the chances of error. That was demonstrated anew on Monday, when Florida found itself in deep Eighth Amendment trouble with a rule that anyone with an IQ above 70 can be executed if convicted of murder.
A quite definite majority of the Justices — perhaps, notably, including Justice Anthony M. Kennedy — left little doubt that Florida and six other states will not be allowed to maintain an automatic test-score-based cutoff for those who could qualify as mentally retarded and thus can escape the death penalty.
Kennedy’s role is central because he has most often led the Court in narrowing the category of those eligible to be executed, to take account of reduced capacity to be held responsible for their criminal behavior. He was among the most active in questioning Florida’s approach to mental retardation among those on death row. And, on Monday, he added in some strongly implied criticism of a system that allows some inmates to remain on death row for decades….
HOW WILL ALABAMA HANDLE ITS CRISIS IN ITS WOMEN’S PRISONS?
Investigative reports into conditions at Alabama’s Tutwiler prison for women have described a damning situation in which “officers have raped, beaten and harassed women inside the aging prison here for at least 18 years,” writes Kim Severson for the NY Times.
An official in the civil rights division of the U.S. Department of Justice points to “a very strong case of constitutional violations.”
There is a toxic, highly sexualized environment that has been met with “deliberate indifference on the part of prison officials and prison management,” said Jocelyn Samuels, the acting DOJ assistant attorney general for civil rights, of Tutwiler.
Yet, in Severson’s straight-talking story she reports that it is unclear if the state’s elected officials have the political will to actually solve the mess in which conditions are allegedly substandard and sex is a traded commodity.
Here’s a clip:
“No one wants to be soft on crime, but the way we’re doing this is just stupid,” Mr. Ward said.
Still, in many corners of Alabama, a state where political prominence is often tied to how much a candidate disparages criminals, the appetite for change remains minimal.
The Legislature is in the middle of its budget session, working over a document from Gov. Robert Bentley that includes $389 million for the state’s prisons. That is about $7 million less than last year’s budget.
The Department of Corrections argues that it needs $42 million more than it had last year. Alabama prisons are running at almost double capacity, and staffing is dangerously low, said Kim T. Thomas, the department’s commissioner. He said he would use about $21 million of his request to give corrections officers a 10 percent raise and hire about 100 officers.
The odds of approval for that much new money are not great, but they are better this year than they have been in a long while, said Stephen Stetson, a policy analyst with Arise Citizens’ Policy Project, a liberal policy group.
Even so, “for the average legislator, it’s still, ‘These bodies don’t matter,’ ” he said.
For some of the prisoners’ accounts, read the rest.
THE STORY OF THE FOUR PRISON GANGSTERS WHO LAUNCHED A 30,000 INMATE HUNGER STRIKE FROM PELICAN BAY’S SHU
I wondered when someone would tell this story and now reporter Benjamin Wallace-Wells has written a very smart account for New York Magazine. (But why did it take an out-of-state media outlet to publish it?)
In any case, this is a well-reported, intelligently-written story that neither advocates nor judges. We didn’t want you to miss it
Here’re some clips:
In July 8 of last year, a 50-year-old man named Todd Ashker, an inmate at California’s Pelican Bay State Prison, began a hunger strike. He had compiled a list of demands, but the essential one was that the policy that dictated the terms of his imprisonment be abolished. Ashker was housed in Pelican Bay’s Security Housing Unit, the most restrictive prison unit in California and a place of extreme isolation. Convicts stay in their cells 23 hours a day and leave only to exercise in a concrete room, alone; their meals are fed into their cell through a slot. Other than an awareness that they are staring at the same blank wall as seven other men kept in their “pod,” they are completely alone. Ashker has been there since 1990; in his view, he has been subject to nearly a quarter-century of continuous torture. “I have not had a normal face-to-face conversation with another human being in 23 years,” he told me recently, speaking from the other side of a thick plate of glass.
The sheer length of time inmates spend here has made Pelican Bay a novel experiment in social control. The California prison system allows any confirmed gang member to be kept in the SHU indefinitely, with a review of his status only every six years. (Prisoners who kill a guard or another inmate, by contrast, are given a five-year term in the SHU.) This policy has filled Pelican Bay with men considered the most influential and dangerous gang leaders in California. Ashker, allegedly a senior member of the Aryan Brotherhood, had for years shared a pod with Sitawa Jamaa, allegedly the minister of education of the Black Guerrilla Family, and Arturo Castellanos, allegedly an important leader of the Mexican Mafia. In the next pod over was Antonio Guillen, allegedly one of three “generals” of Nuestra Familia. According to the state, these men have spent much of their lives running rival, racially aligned criminal organizations dedicated, often, to killing one another. But over a period of years, through an elaborate and extremely patient series of conversations yelled across the pod and through the concrete walls of the exercise room, the four men had formed a political alliance. They had a shared interest in protesting the conditions of their confinement and, eventually, a shared strategy. They became collaborators.
[UC Santa Cruz professor Craig] Haney visited Pelican Bay three years after it opened and surveyed 100 SHU inmates as an expert consultant to a prisoner lawsuit challenging the unit’s constitutionality. On his first day at the prison, the psychologist saw such florid psychosis that he called the attorneys and urged them to emphasize the confinement of the mentally ill. Once Haney began his interviews, he found serious psychological disturbances in nearly every prisoner. More than 70 percent exhibited symptoms of “impending nervous breakdown”; more than 40 percent suffered from hallucinations; 27 percent had suicidal thoughts. Haney noticed something subtler, too: A pervasive asociality, a distancing. More than three-quarters of the prisoners exhibited symptoms of social withdrawal. Even longtime prisoners reported feeling a profound loss of control when they entered the SHU, in part because they weren’t sure whether they’d ever be released. Many reported waking up with a rolling, nonspecific anxiety. The SHU “hovers on the edge of what is humanly tolerable,” wrote Thelton Henderson, the federal judge who decided the prisoner lawsuit in 1995. You can sense a vast uncertainty in that first word, hovers. The judge ordered major reforms—the seriously mentally ill, for instance, could no longer be housed there—but he let the SHU stand.
That was more than 18 years ago. Some of the same prisoners are still there. Haney returned to Pelican Bay last year, for a follow-up study, and found that these patterns of self-isolation had deepened. Many inmates had discouraged family members from visiting, and some seemed to consider all social interactions a nuisance. “They have systematically extinguished all of the social skills they need to survive,” Haney says. Those inmates who do comparatively well tend to replace the social networks outside the SHU with those within it—which, in a society composed of alleged gang members, often means gangs. “In isolation,” he says, “gang activity is the only contact that is possible; it is the only loyalty that is possible; it is the only connection that is possible.”
Read the whole, if you have the time. Clipping this story doesn’t do it justice.