DBA Press/Center for Media and Democracy Report (May 20, 2013)
PHOTO: PHX PD riot cop motorcycles at an Occupy Phoenix protest of Freeport MacMoran, February 2012. Chalk art and digitally rendered image by suspected anarchist/possible terrorist Margaret J Plews.
Abolish the PRISONS!
PARSONS v RYAN is a certified CLASS ACTION!
Thank you not only to all the legal staff who brought it this far, but also to Wendy Halloran, KPNX, and the families who have survived the horrors of prison violence in this state with a resolve to make sure that the gross indifference to human life at the AZ DOC kills no more.
ABOLISH THE PRISONS!
May 22, 2013:
On Loving to Hate Jodi Arias...
This is to all you visitors “enjoying” reading about Jodi Arias' future in my blogs, which I write largely for those who have lost loved ones in az prisons or are fighting to keep them alive through their sentences:
It is clear that your desire for vengeance is far greater than any yearning for true justice to prevail in the world, for you are celebrating the suffering of others. Please remember how happy you were that Jodi Arias would be miserable next time a young women who was sexually abused by a guard hangs herself in that prison, and know you had something to do with creating the culture of dehumanization and vindictiveness that makes that so likely to happen these days.
Perryville prison has killed many women through abuse and neglect, sometimes quite hideously – Google Marcia Powell, for one. No one deserves that kind of death. Most women there are mentally ill and survivors of trauma and shouldn’t even be in prison but for Arizona’s grossly inadequate mental health system, the right wing's contempt of the poor and people of color, and this overall fascist police state we live under.
In any case, by saying that it’s okay for the killers among them to be condemned to less-than-constitutional conditions of confinement, you lower the chances of survival of other women warehoused at Perryville as well. So, to those of you who truly care about “justice” – please just think on that before you pat the AZ DOC on the back for hurting and killing their prisoners as they do.
Wednesday, June 19, 2013
I'm currently compiling a report on the violence in the state prisons to submit to the US DOJ and ask for their intervention in the way of a federal investigation about policies and practices since Charles Ryan took over that have resulted inthe escalating level of violence and despair at the AZ DOC. If anyone has any information about this homicide or any other act of violenc ea tthe AZ DOC, please send it my way (Peggy Plews) at firstname.lastname@example.org.
Here's the DOC's news release. Condolences to this prisoner's family, if there's anyone left out there for him.
Sunday, June 16, 2013
Ironically, in the same session in which they took this $50 million from people victimized by forclosures, the legislature decided to invest $50 million in the building of a new Supermax prison in Buckeye. Perhaps the Legs figure that at least these families and their children can inhabit it if they are unable to recover from the recession. Some "re-investment in the community," eh? I don't recall Tom Horne being among those of us who protested that new prison down at the legislature...
June 11, 2013
Thousands of Arizona families have lost their homes in illegal foreclosures.
Illegal foreclosures are based on forged or phony documents manufactured to push people out of their homes.
Banks and processing companies agreed to pay billions of dollars in settlements to the states.
While they did not admit any wrongdoing, they pledged to stop using forged documents to foreclose.
The ABC15 Investigators found more than a year after that settlement, little has changed.
Victims of illegal foreclosures in Arizona have yet to be compensated—not a dime has been paid out.
And some say the use of forged documents in foreclosures continues here in our state.
THE ANATOMY OF AN ILLEGAL FORECLOSURE
With the collapse of the housing market, many homeowners asked their lenders to modify their mortgages.
Homeowners were told they could get a modification, but only if they stopped paying their mortgages for three months and fell into default.
When homeowners followed that advice—instead of a modification, the banks foreclosed.
Many Arizona homeowners who challenged the foreclosures in court discovered they were done with fraudulent documents.
IS HELP FOR VICTIMS OF ILLEGAL FORECLOSURES ON THE WAY?
On February 9, 2012, Attorney General Tom Horne held a news conference boasting that Arizona was part of a $25 billion national settlement with five of the nation’s largest banks.
Horne said, “The fact that many people who lost their homes who didn’t deserve to is a terrible tragedy.”
At the time Horne announced they had put a stop to the robo-signing and forgery of foreclosure documents.
And the Attorney General announced Arizona’s share of the settlement would be $110 million.
Horne said that money would be used to compensate the victims.
But more than a year later, the ABC15 Investigators have found Arizona victims are still waiting for help.
Attorneys Dan McCauley and Beth Findsen are two of a small handful of lawyers who go to court to fight for the victims of illegal foreclosure.
Dan McCauley said, “I’ve seen nothing go to the victims, nothing from the state of Arizona at all.”
Beth Findsen told us, “I have yet to see one dollar awarded to a homeowner."
What’s worse the lawyers say—the use of fraudulent documents in foreclosure cases hasn’t stopped.
McCauley said, “It’s not just the financial rape of the middle class. It’s a crime."
Findsen said, “The banks are getting away with murder.”
Both attorneys say they are still seeing foreclosure cases based on bogus documents.
FORECLOSURE FRAUD VICTIMS SPEAK OUT
Chances are you know somebody like the victims ABC15 spoke to.
Mike Brosnahan is a husband and father of two.
He is fighting to stay in the home he built in Sedona.
He has fought all the way up to the Arizona Supreme Court.
Brosnahan told ABC15 Investigators, “All they’re doing is breaking up the American dream and leaving it in shambles.”
Rocky Coronado served in the U.S. Air Force.
The veteran and his wife have been fighting for their home for three years while raising a teenage son.
Rocky said, “I think it demoralizes him.”
His wife Brenda said, “It consumes your waking life.”
Both the Coronados and the Brosnahans insist they are not deadbeats and are not seeking a free house--they just want a fair deal.
They say they paid their mortgages until they were told to stop so they could get a modification.
And now their lawyers say their banks are using fraudulent documents to foreclose and take their homes.
These families are like countless other Arizona victims still waiting for help.
That’s because our state is far behind other states when it comes to distributing those millions of dollars in settlement funds meant for the victims of foreclosure fraud.
The ABC Investigators asked Arizona Attorney General Tom Horne why states like California, Nevada, Maryland, Michigan, Oregon, Florida, Hawaii, and Oklahoma have already cut checks to help out victims but not Arizona.
Horne said, “There was a year lost because of the legislature saying we have to appropriate the money.”
Horne said he had to wait until they gave him permission to use the settlement funds.
He insisted he’s working hard to get the victims help as soon as possible, but he does not have a timetable yet.
Horne also admitted it’s too late for victims who have already lost their homes.
Nobody who has already been foreclosed on and evicted is going to get their house back.
And who gets help may depend on how much money is left because last year the legislature swept $50 million of the $110 million settlement into the state budget—a budget that already had $400 million in reserves.
Horne told ABC15 he fought against the sweep but in the end he had to abide by what the legislature decided.
He points out they could have taken the entire amount of the settlement.
Horne also said he plans to spend another $30 million of the settlement on outreach and marketing.
He said he is also setting aside $4 million to provide legal assistance to homeowners fighting foreclosure.
The victims of illegal foreclosures we spoke to say every penny of the $110 million settlement should have been used to compensate them.
Rocky Coronado said, “It just blows my mind that they could have the nerve to take that money that should have gone to homeowners like us."
Friday, June 14, 2013
So we all know this man is innocent and that the state, citing its rules of order, plans to let him die in prison anyway. That's sick - and unacceptable that it's being done in the name of our public safety. This is a system which serves itself, not justice or the People. It's played by lawyers and judges like it's a game, only they aren't the ones who ultimately pay if they lose...witness the execution of Troy Davis, for example.
Screw the AEDPA and please hit this petition to free Courtney Bisbee,
who has been in prison for 6 years already on maliciously fabricated charges...
No. 10–30443 -- July 19, 2011
Before SMITH, WIENER, and OWEN, Circuit Judges.
Petitioner–Appellant John Kinsel's conviction in Jefferson Parish, Louisiana district court for sexually abusing A.M., the ten-year-old daughter of his girlfriend at the time, was based primarily on A.M.'s trial testimony against him. Eight years later, as an adult, A.M. voluntarily approached the parish district attorney's office to recant her testimony under oath. Kinsel then filed a state postconviction petition, asking for his conviction to be vacated or, in the alternative, for a new trial in light of the newly discovered evidence of A.M.'s recantation. After holding an evidentiary hearing at which A.M. testified, the Louisiana trial court ordered a new trial. The Louisiana appellate court reversed, however, holding that the trial court abused its discretion and dismissing Kinsel's petition for failure to establish a constitutional violation at trial. The Louisiana Supreme Court affirmed without opinion. Kinsel then filed this federal habeas corpus application, which the district court dismissed. For the reasons that follow, we affirm.
I. FACTS & PROCEEDINGS
On January 30, 1997, Kinsel was charged with the aggravated rape of a child—his girlfriend's daughter, A.M. The primary evidence presented against Kinsel at trial was A.M.'s testimony. The only other family member who corroborated A.M.'s testimony was Jason Medlin, A.M.'s older brother, who was fifteen years old at the time. Jason testified that on one occasion Kinsel had told him and his other sister to take a nap while Kinsel went into a room with A.M. Jason testified that he heard “kissing sounds” coming from the room and that A.M. became angry when he asked her about it afterwards.
Dr. Scott Benton, an expert in pediatric forensic examinations, was also proffered by the prosecution. He had examined A.M. on October 9, 1996 and observed “abnormalities” in the area around the hymen, which were consistent with but not indicative of sexual abuse. Dr. Benton's report also indicated that A.M. did not have any vaginal discharge or scars or bruises in the vaginal or anal areas. It also recorded A.M.'s telling Dr. Benton that Kinsel had sexually abused her “every morning” while she lived at her grandfather's house, which was later controverted as an impossibility by the testimony of A.M.'s mother, grandfather, and Kinsel.
The defense presented numerous witnesses that undermined A.M.'s testimony. Adrienne Medlin, A.M.'s mother and Kinsel's girlfriend, testified that she never suspected Kinsel of any sort of child sexual abuse and therefore did not call the police when A.M. first told her of the alleged abuse. Adrienne claimed that she never saw Kinsel act inappropriately with A.M. and that, to the contrary, he acted “like a father” to and was “protective” of all of her children, namely A.M., Jason, and her other daughter from a previous marriage, and her son with Kinsel. Adrienne also testified that, although A.M. claimed that Kinsel sexually abused her every morning at Adrienne's father's house, Kinsel never spent one single night with the family when they were living there. Furthermore, Adrienne noted that when A.M. was two years old, she had placed a crayon in her vagina, which could have caused the slight physical abnormalities noted by Dr. Benton. She explained that she had always suspected her daughter of lying about the sexual abuse because (1) A.M.'s friend had previously falsely accused someone of similar acts, and (2) A.M. had stated that Kinsel had black pubic hair when Adrienne knew that he had blonde pubic hair.
Earl Roberts, A.M.'s grandfather, also testified for the defense, corroborating Adrienne's testimony that Kinsel never stayed at his house when A.M. and her family lived with him. He testified that he never saw Kinsel act in a sexually inappropriate manner. Stacey Plaisance, A.M.'s aunt and Adrienne's sister, testified that “[A.M.] just hated [Kinsel] because he made them pick up their mess and mind their mother. [A.M.'s] always been kind of unruly, smart mouth. She just never had no discipline until [Kinsel] come around. She just resented it, I guess.” And Georgette Evans, a friend of A.M., testified that once when she was alone with A.M. she asked why A.M. had said “all that stuff” about Kinsel, and “[A.M.] said ‘Because whenever he met my mom, I didn't think my mom was happy so I said all that stuff ‘cause I never liked him and I wanted my mom to be happy and I didn't think she was happy.’ ”
Finally, Kinsel took the stand and unequivocally denied all of A.M.'s allegations of sexual abuse, threats, and physical violence. He testified about the hours he worked and about the houses where he stayed with A.M.'s family, implying that it was physically impossible for him to have committed the alleged acts without any other adult being in the house and knowing about it.
The jury found Kinsel guilty as charged of aggravated rape, and the trial judge sentenced him to life imprisonment at hard labor without parole. The Louisiana Fifth Circuit Court of Appeal affirmed Kinsel's conviction,1 and the Louisiana Supreme Court denied relief without opinion on March 28, 2002.2 On March 28, 2003, Kinsel filed a state postconviction petition in the Louisiana trial court, which was denied. The Louisiana Fifth Circuit affirmed, and the Louisiana Supreme Court denied Kinsel's appeal without opinion.3 Kinsel then filed a federal habeas corpus petition, which was dismissed with prejudice by the district court on January 5, 2005. His certificate of appealability was denied on March 15, 2006.4
In May 2005, when A.M. was eighteen years old and living in Colorado, she contacted Kinsel's attorney's office. Kinsel's attorney told A.M. that she could not speak with her because she represented Kinsel but advised A.M. to contact the Jefferson Parish (Louisiana) district attorney's office. A.M. subsequently moved back from Colorado to New Orleans, and, on October 20, 2005, she made a sworn statement to the district attorney recanting her accusations against Kinsel.
On March 14, 2006, Kinsel, acting pro se, filed his second state postconviction petition. His counsel filed a revised petition on Kinsel's behalf on June 1, 2006, asking for his conviction to be vacated or, in the alternative, for a new trial in light of the newly discovered evidence of A.M.'s recantation.
The Louisiana trial court held an evidentiary hearing on October 4, 2006, at which A.M. and others testified. A.M. affirmed her recantation under oath but made misleading statements on cross-examination regarding her recollection and her motivation to make perjured testimony in the first place. The state trial judge concluded:
I'm not sure I believe [A.M.] about whether it happened or not, but I don't know at which time I'm supposed to believe her. So, based on that ․ and also based on reviewing the rest of the evidence and the testimony, I find that in no way can one convict absent her testimony. And, therefore, I have nothing else to hang the conviction on than her testimony.
Based on this reasoning, the trial judge granted Kinsel a new trial.
The State appealed the trial court's decision to the Louisiana Fifth Circuit Court of Appeal. With one judge dissenting, the panel majority held that the district court had abused its discretion in granting Kinsel a new trial and therefore reversed the district court's order.5 The Louisiana Supreme Court denied Kinsel's appeal without reasons on November 9, 2007.6
On April 2, 2008, Kinsel filed his second federal habeas corpus application. The district court transferred the petition under 28 U.S.C. § 1631 to a previous panel of this court to determine whether the successive habeas application should be allowed. We “conclude[d] Kinsel's claim of witness recantation at least warrant[ed] a fuller exploration by the district court” but “note[d] that the district court may dismiss the motion if it determines that this claim does not satisfy the successive standard.” 7
Following our authorization, a magistrate judge first issued a report and recommended that the district judge dismiss the petition as untimely because more than one year had passed between the time that A.M. called Kinsel's attorney and Kinsel filed his federal habeas petition (notwithstanding the time that was tolled for his state postconviction proceedings). The district court disagreed, however, finding that the petition was timely because the statute of limitations had not begun to run until A.M. actually recanted under oath. The district court nevertheless dismissed Kinsel's petition, ruling that the Louisiana Fifth Circuit reasonably applied established federal law and reasonably determined the facts in dismissing Kinsel's postconviction petition. The district court did not expressly consider whether Kinsel had satisfied the standard for filing a successive federal habeas application.
Kinsel timely filed a notice of appeal.
A. Standard of Review
“On appeal from the denial of a § 2254 petition, this court reviews a district court's findings of fact for clear error, and it reviews a district court's conclusions of law de novo, applying the same standard of review to the state court's decision as the district court.” 8 Because Kinsel filed his federal habeas application after 1996, the Anti–Terrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to his claims.9 Pursuant to the AEDPA, a federal court may grant habeas corpus relief to Kinsel only if the state court's adjudication of his claims on the merits:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.10
The Supreme Court has recently made a point to explain that this standard “is a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” 11 Specifically, “for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable,’ the state court's decision must have been more than incorrect or erroneous. The state court's application must have been ‘objectively unreasonable.’ ” 12 In addition, the AEDPA instructs that “a determination of a factual issue made by a State court shall be presumed to be correct.” 13
B. Kinsel's Claim Is Barred by the AEDPA's Bar on Successive Petitions
The AEDPA bars state prisoners from filing second or successive federal habeas applications with one relevant exception:
A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless ․ the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and [ ] the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.14
This actual innocence exception thus allows a petitioner to overcome the AEDPA's bar on successive applications and pass through the “gateway” to argue the merits of his habeas claims if he establishes by clear and convincing evidence that the outcome of the trial would have been different but for constitutional error. In the instant case, we granted Kinsel leave to file this successive federal application, noting that “the district court may dismiss the motion if it determines that this claim does not satisfy the successive standard.” The district court, however, failed to analyze whether Kinsel's claims satisfy the successive standard and instead dismissed the claims on the merits. This was an error,15 and we must first determine on appeal whether Kinsel has satisfied the AEDPA standard.
Kinsel asserts in his application that (1) he is “actually innocent of the crime,” i.e., he did not sexually abuse A.M., as supported by her newly discovered recantation, and (2) his rights “to a fair trial, due process of law, and his right to confront his accusers, in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution” were violated. Although the newly discovered evidence of A.M.'s recantation does call her trial testimony into question, the Louisiana trial judge concluded, not that Kinsel was “actually innocent” and should therefore be exonerated because no reasonable juror could convict him in light of the recantation, but rather that Kinsel was entitled to a new trial because, if reasonable jurors should believe the recantation, none could convict “absent her testimony.” In the end, the trial judge stated that he did not know when to believe A.M.—at trial or at the postconviction evidentiary hearing—and therefore determined that Kinsel should have a new trial. On appeal, the Louisiana Fifth Circuit likewise found A.M.'s recantation to be “unreliable and inconsistent.”
Under the AEDPA, we must presume the correctness of the state court's factual finding that A.M.'s recantation lacked credibility,16 recognizing that credibility determinations in particular are entitled to a strong presumption of correctness.17 Although Kinsel could have rebutted this presumption,18 he has not succeeded in doing so.19 We conclude, therefore, that Kinsel's reliance on A.M.'s recantation alone does not satisfy his burden under § 2244(b)(2)(B)(ii).20
In addition, we agree with the district court that the Louisiana Fifth Circuit reasonably determined that Kinsel has not established that errors at trial violated his rights under the Due Process Clause, the Confrontation Clause, or the Sixth Amendment.
Initially, Kinsel asserted that the state prosecutor knew that A.M. was going to perjure her testimony before she testified at trial. If this allegation had proved to be true, the State would have violated Kinsel's due process rights, as articulated by clearly established federal law.21 But, the Louisiana Fifth Circuit here determined that “the record as a whole does not show the prosecutors either coerced or knowingly used false testimony from the victim.” 22 The court based this finding on the prosecutors' testimony that A.M. never informed them that she was lying, and on A.M.'s own testimony that she did not tell the prosecutors that she was lying, only that she did not want to testify on the morning of trial:
Q. You never told [the district attorney] that you were lying about this defendant Mr. Kinsel representing (sic) you. What you told him was, I don't want to do any—I don't want to do anymore. I'm tired, I'm scared, I want to go home? Is that right?
The Louisiana Fifth Circuit's factual finding that the prosecutors did not know that A.M. was lying,23 therefore, is reasonable if for no reason other than by A.M.'s own testimony.
The Supreme Court has held that the Due Process Clause is violated when the government knowingly uses perjured testimony to obtain a conviction.24 Although some circuits recognize a due process violation when perjured testimony is provided by a government witness even without the government's knowledge,25 we are limited by the AEDPA to applying only established Supreme Court precedent in our review of a state court's reasonableness.26 Consequently, given the Louisiana Fifth Circuit's reasonable factual finding that the prosecutors did not know that A.M. was lying at trial, we cannot say that the state court unreasonably applied established federal law in determining that Kinsel's due process rights were thus not violated.
Kinsel never explains how his Confrontation Clause rights were violated at trial, as his attorney did have an opportunity to cross-examine A.M. Neither does Kinsel provide any analysis of how his Sixth Amendment right to a fair trial was violated by A.M.'s perjured testimony. Although the perjury may have made the trial “unfair,” the Supreme Court has never held that perjured testimony alone violates a defendant's Sixth Amendment right to a fair trial.
In sum, Kinsel has not established by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found him guilty of the underlying offense. In fact, Kinsel ultimately does not allege a constitutional error at all given that the prosecutors did not knowingly present false testimony at his trial. His successive federal application is therefore barred by the AEDPA (and would fail on the merits even if it were not barred).
C. Kinsel's Due Process Claim
Beyond our limited review of his habeas claims under the AEDPA and apart from his assertion of actual innocence, Kinsel contends that the Louisiana appellate court violated his due process rights during his state postconviction proceedings. He asserts that the Louisiana Fifth Circuit deprived him of due process by refusing to give deference to the trial court's credibility determinations and by denying him the opportunity to present A.M.'s recantation to a jury. The dissenting Louisiana Fifth Circuit judge aptly summed up the constitutional error allegedly made by the majority:
In the instant case, the trial judge found that the recanted testimony would materially affect the jury verdict. The trial judge evaluated the credibility of the recanting witness and struggled to determine which testimony, the trial testimony or the testimony during the Motion for New Trial, was truthful. In ruling the trial judge stated, “I'm not sure I believe her about whether it happened or not ․” concluding, “I find that in no way can one convict absent her testimony.”
Given the vast discretion afforded the trial court in evaluating evidence and ascertaining whether a new trial is warranted, I find in this case, where the victim of the crime, upon whose testimony the guilty verdict rests, recants that testimony, the trial court has a valid legal basis to grant a new trial.27
Undeniably, the trial court (along with the dissenting judge) and the appellate court hold Kinsel's postconviction petition to different standards: The trial court granted Kinsel a new trial based on its determination that A.M.'s recantation undermined her trial testimony without which no reasonable juror could have convicted Kinsel. The appellate court, in contrast, focused on the fact that Kinsel did not “establish[ ] a due process violation so as to make his post-conviction claim cognizable under [the Louisiana ]
The differing approaches could stem from the fact that the trial court and the dissenting appellate judge treat Kinsel's postconviction petition as a motion for a new trial,28 for which Louisiana law only requires the movant to show that “if the evidence had been introduced at the trial[,] it would probably have changed the verdict or judgment of guilty.” 29 If this standard were applicable to Kinsel's postconviction petition requesting a new trial, then the Louisiana Fifth Circuit might well have erred in reversing the trial court's decision.30 But, if the Louisiana Fifth Circuit were correct that Kinsel must first show that his “conviction was obtained in violation of the constitution of the United States or the state of Louisiana” 31 —regardless of his request for a new trial in the alternative to exoneration—then that court did not err in concluding that Kinsel failed to establish that a constitutional violation occurred at his trial.
The bottom line is that the proper court to review whether the Louisiana Fifth Circuit deprived Kinsel of due process during his postconviction proceedings was either the Louisiana Supreme Court, which dismissed Kinsel's direct appeal of the decision, or the U.S. Supreme Court, to which Kinsel never petitioned for certiorari review of his state postconviction proceedings. We, as a federal appeals court entertaining a federal habeas corpus application, are without jurisdiction to review the constitutionality of Kinsel's state postconviction proceedings. Indeed, we are barred from doing so by our “no state habeas infirmities” rule.32 It is beyond regrettable that a possibly innocent man will not receive a new trial in the face of the preposterously unreliable testimony of the victim and sole eyewitness to the crime for which he was convicted. But, our hands are tied by the AEDPA, preventing our review of Kinsel's attack on his Louisiana postconviction proceedings, so we dutifully dismiss his claim.
For the foregoing reasons, the district court's denial of federal habeas relief to Kinsel is AFFIRMED.33
1. FN1. State v. Kinsel, 783 So.2d 532 (La.App.2001).
2. FN2. State v. Kinsel, 812 So.2d 641 (La.2002).
3. FN3. State v. Kinsel, 870 So.2d 267 (La.2004).
4. FN4. Kinsel v. Cain, No. 05–30170, Order (Mar. 16, 2007).
5. FN5. State v. Kinsel, 06–KH–858 (La.App.2006).
6. FN6. State v. Kinsel, 967 So.2d 499 (La.2007).
7. FN7. (internal quotation marks omitted) (citing Reyes–Requena v. United States, 243 F.3d 893, 899 (5th Cir.2001); 28 U.S.C. § 2244(b)(4)).
8. FN8. Robertson v. Cain, 324 F.3d 297, 301 (5th Cir.2003) (emphasis in original and citation omitted).
9. FN9. Lindh v. Murphy, 521 U.S. 320, 324–26 (1997).
10. FN10. 28 U.S.C. § 2254(d).
11. FN11. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011) (internal quotation marks and citations omitted).
12. FN12. Wiggins v. Smith, 539 U.S. 510, 520–21 (2003) (citations omitted).
13. FN13. 28 U.S.C. § 2254(e)(1).
14. FN14. Id. § 2244(b)(2)(B)(ii). The AEDPA provides another exception if the petitioner can show “that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” id. § 2244(b)(2)(B)(I), but this exception is inapplicable here.
15. FN15. See Brown v. Lensing, 171 F.3d 1031, 1032 (5th Cir.1999) (“Our authorization for [petitioner] to file a successive petition is not dispositive of the critical question․ [T]he trial court was obliged by the statute to dismiss [petitioner's] claim if it did not meet the requirements of § 2244.”). See also, e.g., Jordan v. Sec'y, Dep't of Corr., 485 F.3d 1351, 1357 (11th Cir.2007) (“[T]he district court not only can, but must, determine for itself whether th[e] requirements [of § 2244(b)(2) ] are met.”); Bennett v. United States, 119 F.3d 468, 470 (7th Cir.1997) (“[T]he district court must dismiss the motion that we have allowed the applicant to file, without reaching the merits of the motion, if the court finds that the movant has not satisfied the requirements for the filing of such a motion.”).
16. FN16. Id. § 2254(e)(1).
17. FN17. See Pippin v. Dretke, 434 F.3d 782, 792 (5th Cir.2005) (“A trial court's credibility determinations made on the basis of conflicting evidence are entitled to a strong presumption of correctness and are virtually unreviewable by the federal courts.” (internal quotation marks and citations omitted)).
18. FN18. See Miller–El v. Cockrell, 537 U.S. 322, 340 (2003) (“A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence.”).
19. FN19. On this point we think it important to clarify that, although we do not consider state court credibility determinations when determining whether a petitioner has made a prima facie showing of his entitlement to bring a successive petition, In re Wilson, 442 F.3d 872, 878 (5th Cir.2006), such determinations may be relevant when, as here, we are tasked with determining whether a petitioner has actually satisfied § 2244(b)(2)(B)'s requirements.
20. FN20. To the extent that Kinsel asserts a freestanding actual innocence claim, i.e., that his continued imprisonment itself violates the Eighth Amendment and warrants habeas relief, see Herrera v. Collins, 506 U.S. 390, 417 (1993), we have repeatedly stated that such claims are not cognizable in the Fifth Circuit. Graves v. Cockrell, 351 F.3d 143, 151 (5th Cir.2003) (collecting cases). Moreover, even if we were to consider the merits of that claim, because “the threshold showing for such an assumed right would necessarily be extraordinarily high,” Herrera, 506 U.S. at 417, Kinsel would not be able to meet it for the same reasons he cannot meet the lesser AEDPA standard, i.e., recantations are suspect and A.M. is not a credible witness. See House v. Bell, 547 U.S. 518, 554–55 (2006).
21. FN21. See, e.g., Durley v. Mayo, 351 U.S. 277, 290–91 (1956) (“It is well settled that to obtain a conviction by the use of testimony known by the prosecution to be perjured offends due process.”).
22. FN22. Kinsel, 06–KH–858, at 5.
23. FN23. The Louisiana trial court did not make a factual determination on this issue.
24. FN24. See Napue v. Illinois, 360 U.S. 264, 269 (1959). See also Creel v. Johnson, 162 F.3d 385, 391 (5th Cir.1998) (“A state denies a criminal defendant due process when it knowingly uses perjured testimony at trial or allows untrue testimony to go uncorrected. The defendant must show that (1) the testimony was false, (2) the state knew it was false, and (3) the testimony was material.” (internal citations omitted)).
25. FN25. See Ortega v. Duncan, 333 F.3d 102, 108 (2d Cir.2003) (“[W]hen false testimony is provided by a government witness without the prosecution's knowledge, due process is violated only if the testimony was material and the court is left with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted.” (internal quotation marks omitted)). But see United States v. Jones, 614 F.2d 80, 82 (5th Cir.1980) (“[F]or perjury by a witness to constitute grounds for relief appellant would have to show that the Government knowingly used the perjured testimony.”).
26. FN26. See Schaff v. Snyder, 190 F.3d 513, 530 (7th Cir.1999):A habeas petitioner must support his claim with a Supreme Court decision that clearly establishes the proposition essential to his position. The clearly established Supreme Court precedent demands proof that the prosecution made knowing use of perjured testimony. [Petitioner] has admitted that, in this case, the prosecution did not; as a consequence, he cannot make a substantial showing of the denial of his right to due process․
27. FN27. Kinsel, 06–KH–858, at 12 (Daley, J., dissenting) (emphasis added).
28. FN28. Both the trial court and the appellate dissent refer to Kinsel's petition as a motion for a new trial. See State R. at 167 (“I feel I have no other decision to make other than to grant your motion for a new trial.”); Kinsel, 06–KH–858, at 12 (Daley, J., dissenting) (“The trial judge evaluated the credibility of the recanting witness and struggled to determine which testimony, the trial testimony or the testimony during the Motion for New Trial, was truthful.”).
29. FN29. La.Code Crim. Proc. Ann. art 851(3).
30. FN30. See State v. Prudholm, 446 So.2d 729, 735 (La.1984) (“The application of [motion for a new trial] precepts to newly discovered evidence by the trial judge, although a question of law, is entitled to great weight, and his discretion should not be disturbed on review if a reasonable man could differ as to the propriety of the trial court's action.” (emphasis added)).
31. FN31. La.Code Crim. Proc. Ann. art 930.3(1).
32. FN32. See, e.g., Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.1999) ( “[The petitioner] argues that he was denied due process in his state habeas proceeding․ Our circuit precedent makes clear that [the petitioner's] claim fails because infirmities in state habeas proceedings do not constitute grounds for relief in federal court.” (internal quotation marks and citations omitted)); Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir.1995):[E]rrors in a state habeas proceeding cannot serve as a basis for setting aside a valid original conviction. An attack on a state habeas proceeding does not entitle the petitioner to habeas relief in respect to his conviction, as it is an attack on a proceeding collateral to the detention and not the detention itself.(internal quotation marks and citation omitted).
33. FN33. Because we determine that Kinsel's successive habeas application is barred by the AEDPA, we need not reach the issue whether his application was timely.
Much has already been said about Sesame Street's "Incarceration Toolkit" - particularly what a shame that it's become this "normal" in America to have a parent go to prison. I want to know why they didn't do this 20 years ago, myself - this phenomenon of mass incarceration in America isn't new. Perhaps this is a sign we may be getting ready to end the madness, though.
The best commentary I've seen so far about the project on the web actually comes out of TIME magazine - and is below. Who I really want to hear from are the kids and families this is supposed to help, though - so please go check out this project, families with children who have parents in prisn, and write to me about what you think (email@example.com)
(Troubling FYI: according to COLORLINES, one of the main funders of this project is a defense contractor that uses prison labor...)
The effort to aid youngsters grapple with such a traumatic situation seems admirable, but it raises bigger questions. How did we get to the point where, as Reason’s Mike Riggs recently put it in a post on the toolkit, America has made it “almost normal to have a parent in prison or jail”? And should we really see better tips for caregivers of children with incarcerated parents as the best way to mitigate the harm?
Research shows that incarceration does incredible damage to families, doubling the odds that children will later be homeless, increasing the risk for aggressive child behavior problems by 33% and the risk for severe psychological distress such as depression or anxiety in childhood by 20%.
It can hinder school performance and induces all of the trauma of other separations like divorce, but with the added element of shame, guilt and stigma. Not to mention the financial strain losing a parent indefinitely imposes and the massively increased odds of winding up in foster care it causes.
Moreover, having a parent in prison is listed by researchers as one of the “adverse childhood experiences [PDF]” that can add up to serious health consequences in adulthood: the greater the number of these experiences, the higher the odds of diabetes, obesity, high blood pressure, stroke, addictions, smoking and all mental illness.
As usual, Sesame Street’s brochures and programming are well-designed and sensitive to the issues they address. Leavened by the familiar fuzzy faces of Grover, Big Bird and Cookie Monster, they offer tips for caregivers such as maintaining a reassuring routine and being sensitive to and accepting of whatever emotions the child may have. One emphasizes developmentally appropriate honesty about the situation, saying:
Talk honestly with your child. It’s important to tell your child the truth about his parent’s incarceration. It’s the best way to help him feel loved and cared for.
If you do not provide information about the incarceration, your child may come up with his own mistaken reason for his parent’s absence. Let your child know that the incarceration is not his fault.
Be patient as your child works to understand what has happened. You may need to explain the situation several times. Let him know he’s not alone.
But maybe, while we provide these band-aids for now, what we really need is a rethink of our entire criminal justice system, one that has become not only the nation’s biggest holding cell for people with addictions, but also its largest psychiatric system— albeit one that only rarely provides evidence-based treatment for either addictions or other mental illnesses.
Consider the facts. America, the world’s largest jailer—with 25% of the world’s prisoners and just 5% of global population— has a murder rate more than double that of most countries in Western Europe. That means we incarcerate around five times more people per capita than most those countries do, with roughly half their success at cutting crime. We also use drugs at rates that equal or exceed those of other Western democracies, while having some of the harshest laws, supposedly to prevent this.
We now lock up 10 times more people for drug offenses than we did in the early 80s; and while some drugs have gotten less popular, others have become more so, leaving us with roughly the same rate of severe addiction. Further, 48% of all state prisoners are nonviolent and at least half of their crimes are either drug crimes or directly related to drug use. 92% of all federal prisoners are nonviolent, with a full 48% sentenced to federal prison because of drug offenses.
That’s not to mention the financial costs, which include not just the obvious $6.2 billion spent annually on federal prison and $39 billion yearly on state prisons and the many further billions in policing costs (arrests for marijuana alone cost nearly $3.6 billion a year), but also costs in terms of employment opportunities missed and other investments like education deferred.
A tremendous amount of this incarceration is unnecessary and could easily be reduced by decriminalizing drug possession, legalizing marijuana, sentencing nonviolent offenders to house arrest and monitoring and only using prison to lock up those whose crimes genuinely warrant it for appropriate amounts of time.
Of course, what looks obvious from a policy perspective seems almost impossible politically. Perhaps one clue to the depth of problem can be found in the funding for the Sesame Street initiative itself. As the Atlantic reports, one of the major funders is BAE, a major defense contractor that uses prison labor paying workers pennies an hour to cheaply manufacture some of its products. It’s great that Sesame Street gets the support it needs and that BAE is willing to give— but the economics of the prison industry are difficult to disrupt.
If we were to try to revise this sorry situation, a great deal of money and jobs would have to be shifted away from locking people up and profiting from their incarceration. We’d have to spend instead on healthcare, childcare and various other types of treatment. That would certainly be a big challenge— but nothing compared to the challenges faced by the children Sesame Street is targeting with its new toolkit.
The sentence is horrendous even if Tim was guilty: 26 years for non-violent crimes? That's longer than we give people for murder in this state. I'm not down with paying $20,000/year of tax dollars to destroy most of a burglar's life - especially not a man whose main accuser recanted and apologized. Witnesses don't make that stuff up - Tim's uncle, who lied to get himself off the hook, exposed himself to both public shame and prosecution for perjury in order to see justice finally done, yet the system failed us all again.
All these prosecutors need to start taking responsibility for the reality of wrongful convictions and support reform. Instead they adamantly protest any efforts to hold them responsible for KNOWINGLY letting an innocent person go to prison. Why would a professional so committed to "justice" not want to make sure an innocent person doesn't get sent to prison or executed for antoher person's crime? Because they are committed to convictions and winning elections. They are defending the state, not the People - they defend the state from liability for wrongful imprisonment, that is, instead of protecting the rest of us from the effects of a justice system gone mad.
See what happened to Bill Macumber & Louis Taylor: both men were clearly innocent and spent considerable time in prison already, and still couldn't get out unless they said thye were something other than innocent in court - then you'd think the state did them a great favor by letting them go. Debra Milke and Courtney Bisbee (still in prison) should also be free, but for the county attorney (Bill Montgomery) denying that the cases were both built on lies.
This is a real disappointment and tragedy. Hang in there, Tim and family. Once enough of us wake up, this too will change...
By: Dave Biscobing
A house painter convicted of burglary and sentenced to 26 years in prison had one last chance at freedom Wednesday night.
The Arizona Executive Clemency Board held a final hearing in the case of Timothy Casner.
The ABC15 Investigators have been following the case for more than a year.
Casner has spent the last 14 years in prison for a crime he says he did not commit .
He learned his fate Wednesday night after a four-hour hearing before the board.
The five-member panel listened to Casner testify via telephone from prison in Kingman, Arizona.
Casner’s friends and family packed the hearing room hoping to get good news.
THE CASE AGAINST CASNER
It was back in 1999 that Casner’s case was front page news in Prescott.
He was accused of using his house painting business to burglarize his customers’ homes.
Casner has always insisted he is innocent but he was convicted by a jury of seven burglaries.
He told us he declined to take a plea deal that would have meant less than three years in prison.
Instead the judge gave him 26 years.
The ABC15 Investigators reviewed the evidence, examined the court file and trial transcripts and we found there was a startling lack of physical evidence in the case.
There were no fingerprints or footprints to link Casner to the burglaries.
No stolen items were ever recovered or ever linked to Casner.
And no search warrants were ever served.
The prosecution’s key witness recanted his testimony and told us he lied on the stand and was fed information.
Casner is out of appeals and clemency was his last hope for freedom.
CLEMENCY BOARD VOTES
Prosecutor Sheila Polk is now the Yavapai County Attorney.
She appeared at the hearing and defended the case against Casner.
Polk said the case was 100 percent circumstantial and it has been upheld through numerous appeals.
She urged the board not to commute Casner’s sentence.
Two of Casner’s family members also testified pointing out Tim has been a model prisoner with no infractions or discipline reports in 14 years in prison.
They asked the board to have mercy and allow Casner to return to his family.
But in a 4 to 1 decision the Clemency Board denied Casner’s petition for a commutation of his sentence.
Tim’s brother, Ron Casner said, “I feel my like brother died today." He then went on to say his whole family is devastated.
Wednesday, June 12, 2013
Prison staff LIE all the time, just like cops like Armando Saldate do - and they seldom ever have to suffer consequences for it, while the prisoners pay and pay. Note that prisoner Josh Lunn ended up getting reclassed to a higher custody level and shipped out to the Supermax, ASPC-Eyman after his boss wrote him up for refusing to participat ein his criminal enterprise. Please remember this the next time you look at a prisoner's disciplinary record and think "yeah, look at all that bad stuff he's been up to inside -he should be in Supermax".
Remmber this the next time you find yourself assuming that just becuase someone wears the uniform of the state and a badge they must be some kind of noble public servant, too, and therefore can always be trusted to tell the truth.
This guy Lewis is poison - and most of the staff working around him probably knew he was lying about those prisoners when he wrote them up, but they went along with it anyway. This infuriates me not because it's so outrageous, but because it's way too common that prisoners get treated this way by the people who hold the keys to their cages and chains...they are the far more dangerous criminals, I think - the ones who will take their power and run over whomever they want with it.
Glad you jumped on this one, Donna. Now the DOC needs to make things right for those prisoners who were so wrongfully treated in all this.
To: Charles Ryan, Director
Subject: Theft, Corruption, Retaliation
Date: Wed, 12 Jun 2013 16:38:18 -0700
The following information has been submitted to Middle Ground. In italics, I have quoted the information exactly as it has been provided to me.
During the first week of May 2013, two Central Arizona College employees were fired at Florence for their part in stealing from the college and providing gifts to corrections employees/officials in exchange for favors. Brad Ellsworth, the former Director of Prison Programs, was arrested on Tuesday, April 30, 2013, on theft-related charges stemming from over five years of mis-appropriating tools intended for prison vocational programs and stealing materials to build furniture and other items for his personal use, and to give as gifts to Florence wardens and staff.
Chris Lewis, a former Arizona DOC ADW, hired by Ellsworth, to manage the welding program at South Unit, was terminated May 2, 2013, after CAC officials discovered him returning tools previously reported as missing/stolen. Lewis is apparently cooperating with authorities in their investigation.
Ellsworth was known for having fine furniture and welded goods produced in the vocational schools within the prison, then rewarding correctional staff who "looked the other way," with these items as gifts in exhange for their blind eye. Ellsworth was fond of specialty woods such as dark walnut and he built kitchen cabinets and living room furniture using CAC-purchased materials. Other items, such as a gun tote box for his truck, were also built using CAC purchased materials.
The investigation into Ellsworth began after CAC administrators learned of over $1,300 in purchases by Ellsworth on CAC accounts for Corvette car parts. When questioned about these purchases, Ellsworth attempted to explain their purchase by stating that the parts were purchased for his "work vehicle." Ellsoworth also purchased tools for the various prison vocational schools, often purchasing the same item twice and keeping one for his personal use. Sometimes these tools were given as reward or gits to corrections staff or friends or sold to them at discounted prices.
Lewis began his tenure as the welding instructor in January 2013 by making immediate changes to the school's curriculum and program design. He spent thousands of dollars remodeling the welding area from a student-oriented teaching environment to a production line for "special projects," built by inmate workers. Students' welding time was reduced from 5 days/week to less than 2 days in order to accommodate the building of mini-smoker grills, bumpers for off-road vehicles, and vehicle gas tanks being built by the inmate workers for Lewis' friends and family. The cash paid for these items went directly into Lewis' pocket. Several of the mini-smoker grills were given as gifts to corrections administrators or employees to facilitate the changes Lewis made to the vocational program. Lewis came to the attention of CAC administrators after numerous complaints were made by inmate-students and when stolen tools were placed back into the college's inventory at the prison. A fellow instructor discovered the tools and learned from Lewis that these tools were given to him by Ellsworth to "hide." The instructor, Ken Cook, alerted his superiors at the college.
Lewis also used his position and his knowledge of internal DOC procedures to retaliate against inmates who refused to assist in the illicit activities, while rewarding those inmates who were compliant with perks -- such as food and jobs. Prior to Lewis' tenure, only one inmate had been removed from the CAC vocational area in the previous two years, while six (6) were removed in the four months that Lewis was an instructor. Lewis rewarded inmate-students who assisted his activities by calling in favors with staff and having the inmates assigned as workers who would receive higher pay ($.40/hour instead of $.15/hour).
Lewis used his relationship with staff to push through disciplinary actions or have inmates transferred to other prison units if they refused to aid his activities. When inmate student Aaron Eversole complained about not getting enough welding time, Lewis erupted and screamed at Eversole to leave the class. Lewis then wrote a disciplinary violation claiming Eversole was "confrontational" and that Eversole "threatened him." Eversole is stick-thin and probably weighs 130 lbs or less. Lewis is over 6'3" and weighs about 260 lbs. Eversole was found guilty of the disciplinary, despite witnesesses testimony about what really happened, and Eversole was removed from the welding school.
Inmate Mike Ward was written up by Lewis for "refusing to attend" when a Warden at Ward's previous facility called Lewis and complained about Ward. Despite attending every class, Ward was removed from the welding school and reduced in privileges due to Lewis' write-up.
A third inmate, Josh Lunn, signed up as a student and was almost immediately promoted to worker status by Lewis. When Lunn discovered Lewis' illicit activities and began documenting them, Lewis caught him and wrote a disciplinary violation stating that Lunn was writing disparaging things against him. Lewis called in a favor with staff and the violation was handled as a Major disciplinary ticket. Lunn was found guilty, lost all privileges, was removed fromthe wleding school, and transferred to a higher custody unit (Rynning).
Lewis also targeted inmate workers who refused to help him by getting them transferred. Lewis enlisted the help of CO Gidcumb (spelling unsure), who was assigned as South Unit's SSU. SSU is tasked with identifying gang activity and illegal behavior, and thus has wide lattitude to transfer troublesome inmates between prison units in isolated moves called "one - for - ones." The first inmate targeted was Stewart Carver. Carver is a high profile inmate who worked in the CAC carpentry program. Lewis asked Carver to produce wooden handles for the mini-smoker grills. Carver refused because the CAC carpentry program teaches general construction and Carver did not want to participate in any illicit behavior. A few days after refusing, Carver was transferred to Cook Unit in a one-for-one movement.
The second inmate targeted by Lewis was Steven Hummert. Hummert is a high profile inmate due to an escape almost 13 years ago, and he had been working in the CAC vocational programs as a porter for over 2 years. Lewis knew of Hummert's past history, including Hummert's involvement in facilitating staff theft of state property prior to his escape, because Lewis had worked at Eyman Complex while Hummert was incarcerated there and prior to his escape. Lewis asked Hummert to work for him, but Hummert declined, citing over 8 years of a clean record. Lewis attempted to have Hummert transferred, but Gidcumb was unable to do so because Hummert's past history requires any move to be approved in advance by Central Office. When the transfer failed, Lewis instructed Ellsworth to send an email, dated February 8, 2013, to Florence Complex Warden Lance Hetmer, targeting Hummert's past history of escape (emphasizing the escape). Ellsworth used his position with the college to make it seem that Hummert's presence in the program threatened the college's reputation, and the college did not want him there. Reacting to this email, Hetmer removed Hummert from the CAC vocation program area and banned him from all good jobs in the prison. Hummert was jobless for over a month before being assigned to a lower paying, less skilled position.
Lewis then approached inmate Clifford Morris. Morris was asked to falsify DOC documents he had access to as the Inmate Hazmat Clerk. Morris refused and a week later was transferred to Cook Unit in a one-for-one move.
The actions of Brad Ellsworth and Chris Lewis were brought to the attention of CAC President Doris Helmich. An investigation was commenced and strong measures to end this spree of theft and unprofessional behavior. Ellsworth and Lewis were dismissed from the college. At this time, DOC has taken no action to rectify the harm caused to those inmates that Lewis targeted for retaliation. Warden Hetmer seems oblivious to both his manipulation by Ellsworth and the illegal activity that occurred under his watch.
Mr. Ryan, my question is: Isn't it a crime of bribery or conspiracy for a contract employee to provide gifts or sell items that are the fruits of stolen property to a state employee? What investgation, if any, has taken place regarding the above incidents as they implicate your own employees? Please provide all investigative reports. What is particularly noteworthy is what happened with high-profile inmate Hummert. He apparently was able to escape 13 or more years ago (I remember the intensive news coverage) by using insider-corruption and information to facilitiate his escape. He was caught, prosecuted and disclosed pertinent information to authorities at extradition hearings. Now, after learning his lesson -- which is what we all hope he would do -- and refusing to participate in corrupt and illicit activities, he is punished for his appropriate, lawful conduct. Do you find this ironic? Inmates are, after all, "students of (DOC's) behavior."
There needs to be a full-scale investigation into this matter if it has not already taken place. If it has taken place, then I want to examine the entire record of the investigation pursuant to public records law.
Please advise when the investigative reports are ready for my review at the Central Office.
Tuesday, June 11, 2013
Below are more echoes of "STOP the MADNESS!" from the community...we'll see if our legislators bother to hear...
As posted here recently, the Joint Committee on Capital Review is meeting this Wednesday morning at 9am in the Senate Appropriations Room 109, June 12, and will be discussing the AZ Department of Corrections' request to build a news $50 million Supermax prison out a tthe Lewis complex in Buckeye. In case you missed my last post on that, here it is:
Below is a copy of the letter just submitted as testimony to the committee by the president of our local NAACP Rev. Oscar Tillman; NLG attorney Dianne Post was instrumental in putting it together. It's coherant and complete - she does her homework.
If you are submitting testimony to this committee, do so today - I understand there will be an opportunity to be heard tomorrow, but they usually have their minds made up beofre these meetings are even held. The DOC gets a rubber stamp on just about everything they ask for from the legislature, which needs to stop before we squander another dollar on this project - it's already sucked up over $5 million in the preparations.
The NAACP knows just what kind of obscenity Arizona's elected officials plan to saddle future generations with - this prison is what this particular gang of 12's legacy will be, if they let it go through despite all the reasons it shouldn't.
What will our grandchildren do with these torture facilities when our society has evolved beyond them? We will one day, you know - unless we plan to devolve and descend into more crimnality and vindictiveness and brutality as the rest of the world moves forward, which is kind of how we're heading. Anyone who thinks we can't outgrow our need to incarcerate such vast numbers of people in our country has sold humanity short.
If you have comments for this committee, bring them in writing when you come to speak Wednesday morning (so you can be sure your text is in the record too) or hand deliver them by the end of the day Tuesday, June 11 (today!) to:
Joint Legislative Budget Committee
1716 West Adams
Phoenix, Arizona 85007
Phone: (602) 926-5491
Friday, June 7, 2013
*** much to my surprise, there apparently IS supposed to be further discussion on funding for the new Supermax: The AZ LEG Joint Committee on Capital Review is meeting next Wednesday (June 12) at 9:00 a.m. in the Senate Bldg, Appropriations Room 109. The committee documents most pertinent to this discussion are here. We need to get as many people out to that as possible and/or contact those members ahead of time. Keep an eye out for it to be rescheduled at the last minute, though.****
In light of that, I have just a few thoughts: the last part of this post below addresses how so many prisoners inappropriately end up in Supermax. My buddy C gave me his full blessings on this campaign (see flyer). Since I launched this campaign a couple of months ago, the DOC has reclassed him down again and moved him to a close custody general population (GP) yard at ASPC-YUMA - punishing him further by forcing him back into GP, where he has told them he is in danger (especially now that I've made him a high-profile prisoner).
I think we should demand that an audit be done by the legislature of who exactly the current Supermax prisoners are and why they happen to be there - how many are inappropriately there because they are Seriously Mentally Ill (SMI) - does the ACLU already have a count on that? how many are like C (I can probably name/ identify about 15 actual prisoners like him), and how many really are the "worst of the worst"? And what exactly is being done about the violence on the GP yards? Substance abuse (SA) treatment programs would help, as would educational and vocational opportunities - Ryan wiped everything out when he took over. I bet recovering drug addicts can't even designate that they want to be in clean and sober dorms - that would be another idea, though...
Those of you with family in prison: you might want to emphasize to your own legislators (find them here) that the DOC has failed to provide adequate mental health care and offers hardly ANY substance abuse treatment, yet they're putting people in supermax who have disciplinaries due to mental health and addiction problems, not violence. (the violent ones are being left to run the yards while the pacifists get punished.)
Check out the DOC's own records: below is their "Corrections at a Glance April 2013" monthly report (here's the section with all thier reports). In the left hand column (the red ink is mine) you can see how DOC identifies 75% of incoming prisoners as having a major substance abuse problem, but in 2012 only 2,633 prisoners received any kind of substance abuse treatment - that's only about 4% of the nearly 60,000 prisoners who went through our state prisons last year.
Now this is especially alarming given that the DOC is planning to take all the money from the Transitional Program fund (which prisoners pay into from their earnings). The Transitional Program fund pays for the services that are supposed to help prepare prisoners for release - some may qualify for up to 90 days early release. Evidently the DOC thinks putting money it takes from the wages of prisoners into new prisons is a better use of the funds than providing substance abuse treatment or helping people adjust to the community again. That's about 3 1/5 million dollars, as far as I can tell. Boy, are the prisoners ever going to be mad about that one. They pay $.08 out of every dollar they earn into that fund.
Another fund that could be used for treatment services for drug-dependent prisoners is the Inmate Store Account - where they have nearly 9 million dollars they haven't spent on prisoner programs, like they once promised they would. In 2011 the legislature approved annual transfers of $500,000 from that account to the DOC Building Renewal Fund, and it looks like the DOC wants the rest for general operations.
(see page 87 of this document for those figures)
Perhaps the DOC has better plans to rehabilitate prisoners down the road? Hardly. Here's Chuck Ryan's vision for our collective future: despite packing our prison system full of drunks and addicts, and a plethora of best practice guidelines about treating them, only a handful of AZ prisoners will ever get treatment for their addictions or alcoholism in his custody. While fighting for tens of millions to increase their capacity by thousands of beds in recent years, the AZ DOC's strategic plan for 2014-2018 indicates that they only plan to increase the number of prisoners who receive substance abuse treatment services from 3,000 in 2013 to 3,250 in 2014. But in the Governor's Master List of State Government programs 2012-2015 the DOC says that without an increase in what they call "human resources" both the substance abuse and the sex offender treatment programs will be maxed out, at capacity, at the 2013 levels.
It's troubling that Chuck Ryan's prisoners have been killing eachother and themselves at twice the rate they did under previous administrations...That doesn't sound anything near what we should be getting from our state's Department of Corrections - especially for a billion dollars a year. No wonder there's so much heroin and extortion and violence in our state prisons. And what happens to these prisoners when you kick them lose with nothing but $50 and a prison ID card at the end of their sentences? Are they all really coming out better prepared to deal with life clean and sober than when they went in?
Here's some "truth in sentencing" for the judges out there: some of those homeless or seriously mentally ill folks who you locked up "for their own good" will come out addicted to worse drugs with more skills to commit new crimes - and probably infected with Hep C, too. Some won't even survive it - they may end up like Shannon Palmer, Marcia Powell, Carlo Krakoff or Tony Lester instead.
Now that's just plain shameful.
SMI prisoners and addicts should be placed in more appropriate facilities with the proper treatment resources before a new Supermax is built. Furthermore, if more resources went into community treatment options and re-entry support for prisoners, not plans for re-incarceration of the most vulnerable and troubled, there would be less demand for more prison space down the road.
This is the Joint Legislative Committee on Capital Review - tell them we don't need another Supermax, and they need to look into who we are imprisoning in the Supermax we already have. Here are the committee members to contact before next Wednesday's discussion about approving the new Supermax:
Senator Don Shooter
Representative John Kavanagh
Senator Gail Griffin
Representative Lela Alston
Senator Leah Landrum Taylor
Representative Chad Campbell
Senator John McComish
Representative Tom Forese
Senator Al Melvin
Representative David Gowan, Sr.
Senator Lynne Pancrazi
Representative Rick Gray
Senator Anna Tovar
Representative Andrew C. Sherwood
here's their address:
1716 West Adams
Phoenix, Arizona 85007
Phone: (602) 926-5491
This is one way that Supermax gets so full:
You would think from all the rhetoric about trying to curb gang violence that prisoners would be encouraged and rewarded when they resist gang domination - especially the younger, more easily-influenced guys. Often these men say they refuse to perpetrate gang violence because they're trying to turn away from criminal activity, or because they don't believe in hurting people they have no personal issue with - I'd want to help those guys if I was running the prisons, frankly. Once they make themselves a target by asserting their autonomy, though, instead of being provided some measure of protection by the DOC they're being pushed back out into GP yards with the mark of "snitch" on them for having sought out PC even once.
To assert their dominance, the yard leaders or gang leaders these PC prisoners push back against give the nod to putting a "green light" on them for things like eating or speaking with members of the wrong race or with someone who is openly gay or transgender - meaning they're fair game for anyone to attack. The violence isn't just reserved for child molesters or career "snitches".
Since virtually all of the General Population (GP) prison yards are now run by the gangs, not the guards, prisoners who are thus targeted are forced to seek protective custody (PC) from the state - which immediately means they go into the hole (detention), not the perpetrators of threats or violence against them - those guys are often left to keep running the yards, despite all sorts of witnesses that they are dealing drugs and extorting prisoners.
There they sit for one or two months while the DOC justifies denying their PC applications (if they don't have an attorney on board, anyway) and placing them on a different prison yard, asserting to the prisoner that the threat that drove them to seek safety in a hole is simply "self-reported" (i.e. their death warrants aren't signed by gang leaders on letterhead, so therefore they must be fabricating said threat), doesn't pose a substantiated danger from a security threat group (STG), isn't statewide/ systemwide, and doesn't warrant much concern simply because the terrified, traumatized prisoner may not have been "smashed" (beaten into a coma) yet.
When prisoners who are denied PC status get pushed out into a new GP yard, they're usually quickly confronted by other prisoners and told to leave or they will be hurt for having PC'ed up on the yard they just got off of. They aren't any safer on a prison yard across the state than the one they originally get into trouble with the gangs on because of both guard corruption and the prevalence of cell phones inside - the gang members and gang wannabes waiting to assault them often know about PC prisoner moves and their issues before the prisoners even land on the next yard.
In fact, by pushing them onto one GP yard after another - from which they will predictably PC up off of to avoid being assaulted - the DOC is exposing these guys to an even larger number of state prisoners who will identify them each time they land on a new yard on out as prisoners with PC issues (code for snitches and sex offenders). The DOC is thus setting that prisoner up to get hurt again, and again, and again for a long time to come that way.
If a prisoner refuses to go onto a GP yard because they are afraid of being assaulted - which they have the "right" to do - they can be given a major disciplinary ticket for an "aggravated refusal of an order to house" (RTH). That means they go back into the hole another month or so AND lose good time and visitation and other privileges, and eventually get enough RTH tickets that their custody scores are jacked up to maximum security - whereby the DOC can place them in the Supermax prison and simply bury them there, where no one can hear them any more.
I dare the legislature to audit the Supermax - ALL the Maximum custody cells across the system - to see who's really there. I have a real problem with this pattern of punishing the prisoners who resist violence. For refusing to comply with gang orders to extort, hurt or kill others - including guards and community members - prisoners shouldn't be forced into Supermax cages for 23 hours a day, only to be allowed out to exercise or use the shower if chained up with two guard escorts.
In fact, many of those in ASPC-Eyman/SMU-I now are actually low-risk, non-violent, and mentally ill - they landed there thanks to RTH tickets. They include prisoners like C, here - HIS STORY IS QUITE COMMON...
The intent of funding and exercising that level of control over prisoners movements is to manage highly dangerous prisoners - not to punish them for passivity, or simply move them out of the way because the administration and guards have lost control of the GP yards. That's an absurdly abusive and expensive response to punish and silence a guy who just doesn't want to go along with the gang rules or perpetrate racist violence. The DOC doesn't have to be too conscientious about who they put there, though, because no one pays attention out here, and they already have 500 more Supermax beds approved to build and bring on line, no more questions asked ***
HELLO??? Is anybody at the AZ LEG really watching how the DOC is spending our money? They have a billion dollar budget and it's still growing, even though the prison population has been shrinking. This is one reason why we have a ton of guys in Supermax now who really don't meet the DOC's standard criteria for maximum security. The legislature is being taken for a ride, deluded about who that new prison is going to house, and deliberately indifferent to all the class action lawsuit allegations about the mentally ill being warehoused there already.
The AZ Inspector General's office and a legislative committee - as well as the US DOJ, in my book - needs to audit the DOC's PC program and the use of the existing Supermax prison and maximum security designations before they build that addition out at ASPC-Lewis..."
FYI, families and recent prisoners: I'm compiling a report for the US Department of Justice right now about the violence in AZ DOC prisons and the problems with the protective custody process (805), whereby it's impossible for male prisoners to refuse to "join" the gangs (which often involves assaulting another prisoner) - much less just refuse to follow their stupid racist, sexist, patriarchal rules - without being victimized themselves, yet many guys still refuse.
Do not go to Tom Horne's office (AZ Attorney General) for info about civil rights in the prisons, or for help if you love a prisoner and want DOC investigated - they are the bad guys, too. The AZ Attorney General's office has no regard for civil rights; they defend the DOC against wrongful death, deliberate indifference and brutality suits, and are thus compromised.
Report civil rights violations in the prisons to the ACLU of Arizona, the US Department of Justice (Civil Rights Division) and to me at firstname.lastname@example.org. All reports of prison violence that folks are aware could be useful as I put this thing together, so please pass them on.