Governor Pat McCrory / Image courtesy huffingtonpost.com

Governor Pat McCrory / Image courtesy huffingtonpost.com

By Prison Legal News

In June 2013, North Carolina Governor Pat McCrory signed legislation repealing the state’s Racial Justice Act of 2009 (the Act), a controversial law that supporters said was an effort to address racism in death penalty cases. Opponents, however, argued it merely clogged the legal system and denied justice to victims of the state’s 154 prisoners sentenced to death.

“Nearly every person on death row, regardless of race, has appealed their death sentence under the Racial Justice Act,” Governor McCrory said in a statement that accompanied his repeal of the law. “The state’s district attorneys are nearly unanimous in their bipartisan conclusion that the Racial Justice Act created a judicial loophole to avoid the death penalty and not a path to justice.”

The Act was passed following the exoneration of three North Carolina prisoners who had been wrongfully convicted and sentenced to death. All were black. [See, e.g.: PLN, Aug. 2010, p.32].

The Racial Justice Act allowed condemned prisoners to challenge a death sentence “sought or obtained on the basis of race” if they could prove that race was a factor in their prosecution, jury selection or sentencing, and to petition to reduce their sentence to life in prison without the possibility of parole. According to the North Carolina Department of Public Safety, slightly more than half – approximately 53% – of the state’s death row prisoners are African-American. U.S. Census Bureau statistics indicate that blacks only comprise around 22% of the state’s population.

When the Act was passed in 2009, opponents contended it was a thinly-veiled attempt by a Democratic governor and a Democrat-controlled state legislature to essentially do away with capital punishment. Due to various legal appeals, North Carolina has not carried out an execution since 2006. Republicans took control of the legislature in 2010, and McCrory, a Republican, was elected in 2012.

“It [the Act] tries to put a carte blanche solution on the problem,” said Republican state Rep. Tim Moore. “A white supremacist who murdered an African-American could argue he was a victim of racism if blacks were on the jury.”

Colon Willoughby, the district attorney in Wake County, which surrounds Raleigh, the state capital, said death row prisoners can already petition to reduce their sentences on the basis of racial bias under a U.S. Supreme Court ruling. He said the Racial Justice Act “came about and set up new artificial obstacles and barriers that were designed simply to put a moratorium on the death penalty and not to promote justice for anyone.” As a result, he argued, the Act did nothing but clog North Carolina’s courts.

“The premise of it is that somehow, because juries were white, that they discriminated against people, both white and black,” he said. “The whole underlying concept of it is ridiculous.”

“It’s incredibly sad,” countered Democratic state Rep. Rick Glazier, a long-time supporter of the Act. “If you can’t face up to your history and make sure it’s not repeated, it lends itself to being repeated.”

Four prisoners have had their death sentences reduced to life without parole under the Act, all in 2012. In Cumberland County, the court cited a study which strongly suggested racial bias in jury selection. Researchers from Michigan State University who studied North Carolina cases between 1990 and 2010 found that prosecutors removed black citizens from juries in murder trials at more than twice the rate of other races.

“We think that essentially this legislature is sweeping evidence of racial bias under the rug, and it’s really disappointing,” said Sarah Preston, policy director for the ACLU of North Carolina. “Instead of looking at the cases that have passed as evidence of the necessity for the law, they have decided that it’s evidence that the law should be repealed.”

Preston and other legal experts said the question now is whether appeals still pending under the now-repealed Act will go forward or be dismissed. “Everyone who has made a claim under the Racial Justice Act is probably going to have to litigate over whether or not they continue to have a claim,” Preston said.

The North Carolina legislature had been chipping away at the law ever since Republican control in the state government grew stronger. In 2012, the state House and Senate overrode then-Democratic Governor Bev Perdue’s veto of legislation gutting the Act, replacing it with an amended law that made it more difficult for prisoners to challenge their death sentences. Instead of using race-related statistics from the entire state or region, appeals under the Act were limited to statistical data from the judicial district where the crime occurred. The amended law also specified that statistics alone were not enough to prove racial bias, and that the race of the victim could not be considered.

The amended Act was written by Republican House Majority Leader Paul “Skip” Stam, who touted the measure as a means of ending the lengthy halt to executions in North Carolina.

“With [the] override of the governor’s veto, the end of the moratorium is in sight,” Stam said following the July 2, 2012 vote to amend the Racial Justice Act. “The basic principal of justice is restored: individual responsibility.”

In debate leading up to the vote, local district attorneys and other supporters of the death penalty said changes to the Act would allow defendants to rely less on statistics that could mislead judges into finding that racism played a role in convictions and death sentences.

“I don’t trust statisticians or people who came in after the fact to find some way to get cold-blooded killers off of death row,” said state Senator Thom Goolsby, who is also a defense attorney.

“We should not allow racism to come into our courtrooms,” countered state Senator Floyd McKissick during the veto debate. “Race still impacts the minds and the hearts and the consciences of many people who serve on our juries.”

The Senate easily overrode then-Governor Perdue’s veto, but in the House the vote was 72-48 – exactly the 60% majority needed. After using her veto power, Perdue said she supported the death penalty. “But it has to be carried out fairly – free of prejudice,” she added.

In December 2012, following the legislative amendment to the Act, then-Superior Court Judge Gregory A. Weeks reduced the death sentences of three prisoners – two black and one Native American – to life without parole.

According to the American Bar Association, “Judge Weeks found that the prisoners met their burdens of proof ... through the use of statewide and county-specific statistical evidence, as well as non-statistical evidence. This ‘powerful evidence of race consciousness and race-based decision making’ included hand-written notes from the Cumberland County prosecutor that noted the race of potential jurors who were black, sometimes associating them with drug or alcohol abuse. The prosecutor also repeatedly noted which potential jurors lived in predominantly black neighborhoods.... The prosecutor’s notes did not indicate which potential jurors were white or lived in predominately white neighborhoods. Judge Weeks’ ruling also noted that prosecutors had a ‘cheat sheet’ that instructed prosecutors how to deflect charges of racial bias in jury strikes. In one case, the prosecution struck black jurors at twice the rate of white jurors; in the other two cases, the rate was four times as high.”

The court’s ruling was “based primarily on the words and deeds of the prosecutors involved in these cases,” Judge Weeks said. “Despite protestations to the contrary, their words, their deeds, speak volumes. During presentation of evidence, the court finds powerful and persuasive evidence of racial consciousness, race-based decision making in the writings of prosecutors long buried in the case files and brought to light for the first time during this hearing.”

Now that the Racial Justice Act has been repealed, however, whether death penalty cases in North Carolina will be “free of prejudice” – the phrase used by former Governor Perdue – is again a matter of debate.

On April 14, 2014, the North Carolina Supreme Court agreed to hear appeals in the cases of the four prisoners whose death sentences were reduced to life without parole under the Act – Marcus Robinson, Tilmon Golphin, Christina Walters and Quintel Augustine. Prosecutors are seeking to have their death sentences reinstated. The state Supreme Court is composed of seven justices; one is black and the other six are white. Not that race matters, of course.

Sources: www.journalnow.com, Raleigh News & Observer, www.cnn.com, The New York Times, www.wral.com, www.americanbar.org, Associated Press, www.ncapd.org

(Reprinted with Permission from Prison Legal News)

Prison Officials Seeking Ways to Recruit and Retain Guards

By Dianne Frazee-Walker

Overcrowding, violence, inhumane treatment, along with inadequate mental and physical healthcare are just a few of the problems facing the American prison system.

Correctional officer corruption and poor work conditions have prompted the Texas Department of Justice to institute an incentive to recruit correctional officers. This campaign was initiated because of a dire shortage of individuals who are motivated to work inside the prison system as inmate babysitters.

The corrupt atmosphere combined with deplorable working conditions with little pay is causing the job of a correctional officer to be an undesirable job in the state of Texas. Surviving inside prison walls as a professional is causing correctional officers to compromise their integrity and joining the corrupt system.  During a CO training session held in Beeville, Texas, students are warned about the risk of becoming resigned to dishonesty. However, what these rookie recruits do not realize is that statistics prove they will not hang around the prison system long enough to be tainted.

CO turnover has been rapidly increasing since 2006, not only because of the adverse working conditions inside the prison, but employment in the Texas oil fields is more attractive.  Employing and retaining prison personnel has become a major challenge in South Texas.

South Texas has created a unique strategy that is enticing correctional employees to stay around. The facility is offering on-site low cost housing to the tune of only $25 per month for correctional employees. The department of Criminal Justice is following suit at other units in elite oil field areas where prison staff would normally not be able to afford the cost of living.

The reasoning behind developing employee initiative for recruitment is to decrease violent episodes between inmates. Research conducted inside Southern Texas prisons indicates that as staff-turnover increased so did violent incidents.

Unfortunately, state officials are unable to compete with energy company wages, but Texas lawmakers were able to approve a whopping 5 percent pay raise for correctional officers, which doesn’t make much of a difference in pay, but the housing perks are expected to make up for low salaries. But, money is not the main concern for prison officials ---- poor working conditions, such as long hours, working in 100 degree plus weather with no air conditioning, and staff shortages that lead to unsafe conditions rate higher on the grievance scale.   

For anyone interested in a job as a correctional officer in Texas, there is a demand. As of 2013 there were 3,304 correctional officer openings among its 109 facilities. Staff shortages have resulted in about 1,400 prison cell openings.

Some Texas correctional facilities are resorting to pull-up sites equipped with electrical boxes for recreational vehicles right on the unit property.  For a mere $25 a month, four officers can bunk up in what is called “bachelor officer quarters” on the prison campus. Surprisingly, this dorm style amenity has a long waiting list. The cheap housing is luring out of town workers, which helps the staff shortage. Officials have amped up their recruiting campaign by pulling in military veterans, former department employees, and individuals from communities where significant layoffs have occurred. New officers are being enticed with $4,000 bonuses for enduring the job for one year. 

Even with all of these incentives and bonuses, a correctional officer working under stressful conditions can only expect a yearly income of $39,000. Entry level starts at $29,220. This pay is very measly compared to a truck driver hauling water to the disposal wells used in the fracking process making $78,000 per year, according to the Bee County Chamber of Commerce.

Are all of these lures and incentives worth working in an inhumane environment for mediocre pay? The union has joined inmates’ rights advocates in a lawsuit against the Louisiana prison system that argues that low staff ratio to inmate population and the lack of air conditioning in 100 degree plus temperatures amount to cruel and unusual punishment. The Texas Department of Criminal Justice is following suit.

While increased pay, affordable housing, and improved working conditions can help resolve the correctional staff shortage, the Texas Justice Department is aware of the long-term solution ---- significantly reducing the prison population, which in 2013 reached nearly 150,400.

Prison Author Under Fire: Federal Bureau of Prisons Retaliates Against Christopher Zoukis

Image courtesy 72.10.54.216

Image courtesy 72.10.54.216

Over the past month, Federal Bureau of Prison officials at the Federal Correctional Institution Petersburg have issued incarcerated author Christopher Zoukis a series of incident reports in a seeming attempt to censor his critique of the prison system.  All of these disciplinary actions came on the heels of the release of his latest book – College for Convicts: The Case for Higher Education in American Prisons (McFarland, 2014) – in what some are calling systematic retaliation.

The allegations have all come in the vein of him allegedly conducting a business.  The incident reports were all issued by members of the Federal Correctional Institution Petersburg’s Special Investigative Advisor Department, the investigatory component of the Federal Bureau of Prisons.  Specifically, they were issued by department head SIA J. Negron and co-worker SIS technician A. Holderfield. 

The allegations at hand are that Mr. Zoukis is allegedly operating three distinct businesses:

  • Publishing uncompensated articles on a popular news media blog and inquiring about their number of Facebook likes.

  • Sending a single letter in which he attempted to obtain the rights to an out of print prison preparation manual, in an effort to update it and publicize it online for free, so that it could continue to help soon to be free prisoners and their families.

  • Having a personal bank account outside of prison and asking a friend to use funds from it to obtain his credit report in an effort to prepare for his release.

Many of Mr. Zoukis’ supporters are viewing the current disciplinary actions as a continuation of those that occurred two years ago.  In 2012, the same SIS department led a campaign of retaliation against Mr. Zoukis following the release of his first book Education Behind Bars: A Win-Win Strategy for Maximum Security (Sunbury Press, 2012). Then, three separate incident reports – all of which concerned alleged business activity – were issued and Mr. Zoukis was remanded to solitary confinement for five months.  SIS technician P. Vaughan led the effort at the time.  After months of appeals, which were coordinated by attorneys, Alan Ellis and Todd Bussert, all of the incident reports were overturned and Mr. Zoukis’ record was expunged.

As it currently stands, Federal Correctional Institution Petersburg actors – namely Unit Manager Angela Tomlinson – have held two disciplinary proceedings in which Mr. Zoukis was not permitted to call any witnesses, present any evidence, or even make a statement on his own behalf.  He was summarily sanctioned to the loss of visitation, email and commissary.  This week it is anticipated that Mr. Zoukis will be seen by his Unit Disciplinary Committee and the case will be referred to Disciplinary Hearing Officer W. Bennet. Zoukis is hopeful the outcome will not include confinement to the Federal Correctional Institution Petersburg Special Housing Unit.

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To book an interview contact:
Rachel Sentes, Publicist
604-366-7846
rachel@gal-fridaypublicity.com

Reentry Success: What It's Like

Image courtesy michaelbjackson.net

Image courtesy michaelbjackson.net

By Anthony Tinsman

Motivational speaker, business man and founder of http://www.jointfx.com, Michael B. Jackson is dedicated to helping formerly incarcerated people and their families find success during and after prison. His book Do Good After Prison (Joint FX Press, 2008) presents tips like Think Long Term, Make Good Decisions, and Respect Women & Children -- but his street-smart examples make the largest impact. There's one unforgettable story about when he was a younger man:  upon seeing an older ex-offender scrubbing salt off cars in Chicago, smiling and servicing one car at a time. When he rolled his window down and asked the man why he did it, the old man smiled and said, "I'm doing what I gotta do." The younger Jackson didn't yet understand what it was like or what the man meant, but that would change.

"In the winter of 1979 I had the worst job ever," Jackson writes in his book, detailing the grueling after work ritual of picking fiber glass particles out of his skin. "But at the end of every shift I could go home and be a free man", he says. Raised in a Newark, New Jersey housing project, Jackson was introduced to a life of crime and heroin addiction at an early age. At 18, he made his first trip to prison and for the next ten years was in and out of prison for parole violations and new offenses. In '79, after spending several months in a halfway house, he was paroled and never returned to prison. He had made the decision to change and take control of his lifestyle. Jackson soon gained custody of his son, who was 8 at the time, and was involved in petty crimes.

Jackson was just getting his life started.  Meanwhile in 1980, the U.S. spent about $540 million on federal prisons. In 2012 it was 12 times that, around $6.8 billion. Jackson's success was hard won, especially considering his son’s tragic death. He dedicates his books to his son:  May, 10, 1970 - July, 28, 2001. His work is a testimony of profound change despite grief and misfortune. Today Jackson hosts the online radio talk program, Prison Nation Radio with Michael B. Jackson. Employed by a state correctional agency for 23 years, working with youthful offenders, Jackson conducts seminars and training sessions on topics related to prisoner reentry success after prison. He has also appeared on many radio and TV shows. "Spend time working on your personal vocabulary and your knowledge and use of proper grammar. The manner in which you speak may be as important as that of which you speak." Jackson advises.

His dedicated service, as well as the service of many volunteers and organizations associated with reentry success, could help change things from the ex-offender perspective. The temperature towards prison reform has warmed in recent years thanks to the work of lobbying groups such as Prisology and FAMM, and the little-known work of individuals like Jackson. A statement from Michael E. Horowitz, Inspector General, U.S. Department of Justice (2013) best frames the change in opinion, "The federal prison system consumes over 25% of the entire Department of Justice budget. Prison continues to eat up money that could be spent on police and protecting the public from violent offenders". Amid all the proposed reforms people like Michael B. Jackson paint the most practical pictures, in full view, proving that success isn't dependent on a board room or sub-committee.

****

Submit your stories for consideration. Stories containing writing tips, experiences with writing a book, publishing or promoting a book from prison are requested. Submissions should be 500-800 words. Include a signed agreement allowing the editor/author and future publishers to use your story. Send typed or handwritten submissions before January 1st to: Mr. O (Attn: Submissions) 649 N. Rupple Rd., Fayetteville, AR., 72704.

Anthony Tinsman

Anthony Tinsman

Seventh Circuit Suggests Clemency

Image courtesy amazon.com

Image courtesy amazon.com

By Prison Legal News

The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), mandates sentence enhancements for certain federal defendants who commit crimes with firearms; those who have three or more prior “violent felonies” or “serious” drug offenses face a minimum 15-year prison term.

In some cases, however, prior state convictions should not quality as “predicate” offenses for the purpose of triggering an ACCA sentence enhancement.

In April 2014, the Seventh Circuit Court of Appeals issued a ruling in a case involving federal prisoner Cody F. Ellerman, who had challenged his ACCA enhanced sentence for being a felon in possession of a firearm.

The appellate court noted that “Ellerman’s frustration with his inability to obtain relief is understandable given that he is correct, on the merits, that he never should have been sentenced as an armed career criminal.” The Court of Appeals found that “His prior drug convictions were all for selling marijuana in Kansas, ... and as level 3 felonies, did not subject him to a statutory maximum of at least ten years.... Accordingly, those convictions did not qualify as ‘serious drug offenses’ under 18 U.S.C. § 924(e)(2)(A)(ii), and Ellerman should not have been sentenced as an armed career criminal.”

However, he had not filed a direct appeal to his 2003 conviction, his post-conviction appeals were untimely and the Seventh Circuit wrote it was “not empowered to correct the sentencing error.”

The appellate court concluded: “Having fallen victim to the procedural complexity of collateral attacks, Ellerman is out of judicial remedies. But he may consider asking the President for a pardon or to commute his sentence.” See: Ellerman v. Walton, Seventh Circuit Court of Appeals, Case No. 14-501 (April 21, 2014).

In cases raising similar issues, scores of federal prisoners convicted in North Carolina have been found legally innocent in firearm possession cases, including cases involving ACCA enhancements. Yet some of those prisoners have been denied relief and remain incarcerated, too. [See related article in this issue of PLN, p. 48].

Ellerman informed PLN in June 2014 that, following the suggestion of the Seventh Circuit, he had filed a petition for commutation with the Office of the Pardon Attorney. That may be an even longer shot than trying to obtain judicial relief, however, considering President Obama’s paltry track record of granting requests for clemency. [See: PLN, Jan. 2013, p.32; May 2011, p.36].

In February 2014, the U.S. Department of Justice announced an expanded clemency initiative; the administration apparently has taken the change seriously, replacing Pardon Attorney Ronald Rodgers in April 2014.

The initiative may not help Ellerman’s chances for commutation, though, as it only applies to federal prisoners who have served at least 10 years of their sentence, have no significant prior convictions, and were convicted of a nonviolent crime that would have resulted in a lower sentence had they been sentenced today. The expanded clemency initiative will be covered in greater detail in a future issue of PLN.

Additional source: www.aclu.org

(Reprinted with Permission from Prison Legal News)